Owusu v. Canada

Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 FCR 635, 2004 FCA 38 (CanLII)


• Samuel Owusu, a citizen of Ghana, arrived in Canada in 1991 and has been here ever since. His claim for refugee status was unsuccessful. In 1999 he applied to remain in Canada as a permanent resident on humanitarian and compassionate grounds (H & C), but in 2001 his application was denied.
• He received a negative JR decision of the H&C decision and now appeals it to the FCA
• [5]An immigration officer considering an H & C application must be “alert, alive and sensitive” to, and must not “minimize”, the best interests of children who may be adversely affected by a parent’s deportation: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paragraph 75. However, this duty only arises when it is sufficiently clear from the material submitted to the decision maker that an application relies on this factor, at least in part. Moreover, an applicant has the burden of adducing proof of any claim on which the H & C application relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless.
• Mr. Owusu initially relied only on fear of reprisals in Ghana and his successful integration in Canada; in a seven-page letter, his children were only in one sentence and only vaguely
• Counsel thought he would be granted an interview at which he could explain the effect on his children
• Mr. Owusu now says his children will be deprived of financial support if he has to leave Canada.
• Key citations:
o [8] H & C applicants have no right or legitimate expectation that they will be interviewed. And, since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril. In our view, Mr. Owusu’s H & C application did not adequately raise the impact of his potential deportation on the best interests of his children so as to require the officer to consider them.

[13] In deciding to dismiss the appeal, we must not be taken to have affirmed the Applications Judge’s view that an immigration officer’s duty to consider the best interests of an H & C applicant’s children is engaged when the children in question are not in, and have never been to, Canada. This interesting issue does not arise for decision on the facts of this case and must await a case in which the facts require it to be decided.