Awuah v. Canada ( Minister of Citizenship and Immigration )
IMM-272-99
Tremblay-Lamer J.
7/12/99
7 pp.
Humanitarian and compassionate considerations-Judicial review of immigration officer's decision applicant not exempted from requirements of Immigration Act, s. 9(1) on account of humanitarian and compassionate (H & C) considerations-Applicant entering Canada illegally-Convention refugee claim denied-Married permanent resident of Canada-Immigration officer finding applicant not credible because of past problems with welfare-Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 establishing reasonableness as new standard of review of discretionary decisions-Court must ask if evidence supporting conclusions; verify if conclusions drawn from evidence logical-Discretion conferred on immigration officer under s. 114(2) must be exercised in accordance with values underlying grant of discretion i.e. evaluation which is respectful of H & C considerations-Guidelines for officers exercising discretionary powers directing immigration officers to consider marriage to Canadian resident as criteria which may lead to positive decision under s. 114(2)-Application allowed-Immigration officer, notwithstanding discretionary powers conferred pursuant to s. 114(2), acted unreasonably when determined insufficient H & C considerations to justify exemption from Act-Considering uncontradicted evidence marriage took place (pictures, video, affidavit of applicant's father-in-law), discrepancies in applicant's testimony as to who was in attendance, no evidence marriage not bona fide-Conclusion "numerous contradictions" incorrect, not taking into account H & C factors i.e. genuine nature of spousal relationship-Although credibility factor to consider in evaluation of bona fide marriage, that applicant lied to collect welfare remotely pertinent to authenticity of marriage-That applicant in country illegally, marriage representing last chance to remain in Canada perhaps warranting more vigilant examination, but not precluding fair evaluation of evidence to determine if marriage bona fide-Evidentiary foundation not supporting decision-Immigration officer acted unreasonably in affording little consideration to authenticity of marriage-Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1) (as am. by S.C. 1992, c. 49, s. 4), 114(2) (as am. idem, s. 102).