Date: 20060811
Docket: IMM-4949-05
Citation: 2006 FC 972
Ottawa, Ontario, August 11,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ABDEL
RAOUF MOHAMED EL KARM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant was determined, by a visa officer (Visa Officer), not to be eligible
to be sponsored as a private group sponsored refugee to Canada because he
was not outside his country of habitual residence. This is the judicial review
of the Visa Officer’s decision.
II. Facts
[2]
The
Applicant was sponsored to come to Canada as part of a group
sponsorship. Following his interview in Egypt, where he
currently lives, the Visa Officer concluded that the Applicant did not fall
within s. 147 of the Immigration and Refugee Protection Regulations
(Regulations), which reads:
|
147. A
foreign national is a member of the country of asylum class if they have been
determined by an officer to be in need of resettlement because
(a) they
are outside all of their countries of nationality and habitual residence; and
(b) they have been, and continue
to be, seriously and personally affected by civil war, armed conflict or
massive violation of human rights in each of those countries.
|
147. Appartient à la catégorie de personnes de pays d’accueil
l’étranger considéré par un agent comme ayant besoin de se réinstaller en
raison des circonstances suivantes :
a) il se trouve hors de
tout pays dont il a la nationalité ou dans lequel il avait sa résidence
habituelle;
b) une guerre civile, un conflit armé ou une violation massive des
droits de la personne dans chacun des pays en cause ont eu et continuent
d’avoir des conséquences graves et personnelles pour lui.
|
[3]
The
facts are not in dispute. The Applicant, born in Jordan in 1973, is
a stateless Palestinian. His family moved to Egypt in the 1980s
where he completed his preparatory, secondary and university education. All of
his siblings still live in Egypt.
[4]
In
June 1998 the Applicant left Egypt for employment in Gaza. He remained
in Gaza legally
until November 1998 at which point he lost his status for failure to renew his
visitor’s permit. He had also lost his right to return to Egypt by failing to
return to Egypt every six
months to renew his residency permit.
[5]
In
March 2003, the Applicant attempted to re-enter Egypt but was
caught and detained for 20 days because of his illegal entry. Since his
release, he has remained in Cairo.
[6]
The
Visa Officer, in reaching his conclusion, relied on the decision of Mr. Justice
Cullen in Maarouf v. Canada (Minister of Employment
and Immigration) (T.D.), [1994] 1 F.C. 723, [1993] F.C.J. No. 1329 (QL)
where the Court discussed the concept of “former habitual residence”. The Visa
Officer’s conclusion was:
Since you are inside your country of
habitual residence, I find that you do not meet the requirements of section
147(a) of the regulations.
III. Analysis
[7]
In
my view the standard of review in this case is “reasonableness simpliciter”.
To the extent that Tarakhan v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1525 (QL) reaches a
different conclusion, I cannot concur. The determination to be made by a visa officer
is not merely factual as to the when, where or how (and other relevant questions)
of an applicant’s living in countries but whether all those facts taken
together constitute the legal term “habitual residence”. As such, the
decision is one of mixed fact and law.
In any event,
the different standards of review are not determinative of this case as I find
that the Visa Officer’s conclusion was reasonable.
[8]
The
Applicant criticizes the Visa Officer’s decision for not considering Gaza (Israel) or Jordan as countries
of habitual residence. He also criticizes the finding that Egypt is the only
country of habitual residence.
[9]
With
respect, the Applicant’s argument is of no assistance as long as Egypt is one of
the countries of habitual residence since the Applicant must be outside all
countries of habitual residence.
[10]
The
fact that Maarouf, above, spoke in terms of “former habitual residence”
is immaterial. Section 147 of the Regulations captures both former and current
countries of habitual residence. The factors to be considered are the same
under either terminology including that a right of return (or its absence) is
not the only criterion for a country of habitual residence.
[11]
This
case turns on whether the Visa Officer’s conclusion is reasonable. This
conclusion was based upon the following factors:
·
the
Applicant completed all of his secondary and university education in Egypt;
·
he
lived in Egypt from the
1980s until 1998;
·
he
has lived in Egypt again from
2003 to 2005;
·
his
siblings live in Egypt;
·
while
the Applicant’s right to return to Egypt has lapsed, he was
allowed to stay in Egypt for the last two years; and
·
the
Egyptian government has a policy of not removing long-term Palestinian
residents from Egypt.
[12]
Against
all of that factual background, it is at least reasonable to conclude that Egypt is a country
of habitual residence for the Applicant.
[13]
The
Applicant’s argument that the Visa Officer erred in not considering whether the
Applicant was a member of a “source country class” under s. 148 of the
Regulations must fail. A source country under that provision is one named in
Schedule 2 – none of Egypt, Jordan or Gaza (Israel) is listed
in the Schedule.
[14]
Therefore,
this application for judicial review must be dismissed. There is no question
for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is dismissed.
“Michael
L. Phelan”
Email this Content