Date: 20061006
Docket: IMM-1658-06
Citation: 2006
FC 1197
Edmonton, Alberta, October 6, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicant
and
MUNA
MOHMMAD IBRAHEEM
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”), for judicial review of a
decision of the Immigration and Refugee Board, Immigration Appeal Division (the
“IAD”) dated March 9, 2006. This decision allowed the appeal of Muna Mohmmad
Ibraheem (the “respondent”) from the refusal of the sponsored application for
permanent residence of her alleged spouse Tajudin Abdurahman Abdullahi (“the
husband”). The IAD held that the visa officer’s refusal was valid, but
nevertheless allowed the appeal on the basis that there were sufficient
humanitarian and compassionate grounds to warrant the granting of special
relief.
BACKGROUND
[2]
The respondent
arrived in Canada from Sudan in 1993 as a
refugee, and became a citizen of Canada
in 1999. The husband is an Ethiopian citizen who is residing in Kenya. The two were allegedly married in Kenya on April 17, 2003.
[3]
The respondent
applied to Immigration Canada to sponsor her husband, and the application was
received on August 21, 2003. The husband submitted his application for
permanent residence in Canada on September 25, 2003, to the
Canadian High Commission in Nairobi, Kenya.
[4]
The visa
officer in Nairobi noted that there was doubt
around the legitimacy of the marriage. The husband presented what appeared to
be a form issued by the Office of the United Nations High Commissioner for
Refugees (the “UNHCR form”) in support of his permanent residence application,
indicating that he was a refugee. Having submitted this UNHCR form, the husband
was no longer required to provide a valid Ethiopian passport and police
clearance. The inquiry into the marriage was also discontinued as a result.
Upon further investigation, the UNHCR form was revealed to be a forgery.
[5]
The
husband was informed by the Canadian High Commission in Nairobi, in a letter
dated September 14, 2004, that his application for permanent residence had been
refused on the basis that the forged UNHCR form constituted a misrepresentation
under paragraph 40(1)a) of the Act. The visa officer found that the misrepresentation
induced or could have induced errors in the administration of the Act because
he was using a false claim to refugee status to evade statutory requirements
(i.e. providing a valid passport and proof of non-criminality). The husband was
also informed that, following such a determination of misrepresentation, he
would continue to be inadmissible for a period of two years following a final
determination of inadmissibility.
[6]
The respondent
appealed the decision to the IAD, and a hearing took place on January 13, 2006
in Toronto. The respondent did not
challenge the validity of the refusal, but instead appealed to the IAD for
special relief on humanitarian and compassionate (“H & C”) grounds.
[7]
The respondent
and the husband testified about the events leading up to the visa refusal at
the IAD hearing. The presiding IAD panel member, Shirley Collins (the “panel”),
rendered her decision on March 9, 2006, in which she granted special relief on
H & C grounds, thereby allowing the appeal notwithstanding the finding that
the visa refusal for misrepresentation was legally valid.
[8]
The Minister of Citizenship and Immigration (the
“applicant”) now seeks judicial review of this decision.
ISSUES FOR CONSIDERATION
[9]
The issues
raised in this application are whether the IAD made a reviewable error: 1)
through a deficient articulation of its analysis of the grounds warranting special
relief under the circumstances, and 2) by failing to consider all the relevant
evidence submitted and as such, making findings and inferences without regard
to the evidence before the panel.
STANDARD OF REVIEW
[10]
The decision in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, remains the leading case
for the standard of review of decisions made on H & C grounds. In Baker,
Justice Claire L’Heureux-Dubé engaged in a detailed pragmatic and functional
analysis before deciding on reasonableness simpliciter as the proper
standard.
[11]
More recently, in Terigho v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1061, Justice Richard Mosley discussed the standard of review for such
decisions at paragraphs 6 and 7:
The appropriate
standard of review for decisions made under section 25 is reasonableness.
Considerable deference should be accorded to immigration officers exercising
the powers conferred by the legislation, given the fact-specific nature of the
inquiry, its role in the statutory scheme as an exception, the fact the
decision-maker is the Minister, and the wide discretion evidenced by the
statutory language: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.
Reasonableness is not about whether the decision maker came to the right
result. As stated by Justice Iacobucci in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at
paragraph 56, an unreasonable decision is one that, in the main, is not
supported by any reasons that can stand up to a somewhat probing examination.
Accordingly, a court reviewing a conclusion on the reasonableness standard must
look to see whether any reasons support it. See also Law Society of New Brunswick v. Ryan, 2003 SCC
20 at paras 55-56.
[12]
Accordingly, the panel’s application of the legal test to
the facts of the case and the subsequent determination on H & C grounds
should be reviewed on a standard of reasonableness.
ANALYSIS
[13]
As
per section 65 of the Act, in an appeal under subsection 63(1) of the Act by a
family class sponsor, H & C grounds may only be considered if the IAD is
satisfied that the foreign national is a member of the family class. In this
case, doubts were initially raised by the visa officer as to the validity of
the marriage, but this line of inquiry was abandoned when the husband submitted
a UNHCR form. While the panel did not engage directly with this issue, the
panel does note in the decision that the parties are communicating on a regular
basis, that the respondent is supporting her husband financially, and that she
has visited him three times. Since the applicant does not argue that the panel
was wrong in considering the request under H & C grounds, there is no need
for this Court to examine the decision on this basis.
[14]
The
panel’s next step should have been to determine whether the foreign national,
in this case the husband, met the requirements of the Act for granting an exemption from any applicable
criteria or obligation of this Act on H & C grounds. This is where the applicant
suggests that the panel erred.
[15]
The general test for determining whether an exception
should be made on H & C grounds was articulated in Irimie v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906, at
paragraph 26, where Justice Denis Pelletier wrote that the H & C exemption process “is not designed to eliminate
hardship; it is designed to provide relief from unusual, undeserved or
disproportionate hardship”. Looking at the panel’s decision, there is only one
reference to the notion of ‘hardship’ and no mention of the hardship being
‘unusual, undeserved or disproportionate’, leading this Court to doubt that this
was the criteria considered by the panel.
[16]
That being said, section
5.1 of the Overseas Processing Manual OP 21 (Appeals) (the “Manual”) states
that the IAD possesses an equitable jurisdiction allowing it to consider
factors that may warrant an appeal being allowed, such as H & C factors, despite the
fact that the decision being appealed is valid in law. No reference is made in
this section to the notion of ‘undue hardship’, but it is simply stated that,
when considering an appeal of a family class sponsorship, the
IAD may consider some of the following factors in granting “special relief”:
• whether the admission of the applicant would result in
the reunion in Canada of the appellant with close family;
• the strength of the relationship between the applicant
and the appellant;
• the degree to which the applicant is established
abroad;
• whether an applicant has demonstrated the potential to
adapt to Canadian society;
• whether the parties to the application have
obligations to one another based on their cultural background;
• whether the applicant is alone in their country;
• the availability of health services to the applicant
in Canada and abroad (for refusals based
on medical grounds);
• whether there is evidence of rehabilitation or the risk
of the applicant re-offending (for refusals based on criminal grounds).
[17]
If
the panel based its decision on the factors set out in the Manual, then the
only factor that would appear to have been expressly considered in the reasons
is “whether the admission of the applicant would result in the reunion in
Canada with close family”, the ‘close’ family being the respondent. In the
opinion of this Court, a finding for ‘special relief’ based solely on this
point would be problematic in this case, given the evidence before the panel
and the reasons provided for such a finding. While some mention was made by the
panel of regular communication, financial support and visits in person, the
claim by the applicant that doubts were raised on the validity of the marriage
and that two of the three visits were for the purpose of visiting her own
family, as opposed to her husband, was not addressed by the panel, leading the
applicant to argue that the panel failed to properly consider the evidence
presented.
[18]
The only other listed
ground for special relief set out by the panel is the ‘hardship’ endured by the
respondent as a result of the fact that she has no family in Canada. While
being alone in the country may be a valid consideration for special relief
under section 5.1 of the Manual, and may contribute to a showing of undue
hardship, such an assessment must relate to the ‘applicant’ for permanent
residence, not to the sponsor. This notion that the hardship considered by the
panel should be the hardship suffered by the husband is supported by both
the wording of section 5.1 of the Manual (“whether the applicant is alone in
their country”) and by the
wording of section 25 of the Act which states that the ‘foreign national’ is
the one whose circumstances must be examined to determine whether there are
“humanitarian and compassionate considerations relating to them”.
[19]
The
remainder of the panel’s reasons focused on the explanation provided by the
respondent and her husband (who testified by phone via an interpreter) on the
circumstances surrounding the submission of a forged UNHCR form to the visa
officer, which resulted in the denial of a permanent resident visa on grounds
of misrepresentation. The panel stated that it found their testimony (that the
husband had obtained the document the only way he could and that he believed it
to be authentic) to be credible. However, as submitted by the applicant, no
analysis was provided to support such a belief. While findings on credibility
are usually entitled to the highest level of deference, the concern raised in
this case is that the panel failed to demonstrate, in the reasons provided,
that it had properly considered all the relevant factors.
[20]
The
applicant submits that the panel failed to address the portions of the testimonies
that are contradictory (as relates for example to the situation with the
husband’s passport). Furthermore, the applicant notes that numerous submissions
were made before the panel by the Minister’s counsel on the implausibility of
the claim that they did not know the document was forged. These included the
inability to give a full name for the ‘friend’ who recommended the person who
provided the forged document, as well as the fact that the husband paid for the
document and that the transaction took place in a cafeteria. While mentions of
these facts can be found in the panel’s recounting of the husband’s testimony, they
were not included in the reasoning on credibility. Furthermore, there is no
explanation provided as to why the panel found the respondent and her husband
credible in spite of all the doubts raised by the Minister’s counsel.
[21]
It
is particularly troubling to this Court that the panel could, on the one hand,
conclude that the visa officer’s decision to refuse the husband’s visa
application was valid in law and, on the other hand, determine that the
husband was credible in his testimony regarding the way he obtained the forged
UNHCR document, without providing valid reasons for such a determination. This
conclusion is so contradictory that, on this basis alone, I have no hesitation
to conclude that the panel’s decision was beyond unreasonable, and could even
be considered patently unreasonable.
[22]
Based on the above
analysis, this Court concludes that the panel’s decision to allow the appeal
from the visa officer’s decision on H & C grounds was unreasonable in that it was not supported by reasons that can stand up to a somewhat
probing examination.
JUDGMENT
1.
The application
is allowed;
2.
The
decision of the IAD dated March 9, 2006 is set aside, and the matter is
remitted to a differently constituted panel to be determined according to the
law and in light of these reasons;
3.
No
question for certification.
“Pierre Blais”
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