Date: 20050823
Docket: IMM-6159-04
Citation: 2005 FC 1150
BETWEEN:
FARID ROSTAM KAFAHSHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This application is for judicial review of a decision (the "Decision") of an Immigration Officer (the "Officer"), dated June 21, 2004 in which he rejected the Applicant's application for permanent residence on Humanitarian and Compassionate ("H & C") grounds.
THE FACTS
[2] The Applicant is a 41 year old male from Iran. He entered Canada on September 18, 1997 and made a refugee claim. On August 11, 1999, he was found not to be a Convention refugee. On May 23, 2000, he made his first H & C application. It was refused on March 26, 2003.
[3] On October 17, 2003, the Applicant submitted a second H & C application. Further submissions were received but the second application was denied on June 21, 2004. It is the denial of this application which is the Decision under review.
[4] The Applicant resides with his parents in Pitt Meadows, B.C., in a house owned by his brother (the "Brother"). The Applicant's father is 73 years old. He is recovering from heart surgery and is also receiving treatment for melanoma. The Applicant's mother is 63 years old. The Brother now lives and works in the United States. He sponsored his parents' immigration to Canada.
[5] The Applicant submits that he is the primary caregiver for his parents. They do not speak English. He provides them with transportation and translation services and he has been caring for his father during his recovery from surgery.
THE DECISION
[6] The Officer noted that the parents were sponsored by the Brother and that he has a legal responsibility to support them. The Officer found that the Brother's departure to the U.S. was voluntary and that the had been successfully employed in Canada before he left. The Officer concluded that the Brother's decision to work near Seattle should not influence the H & C application.
[7] The Officer also noted that little evidence was presented regarding the mother's situation, except that she had recently been in a car accident. The Officer concluded that she has a driver's license and that she would be able to care for the Applicant's father. For these reasons, the Officer was not satisfied that a connection between the parent's needs and the presence of the Applicant had been established.
[8] The Officer found that the Applicant would not face disproportionate or undue hardship were he to return to Iran. He is not dependent on his parents, would likely find some employment as an accountant or bookkeeper and would have the benefit of his sister's support.
[9] The Officer also recognized the establishment of the Applicant in Canada. He has been employed at a McDonald's restaurant since December 1999. He has investments and has served as a volunteer and taken English and accounting courses. However, the Officer found that this level of establishment was usual for someone in his situation and did not provide a compelling reason to grant the application.
[10] The Officer noted that options for the Applicant's immigration to Canada might be limited since he would probably not qualify under the family or independent class. However, the Officer found that this situation did not constitute a unique or disproportionate hardship.
THE STANDARD OF REVIEW
[11] The parties agreed that the correct standard of review is reasonableness simpliciter.
THE SUBMISSIONS
(i) The Brother's Ability to Work in Canada
[12] The Applicant says that the Officer erred when he concluded that the Brother could resign from his job in the U.S. and work in Canada. He submits that there was no evidence before the Board that his Brother had ever worked successfully in Canada or that he could successfully re-establish himself in Canada.
[13] The Respondent argues that, absent any evidence to the contrary, it is entirely reasonable to expect that the Brother would be able to find employment in Canada. The evidence showed that the Brother had a successful career as a corporate trainer in the high-tech industry, had his masters degree from a Canadian university and had worked successfully at different times in the U.S. and Canada. The Respondent notes that inconvenience is not enough to cause hardship. The Respondent submits that the Applicant is simply asking the Court to re-weigh the evidence before the Officer.
(ii) The Mother as a Caregiver
[14] The Applicant says that there was no evidence that his mother was the driver of the vehicle in the accident or that she possesses a driver's license. The Applicant contends that this conclusion was a result of mere speculation on the part of the Officer.
[15] The Respondent replies that it is not incumbent on the Officer to explore facts not raised by the Applicant. Since there was no evidence showing that the mother could not care for the father, it was reasonable for the Officer to conclude that she could provide the required care. The Respondent also said that, in fact, there was evidence that the mother had a driver's license at the time of her car accident.
(iii) The Father's Inability to Travel
[16] The Applicant submits that the Officer failed to consider the hardship to the Applicant's parents in light of the clear evidence that his father is too sick and elderly to travel to Iran to visit the Applicant. The Applicant submits that the Officer never addressed whether this fact, which would effectively render his separation from his parents permanent, amounts to unique hardship.
[17] The Respondent submits that the test on an H & C application is not whether there will be no other options to reunite the family, but whether unusual, undeserved or disproportionate hardship would flow from the regular immigration procedure.
(iv) The Brother's Career
[18] The Applicant says that the Officer erred when he stated that "the brother's career is not at issue in this application . . .". The Applicant submits that the above statement reveals an error of law as the Officer is required to consider hardship on close family members.
(v) Family Unification
[19] The Applicant says that the Officer erred in law in failing to consider the objectives of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the "Act") and other international instruments to which Canada is a signatory.
[20] The Applicant notes the following portions of the Act:
| 3. (1) The objectives of this Act with respect to immigration are
. . .
(d) to see that families are reunited in Canada;
. . .
(3) This Act is to be construed and applied in a manner that
. . .
(f) complies with international human rights instruments to which Canada is signatory.
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3. (1) En matière d'immigration, la présente loi a pour objet :
. . .
d) de veiller à la réunification des familles au Canada;
. . .
3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet :
. . .
f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.
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[21] The Applicant further notes that Canada is a signatory to the International Covenant on Economic, Social and Cultural Rights which states at Article 10:
The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society . . .
[22] The Applicant also notes Article 23 of the International Covenant on Civil and Political Rights, of which Canada is a signatory. It states:
The family is the natural and fundamental unit of society and is entitled to protection by society and the State.
[23] The Respondent replies that the Officer is not required to mention all the objectives of the Act in a decision.
[24] In my view, the Officer did not err in concluding that the fact that the Brother worked in the U.S. should not affect the H & C application. The Brother is required, under his Undertaking to Assist Members of Family Class, to provide his parents with, inter alia, the services they need for day to day living. However, the Undertaking does not require the Brother to live in Canada. As the need arises, the Brother can hire caregivers to provide his parents with the services they require. There was no evidence before the Officer about the mother's capabilities as a caregiver. However, the Officer correctly determined that the Applicant's mother had a driver's license based on the Accident Report in the Applicant's Record.
[25] The Officer's conclusion that, if he chose to do so, the Brother could find work in Canada was entirely reasonable. There is no reason to assume that a high-tech corporate trainer could not work out of Vancouver. The Officer may have erred in relying on the Brother's short teaching career in Canada as evidence of his future prospects but, in my view, this error is immaterial. The material point is that the Brother has Canadian employment prospects.
[26] The fact that the Applicant may not be able to return to Canada on a permanent basis and that his father may not be able to travel to Iran does not preclude family reunions. There is no reason why the Applicant cannot visit Canada or vacation with his parents in a country that is closer to Canada than Iran. Before leaving this topic, I should note that there was no evidence which suggested limitations on the father's ability to travel.
[27] Finally, the Applicant's parents chose to leave the adult Applicant behind in Iran when they came to Canada. They must be presumed to have known that he would not, with any certainty, be able to acquire status in Canada. In these circumstances, it was not necessary for the Officer to address the objectives of the Act and International Covenants.
[28] For all these reasons the application will be dismissed.
Ottawa, Ontario
August 23, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6159-04
STYLE OF CAUSE: Farid Rostam Kafahshi v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: March 24, 2005
REASONS FOR ORDER: Simpson, J.
DATED: August 23, 2005
APPEARANCES:
Mr. Shane Molyneaux FOR APPLICANT
Mr. Benton J. Mischuk FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Shane Molyneaux FOR APPLICANT
Elgin, Cannon & Associates
Vancouver, B.C.
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice - Vancouver
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