Date:
20040917
Docket:
IMM‑7655‑03
Citation:
2004 FC 1268
Ottawa, Ontario, the 17th day of
September 2004
Present : The Honourable Mr.
Justice Simon Noël
BETWEEN:
MARIAM
AHMAD
MOHAMMAD
JABER
YANNAL
JABER
Applicants
and
MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an application for judicial review of a decision by immigration
officer Vicky Hajdamacha (the officer), dated September 17, 2003,
under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c.27 (Act). In that decision, the officer refused the immigrant visa
exemption application of the principal applicant, Mariam Ahmad
(applicant), pursuant to subsection 25(1) of the Act.
ISSUE
[2]
Did the officer err in refusing to the applicant’s application for a
Ministerial exemption and in determining that there were no humanitarian and
compassionate grounds to justify this application?
[3]
For the following reasons, I answer this question in the negative and
the application for judicial review will therefore be dismissed.
THE FACTS
[4] The applicant is a
Jordanian woman accompanied by her two eldest sons in this application. Her son
Mohammad was 17 years old when this application was submitted. Despite the
fact that he is now 18 years old, his application is still joined to his
mother’s since he was 17 years old when that application was filed.
[5]
The applicant and her son Yannal arrived in Canada from the United
States around August 31, 2000, at the Port of Entry at Lacolle, Quebec.
They claimed refugee status when they arrived. The Immigration and Refugee
Board (IRB) determined that the applicants were not Convention refugees and
that the testimony of the principal applicant was devoid of credibility. The
applicants’ pre‑removal risk assessment (PRRA) was decided on
October 31, 2002, and that decision was negative. The applicant filed this
application following that dismissal.
[6]
The applicant is the wife of Wael Jaber, a Palestinian-Jordanian.
Together they have five children, three of whom accompanied the applicant to
Canada, namely: her daughter Dujana Jaber, 3 years old, Canadian; her
son Yannal, 12 years old, American and Jordanian; and Mohammad,
18 years old, Jordanian. On August 22, 2000, the female applicant,
then pregnant with her daughter Dujana, left Jordan with her son Yannal. The
applicant’s husband remained in Jordan and opposed her departure for the West.
Later, he spurned her. The applicant’s own family, who remained in Jordan, told
her that she had dishonoured her family and that she was therefore no longer
welcome in Jordan. On August 14, 2000, Mohammad obtained a visitor’s visa
for Canada in Amman, and arrived on September 17, 2000. Mohammad claimed
refugee status on September 22, 2000. Dujana, the Canadian child, was born
on December 7, 2000.
[7]
At the IRB hearing on January 28, 2002, Yannal withdrew his refugee
claim. On April 10, 2002, the IRB dismissed the principal claim of
the applicant as well as that of her son Mohammad. On October 31, 2002,
there was a negative decision on the PRRA and the applicants’ removal was
scheduled for January 16, 2003. However, when the applicants reported to
the American border, Mohammad was refused entry to the country. The applicants’
removal was cancelled. On February 12, 2003, the applicant filled out an
application for permanent residence on humanitarian and compassionate grounds
in which she stated that she feared being persecuted by her family if she were
to return to her country and that single women are easy targets in Jordan.
[8]
In May 2003, the respondent contacted the applicant in order to give her
a new date for her removal to the United States. The applicants’ counsel then
contacted the respondent to remind him of the undertaking that had been made to
review the application for residence on humanitarian and compassionate grounds.
The respondent acknowledged this undertaking and cancelled the date scheduled
for the applicants’ removal. On September 3, the applicants once again received
a date for their removal, namely September 18 at 8:30 a.m. The
applicants’ counsel once again contacted the respondent to remind him of the
undertaking to proceed with the review of the application for permanent
residence on humanitarian and compassionate grounds before the removal. Yet, on
September 11, Anne‑Marie Signori, of Citizenship and Immigration
Canada (CIC), advised the applicants’ counsel that the applicants’ removal
would stand, that he would have the opportunity to make other submissions as
well as file other documents at CIC and that there would be a decision on the
application for residence on humanitarian and compassionate grounds before the
scheduled removal date. Counsel confirmed the information provided in that
phone call in a letter that he sent to CIC. On September 16, 2003,
counsel sent additional documents to CIC in support of the application.
[9]
On September 17, 2003, CIC made a negative decision against the
applicants and on October 20, 2003, the immigration officer, Vicky
Hajdamacha, submitted the reasons of her decision dated September 17 to
the applicants’ counsel.
IMPUGNED DECISION
[10] The officer dismissed
the applicant’s refugee claim because of her failure to establish adequate
humanitarian and compassionate grounds and also her lack of credibility. The
officer determined that Jordan attaches importance to children and to their
well‑being by providing them with necessary educational and health
services. In the PRRA, CIC contended that the applicant was not a likely victim
of an “honour crime” considering the particular facts of her case, especially
the fact that her husband harboured no ill‑will toward her. CIC also held
that Jordanian woman can be without a man and sense a “[TRANSLATION] certain
degree of freedom”, including the freedom to take control of their lives. The
officer stated the following at page 5 of her decision:
[TRANSLATION]
I note that the applicant did not
submit a document recognized in her country noting the end of her marriage. I
did not find information in the objective documentation that being disowned by
her husband was grounds for an honour crime and that divorced women were
targeted by their family members for dishonouring the family. I give more
weight to the objective documentation reviewed indicating, with many examples,
that honour crimes in Jordan are mostly related to the woman’s sexual conduct
and that documentation does not support the fact that in Jordan being disowned
by one’s husband casts doubt on the honour of the family. Furthermore and
according to the objective documentation reviewed, divorce is accepted in
Jordan and a man can obtain a divorce more easily than if a woman requests it.
I note here that it is the claimant’s husband who no longer wants to live with
her and that he put an end to the marriage.
ARGUMENTS
OF THE PARTIES
The
applicants
[11] The applicants dispute
the officer’s decision based essentially on the following three arguments:
a.
relying on the decisions in Shah v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 1299 (F.C.A.) (QL); Baker
v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817 (QL) and Cardinal v. Director of Kent Institution
[1985] 2 S.C.R. 643 (QL); the applicants allege that the immigration
officer did not submit to the applicant the extrinsic evidence that she
considered in making her decision;
b.
the immigration officer erred when she assessed the principle of the
best interest of the child; and
c.
according to the decision in Pushpanathan v. Canada (Minister of
Citizenship and Immigration) [1998] 1 S.C.R. 1222 (QL); and Canada
(Director of Investigation and Research) v. Southam Inc. [1997]
1 S.C.R. 748 (QL); the immigration officer’s decision was not reasonable
considering the facts in the case.
The respondent
[12] The respondent states
that, as stated by the Supreme Court of Canada in Baker, supra,
as well as in Southam, supra, at paragraphs 54 to 62, the standard
of judicial review to apply to the decision of an immigration officer under
subsection 114(2) of the Act and pursuant to section 2.1 of the Immigration
and Refugee Protection Regulations, is the standard of reasonableness simpliciter.
Further, the respondent submits that the notes of the immigration officer
assessing the application for exemption on humanitarian and compassionate
grounds are sufficient to meet the procedural fairness requirements and that
the immigration officer’s discretionary power should be considered with a
certain deference and respect.
[13]
The respondent relies on the decision of Hansen J. in Chen v. Canada
(Minister of Citizenship and Immigration) [2002] F.C.J. No. 341
(F.C.T.D.) (QL), which echoes Mancia v. Canada (Minister of Citizenship and
Immigration) [1998] F.C.J. No. 565 (C.A.) (QL), to dispute the
applicant’s argument regarding the extrinsic evidence and to submit that it is
patently unfounded. The respondent relies on Legault v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 457 (C.A.) (QL); Baker,
supra; Zolotareva v. Canada (Minister of Citizenship and Immigration)
[2003] F.C.J. No. 1596 (F.C.) (QL); and Suresh v. Canada (Minister
of Citizenship and Immigration) [2002] 1 S.C.R. 3 (QL), to submit that
in her written submissions the applicant was completely silent about the two
elements that she is now alleging; i.e., the psychological impact of removal on
her children and the impact of a school interruption for her two sons. Thus,
the respondent argues that in this case the immigration officer properly
identified the “interest of the child” factor and from there, she had to
determine the weight to assign to this factor under the circumstances. The
respondent also submits that the picture painted by the applicant is not at all
consistent with the objective documentary evidence on the situation in Jordan
retained by the immigration officer, especially because she had not done
anything improper which could result in an honour crime and because she is on
good terms with her husband, who can have more than one spouse, and because he
has given her the freedom to choose what she wants for her future and the
future of her children.
ANALYSIS
The standard of review
[14] In the context of a
judicial review of decisions made under subsection 25(1) of the Act, the
Minister is authorized to grant an exemption from a regulation made under
subsection 25(1) of the Act or to facilitate admission in any other way,
if he is satisfied that such an exemption or facilitation is justified by the
existence of humanitarian and compassionate grounds. Thus, based on the case
law cited, I agree with the respondent that in this case the appropriate
standard of review is that of reasonableness simpliciter because the
Minister’s decision under subsection 25(1) of the Act is entirely
discretionary and, on that basis, the applicant has the burden of establishing
that there are humanitarian and compassionate grounds justifying a favourable
recommendation.
[15]
Based on my assessment of the evidence, the applicant has not discharged
this burden. The officer substantiated her decision very well by stating in
clear and unequivocal terms the reasons that she doubted the truthfulness of
the applicant’s allegations. Based on my assessment of the case law, as stated
at paragraph 44 in Chen, supra, the officer could take into
account the objective documentary evidence accessible to the public to decide
and was not bound to provide them to the applicant before deciding:
. . . I am not satisfied that the principles of fairness as
enunciated in Baker, Haghighi and Bhagwandass extend so
far as to require disclosure in the circumstances of this case. In other words,
the PCDO was not obligated to disclose publicly available documents describing
general country conditions of which the applicant is deemed to have been aware
in advance of rendering her decision.
To arrive at that finding, I note
that the documentation predates the submissions made to the officer and that
the applicants did not file evidence to the effect that the documents were not
accessible to the public. Further, there is no “extraordinary” information
warranting their disclosure to the applicants. As mentioned above, in my
opinion the criteria set out in Chen, supra, were respected by
the officer.
[16]
Further, in light of the evidence and the case law filed, in my opinion
the interests of the children were well identified and analysed by the officer
and it was therefore incumbent on the officer to determine the appropriate
weight to assign to this factor under the circumstances in this case, while
taking into account the submissions made by the applicants to this effect.
[17]
Furthermore, I note that the arguments about psychological impact, etc.,
on the children resulting from a removal to Jordan were not provided to the
officer. We cannot address an allegation based on facts that were not before
her. My review of the decision regarding the interest of the children is
satisfactory. I am also persuaded that the applicant’s profile does not
correspond with that of an honour crime victim, but rather that of a woman
separated from her husband and I quote the reasons of the officer on this point
(see page 6 of the decision):
[TRANSLATION]
As
for the applicant’s fear that she will be targeted by men because she will not
have male protection, I note that by her side stands her 18‑year‑old
son, Mohammad. Notwithstanding that fact, I could not find in the objective
documentation reviewed any information to the effect that women living alone in
Jordan are targeted by men. Further, nobody in any country can protect
themselves against random criminality. This is a general risk that all women
face, regardless of the country they live in.
[18]
The parties were asked to submit a question for certification but
none was proposed.
ORDER
For all of
these reasons the application for judicial review is dismissed and no question
will be certified.
“Simon Noël”
Judge
Certified true
translation
Kelley A.
Harvey, BA, BCL, LLB
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET: IMM‑7655‑03
STYLE OF CAUSE : Mariam Ahmad
et al
v.
Minister of Citizenship and
Immigration
PLACE OF HEARING : Montréal
DATE OF HEARING: September 15,
2004
REASONS FOR ORDER
AND
ORDER : The
Honourable Mr. Justice Simon Noël
DATE OF REASONS: September 17,
2004
APPEARANCES :
William Sloan FOR THE
APPLICANTS
Martin Valois FOR THE
RESPONDENT
SOLICITORS OF RECORD:
400, rue McGill
Montréal,
Quebec FOR THE APPLICANTS
Morris Rosenberg
Montréal, Quebec FOR THE
RESPONDENT
Email this Content