Date: 20040429
Docket: IMM-3478-03
Citation: 2004 FC 644
Toronto, Ontario, April 29th, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
MAHMOOD RAHMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] These are my reasons for allowing, from the bench, the application for judicial review in this matter. Mr. Rahman applied for permanent residence in Canada on humanitarian and compassionate (H & C) grounds in 2001. A sponsorship application was made in March, 2002. His wife, a Canadian citizen, was his sponsor. The Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) came into effect on June 28, 2002. Under the transitional provisions, Mr. Rahman's application was processed under IRPA.
[2] The officer's negative decision was made in accordance with the new H & C guidelines. The officer found that "the normal processing time standards for a routine family class sponsorship is 6-9 months". The officer concluded that there was insufficient evidence of establishment in Canada and that asking Mr. Rahman to leave Canada to apply from abroad would not be an undue, undeserved or disproportionate hardship.
[3] Mr. Rahman alleges that the officer erred in two respects. The first alleged error centres around arguments alleging unfair and arbitrary treatment arising out the Minister's failure to issue new H & C guidelines until November, 2002. It is said that applicants whose cases were determined between June 28, 2002, and November, 2002, reaped the benefit of the older and more favourable guidelines because the new ones were not available. As I indicated to counsel during the hearing, there is absolutely no evidential foundation to support this argument. There is no evidence that any H & C applications were processed between June 28, 2002 and November of that year. Absent an evidentiary foundation, the argument is fallacious.
[4] The second allegation of error is that Mr. Rahman advanced three H & C considerations that were ignored by the officer: his wife's situation with respect to living arrangements in Canada; the fact that this was not a "normal" sponsorship because of the removal order against Mr. Rahman; and economic hardship for his wife. The officer failed to take into account the fact that Bangladesh is slow and that the removal order would result in additional delay in relation to processing.
[5] I have reviewed both the officer's notes as well as the typewritten "reasons". It appears that the officer did consider the question of whether the visa process abroad would take longer because he referred to counsel's representations in this respect in his handwritten notes (application record, p.10). However, there is no reference anywhere - in either the notes or the reasons - that as the subject of a removal order, Mr. Rahman could expect substantial, additional delay. The box on the form indicating the existence of a removal order (application record, p. 9) was not checked. To the extent that the officer ignored this evidence, he erred in his conclusion that this was a "normal" application that would take only six to nine months.
[6] The officer did take into account the submissions related to economic and emotional hardship. However, his finding that this was not undue, undeserved or disproportionate hardship was based, at least in part, on the fact that the separation would be minimal in length. This error may well have had a substantial impact on the other factors considered by the officer, in the circumstances of this particular case. I am unable to speculate as to whether the result would have been the same but for the error, and I therefore allowed the application for judicial review. Counsel did not suggest a question for certification.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is remitted for redetermination before a different ministerial delegate. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3478-03
STYLE OF CAUSE: MAHMOOD RAHMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 29, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: APRIL 29, 2004
APPEARANCES BY:
Krassina Kostadinov
FOR THE APPLICANT
Jeremiah A. Eastman
FOR THE RESPONDENT
SOLICITORS OF RECORD:
LORNE WALDMAN & ASSOCIATES
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040429
Docket: IMM-3478-03
BETWEEN:
MAHMOOD RAHMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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