Mujiri v. Canada (Minister of Citizenship and Immigration), 2002 FCT 121

Date: 20020131

Docket: IMM-605-01

Neutral citation: 2002 FCT 121

BETWEEN:

                                                                KAZEM MUJIRI and

ZAHARA ZEIP

Applicants

- and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Respondent

REASONS FOR ORDER

O'KEEFE J.

[1]                 This is an application for judicial review under section 82.1 of the Immigration Act R.S.C. 1985, c. I-2 (the "Act") of the decision dated January 18, 2001 by a Citizenship and Immigration Counsellor (the "officer"), wherein the officer denied the applicants' request to be approved on humanitarian and compassionate considerations for an exemption from subsection 9(1) of the Act.

[2]                 The applicants seek an order quashing the decision of the officer, sending the matter back for a redetermination.

Background Facts

[3]                 The applicants are husband and wife citizens of Iran who arrived in Canada on visitor visas in 1998, to visit two of their adult daughters. The visitor visas have expired and the applicants continue to remain in Canada. The applicants made an application under subsection 114(2) of the Act to apply for landing from within Canada based on humanitarian and compassionate (H & C) grounds. The grounds for the exemption application include their relationship with their two daughters in Canada, an alleged fear of their youngest daughter's husband in Iran, and the poor medical condition of the female applicant.

[4]                 The two adult daughters, who are Canadian residents, are acting as the applicants' sponsors. The applicants and the sponsors appeared for an interview with the officer on April 6, 2000. The applicants' other two daughters, their oldest and youngest, are living in Iran (according to evidence given at the time of the interview and as was before the officer at the time of the decision).

[5]                 On October 25, 2000, the officer wrote a letter to the applicants which stated in part:

I have received a medical notification stating you, Zhahara Zeip, is have [sic]quadriplegia secondary to a stroke in 1995. You are wheelchair bound, has [sic] urinary incontinence and are totally disabled and dependent for all activities of daily living. You are unable to live independently and require ongoing support and assistance. The opinion of the medical officer is that your condition is such that, if admitted to Canada, you and your supporting family will require and will probably utilize a variety of social services which are expensive and for which there already exist waiting lists.

This information leads me to conclude that you can be expected to cause excessive demands on health or social services in Canada. Consequently, you are both inadmissible under section 19(1)(a)(ii) of the Immigration Act. For this reason, I could refuse your applications for permanent residence.

Before I make a final decision whether you are inadmissible, you may respond to the description of your medical condition(s) with new medical information of your own.

You have until 25 December 2000 to send new medical information, not previously on your immigration medical file, to the doctor who did your examination. You must submit the information with the enclosed letter.

. . .

If you choose not to respond with additional information or if it does not change the opinion of the medical officers, your application may be refused.

[6]                 By letter dated January 18, 2001, the officer subsequently informed the applicants of the decision to deny the request for an exemption from the requirement of subsection 9(1). Reasons for the decision were not provided in the letter.

Applicants' Submissions

[7]                 The notice of application alleges that the immigration officer erred in law in ignoring and/or misinterpreting evidence, and made an unreasonable decision.

[8]                 The applicants submit that the officer erred in law in breaching the duty of fairness by failing to follow the two step procedure for assessing humanitarian applications as outlined in the Manual.

[9]                 The applicants submit that the officer erred in law in misinterpreting the evidence before her, that there was no support mechanism for the female applicant in Canada, in concluding that there was no evidence that the applicants would face undue or disproportionate hardship in returning to Iran, and in concluding that no evidence substantiated the claim of threat by their son-in-law in Iran.

[10]            The applicants contend that the officer took into account irrelevant considerations that included the failure of the applicants to demonstrate that they are established in Canada. The applicants submit that the applicants were "dependents" of their Canadian resident children who were seeking to sponsor them, and as such the applicants did not need to meet any establishment criteria. The applicants submit that the focus of the Act is reunification in Canada with close family members, not reunification with those in the home country. Therefore, the applicants submit that the officer's consideration of the applicants' ties to their two daughters, grandchildren and siblings in Iran was irrelevant.

[11]            The applicants submit that consideration of irrelevant factors created a higher standard than was necessary. As such, the applicants request that the application for judicial review be allowed.

Respondent's Submissions

[12]            The respondent submits that the officer properly considered whether the applicants' situation warranted the special relief sought. In reaching the decision, the respondent submits that the officer correctly considered the applicants' current family situation, how the applicants' came to Canada, what connections the applicants have to Canada, their daughters' financial situations, and the family situation and problems the applicants claim to face in Iran.

[13]            The respondent submits that the officer based the decision on the fact that the applicants have not established in Canada to a sufficient degree so as to suffer undue hardship if they were required to apply for landing from abroad.

[14]            The respondent notes that the officer considered the female applicant's medical inadmissibility. The respondent contends that the fact that the officer intermingled the medical inadmissibility assessment with her consideration of the H & C factors does not change the fact that the officer properly assessed the H & C factors. In addition, the respondent submits that the guidelines justify the officer considering the inadmissibility as it states that a known or suspected inadmissibility may be relevant to the H & C decision.

[15]            The respondent submits that the officer did not ignore or misinterpret evidence. The respondent submits that the applicants have not shown that the officer committed a reviewable error and so the judicial review should be dismissed.

Law

[16]            Subsection 9(1) of the Act states:

[17]            Subparagraph 19(1)(a)(ii) of the Act states:

[18]            Section 82.1(1) of the Act states:

[19]            The issues, as stated by the applicants (summarized) are:

1.          Whether the immigration officer erred in law in breaching the duty of fairness because the officer did not follow the procedures for assessing humanitarian applications as set out in the guidelines contained in Immigration Manual IP-5.

2.          Whether the immigration officer erred in law in ignoring and misinterpreting the evidence before her.

3.          Whether the immigration officer took into account irrelevant matters in reaching her decision to refuse the application.

Analysis and Decision

[20]            Issue 1

Whether the immigration officer erred in law in breaching the duty of fairness because the officer did not follow the procedures for assessing humanitarian applications as set out in the guidelines contained in Immigration Manual IP-5.

The Immigration Manual IP-5 is issued by The Minister of Citizenship and Immigration and contains guidelines for dealing with humanitarian and compassionate applications. The following sections form part of the manual:

1.4            Why exceptions to subsection A9(1) exist

The Immigration Act and Regulations set out specific requirements for granting permanent residence. These requirements reflect the objectives of the Act but do not cover all circumstances. The purpose of H & C discretion is to allow flexibility to approve deserving cases not anticipated in the legislation. Therefore, use of this discretion should not be seen as conflicting with other parts of the Act or Regulations but rather as a complementary provision enhancing the attainment of the objectives of the Act.

Discretion is a valuable element of Canada's immigration program. It benefits our clients and is consistent with the objectives of the Immigration Act in upholding Canada's humanitarian traditions. However, discretionary decisions must be made with the utmost care and good judgement. Before granting a discretionary exemption, consider the intent of such provisions.

1.7            Two distinct decisions - exemption from A9(1) and landing

An application under R2.1 requests an exemption from the immigrant visa requirement in A9(1) for H & C reasons; it is not an application for landing. However, a positive visa exemption decision has the effect of creating an application for landing in Canada and an immigration officer must make a second decision about admissibility before granting landing. This is why the process is sometimes called the "two-step decision-making process for H & C".

1.7.1         First assessment: the H & C decision [exemption from A9(1)]

First, the decision-maker assesses H & C grounds and decides whether the applicant should be exempted from A9(1), the requirement to obtain an immigrant visa before coming to Canada. The applicant bears the onus of satisfying the decision-maker that the H & C factors present in his or her individual circumstances are sufficient to warrant an exemption. The decision-maker considers the applicant's submissions in light of all the information known to the Department.

1.7.2         Second assessment: the landing decision [compliance with A5(2)]

When a positive H & C decision is made, processing of the application for permanent residence begins. To be granted landing, the applicant must meet the requirements of subsection 5(2) of the Act which states that an immigrant shall be granted landing if he is not a member of an inadmissible class and otherwise meets the requirements of the Act and Regulations.

All information relating to landing requirements and admissibility of the applicant is assessed during the processing period, up to and including the landing interview. A negative landing decision can be made at any time during the processing, whenever the applicant is found to be inadmissible.

A FINAL POSITIVE determination about admissibility and whether the applicant meets landing requirements can only be made at the time of the landing interview.

3.3            Inadmissible persons

Persons who are inadmissible may submit an H & C application. However, a positive H & C decision does not overcome their inadmissibility. Therefore, notwithstanding the positive H & C decision, the application for landing must be refused. If you are considering recommending a Minister's permit, refer to the guidelines in OM IP95-07 and Manual Chapter IP-12, Minister's Permits. For guidelines on A27 reports and recommending dispositions, see manual chapter EC-9.

. . .

6.2            General establishment guidelines

The applicant's degree of establishment in Canada may be a factor to consider in certain situations, particularly, when evaluating some case types described in section 8.

·                 8.4.2         Parents/grandparents not sponsored as members of the family class

·                 8.5            Separation of parents and children (outside the family class)

·                 8.6            De facto family members

·                 8.7            Prolonged inability to leave Canada has led to establishment

·                 8.10          Family violence

·                 8.11          Former Canadian citizens

·                 8.12          Other cases

Establishment of the applicant up to the time of the H & C decision can be considered. However, it is inappropriate to assess the potential establishment of the applicant as this falls within the scope of admissibility criteria.

. . .

6.5            Known or suspected inadmissibility of applicant (or dependents in Canada)

Decision-making can become complicated when, prior to or during the consideration of H & C factors, a known or suspected inadmissibility is identified. This can occur at the outset when reviewing the FOSS client history or information provided by the applicant on the IMM 5001. Some examples of known or suspected inadmissibility are when the applicant (or a dependent in Canada) is

·                 medically inadmissible

·                 submitting the H & C application based on a medical condition

·                 receiving social assistance

·                 the subject of a removal order for criminality or other serious inadmissibility [A19]

·                 the subject of outstanding criminal charges in Canada or elsewhere

·                 suspected of having committed criminal acts or omissions outside of Canada [A19(1)(c.1)(ii), 19(2)(a.1)(ii)]

·                 the subject of Minister's danger opinion [A39]

·                 not a Convention refugee as determined by the Immigration and Refugee Board by reason of section F of article 1 (an exclusion case).

The relationship between such facts and the H & C decision is important:

·                 You are not making a determination of admissibility or inadmissibility at this point.

·                 You are looking at all the applicant's personal circumstances, as provided by the applicant and as known to the Department, to determine if there are sufficient reasons for making a positive H & C decision. The facts relating to the known or suspected inadmissibility may be relevant to the H & C decision.

For example, you know that the applicant has a criminal conviction. When considering the H & C decision, you are not concerned with whether or not the conviction makes the applicant inadmissible. However, you may consider the applicant's actions, including those that led to and followed the conviction, when you make your H & C decision. You may wish to consider

·                 the type of criminal conviction

·                 whether the conviction is an isolated incident or part of a pattern of recidivist criminality

·              length of time since the conviction

·                 what sentence was received

·                 any information about circumstances of the crime

. . .

8.4.1         Parents and grandparents sponsored as members of the family class

First of all determine

·                 Whether a sponsorship has been submitted and approved. If so, this means the applicant is a potential family class member.

Then consider

·                 Proof of relationship.

·                 What hardship would occur if the application for a visa exemption were refused.

·                 Information the applicant provided to a visa office when obtaining a visitor visa, if applicable.

·                 The level of interdependency.      0         Support available in home country (other family members)

       0    Whether the applicant is able to                                              work.

·                 Is there a significant degree of establishment in Canada? (see section 6.2 - General establishment guidelines)

·                 Any other factors that you believe to be relevant to you H & C decision.

[21]            A review of the above sections of the policy establishes that the process initiated by the H & C application is a two-step process. The first step consists of identifying and weighing the positive and negative factors contained in the H & C application. A positive decision to grant the H & C application only allows the applicant to apply for landing from within Canada. The second stage of the process deals with whether the applicant is eligible for admission to Canada. An applicant thus may be granted permission to apply for landing from within Canada but then at the second stage, be denied landing because the applicant for some reason (medical inadmissibility) may be inadmissible to Canada.

[22]            There is no doubt that the officer can consider medical conditions as one of the factors to be considered along with the other factors which are relevant on the H & C application.

[23]            My review of the officer's notes indicated to me that the officer did not process this application as a two-step procedure but instead combined an assessment of the H & C application with the assessment of the applicants' right to be landed in Canada, which is the second step of the process. The primary emphasis was on the applicant, Zahara Zeip's medical condition. In a letter written to the applicants on October 25, 2000, part of which is repeated here for ease of reference, the officer states in part:

Dear Client:

This refers to your application for permanent residence in Canada.

I have received a medical notification stating you, Zhahara Zeip, is have [sic]quadriplegia secondary to a stroke in 1995. You are wheelchair bound, has [sic] urinary incontinence and are totally disabled and dependent for all activities of daily living. You are unable to live independently and require ongoing support and assistance. The opinion of the medical officer is that your condition is such that, if admitted to Canada, you and your supporting family will require and will probably utilize a variety of social services which are expensive and for which there already exist waiting lists.

This information leads me to conclude that you can be expected to cause excessive demands on health or social services in Canada. Consequently, you are both inadmissible under section 19(1)(a)(ii) of the Immigration Act. For this reason, I could refuse your applications for permanent residence.

Before I make a final decision whether you are inadmissible, you may respond to the description of your medical condition(s) with new medical information of your own.

[24]            The letter notifying the applicants of the refusal of their application does refer to an H & C application but there is no discussion of the reasons for the refusal. It is unfair to put such great emphasis on the medical inadmissibility of the applicant, Zahara Zeip, at the first stage of the H & C application as the officer at this stage is only assessing the positive and negative factors of this applicant's situation so as to determine whether to let this applicant apply for landing from within Canada. I am satisfied that the officer breached the duty of procedural fairness owed to the applicants by not following the respondent's own guidelines. I might add that since the applicant, Zahara Zeip is already in Canada, her medical condition might be considered a positive factor in the H & C application to apply for landing within Canada as she would not have to leave Canada to apply for landing. I am only speaking about step one of the H & C application and not the assessment of the applicant, Zahara Zeip's application for landing.

[25]            Issue 2

Whether the immigration officer erred in law in ignoring and misinterpreting the evidence before her.

The applicants raised the following errors and I will deal with each of them:

1.          The officer erred in concluding that there was no support mechanism for Zahara Zeip in Canada.

The evidence shows that both of the applicants' daughters and the applicant's husband were providing support for the applicant, Zahara Zeip. The officer made an error in finding there was no support mechanism.

2.          In drawing an adverse inference from the inability of one daughter to meet a sponsorship undertaking for two parents when each daughter was seeking to sponsor one parent and met the requirements for this.

A perusal of the file establishes that each of the two daughters sponsored one parent, with Farah Mojiry sponsoring her father and Farzaneh Mojiry sponsoring her mother. The record shows that each daughter met the income requirement for supporting a parent. The officer was not correct on this point. As the officer was in error, I do not propose to deal with the other listed errors.

[26]            Issue 3

Whether the immigration officer took into account irrelevant matters in reaching her decision to refuse the application.

With respect to the applicants' failure to establish in Canada, I note that the guideline in Immigration Manual IP-5 (section 6.2) outlines that the applicants' degree of establishment in Canada may be a factor in certain situations under section 8.2 of the Manual. Reading these two sections together, it would appear that the degree of establishment would be a factor if the applicants were not sponsored as members of the family class. The inference is that if the parents are sponsored, then the degree of establishment would not be a factor or not as an important factor to consider in the H & C application. I would conclude that the officer made an error in listing this as a negative factor in assessing the H & C application.

[27]            It is not necessary to deal with the other errors alleged under Issue 3 because of my findings on the previous issues.

[28]            I find that the officer's decisions discussed above were not reasonable.

[29]            The application for judicial review is allowed and the matter is returned to a different Citizenship and Immigration Counsellor for reconsideration.

[30]            The parties will have one week from the date of this decision in which to propose a serious question of general importance for my consideration.

    "John A. O'Keefe"

                                                                                                      J.F.C.C.                      

Toronto, Ontario

January 31, 2002

FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                 IMM-605-01

STYLE OF CAUSE: KAZEM MUJIRI and ZAHARA ZEIP

- and -

THE MINISTER OF CITIZENSHIP &

IMMIGRATION

PLACE OF HEARING:         TORONTO, ONTARIO

DATE OF HEARING:           TUESDAY, OCTOBER 30, 2001

REASONS FOR ORDER BY: O'KEEFE J.

DATED:                                    THURSDAY, JANUARY 31, 2002

APPEARANCES:

Ms. Barbara Jackman

For the Applicants

Mr. Martin Anderson

For the Respondent

SOLICITORS OF RECORD:

                                                   Jackman, Waldman & Associates

Barristers & Solicitors

281 Eglinton Avenue East

Toronto, Ontario

M4P 1L3

For the Applicants

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

                    FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

Date: 20020131

Docket: IMM-605-01

BETWEEN:

KAZEM MUJIRI and

ZAHARA ZEIP

Applicants

- and -

THE MINISTER OF CITIZENSHIP &

IMMIGRATION

Respondent

                          REASONS FOR ORDER