Date:
20120803
Docket:
IMM-8882-11
Citation:
2012 FC 969
Vancouver, British Columbia,
August 3, 2012
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
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GHOLAM REZA SOLTANI REZAGH
SARAB
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Gholam
Reza Soltani Rezagh Sarab seeks judicial review of the decision of an Immigration Officer refusing his
application for permanent residence from within Canada on humanitarian and
compassionate [H&C] grounds. For the reasons that follow, I have concluded
that the Officer’s decision was unreasonable. As a result, the application for
judicial review will be granted.
Analysis
[2]
H&C
decisions are discretionary in nature and involve exceptional relief. As a
result, these decisions are to be reviewed against the deferential standard of
reasonableness: Kisana v. Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para. 18; [2009]
F.C.J. No. 713; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47, [2008] 1 S.C.R. 190.
[3]
It
is clear from a review of the Immigration
Officer’s decision
in this case that the Officer gave great weight to Mr. Soltani’s immigration
history, specifically his failure to appear for removal in 2004. The Officer
further found that the hardship resulting from the separation of Mr. Soltani
and his wife, Shelly Janvier, was not “undeserved”, as the couple had married
knowing that Mr. Soltani lacked status in Canada and could be deported at any
time.
[4]
These
are unquestionably important considerations in an H&C application – ones which
may be given considerable weight. Indeed, Immigration Officers may refuse
to exercise their discretion to grant an exemption in cases where H&C
grounds have nevertheless been established if the circumstances surrounding an
applicant’s entry and residence in Canada “discredit him or create a precedent
susceptible of encouraging illegal entry in Canada”: Legault v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 125 at para. 19, [2002]
F.C.J. No. 457.
[5]
In
such cases, Officers may also consider the fact that the H&C grounds
claimed are the result of the applicant’s own actions: Legault, above at
para. 19; Kessler v. Canada (Minister of Citizenship and Immigration) (1998),
153 F.T.R. 240 (T.D.) at para. 9, [1998] F.C.J. No. 1134; Chau v. Canada (Minister of Citizenship and Immigration), 2002 FCT 107 at paras. 18-19, 27-28; Tartchinska
v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 161
at paras. 21-22, [2000] F.C.J. No. 373.
[6]
These
factors are not, however, necessarily determinative: see Legault, above at paras. 11-12; Kawtharani v. Canada (Minister of Citizenship and Immigration), 2006 FC 162 at para. 32, [2006]
F.C.J. No. 220. In deciding whether or not to exercise the discretion to grant
an exemption on humanitarian and compassionate grounds, Immigration Officers
are required to consider whether the hardship of having to obtain an immigrant
visa from outside Canada would be “unusual and undeserved” or
“disproportionate”.
[7]
“Unusual
and undeserved hardship” means hardship which is not anticipated or addressed
by the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
and which is derived from circumstances beyond the applicant’s control. Hardship
may be “disproportionate” if, due to an individual’s personal circumstances,
forcing an individual to apply for a visa from outside Canada would
unreasonably impact upon the applicant or a family member: IP5: Immigrant
Applications in Canada Made on Humanitarian or Compassionate Grounds at ss.
5.10 and 5.11; Serda v. Canada (Minister of Citizenship and Immigration),
2006 FC 356, [2006] F.C.J. No. 425.
[8]
The
circumstances surrounding the lawfulness of an applicant’s entry and stay in Canada go to whether the hardship claimed is “unusual and underserved”. Officers must,
however, also consider whether the circumstances of a particular case give rise
to hardship that is “disproportionate”.
[9]
The
primary claim of hardship in this case related to the allegedly disproportionate
hardship that Ms. Janvier would suffer as a result of Mr. Soltani’s removal
from Canada.
[10]
The
Immigration Officer accepted that the couple’s marriage was genuine, but found
that “marriage alone” was not sufficient to warrant a positive exercise of
H&C decision. In so doing, the Officer ignored the unusual reliance of
Ms. Janvier on Mr. Soltani.
[11]
The
record before the Officer detailed the extraordinarily difficult life that Ms.
Janvier has led, the multiple losses and tragedies that she has experienced,
and the psychological trauma that she has suffered as a result.
[12]
The
psychological report of Dr. Aubé stated that Ms. Janvier suffers from Type 2
Post-traumatic Stress Disorder, as well as anxiety and depression. The report
explained the central role that Mr. Soltani has played in Ms. Janvier’s
recovery, and the extent to which his presence in Canada is central to her
ongoing mental health. According to Dr. Aubé’s report, the separation of Ms.
Janvier and Mr. Soltani would be “more
than tragic” for Ms.
Janvier.
[13]
The
Immigration Officer discounted Dr. Aubé’s report because the report did not
explain what was meant by the phrase “more
than tragic” and what that would mean for Ms. Janvier. In my view, this was
unreasonable.
[14]
Dr.
Aubé’s report carefully detailed Ms. Janvier’s personal history and the
instability that she has experienced in her life, as well as her history of
Type 2 Post-traumatic Stress Disorder, anxiety and depression. The report
describes the symptoms that Ms. Janvier has experienced over the years as a
result of her mental state, and notes the improvement in her mental health that
has resulted from the stability of her relationship with Mr. Soltani.
[15]
It
was after discussing all of these matters in considerable detail that Dr. Aubé
concluded that “it seems clinically clear that the deportation of her husband
would be more than
tragic for Ms. Janvier”.
Dr. Aubé then goes on to explain that “[i]t would again be a tragic loss, a
repetition of her history, and another depletion.” Dr. Aubé then offered
the opinion that “because it would be a reflection of her background,
there is a great probability that Mrs. Janvier’s emotional condition would then
worsen”.
[16]
When
these statements are read in the context of the entire psychological report it
is quite clear what Dr. Aubé is saying. The Immigration Officer’s failure to
appreciate the implications of Dr. Aubé’s professional opinion and to take
that opinion into account renders the decision unreasonable.
[17]
I
am further satisfied that the Officer’s finding that Ms. Janvier will be able
to rebuild her life after Mr. Soltani’s removal was made without regard to the
evidence.
[18]
The
Officer speculates that other positive aspects of Ms. Janvier’s life, such as
her family, her friends and her career, would offer her stability and happiness
after Mr. Soltani’s removal. However, the evidence in the record does not
support this conclusion.
[19]
It
is clear from both Ms. Janvier’s evidence and Dr. Aubé’s report that Ms.
Janvier had been struggling emotionally for a very long time prior to
meeting Mr. Soltani, even though she had a career, friends and family for
support. She had undergone years of therapy and treatment with medication, but
continued to suffer from the psychological effects of her past.
[20]
The
record shows that it was Ms. Janvier’s relationship with Mr. Soltani that
allowed Ms. Janvier to cope with her trauma. Indeed, Dr. Aubé is confident
that Ms. Janvier will eventually overcome the trauma of her childhood and
continue to improve her emotional stability “if [she] can maintain the
stability of her relationship that she has with her husband”.
[21]
In
light of this evidence, it was unreasonable for the Immigration Officer to find
that the rewards of her career and the support of Ms. Janvier’s friends and
family in Saskatchewan would compensate Ms. Janvier for the lack of Mr.
Soltani’s presence in Vancouver.
Conclusion
[22]
For these
reasons, the application for judicial review is allowed. I agree with the
parties that the case does not raise a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that
1. This
application for judicial review is allowed, and the matter is remitted to a
different Immigration
Officer for
re-determination in accordance with these reasons.
“Anne Mactavish”
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