Date: 20091119
Docket: IMM-1071-09
Citation: 2009 FC 1186
Ottawa, Ontario, November 19, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ZEESHAN SHAFQAT,
ISMAT ZEESHAN, and
RAHEL ZEESHAN,
By her litigation guardian,
ZEESHAN SHAFQAT
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
ON this an application for judicial review of a decision by an
immigration officer dated January 20, 2009, denying the applicants’ application for
permanent residence on humanitarian and compassionate grounds (H&C)
pursuant to section 25 of the Immigration and Refugee Protection Act (IRPA),
S.C. 2001, c. 27;
AND UPON hearing the
parties and reviewing the material in the motion records;
AND UPON the Court
concluding that the officer’s H&C decision is unreasonable in that the
H&C officer did not give any weight to the principal female applicant’s
extraordinary degree of establishment, notwithstanding that the H&C officer
found at page 14 of the decision that the applicant’s “establishment is well
documented and it is exemplary”. The Court was referred to the Judgment of now Chief
Justice Pierre Blais, then a puisne Judge of this Court in Jamrich v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1076 at paragraph 29:
¶29 In my view, the IC made an
unreasonable finding of facts: the IC’s conclusions that “their establishment
is no more than is expected of any refugee who is given similar opportunities in
Canada” and that she is “not satisfied that in their case, their establishment
can be considered so different and significant that it differs from what is
expected from any other person who resides in Canada while undergoing the
refugee determination process” are patently unreasonable in the circumstances
of this case.
In that case, like the case at bar, the
evidence of the applicant’s establishment was overwhelming. Similarly, Madam
Justice Eleanor Dawson in Raudales v. Canada (Minister of
Citizenship and Immigration), [2003] FCJ No. 532 held at paragraph 18
and 19 that (and I paraphrase):
(1) establishment is a relevant
factor to consider when assessing an H&C application;
(2) absent a proper
assessment of establishment, a proper determination could not be made of
whether requiring the applicant to apply for permanent residence from abroad
would constitute hardship that is unusual and underserved or disproportionate;
and
(3) on the evidence,
the H&C officer’s decision was patently unreasonable because of the
applicant’s establishment in the community;
AND UPON the Court
concluding in the case at bar that the H&C officer recognized that the
female adult applicant’s establishment is “exemplary” and exceptional, yet
failed to give it the weight it reasonably deserved. The PRRA officer cited
case law that failed refugee claimants “should not be encouraged to gamble on
overstaying in Canada” in the hope that they can demonstrate that
they can establish themselves in the intervening period. This is not a proper
consideration upon which to dismiss the extraordinary degree of establishment
shown in the evidence by Dr. Ismat Zeeshan;
For these
reasons, this application for judicial review will be allowed.
CERTIFIED QUESTION
Both parties
advised the Court that this case does not raise a serious question of general
importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. the
decision of the H&C officer dated January 20, 2009 is set aside; and
2.
this application for judicial review is allowed and the H&C
application is remitted to another H&C officer for redetermination in
accordance with these Reasons for Judgment.
“Michael
A. Kelen”
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