Date: 20090708
Docket: IMM-48-09
Citation: 2009 FC 713
Toronto, Ontario, July 8,
2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
NURIA
BEN AMER
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mrs.
Nuria Ben Amer (the “Applicant”) seeks judicial review of the decision of the
Pre-Removal Risk Assessment Officer (the “Officer”) dated November 17, 2008. In
that decision, the Officer rejected the Applicant’s application for permanent
residence in Canada that was based upon subsection 25(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, (the “Act”), that is humanitarian and compassionate
(“H&C”) grounds.
[2]
The
Applicant, a citizen of Libya, came to Canada with her
husband, on January 1, 1999, as a visitor. On January 16, 1999, the Applicant
and her husband claimed protection as Convention refugees. The Immigration and
Refugee Board, Convention Refugee Determination Division rejected her husband’s
claim on the basis that he was excluded from Convention refugee status pursuant
to Article 1(F)(a) of the United Nations Convention
Relating to the Status of Refugees, Can T.S. 1969 No. 6. An
application for leave and judicial review was dismissed.
[3]
The
Applicant first filed an H&C application in 2001. It was refused but an
application for leave and judicial review was allowed and the matter was sent
back for re-determination.
[4]
The
second hearing resulted in another negative decision and again, the Applicant
was successful in her application for leave and judicial review. The
re-determination yielded a third negative decision which is the subject of this
application for judicial review.
[5]
In
this instance, the Officer considered the documentary evidence that had been
submitted by the Applicant, the degree of establishment of the Applicant and
her family in Canada, as well as
the best interests of her three Canadian-born children. The Officer concluded
that the Applicant had failed to show that she would suffer unusual and
undeserved or disproportionate hardship that would justify a positive decision
on H&C grounds.
[6]
The
Applicant challenges the decision on the grounds that the Officer failed to
properly consider the best interests of her Canadian born children, in
particular the fact that two of the children are enrolled in school and would
be adversely affected by being relocated to Libya since they
do not speak Arabic. She also argues that the Officer committed a reviewable
error as a result of the manner in which he assessed the Applicant’s
establishment in Canada, including the fact that she is employed and
has bought a house with her husband.
[7]
The
Applicant also submits that the Officer’s reasons are inadequate, thereby
breaching the requirements of procedural fairness.
[8]
Pursuant
to the decision in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, administrative decisions are reviewable upon either the standard of
correctness or reasonableness. Guidance as to the applicable standard to be
applied to an issue may be found in the existing jurisprudence: Dunsmuir at
paras. 54, 57. In view of this direction and the nature of the issue raised
here, that is an assessment of establishment in the context of subsection 25(1)
of the Act, I am satisfied that reasonableness is the appropriate standard of
review; see Buio v. Canada
(Minister of Citizenship and Immigration) (2007), 60 Imm. L.R. (3d) 212 at para. 17.
[9]
The
decision in question was made pursuant to subsection 25(1) of the Act which
provides as follows:
|
25. (1) The Minister shall, upon request of
a foreign national in Canada who is inadmissible or who does not meet the requirements
of this Act, and may, on the Minister’s own initiative or on request of a
foreign national outside Canada, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
|
25. (1) Le ministre doit, sur demande d’un
étranger se trouvant au Canada qui est interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative ou sur
demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
|
[10]
This
provision of the Act affords the Minister of Citizenship and Immigration (the “Respondent”)
complete discretion to allow a person seeking status as a permanent resident in
Canada to make the application from within the country, rather than at an
office abroad. A successful H&C application usually requires an applicant
to show that an “unusual, undeserved or disproportionate hardship” would result
if required to apply for permanent residence outside Canada; see Williams v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1474 (F.C.).
[11]
The
Applicant submits that the Officer failed to consider her degree of
establishment in Canada and erred in making the finding that the establishment
was no more than would be expected of a person who has been in Canada for several years
without status. The Officer said the following:
…the
degree of establishment is nothing beyond the normal establishment that one
would expect the applicants to have achieved in the circumstances. Accordingly,
I do not find that the applicants’ establishment in Canada is to such a degree that having to apply for permanent
residence from outside of Canada would constitute unusual and undeserved
or disproportionate hardship.
[12]
Relying
on the decisions in Raudales v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 385 (F.C.T.D.) and Jamrich v. Canada (Minister of
Citizenship and Immigration) (2003), 29 Imm. L.R. (3d) 253 (F.C.T.D.), the
Applicant argues that this conclusion, made without analysis of her particular
circumstances, is erroneous. In Jamrich, Mr. Justice Blais said the
following at para. 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.
[13]
The Jamrich
decision was made pursuant to the Act and pursuant to the Immigration
Manual: Inland Processing 5: Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds.
I see no basis in principle to disagree with the approach taken by the Court
in Jamrich and I am satisfied that the Applicant has shown the Officer
committed a reviewable error in the manner of addressing the issue of
establishment.
[14]
Although
this error is a sufficient ground for allowing this application for judicial
review, I will briefly address the arguments raised about the Officer’s
treatment of the best interests of the Applicant’s children and the adequacy of
the reasons.
[15]
The
Applicant, in alleging that the Officer failed to properly consider the best
interests of her Canadian born children, focuses on the social establishment of
her children in Canada and the fact that her two
older children attend an English-language school. She argues that the Officer
failed to focus on the fact that the children do not speak Arabic and that,
accordingly, they would be at a disadvantage if returned to Libya where Arabic is the
language of instruction at school.
[16]
I am
not persuaded that these facts were not properly considered by the Officer. The
Officer’s decision, relative to the best interests of the children is
reviewable on the standard of reasonableness; see Markis v. Canada (Minister of Citizenship and Immigration) (2008), 71 Imm. L.R. (3d) 237 at para.
20. The
choice of language training lies with the parents, including the Applicant. She
identified Arabic as her mother tongue and in my opinion, if she wants her
children to speak that language, she can take steps to ensure that they learn
it. The Officer did not commit a reviewable error in considering the best
interests of the children including their ability to adapt to life in Libya, if necessary.
[17]
Finally,
there remains the issue of the adequacy of the reasons. This issue is
reviewable on the standard of correctness; see Adu v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 693 at para. 9. I am satisfied that the
reasons are clear and comprehensible. The Applicant has failed to show that any
breach of procedural fairness was committed by the Officer.
[18]
In
the result, this application for judicial review is allowed, the decision of
the Officer is quashed and the matter is remitted to another Officer for
re-determination. There is no question for certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is allowed and the decision of the Officer is
quashed. The matter is remitted to another Officer for
re-determination. There is no question for
certification arising.
“E. Heneghan”
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