Date: 20111212
Docket: IMM-2925-11
Citation: 2011 FC 1446
Ottawa, Ontario,
December 12, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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REHAB BADAWY
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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]
The applicant, Ms. Badawy, brings
this application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27. She seeks to set aside an
immigration officer’s decision that she is not eligible for a permanent
residence visa as a member of the Family Class on humanitarian and
compassionate (H&C) grounds. For the reasons that follow, this application
is dismissed.
Background
[2]
The applicant is a citizen of Egypt, the
country in which she currently resides. She married the sponsor, Mr. Elgizy,
in October of 1997 and in August 1998 they had their first child. The couple
had marital difficulties and after three years of marriage, they separated.
The applicant then went to live with her parents.
[3]
During this separation, the
sponsor applied for permanent residence status in Canada under
the Skilled Worker category. Acting on a friend’s advice, he falsely declared
that he was single and had no dependant family members; his application was
accepted.
[4]
Although the couple’s marital
difficulties were resolved the sponsor nevertheless decided to come to Canada. He
left his child and pregnant wife and landed in Canada in February 2002. In
September 2002, the couple had their second child.
[5]
The sponsor has since spent many
vacations in Egypt. On March 27, 2007, the applicants filed an
application for permanent residence and Mr. Elgizy joined the application seeking
to sponsor his family and requesting H&C considerations. The application
for permanent residency was refused and on April 2, 2009, this Court granted
the applicant leave to file an application for judicial review. Prior to a
hearing on the merits, the respondent consented to have the matter sent back to
a different officer for redetermination. In that first decision no reasons
were provided by the officer explaining why there were insufficient H&C
grounds to grant her application.
[6]
On the second examination of the
application, the one presently under review, the officer found that the grounds submitted by the
applicant were not sufficient to warrant an H&C exception. It was noted
that the sponsor had several opportunities to reveal his marriage during the
processing of his permanent residence application but failed to do so.
Specifically, the officer found that the sponsor had been a permanent resident
in Canada since 2002 but that he had made no attempt to sponsor the applicant or
the children until 2007. The officer also noted that it was the sponsor’s
decision to leave his family behind and not have them join him. There was
evidence that the sponsor now suffers from chronic liver disease; however, the officer
noted that the applicant made no mention of the alleged health concern at her
interview when queried on the reason why she wanted to join the sponsor. The officer
found that the applicant and her children received strong support in Egypt and that
their circumstances were not at all dire.
[7]
In short, the officer determined
that the applicant’s relationship with the sponsor was not a strong one and
that the H&C grounds were insufficient to warrant special consideration of
the case. The application for permanent residence was refused.
Issues
[8]
The
applicant has raised three issues:
a) Did the officer err in failing to take into
consideration the compelling humanitarian and compassionate grounds by placing
undue emphasis on the sponsor’s failure to disclose his spouse and dependant
child?
b) Did the officer err by relying on speculation and
conjuncture to arrive at a negative credibility finding regarding the
genuineness of the relationship and applicant’s statements, while failing to
take into consideration the documentary evidence and not providing the applicant
the ability to respond to the officer’s concerns?
c) Should costs be awarded in this case?
Analysis
[9]
The
Act and Regulations provide that a person is not considered a family member for
immigration purposes unless listed by the person entering Canada and subject
to examination as a family member at the time of entry. In this case, because
the applicant and the eldest child were not disclosed by the applicant to the
visa officer, they are ineligible to enter Canada as family
members unless the Minister waives that provision. Section 25(1) of the Act
provides that a person who does not meet the requirements of the Act may seek
an exemption from the provisions of the Act which shall be granted “if the Minister is of the opinion that it is justified
by humanitarian and compassionate considerations relating to the foreign
national, taking into account the best interests of a child directly affected.”
1. Alleged
Failure to Consider the Compelling
Humanitarian and Compassionate Grounds
[10]
The
applicant submits that the officer failed to take into consideration the
compelling humanitarian and compassionate grounds she advanced. The Computer
Assisted Immigration Processing System [CAIPS] notes of the officer state “PA
interviewed this date. Did not reveal anything new that would support H&C
consideration.” The applicant submits that this line of reasoning gives rise
to two reviewable errors. First, that the officer only looked at the evidence filed
after the application was resubmitted for determination and ignored the evidence
that had been previously filed. Second, she submits that the statement
demonstrates that the officer failed to take into consideration the subsequent
supporting package which contained new evidence. This package consisted of
four documents:
a) A physician’s
letter diagnosing the sponsor with a chronic liver disease;
b) Evidence of
the sponsor’s inability to afford the associated medical costs in Egypt;
c) The continued
emotional and financial support offered by the sponsor to the applicant and the
children;
d) Personal
statements describing the hardship suffered by the sponsor and the children.
[11]
With
respect to the submission that the officer failed to take into consideration
the H&C factors which had been highlighted in the initial package, the
applicant points specifically to the evidence of the sponsor’s establishment in
Canada and the best
interests of the children. The applicant advances that the officer did not
reference or inquire into the emotional effects imposed on the children due to
the prolonged separation.
[12]
The
applicant submits that there is no substitute for the love and support that is
provided through the presence of a biological parent, regardless of the support
received by the children in Egypt. The applicant argues that given the
procedural history of this case, the officer’s decision is insufficient and
fails to give a detailed analysis of the findings. Accordingly, it is
submitted that the officer’s decision is unreasonable.
[13]
In
my view, the CAIPS notes and decision do not support the submission that the
officer failed to consider the evidence filed for consideration by the first
officer. The officer’s statement that “PA interviewed this date. Did not
reveal anything new that would support H&C consideration” does not
demonstrate that evidence was not considered. I prefer the interpretation
offered by the respondent that in making the statement the officer was stating
that the applicant had not provided any new evidence at the October 3, 2010
interview which would support the H&C application. The applicant had
previously submitted written arguments in support of the application on October
26, 2009, and in my view, the officer was drawing a comparison between those
written submissions and the viva voce submissions made to him or her in
2010.
[14]
The
documentary evidence referenced by the applicant does not directly contradict
any of the officer’s material findings, nor is it argued that it does. An
administrative decision-maker need not refer to every piece of evidence
received and it is presumed that all the evidence before the officer was
considered: Florea v Canada (Minister of Employment
and Immigration), [1993] FCJ No 598 (FCA), and Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 417, at para 26. The decision-maker
need only reference evidence that squarely contradicts a material finding.
[15]
The
CAIPS notes and the officer’s reasons demonstrate different instances where the
officer considered the interests of the children. As an example, the following
from the CAIPS notes shows that consideration:
Clearly the sponsor had little
use for his family (PA and child) at the time of his migration to Canada over eight years ago. Now,
primarily because of undocumented health concerns (which apparently do not
prevent him from making the long journey to Egypt), he wants them at his side. Not
convinced that this is in the best interest of either the PA or the child. He
abandoned them once and lived apart from them for several years. What is to
stop him from doing it again? In Egypt, PA and child have had strong support
from PA’s family.
This would not be possible in Canada.
[emphasis added].
[16]
Another
decision-maker may not have reached the same conclusion as this officer, but
the conclusion he reached was most certainly available on the evidence and
cannot be said to be unreasonable. The couple had a history of marital
difficulties. They separated once during which the sponsor made his
application for permanent residence and again when he left for Canada. The
officer noted that other than annual vacations to Egypt, the family
had been separated for over eight years. It was open to the officer to find
that there was a possibility that the couple would again separate in Canada –
at which point the children would not have the essential support that they are
receiving in Egypt. In any
event, the officer’s statement and analysis is clear and convincing evidence
that the officer did consider the children’s interests.
2. Alleged
Reliance on Speculation and
Conjuncture
[17]
The
applicant submits that the officer erred in analyzing the applicant’s positive
evidence through the prism of the sponsor’s conduct at the time of his own
application. Specifically, the applicant submits that the officer erred by
considering the H&C factors in light of the sponsor’s initial permanent
residence application. She submits that this emphasis tainted the officer’s
assessment and led to speculation and conjecture not supported by the facts on
the sponsor’s health conditions and the genuineness and strength of the claim.
[18]
The
officer’s decision states that “no mention was made of the alleged health
concerns.” In the applicant’s view, this demonstrates that the officer failed
to consider the documentary evidence, namely a letter diagnosing the sponsor’s
chronic disease. The applicant notes the officer’s comment that this medical
condition still allows the sponsor to fly back to Egypt. The
applicant argues that the officer had no medical expertise on this issue and
that he had a duty to inform the applicant of any possible doubts relating to
this issue. The applicant submits that she was refused the opportunity to
address this issue at the oral interview and it is further submitted that if
the officer had doubts regarding the sponsor’s medical condition, he had a duty
to inform the applicant in order that she might have a chance to address the
concerns. The applicant submits that this is a breach of procedural fairness.
[19]
The
applicant further argues that she had a genuine relationship with the sponsor.
It is submitted that the sponsor has remained committed to the applicant and
the children, that he has supported them financially and that he spent every
possible minute that he had with them. The applicant submits that the
officer’s finding relating to the bona fides of the relationship is mere
speculation and conjuncture and is not supported by the evidence. It is also
submitted that none of the evidence in the record could reasonably lead to a
finding of “abandonment” from the sponsor.
[20]
The
applicant’s sworn affidavit in this application is uncontested. She swears:
I do not understand why the
Officer claims in his notes that I did not mention my husband’s health problems
during the interview. In response to the single question posed on this subject,
I began explaining Tarek’s medical history and his need for ongoing medical
care. I also stated that I was worried about his physical and psychological
care… I intended to discuss Terek’s condition in full but was never given the
opportunity.
[21]
In
his reasons the officer writes that: “When queried why you wished to join him
in Canada now, you
stated that you wished to reunite the family. No mention was made of your
sponsor’s alleged health concerns.”
[22]
On
the face of these passages, these statements are contradictory. However, these
statements can be interpreted in a manner that they would not contradict each
other. The applicant states that she mentioned the sponsor’s health concerns
during the interview, whereas the officer states that no mention was made of
the health concerns when queried why she wished to join him, which does not
necessarily mean they were not mentioned at all during the interview.
[23]
Regardless,
the Federal Court of Appeal has stated that even if there are errors in a
tribunal’s decision, the decision will not be quashed if there was sufficient
evidence upon which the decision maker could conclude as he did: Kathiripillai
v Canada (Minister of Employment and Immigration), [1992] FCJ No 889 (FCA),
and Luckner v Canada (Minister of Employment and Immigration), [1992]
FCJ No 363 (FCA). In my view, the officer in the present matter could have
concluded as he did even without the finding that the applicant failed to
mention her husband’s health issue. I base that determination on the fact that
the officer gave weight to the fact that:
a) The sponsor
failed to reveal his marriage during the several opportunities that were given
to him during the immigration process;
b) Although the
sponsor decided to immigrate to Canada because of marital problems,
these problems were resolved when he departed; and
c) Despite the
sponsor being eligible to sponsor the applicant since 2002, he made no attempt
to do so until 2007.
[24]
I
do not accept the allegation that the officer erred in considering the H&C
factors through the prism of the sponsor’s conduct at the time of his own
application. The sponsor’s conduct was very much relevant in determining the
genuineness of the relationship and to the question of the children’s best
interests.
3. Costs
and Certified question.
[25]
Given
my disposition of this application, the issue of an award of costs to the
applicant does not arise.
[26]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no question is
certified.
"Russel W. Zinn"
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