Date: 20080304
Docket: IMM-2136-07
Citation: 2008 FC 295
Ottawa, Ontario, March 4, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SABERABANU
MY KAZI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of two
decisions of a visa officer (the officer) both dated April 25, 2007, wherein the
officer denied the applicant’s applications for permanent residence as a member
of the family class and under humanitarian and compassionate (H&C) grounds.
[2]
The
applicant requested the following relief:
1. An order quashing
the decision of the designated immigration officer of the Immigration Section
of the Canadian High Commission in New Delhi, India whereby the applicant’s
application for permanent residence as a member of the family class was refused
pursuant to paragraph 117(1)(f) of IRPA;
2. An order quashing
the decision of the designated immigration officer of the Immigration Section
of the Canadian High Commission in New Delhi, India whereby the applicant’s
application for permanent residence was refused pursuant to subsection 11(1) of
IRPA; and
3. An order that the
application be reassessed under H&C grounds by keeping in mind the
extraordinary circumstances faced by the applicant in India.
Background
[3]
Saberabanu
My Kazi (the applicant) is a citizen of India. In June
1998, Mohammed Jahed Yusuf Kazi (the applicant’s brother) submitted an
application to sponsor the applicant’s father and the applicant (as the
father’s dependent) to Canada as members of the family class (the first
application). This first application was refused on the basis that the
applicant’s father was medically inadmissible as per subparagraph 19(1)(a)(ii)
of IRPA. Moreover, in refusing the application, an issue regarding the
establishment of the relationship between the applicant and her father arose. A
DNA test was conducted establishing the relationship between the applicant and
her father. Unfortunately, the applicant’s father passed away on December 16,
2001.
[4]
Instead
of continuing with the first application, it appears that after the death of
the father, the applicant’s brother and his wife submitted a fresh application
to sponsor the applicant alone as a member of the family class (the second
application). The second application was submitted in September 2002 at which
time the applicant was 21 years old. In December 2002, officials at Citizenship
and Immigration Canada (CIC) informed the applicant by way of letter to her
counsel that the applicant did not meet the selection criteria under the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations) because
she was not less than 18 years of age at the time the application was
submitted. By letter dated May 2003, the applicant’s counsel wrote to CIC
officials stating “although the applicant cannot clearly qualify under IRPR
[….] she can certainly qualify under humanitarian and compassionate (H&C)
grounds. We therefore request that you grant her application for permanent
residence under H&C grounds.”
[5]
On
February 13, 2007, the applicant received a letter from CIC informing her that
an interview had been scheduled for April 19, 2007. The applicant attended the
interview. On April 25, 2007, the applicant received two letters; one refusing
her application for permanent residence in Canada as a member
of the family class and the other refusing her H&C application. This is the
judicial review of the officer’s decisions.
Officer’s Decision
[6]
In
the April 25, 2007 decision on the application as a member of the family class,
the officer stated that she had carefully and thoroughly considered the
applicant’s application and the supporting information and documentation, and
had determined that the applicant did not meet the requirements for a permanent
resident visa as a member of the family class. The officer referred to
paragraph 117(1)(f) of the Regulations, which deals with orphaned siblings as
dependents under the family class, and stated that as the applicant was over the
age of 18 years when the application was submitted, she did not qualify. As
such, the officer concluded that the applicant was not a member of the family
class whose application could be sponsored pursuant to paragraph 117(1)(f) of
the Regulations.
[7]
In the second April 25, 2007 decision, the officer denied
the applicant’s request for humanitarian and compassion consideration. The
officer stated that she had reviewed all the circumstances of the applicant’s
case in accordance with subsection 25(1), but had determined that humanitarian
or compassionate considerations were not justified.
Issues
[8]
The
applicant submitted the following issues for consideration:
1. Did the officer
arrive at her decision by acting arbitrarily or capriciously in refusing the
applicant’s application for permanent residence in Canada under the
family class?
2. Did the officer err
in her decision by failing to take into consideration humanitarian and
compassionate considerations that prevail in the applicant’s circumstances?
3. Did the officer err
in not reviewing the file of the applicant on a full and proper basis in
accordance with the applicable guidelines keeping in mind the principles of
natural and fundamental justice and procedural fairness thereby reflecting the
appearance of bias?
[9]
I
would rephrase the issues as follows:
1. Does this
application for judicial review include the decision of the officer dated April
25, 2007 refusing the applicant’s application for permanent residence on
H&C grounds?
2. What is the appropriate
standard of review?
3. Did the officer err
in rejecting the applicant’s application for permanent residence as a member of
the family class?
4. Did the officer err
in rejecting the applicant’s application for permanent residence on H&C
grounds?
Applicant’s Submissions
[10]
The
applicant submitted that the appropriate standard of review is one of
reasonableness simpliciter (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817). It was submitted that
in rendering her decision, the officer failed to consider the fact that the
applicant originally made her application on or about June 1998 and at that
time, she was under the age of 18 years as required by the Regulations to be a
dependent. Moreover, the applicant’s relationship to her father had been proven
through DNA evidence. It was also noted that the applicant must only prove the
relationship between her father and herself on a “preponderance of evidence”,
and not “conclusively” (Mendoza v. Canada (Minister of
Employment and Immigration) (1987), 1 Imm. L.R. (2d) 99 (Imm. App. Bd.), at
l03).
[11]
The
applicant noted a number of cases involving situations where the applicant was
under the age of 18 when the application process was commenced, but over 18
when the application process was concluded. The applicant submitted that these
cases provide insight into her situation as she too was under the age of 18
years when she originally applied for permanent residence as a member of the
family class.
[12]
The
applicant also made submissions as to her situation in India in the wake
of her father’s passing. The applicant submitted that she was left in a state
of total shock due to her father’s sudden death. It was submitted that the
applicant is solely dependent on her brother in Canada for
financial, moral and emotional support. Although she has other brothers and
sisters residing close to her in India, they have families of
their own to take care of. The applicant also submitted that as a single Muslim
woman alone in India, she is in a very vulnerable position. For
these reasons, the applicant submitted that the interests of justice and
humanitarian and compassionate considerations are best met in allowing this
application for judicial review.
Respondent’s Submissions
[13]
With
regards to the refusal of the applicant’s application under the family class,
the respondent submitted that the applicant was 21 years old when her
application was filed. As such, the officer had no choice but to deny her
application. To be a successful applicant under paragraph 117(1)(f) of the
Regulations, the applicant must be under the age of 18 years. The respondent
submitted that even the applicant’s counsel stated in his May 2003 letter to
CIC officials that “although the applicant cannot clearly qualify under IRPA, […]
she can certainly qualify under humanitarian and compassionate (H&C)
grounds”. It was submitted that the applicant’s argument that she was under 18
years of age when her application was submitted in 1998 can simply not be
accepted. The application submitted in 1998 was the applicant’s first
application and is a different application from the within application. The
officer in the second application properly refused the application on the basis
of age.
[14]
Regarding
the applicant’s submissions on H&C grounds, the respondent noted in their
written submissions that the applicant did not seek leave to judicially review
the officer’s decision on this matter. The respondent noted the wording of the
application for leave and the fact that the applicant did not include the
H&C decision in her record.
[15]
In
any event, the respondent submitted that the officer did not err in refusing
the applicant’s request for H&C relief. A decision on H&C grounds is an
exceptional measure and, moreover, a discretionary one (Legault v. Canada (Minister of
Citizenship and Immigration), (2002) 212 D.L.R. (4th) 139). H&C
decisions are only granted where the officer is satisfied that compliance with
the requirements of IRPA would result in either unusual and undeserved or
disproportionate hardship to the applicant. H&C exceptions are not designed
to eliminate hardship (Owusu v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 158 (C.A.)). The
respondent submitted that the officer’s decision was in no way unreasonable and
therefore should not be interfered with by the Court (Baker above).The
officer considered the applicant’s H&C grounds, her personal circumstances
in India and her family relationships and interdependencies with her relatives
in India and her brother in Canada, and ultimately determined that the
applicant would not suffer undue, undeserved or disproportionate hardship if
not granted an exemption of the requirements of IRPA.
Applicant’s Reply
[16]
The
applicant submitted she should have received credit for being under 18 at the
time of her first application submitted in 1998. When her original application
was submitted, she met the age requirement and the officer should have
considered this and allowed her second application.
[17]
With
regards to the respondent’s argument that the applicant did not seek leave for
judicial review of the officer’s H&C decision, the applicant submitted that
the applicant is only seeking review of the officer’s decision in respect of
permanent residence in Canada under the family class.
Analysis and Decision
[18]
Issue
1
Does this application for
judicial review include the decision of the officer dated April 25, 2007
refusing the applicant’s application for permanent residence on H&C
grounds?
In their written submissions,
the respondent argued that the application for leave only sought review of the
family class decision.
[19]
However,
at the hearing counsel for the respondent noted that the application for
judicial review likely contained requests to review the two separate decisions;
the family class decision and the H&C decision. As such, the respondent chose
not to pursue this issue. Consequently, I will review both decisions.
[20]
Issue
2
What is the appropriate
standard of review?
The
appropriate standard of review for a visa officer’s decision on whether or not
the applicant is a member of the family class is that of patent
unreasonableness (Abdilahi v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 1431 and Sharief v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 386
(F.C.T.D.)).
[21]
Decisions
of H&C officers are reviewable on a standard of review of reasonableness simpliciter
(Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817).
[22]
Issue
3
Did the officer err in
rejecting the applicant’s application for permanent residence as a member of
the family class?
In the first application, the
applicant’s brother made an initial application to sponsor the applicant and
her father but this application was denied. The applicant’s brother submitted a
second application to sponsor the applicant in September 2002. At that time,
the applicant was 21 years of age. Pursuant to paragraph 117(1)(f) of the
Regulations, the applicant must be under 18 years of age in order to qualify to
be sponsored as a family class member. Since she was 21 years of age at the
time of the second application, she does not qualify and the officer made no error
in this respect. The fact that the applicant was the subject of an earlier
failed application, when she was under 18 years of age, is not relevant to this
application.
[23]
Issue
4
Did the officer err in
rejecting the applicant’s application for permanent residence on H&C
grounds?
I have carefully reviewed the
officer’s CAIPS notes with respect to the interview for the H&C
application. The officer carefully questioned the applicant on all aspects of
the H&C application. For example, the following exchange took place between
the officer and the applicant at the interview:
Your sponsor brother’s representative has
written to say that even though you do not qualify for a permanent residence
visa according to the Act and Regulations, you should still be allowed to go to
Canada under Humanitarian and Compassionate considerations. What do you have to
say to that? It will be good if I am allowed to go. Otherwise, I will consider
it as my fate.
Do you face any hardships living here in
Rander? No. But I got really scared when the floods came. At that time, my
maternal uncle’s son came and took me with him. I also get scared when I hear
about earthquakes.
Are you otherwise facing any hardships
living all by yourself? No. I have been living alone for the last six years.
Who cooks food at home? I do. I can cook.
Do you have anything else to say with
regard to your application? No.
(certified tribunal record at page 4)
[24]
I
have also made reference to the officer’s reasons for her decision which are
contained at page 5 of the certified tribunal record and her reasons support
the conclusion she reached.
[25]
I
have reviewed the file and I do not find any evidence to support a finding of a
breach of natural justice.
[26]
I
am of the opinion that the officer did not make a reviewable error when the
H&C application was denied.
[27]
The
application for judicial review is therefore dismissed.
[28]
Based
on my decision, neither party wished to submit a proposed serious question of
general importance for my consideration for certification.
JUDGMENT
[29]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Regulations, SOR/2002-227:
|
117(1) A
foreign national is a member of the family class if, with respect to a
sponsor, the foreign national is
. . .
(f) a person
whose parents are deceased, who is under 18 years of age, who is not a spouse
or common-law partner and who is
(i) a child of
the sponsor's mother or father,
(ii) a child
of a child of the sponsor's mother or father, or
(iii) a child
of the sponsor's child;
|
117.1)
Appartiennent à la catégorie du regroupement familial du fait de la relation
qu’ils ont avec le répondant les étrangers suivants :
. .
.
f)
s’ils sont âgés de moins de dix-huit ans, si leurs parents sont décédés et
s’ils n’ont pas d’époux ni de conjoint de fait :
(i)
les enfants de l’un ou l’autre des parents du répondant,
(ii)
les enfants des enfants de l’un ou l’autre de ses parents,
(iii)
les enfants de ses enfants;
|
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27:
|
25.(1)
The Minister shall, upon request of a foreign national who is inadmissible or
who does not meet the requirements of this Act, and may, on the Minister’s
own initiative, 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 interdit de territoire ou qui ne
se conforme pas à la présente loi, et peut, de sa propre initiative, 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.
|
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