Date: 20080523
Docket: IMM-4793-07
Citation: 2008 FC 650
Ottawa, Ontario, May 23,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
FUAD AL MANSURI
NURIA BEN AMER
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, 2001, c. 27, (the Act) of the decision of Immigration
Officer, K. Good (the Officer), dated October 12, 2007, finding that there were
insufficient humanitarian and compassionate (H&C) grounds to warrant an
exemption from the requirements under the Act for applying for permanent
residence.
ISSUES
[2]
Two
issues are raised in the present application:
a) Did the
Officer err by failing to explain why the best interests of the children were
insufficient to outweigh the other factors?
b) Did the
Officer err in failing to assess the female applicant, who was not complicit in
crimes against humanity, and consider the possibility of her being allowed to
remain in Canada,
independently of the male applicant who was excluded?
FACTUAL BACKGROUND
[3]
The
applicants, Mr. Fuad Al Mansuri and Ms. Nuria Ben Amer, are citizens of Libya. They
arrived in Canada in January
1999 and made a claim for refugee protection. The applicants had four children
after arriving in Canada: Zaid born June 2000, Aisam born November 2002,
Adam born July 2006, and Hisham, who died in November 2005.
[4]
The
refugee protection claim initiated in 1999 was refused on the ground that the
male applicant was excluded because of his membership in the Libyan
Intelligence Service. The Immigration and Refugee Board (the Board) found that he
shared a common purpose with the Libyan Intelligence Service, and had personal
knowledge of their acts, and was therefore complicit in crimes against humanity
in Libya. Leave for
judicial review was denied by the Court in May 2001.
[5]
The
applicants made an application for permanent residence on H&C grounds in 2001,
which was refused in 2003. The applicants sought leave for judicial review, and
the decision was remitted to Citizenship and Immigration Canada in 2004. The
Court found that the Officer failed to consider the medical circumstances and
failing health of the applicants’ son, Hisham.
[6]
An
application for a Pre-Removal Risk Assessment (PRRA) was made in March 2004,
and was subsequently rejected in October 2005. An application for judicial
review of the PRRA was dismissed in January 2007.
[7]
The
present application is the judicial review of the second H&C determination,
following the reconsideration ordered by this Court in 2004.
DECISION UNDER REVIEW
[8]
The
Officer considered five factors in her assessment of the applicants’ H&C:
establishment, risk to life and security, the best interests of the children,
the emotional difficulty of Hisham’s death, and the exclusion of the male
applicant.
[9]
First,
the Officer considered the applicants’ degree of establishment in Canada:
a) The Officer
noted that the applicants had resided in Canada for nearly
eight years, and had had four children here. She concluded that the applicants
were significantly established in their community.
b) The Officer
considered that the male applicant was employed since March 2001, where he
worked as a welder and earned $15.50 an hour. She noted that he had been a
member of the union, paid taxes and taken ESL classes. However, she found that
there was insufficient evidence that the applicants would be unable to find
employment and support their family if they returned to Libya.
c) The Officer
noted that the applicants own and have equity in their home. She
also noted that their mortgage had increased, which she found to balance
against the establishment generally shown by the purchase of a home. She noted $14,218.11
US in savings, as well as the applicants’ explanation that they are paying
lawyer’s fees remaining from previous applications. Finally, she noted that the
male applicant’s 2005 tax return showed a net income of $30,476. She concluded
that the applicants were not significantly established financially.
[10]
The
Officer provided a thorough analysis of risk, and found that the applicants
would not face risk amounting to unusual, undeserved or disproportionate
hardship if returned to Libya:
a) She reviewed
the risk-related findings of the PRRA Officer, with regard to the PRRA Officer’s
findings of credibility. She accepted the PRRA Officer’s conclusions that the
evidence did not demonstrate that the applicants would be targeted upon their
return.
b) The Officer
stated that she was cognizant of the difference between the assessment of risk
required of the PRRA Officer and that required in an H&C application. She
specifically noted that she relied on the findings of the PRRA Officer, who in
turn relied on the reasons of the Board, as they related to the strength of the
allegations that form the basis of the risk allegation.
c) The Officer
noted that her review of the documentary evidence did show a poor human rights
record for Libya, but that the evidence did not present a situation where the
applicants would be likely to personally suffer unusual, undeserved or
disproportionate hardship. In particular, she noted positive developments in Libya, and the
removal of UN sanctions in 2003.
d) The Officer
noted that the applicants’ most recent submissions indicated that their primary
concern was not risk, but difficulties in relocating their family, finding
employment and housing, and the adjustment of the children to the new
environment.
[11]
The
Officer examined the question of the best interests of the children:
a) First, she mentioned
that the applicants’ children were not subject to removal, since they are
Canadian citizens. She noted that the same risk analysis that applied to the
applicants would also apply to the children; however, she nonetheless found
that the risk specific to the children should be examined. The Officer
conducted a thorough review of the documentary evidence and found that nothing
in the evidence revealed that the children would suffer undue, undeserved or
disproportionate hardship. She found significant the fact that the applicants
have two older, Libyan-born children living in Libya, and no
evidence was adduced of hardship they had experienced.
b) The Officer
attributed significant weight to the overall human rights situation in Libya in the
assessment of the best interests of the children. She determined that the
Canadian-born children would have a long adjustment, as they do not speak
Arabic. She concluded that it would be in the best interests of the children
to stay in Canada.
[12]
The
Officer noted the difficulty and stress that their removal would cause,
particularly when compounded with the death of their son, Hisham. However, she
did not find that it amounted to unusual, undeserved or disproportionate
hardship.
[13]
Finally,
the Officer considered the male applicant’s exclusion due to his complicity in
crimes against humanity. She included a lengthy excerpt from the reasons of the
Board, and accepted its finding that the male applicant was a member of the
Libyan Intelligence Service, which is an organization principally directed to a
limited brutal purpose. The Officer noted that she gave significant weight to
this fact in her analysis of the H&C application.
[14]
The
Officer concluded by reviewing the factors considered. She stated that the
applicants’ establishment in the community for eight years, the trauma of the
death of their son, and the best interests of the children, all weighed in
favour of granting the H&C application. She noted that the applicants’ risk
situation, as well as their employment and financial establishment were not
significant factors. Finally, she stated that she gave higher weight to the
factor of the male applicant’s exclusion than to the other factors. She
therefore determined that the applicants would not suffer undue, undeserved or
disproportionate hardships if returned to Libya, and there
were insufficient H&C considerations to warrant an exemption from the
requirement of applying for permanent residence from outside of Canada.
ANALYSIS
Standard of Review
[15]
This
Court has previously held that the review of H&C decisions should be
afforded considerable deference, and that the applicable standard was
reasonableness simpliciter (Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817).
[16]
Following
the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9, review of H&C decisions should continue to
be subject to deference by the Court, and are reviewable on the newly
articulated standard of reasonableness (Dunsmuir, at paragraphs 55, 57,
62, and 64).
[17]
For
a decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, at paragraph 47).
Did
the Officer err by failing to explain why the best interests of the children
were insufficient to outweigh the other factors?
[18]
The
applicants submit that, though it is not determinative, the best interests
of the child is an important factor. They argue that the male applicant’s
exclusion is not a sufficient factor to outweigh all of the other factors,
particularly the best interests of the children.
[19]
The
applicants cite Malekzai v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1571, at paragraph 25, [2005]
F.C.J. No. 1956:
[25] There is no doubt that the
Officer intended to be "alert and alive" to the interests of the
child(ren) but appears to have been insensitive. The Officer expressly refused
to consider "psychological and emotional factors." In reality, the
Office ignored what truly would happen. The father would be removed from Canada, never to return and likely
killed or at least tortured. The mother would be left with limited means of
support. Is it necessary to create another welfare situation and broken home!
[20]
The
applicants argue that the Officer should have considered the effect on the
children of living in Libya without a father because of the risk
factor. I do not accept this argument for two reasons. The case at bar is
distinguishable from Malekzai, above. In the case at bar, the Officer
accepted the findings of the PRRA Officer and the Board, as they relate to the
strength of the allegations that form the basis of the risk allegation. One
such allegation, which was clearly rejected, was the probability that the male
applicant would be killed or detained if removed from Canada. Because the
Officer accepted the PRRA Officer and Board’s determination that the allegation
was unsubstantiated, there can be no question that this was, in fact,
considered by the Officer. In Malekzai at paragraph 12, it was
determined that the applicant would be at risk to life or at risk to cruel and
unusual treatment or punishment if returned to Afghanistan.
[21]
By
this argument, the applicants are asking the Court to reweigh the factors considered
by the H&C Officer. This is not the role of the Court, and I decline to do
so in the absence of the reviewable error (Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, at paragraph 11, [2002] 4
F.C. 358).
Did
the Officer err in failing to assess the female applicant, who was not
complicit in crimes against humanity, and consider the possibility of her being
allowed to remain in Canada, independently of the male applicant who was
excluded?
[22]
The
applicants also submit that the Officer erred in failing to assess the weight
of the exclusion factor as it relates to the case of the female applicant. It
is argued that no negative factors were cited by the Officer in relation to the
female applicant’s claim, and that the Officer was obliged to consider whether
the conduct of the male applicant was sufficient to warrant the refusal of the
female applicant. Has such proper consideration been given to the female
applicant’s circumstances, it would have been open to the Officer to grant an
H&C exemption for her and not her husband.
[23]
I
agree with the applicants’ submission. The Officer’s decision to refuse an
exemption to both applicants, without explanation of why the male applicant’s
exclusion should impact the female applicant’s application, is arbitrary; it
clearly falls outside the range of acceptable outcomes which are defensible in
respect of facts and law.
[24]
The
respondent submits that the Officer sufficiently assessed the female
applicant’s claim by referring to her in the analysis of the other factors. I
cannot accept this. The Officer clearly articulated in her reasons that
the male applicant’s exclusion is the determinative factor, as well as the only
negative factor. Nothing in the evidence before the Officer links the female
applicant to the exclusion. It is contrary to reason that the conduct of the
male applicant would be sufficient to outweigh the positive factors attributable
to the female applicant, in the absence of reasons. It has to be
remembered that the female applicant had filed for a separate H&C claim.
[25]
No
questions for certification were proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be allowed only for the female applicant. The matter is
remitted for reconsideration by a different Officer. No question is certified.
“Michel
Beaudry”
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