Date: 20080723
Docket: IMM-3881-07
Citation: 2008 FC 900
Toronto,
Ontario, July 23, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MOHAMAD MUGHRABI
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of an immigration officer (Officer) dated September 17, 2007
(Decision) refusing the Applicant’s application for permanent residence from
within Canada on humanitarian and compassionate (H&C) grounds.
BACKGROUND
[2]
The Applicant is a
citizen of Jordan of Palestinian ethnicity. He left Jordan and entered the United
States in June 1996. He
entered Canada on May 6, 2003 at which time he made a
claim for refugee status. The Refugee Protection Division of the Immigration
and Refugee Board denied his claim for refugee protection on June 15, 2004. The
Applicant’s Pre-removal Risk Assessment (PRRA) was denied on June 16, 2005. The
Applicant sought leave and judicial review of the negative PRRA decision. On
October 6, 2005, the application for leave was dismissed by this Court and on
September 17, 2007, a removal order was issued against the Applicant requiring
the Applicant to leave Canada on September 27, 2007.
[3]
In the meantime, on
November 24, 2006, the Applicant submitted an application for permanent
residence in Canada on H&C grounds. This application was refused on
September 17, 2007. This is the Decision subject to judicial review in the
present application. A stay of the removal order has been granted pending the
outcome of this application for judicial review.
DECISION
UNDER REVIEW
[4]
In her Decision, the
Officer set out the factors for and against the Applicant’s H&C application
and concluded that there were insufficient H&C grounds to warrant waiving
the requirement that the Applicant apply for a visa outside Canada. The Officer
noted that the Applicant’s H&C application was based on the emotional and
physical dependency placed upon the Applicant by his extended Canadian family,
including his aunt, uncle, and their five children. The Officer acknowledged
that the Applicant’s cousins depended on the Applicant for physical care and
emotional support, but noted that the children would be cared for by their
biological parents in Canada if the Applicant applied for permanent
residency outside of Canada.
[5]
The Officer also
considered the hardships caused to the family if the Applicant was required to
make his application from outside Canada and concluded that they would not be
“more unusual and undeserved or disproportionate then [sic] other family
members in Canada face who are separated from their relatives outside of
Canada.”
[6]
The Officer then
noted that the Applicant could return to the United States to join his wife, a U.S. citizen, who may be able to provide emotional and financial
support to the Applicant, and that such a return would support the interests of
family re-unification. The Officer also acknowledged that if the Applicant
returned to Jordan, the country conditions would be less
appealing than those in Canada, but held that the conditions he would face were
no more unusual or undeserved with respect to hardships than those faced by
other persons in Jordan and in other countries. The Officer thus
concluded that there were insufficient H&C grounds to warrant waiving the
visa requirement and refused the Applicant's application for permanent
residence within Canada.
ISSUES
[7]
The issues on this
application for judicial review are:
1.
Did the Officer
ignore the two psychological reports submitted in support of the Applicant’s
H&C application when making her Decision?
2.
Did the Officer fail
to consider the best interests of the children?
3.
Is the Officer’s Decision
unreasonable?
3.
STATUTORY
FRAMEWORK
[8]
The following
provisions of the Act are applicable in the case at bar:
|
Application
before entering Canada
11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document shall be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
Humanitarian
and compassionate considerations
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.
|
Visa
et documents
11.
(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
Séjour
pour motif d’ordre humanitaire
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.
|
STANDARD OF REVIEW
[9]
Recently, in Dunsmuir
v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada decided upon a
single form of “reasonableness” review after recognizing that, although the
reasonableness simpliciter and patent unreasonableness standards are
theoretically different, “the analytical problems that arise in trying to apply
the different standards undercut any conceptual usefulness created by the
inherently greater flexibility of having multiple standards of review” (Dunsmuir
at para. 44).
[10]
The Supreme Court of
Canada in Dunsmuir also held that a standard of review analysis need not
be conducted in every instance. Instead, where the standard of review
applicable to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake an
analysis of the four factors comprising the standard of review analysis.
[11]
Prior to Dunsmuir,
it was well-settled that the standard of review applicable to an officer’s
decision of whether or not to grant an exemption based on humanitarian and
compassionate considerations was reasonableness simpliciter (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817 at para. 61. In light of the Supreme Court of
Canada’s decisions in Baker and Dunsmuir and the previous jurisprudence
of this Court, I find the applicable standard of review is reasonableness. When
reviewing a decision on this standard, the Court may only intervene if the
Officer’s Decision was unreasonable in the sense that it falls outside the
“range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir at para. 47).
[11]
ANALYSIS
1. Did the Officer ignore the two
psychological reports submitted in support of the Applicant’s H&C
application when making her Decision?
[12]
The
Applicant argues that the Officer failed to properly consider the two
psychological reports submitted in support of his H&C application and so
committed a reviewable error. He submits that the Officer made only a summary
mention of the psychological reports and failed to engage in an in-depth
explanation as to why the Officer rejected the findings contained in the
reports. This fleeting mention of such key evidence, argues the Applicant, does not meet the requirement
that an Officer must consider all the evidence provided by the Applicant.
[13]
The Respondent argues
that the Officer’s reasons for her Decision demonstrate that she had regard to
all the evidence, including the two psychological reports. The Respondent
submits that the Officer acknowledged what the reports said about the
possibility of the family suffering psychologically. However, the Officer found
that the biological parents would still be able to care for the children, that
there were social and medical systems in place in Canada to assist the family
members if they did experience psychological trauma, and that any hardships the
family might suffer are no more unusual and undeserved or disproportionate than
other families who undergo such separation. The Respondent submits that it is
clear from the Officer’s decision that the psychological reports were
considered and the Applicant is really taking issue with the weight given to the
reports. The Respondent argues that it is not the role of the Court to
undertake a re-weighing of the evidence, nor is it open to the Court to
substitute its opinion for that of the Officer.
[14]
After reviewing the Decision,
I am not convinced that the Officer ignored the psychological reports submitted
in support of the Applicant’s permanent residence application. The Officer made
specific reference to the reports as part of the list of documents she considered.
She also made reference to information contained in the reports, such as the
close relationship between the Applicant and his aunt, that his aunt and uncle
have had health issues, and that the Applicant has spent time caring for his
cousins, and the “close and loving bond” the Applicant has developed with his
cousins, especially the youngest cousin, Jenan. The Officer also noted as
follows:
[a]lthough
the psychological reports dated 14Oct2005 and 17Jan2007 state that Mr.
Mughrabi’s family members will suffer psychologically if he leaves Canada,
especially the youngest cousin, Jenan, age four, his five young cousins have
their biological parents in Canada who are still able to provide financial
support and physical and emotional care to them.
[15]
Based on these
references, and although I agree that the Officer only made a summary mention
of the evidence contained in the psychological reports, the Applicant has
failed to establish that the Officer ignored the psychological reports when
assessing the Applicant’s application and the H&C factors in his case.
2. Did the Officer fail to consider the best
interests of the children?
[16]
The Applicant submits
that the Officer was not alert, alive and sensitive to the best interests of
the children affected by the Decision when she rejected the Applicant's H&C
application. The Applicant relies on the Federal Court of Appeal’s decision in Hawthorne v. Canada (Minister of Citizenship and
Immigration), 2002 FCA
475 at para. 32, wherein the Court provided the following summary of the
applicable jurisprudence:
32
It was also common
ground that an officer cannot demonstrate that she has been “alert, alive and
sensitive” to the best interests of an affected child simply by stating in the
reasons for decision that she has taken into account the interests of a child
of an H & C applicant (Legault, at para. 13). Rather, the interests of the
child must be “well identified and defined” (Legault, at para. 12) and “examined
... with a great deal of attention” (Legault, at para. 31). For, as the Supreme
Court has made clear, the best interests of the child are “an important factor”
and must be given “substantial weight” (Baker, at para. 75) in the exercise of
discretion under subsection 114(2).
[17]
The
Applicant also relies on Justice Campbell's recent decision in Kolosovs v. Canada (Minister of Citizenship and
Immigration),
2008 FC 165, wherein the Court considered the terms “alert, alive and sensitive.”
In that case, the Court held that being “alert” required that an Officer
demonstrate awareness of the child’s best interests by noting the ways in which
those interests were implicated. To be “alive,” the Officer must consider the
best interest factors in their full context, and the relationship between those
factors and other elements of the fact situation must be fully understood. To
demonstrate sensitivity, the Officer must be able to clearly articulate the
suffering of a child that will result from a negative decision, and then say
whether, together with a consideration of other factors, the suffering warrants
H&C relief.
[18]
In support of his
argument that the Officer was not alert, alive and sensitive to the best
interests of the child, the Applicant argues that the Decision only contains
the statement that “the hardships that [the Applicant’s] cousins would face are
not more unusual and undeserved or disproportionate then [sic] any other
family members in Canada face who are separated from their relatives outside of
Canada.” This statement, argues the Applicant, does not meet the standard for
an alive, alert and sensitive assessment of the best interests of the children
in this case.
[19]
The Applicant argues
that it was incumbent upon the Officer to consider the effect that his removal,
as evidenced in the psychological reports, would have on his cousins. The
Applicant submits that the Officer failed to fully consider the effect and
merely restated the grounds upon which the Applicant made his H&C application,
and gave a fleeting review of the impact the removal would have on the
children. In the Applicant's view, the Officer failed to properly identify and
define the best interests of the children or examine these interests with due
attention, as required by the Hawthorne decision.
[20]
Finally, the
Applicant notes that the child affected need not be the Applicant's child. The
applicant relies upon this Court’s decision in Momcilovic v. Canada
(Minister of Citizenship and Immigration) (2005), 268 F.T.R. 150, 2005 FC
79, wherein Justice O’Keefe held at paragraph 45:
45 A plain reading of subsection 25(1)
indicates that subsection 25(1) is broader than the best interests of a parent’s
own child. The section does not use wording such as “child of the marriage” or “the
applicant’s child”. It refers to the best interests of a “child directly
affected”.
[21]
The Respondent argues
that although the best interests of the children are important, they are not
determinative (Hawthorne, supra). Instead, they must be
balanced against other factors. The Respondent submits that the Officer engaged
in the balancing test and considered the Applicant’s failed refugee claim, the
failed PRRA application, and the psychological reports. The Respondent submits
that the Officer’s reasons demonstrate that the Officer had regard to the
specific factors of the case, the context of hardship and the suffering that
would result from a negative decision, and was thus alert, alive and sensitive
to the children’s best interests.
[22]
The Respondent notes
that this case is distinguishable from Kolosovs. In that case, the
grandfather was present at the birth of all the children, he emotionally and
financially supported the children, and he was the only father figure the
children knew. Further, in Kolosovs, the Officer did not have regard to
the best interest of the children in that he failed to take into account a key
factor: one of the children had juvenile diabetes and was in a diabetic coma.
The Respondent submits that, in the present case, the Decision captures the
substance of the reports and does not omit any key factors. The Officer
considered the full context, recognizing that the children would still have
their biological parents and siblings to rely on and that the Applicant was not
the children’s parent or primary caregiver. According to the Respondent, the
Applicant is once again asking this court to reweigh the evidence that was
before the Officer.
[23]
The Applicant and his
Canadian family went to a great deal of
trouble in this case to provide detailed reports from qualified professionals
that specified the problems and the trauma that would be faced by this family,
and the children in particular, if the Applicant had to leave the country. The
Officer deals with the reports by acknowledging the trauma but then discounting
it by saying that:
a.
The biological
parents in Canada will be “able to provide financial support and physical and
emotional care to them”;
b.
“There are numerous
social and medical systems in place in Canada to assist with these issues”; and
c.
The “hardships that
his aunt, uncle, and cousins would face are not more unusual (sic) and
undeserved or disproportionate then (sic) other family members in Canada
face who are separated from their relatives outside of Canada.”
[24]
In other words, the
Officer says she had considered the reports but the conclusion is that this is no
more than the usual case of separation and does not meet the required standard.
[25]
The
problem with these conclusions is that they are little more than disagreement
with the psychological reports themselves which, after a very thorough
investigation of this particular family, conclude that the separation could
have some very serious and unusual consequences indeed, particularly as regards
young Jenan.
[26]
The
Officer is perfectly entitled to reject the reports or to conclude that there
are other factors besides the interests of the children that outweigh the
findings in the reports, but there must be some evidentiary and/or rationale
basis for doing so that is fully explained in the reasons.
[27]
The
reports paint a picture that is so fraught with trauma that the Officer was
obligated to make perfectly clear why that trauma could be discounted as being
no more than the usual hardship resulting from separation. In Jenan’s case, for
instance, it is not possible to tell why the Officer should consider
“attachment disorder” and possible “Oppositional Defiant Disorder” as just part
of the usual consequences of separation.
[28]
Without
an adequate explanation, and the reliance upon generalities that do not address
the specifics of this case, it cannot be said that the Officer was really
alert, alive and sensitive to the interests of these particular children and,
for that reason, I have to conclude that the Decision is unreasonable.
3. Is the Officer's Decision
unreasonable?
[29]
The Applicant argues
that the Officer had no grounds for rejecting the psychological reports or for
substituting her opinion over those of the psychologists. The Applicant argues
that the Officer held that the Applicant's family would not suffer more unusual
hardship than other Canadian families who are separated from their relatives
outside Canada, yet the psychological reports clearly demonstrated that the
Applicant's family would suffer serious and irreparable harm. The reports also
make specific reference to each family member and the long-lasting and possible
psychological damage that they may suffer if the Applicant is removed from
Canada. The Applicant argues that the Officer did not provide any supporting
evidence for rejecting the findings of the psychological reports. There was no
reference to possible errors in the reports, nor any reference to competing
reports or expert opinions. Thus, according to the Applicant, the Officer erred
by substituting her opinion for those contained in the two expert reports. The
Officer’s opinions on psychological impact, suggests the Applicant, were not
supported by the evidence and were therefore unreasonable.
[30]
The Respondent
submits that it was open to the Officer to reject the psychological reports or
substitute her opinion for that of the reports. This is precisely the Officer’s
job, argues the Respondent, and to do otherwise would amount to a fettering of
her discretion. The Respondent submits that the psychological reports were but
one factor to consider in deciding whether to grant the H&C application and
argues that the Decision is supported by the reasons and withstands a probing
examination.
[31]
I
agree with the Respondent that the reports were but one factor to consider and
that it was open to the Officer to reject the reports. But for reasons I have
already given, I do not think the Applicant is simply asking the Court to
re-weigh the evidence and to come to a different conclusion. The Officer does
not address the specifics of the reports, relies upon unsupported
generalizations to discount them, and, without any real basis or explanation,
treats as “usual” what the reports say is extremely serious and more than usual.
For these reasons, I think the Decision is unreasonable and the matter needs to
be reconsidered.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
Application is allowed and the matter is returned for reconsideration by a
different officer;
2.
There
is no question for certification.
“James
Russell”
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