Docket:
IMM-2865-13
Citation:
2014 FC 352
Calgary, Alberta, April 10, 2014
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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HANA SAHYOUNI
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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 ORDER AND ORDER
[1]
The present Application challenges a negative
Humanitarian and Compassionate (H&C) decision dated October 11, 2012,
rendered by a Visa Officer pursuant to s.25 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act).
[2]
The critical facts underlying the H&C
application are as follows: on January 8, 2009 the Applicant, a citizen of
Lebanon, married her Canadian husband, Mr. Chatila; the couple resided in
Canada from January 2009 to February 2010 when they returned to Lebanon for
diagnostic testing of Mr. Chatila’s health; on October 13, 2010, the Applicant
gave birth to their son, Omar Chatila, a Canadian citizen; on April 11, 2011
Mr. Chatila applied to sponsor the Applicant for landing in Canada as a member
of the family class; on July 24, 2011, Mr. Chatila passed away due to cancer
while the Applicant’s family class application was still being processed; as a
result, on January 4, 2012, the Applicant applied in Lebanon for permanent
residence in Canada on humanitarian and compassionate grounds based on Omar’s
best interests. The Respondent engaged the Application on September 12, 2012
(Applicant’s Application Record, pp. 159-160).
[3]
Understandably, the evidence is support of the
H&C Application goes to establish that, in Omar’s best interests, Canada is a better place for the Applicant to raise her son than Lebanon.
[4]
By letter dated October 11, 2012, the Visa
Officer reviewing the Application gave the following reasons for rejecting the
Application:
I have considered the circumstances of your application,
including your previous residence in Canada, your Canadian citizen child, the
relative of your late husband who resides in Canada, and the fact that your own
family continues to reside in Lebanon. While the death of your husband is a
tragic event, you no longer have any immediate family members residing in
Canada who can support you or who are eligible to sponsor you for permanent
residence. After considering all the factors, I am not satisfied that there are
sufficient reasons to consider your application under humanitarian and
compassionate circumstances.
(Applicant’s Application Record, p. 5)
On the same date, the following entry was
made in the Officer’s computer record which forms further reasons for decision:
The applicant’s consultant has informed our
office that the sponsor has died. As the applicant no longer has a sponsor, she
does not meet the requirements of the Family Class (R117 & R130). The
applicant has requested consideration under A25: H&C, noting that the aunt
of the applicant’s late husband resides in Canada and will support the family.
I note that the applicant’s immediate family all reside in Lebanon. I am not
satisfied that there are compelling reasons to refer the application to the IPM
for consideration for H&C. While the circumstances of this case are tragic,
the purpose of the family class program is to reunite family members. The
applicant has a dependent son who is a Canadian citizen. However, there is no
program for sponsorship of non-Canadian parents of minor children. Rather, I
find that the best interest of the child is to be with his mother and extended
family in Lebanon. I also note that the applicant has previous study and
residence in Canada, but this in itself is not sufficient for consideration
within the Family Class program. Should the applicant wish to immigrate to
Canada, she can explore other avenues for relocation. Application refused.
(Tribunal Record, p. 1d)
[5]
With respect to H&C applications generally,
and this Application in particular, s. 25 of the Act required the Visa
Officer to take into account Omar’s best interests as a child directly affected
by his mother’s plea to be admitted to Canada. It is agreed that the
established jurisprudence with respect to H&C consideration of the best
interests of a child applies to the present overseas Application. Thus, the
Visa Officer was required to alert, alive, and sensitive to Omar’s best
interests. I find that the Visa Officer’s reasons do not conform with the law
as stated in Kolosovs v. Canada (Minister of Citizenship and Immigration),
2008 FC 165). Therefore, I find the decision under review is unreasonable.
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