Docket: IMM-3703-14
Citation:
2015 FC 946
Toronto, Ontario, August 05, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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MUHAMMAD ASLAM
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SAKINA ASLAM
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SOHAIL ASLAM
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AMNA ASLAM
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NAMRA ASLAM
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SHIZA ASLAM
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is the judicial review of a negative decision
[Decision] for an application for permanent residence made under Humanitarian
and Compassionate [H&C] grounds pursuant to section 25 of the Immigration
and Refugee Protection Act (SC 2001, c 27) [Act]. On February 28, 2013, an
Officer [Officer] of Citizenship and Immigration Canada [CIC] rejected the
application of Muhammad Aslam, a citizen of Pakistan; his wife, Sakina; their
three daughters, Amna, Shiza, Namra and their son, Sohail. Their youngest
child, Shoaib, was born in Canada and has status in this country as a citizen.
[2]
Sakina Aslam came to Canada with four of her
children in February 2001, and made a claim for refugee protection, which was
granted by the Refugee Protection Division in August of that year. Mr. Aslam
came to Canada in April 2001, but was refused refugee protection in January
2004 due to a lack of credibility regarding his fear of persecution. Moreover,
the refugee status initially granted to Ms. Aslam and her children was vacated
in October 2004, after Ms. Aslam admitted to falsifying details of her claim.
[3]
The Officer also relied on evidence indicating
that in his first two years living in Canada, Mr. Aslam failed to declare
income that he continued to earn from his previous employment in Pakistan to
the Canada Revenue Agency while simultaneously collecting Canadian welfare
benefits (Applicants’ Record [AR], p.10).
[4]
This behaviour on the part of Mr. and Ms. Aslam
played a significant role in the Officer’s Decision to reject the application,
as noted in the reasons:
“…it weighs negatively in my assessment that
the principal applicant and his wife submitted fraudulent refugee claims –
including manufactured evidence – as a means of seeking their establishment in
Canada. In my opinion, such a decision also exhibits disrespect for the
Canadian immigration system and, specifically, a disregard for the requirements
of the Immigration and Refugee Protection Act.” (AR, p.10)
[5]
At the hearing for this judicial review, counsel
for the Applicants indicated that the Officer’s Decision with respect to Mr.
and Ms. Aslam appears to be reasonable. Given the lack of argument on this
point at the hearing, the reasonableness of the Decision as it pertains to Mr.
and Ms. Aslam is not in dispute. I, too, find that the Officer made no error in
this regard.
[6]
Rather, the reviewable error in this case, from
the Applicants’ perspective, was the Officer’s failure to consider Namra separately
from the actions of her parents. In other words, the Officer visited the sins
of the parents upon an innocent child.
[7]
In a Further Affidavit from the Applicant dated
February 23, 2015, Amna Aslam, the second eldest of the Aslam children, deposed
that three of the children, Sohail, Amna and Shiza, have attained the age of
majority and have submitted their own individual H&C applications. These
applications have received first stage approval from CIC, and instructions for
medical examinations have been communicated in order to continue the process of
assessment.
[8]
Consequently, a major issue highlighted in the
submissions for this judicial review – the separate consideration of Mr.
Aslam’s adult children - is now moot. Mr. Aslam’s three adult children are now
being assessed on their own merits, and all indications are that they will
obtain permanent residence, given their first stage approvals.
[9]
This Court is thus left with a single tricky
question – did the Officer err in her consideration of the best interests of
Namra Aslam? She is currently a minor child of 16 years of age, and the sole
sibling among the Aslam children without current or imminent permanent
residency status in Canada.
[10]
In my view, based on the applicable
jurisprudence and record before the Officer, the Decision was a reasonable one.
II.
Standard of Review
[11]
Judicial reviews of H&C applications are to
be reviewed on a standard of reasonableness, which implies that there is a
range of acceptable and defensible options from which the decision maker may
choose (Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113
at para 37 [Kanthasamy]; Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47). For H&C officers, this range is generally broad and it is not for
this Court to reweigh evidence that has properly been considered, even when the
outcome is ultimately one the Court would not have preferred (Kanthasamy
at paras 84, 99; Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at para 59).
III.
Analysis
[12]
In analyzing the best interests of Namra, the
Officer concluded:
I also find that the actions of the
principal applicant and his wife with regard to their respective refugee claims
weighs negatively in this assessment and cannot be entirely overcome by the
positive consideration I afford to the best interests of the applicants’
children. (AR, p.11)
[13]
In Singh v Canada (Citizenship and
Immigration), 2013 FC 1075 [Singh], the applicant also arrived in
Canada with his parents as a minor child. He and his mother were granted
refugee status, which was eventually vacated when it was discovered that his
mother had used a false identity and was attempting to sponsor his father
(whose refugee claim was denied) through the use of a fictitious wedding
ceremony. The applicant applied for H&C status, but the application was
rejected. Justice Shore upheld the decision.
[14]
The Applicants argue that this case is
distinguishable from Singh because Mr. Singh arrived at the Court with
unclean hands, as not only had he and his parents used a false identity to
support their refugee claim when they arrived in Canada, but his true identity
had still not been clearly established (Singh at para 27). Further, it
appeared that he was still endeavouring to mislead authorities by lying about
his relationship status (Singh at para 12).
[15]
It is true that in this case, there are no
allegations of impropriety on behalf of Namra: she came to this country as a
young child, and has not attempted to mislead the authorities or acted as
anything other than a model citizen. A minor child’s commendable behaviour, unfortunately,
is not always sufficient to grant H&C status, as section 25 is an “exceptional” provision (Kanthasamy at paras
40-41).
[16]
The Federal Court of Appeal addressed a related
argument in Kisana v Canada (Citizenship and Immigration), 2009 FCA 189
at para 27 [Kisana], and made again today before this Court – that the
sins of the mother should not be revisited upon the child. However, the
argument was rejected as the Federal Court of Appeal concluded that:
[27] In this type of case, where children are “left behind” due
to a parent’s misrepresentation on an immigration application, it will
usually be self-evident that the child was not complicit in the
misrepresentation. Yet, it is well established that such misrepresentation is a
relevant public policy consideration in an H&C assessment (see, for
example: Li v. Canada (Minister of Citizenship and Immigration), 2006 FC 1292
at paragraph 33). Inevitably, the factors favouring reunification of the
family in Canada will not always outweigh the public policy concerns arising
from a misrepresentation. This is not tantamount to “visiting the sins of the
mother upon the children” as in Mulholland, supra, where the officer failed
to consider the children’s interests at all. Similarly, in my view, an officer
is not bound to mention the fact that the parents’ removal from Canada had not been sought as a result of their misrepresentations. If the parents were
being removed, they would obviously not be in a position to sponsor a child in
the first place. The fact that the parents are entitled to remain in Canada is a fact that will be self-evident in cases of children “left behind”. (Emphasis
added)
[17]
As is clear from this paragraph, the officer can
weigh the public policy considerations of a misrepresentation by a parent against
the best interests of the child remaining in Canada in an H&C application.
Absent a signal that the decision is
unreasonable ─ which has recently been explained by the Federal Court of
Appeal as a “badge of unreasonableness”
and, specifically, “the making of key factual findings
with no rational basis or entirely at odds with the evidence” ─ this Court must refrain from reweighing
these factors to obtain the outcome it would have preferred (Delios v Canada
(Attorney General), 2015 FCA 117 at para 27 [Delios]).
[18]
In the
reasons, the Officer considered the “numerous” benefits the minor Aslam children would receive by remaining
in Canada, but placed greater weight on the policy implications of condoning
the misrepresentations of the parental Applicants (AR, p. 12). As explained by
the Court of Appeal in Kisana and crystallized in numerous higher Court
decisions since, such as Delios earlier this year, it is not this
Court’s role to interfere with a decision which was reasonably open to the
officer based on the facts and the applicable law. Here, it was.
[19]
The Applicants also argue that the Officer made
a reviewable error in failing to grasp a scenario pleaded by Mr. Aslam – that
the H&C application be bifurcated, and the children considered separately
from the parents. Thus, the Officer’s thumb was on the scale, according to the
Applicants, and was not properly alive to this possibility, and so conducted
the weighing exercise noted above with a flawed understanding of the potential
outcomes.
[20]
When the H&C Application was first filed in
2005, Mr. Aslam requested the following:
I realize that seriousness of the
misrepresentations made by my wife and I in our initial claims for refugee
protection, and regretfully apologize to Citizenship and Immigration Canada and
the Immigration and Refugee Board. However, I do not want our children to
suffer as a result of our mistakes. Should a positive decision be made in our
applications for Humanitarian and Compassionate Grounds, I request that my
application for permanent residence be separated from my family and that they
be able to proceed with their applications independently. (AR, p 32)
[21]
While the request could certainly have been more
articulately framed, it is clear by its tone and context that Mr. Aslam sought
to have his actions and hardships considered separately from those of his
children.
[22]
Nearly three years before the Decision was
rendered, on July 6, 2010, updated submissions to the H&C application were
provided to CIC. Sohail Aslam, 25 at the time, had been employed for three
years as a security guard with Garda Canada Security Corporation. Amna Aslam,
21 at the time, had recently completed her third year of psychology at Mount
Royal College and was employed at Telus. Neither of these children had a
criminal record, and neither were in receipt of social assistance (AR, p 45).
[23]
In my reading of the record and the reasons, it
is not apparent that the Officer overlooked Mr. Aslam’s request. Indeed, the
Officer noted that:
Instead, I find that that [sic]
minor children included in this application, including the youngest Canadian
born son, will likely accompany their parents upon return to Pakistan. Little in the submissions before me
suggests otherwise. And regardless of other factors presented, I find that
this situation to be the ideal and that the children’s best
interests would not be compromised by their return to Pakistan as part of their
family unit. (Emphasis added) (AR, p. 11)
[24]
The language of these reasons is by no means
rigid in the expectation that the minor children would necessarily
follow their parents back to Pakistan, but simply that such a scenario was “likely”.
[25]
Even so, I do not see evidence in the record
that would have enabled the Officer to conclude that leaving the minor children
in Canada was a serious possibility. While the evidence certainly indicated
that the elder Aslam children, Sohail and Amna, appeared financially stable and
competent, it is a much further leap to presume they were prepared to accept
the obligations of rearing their younger siblings in Canada. There appears to
be little to no probative evidence in the record, such as affidavits from the
elder children committing themselves to such an endeavour or a transfer of
guardianship, which would have enabled the Officer to reach such a conclusion (Hoyte
v Canada (Citizenship and Immigration), 2015 FC 175, at para 31).
[26]
I sympathize with Namra, and the result reached
by the Officer may be a difficult pill to swallow in light of her adult
siblings having received positive H&C applications of their own.
Unfortunately, CIC’s determinations in those matters do not make this Decision
legally unsound. It should be noted that at the time of the Decision, the
Officer only had notice of one sibling’s H&C application being accepted in
principle.
[27]
It appears from the Officer’s reasons that the
family is in a “relatively strong financial position”
and will likely relocate to an urban centre upon their return to Pakistan, as
they had lived prior to their arrival in Canada (AR, p. 12). Such an
environment, accompanied by the family’s affluence, should provide Namra with
stability and access to education. Furthermore, there were indications at the
hearing that Mr. and Ms. Aslam would return with their youngest child, Shoaib,
meaning Namra will have the company of a sibling when she returns to Pakistan.
There would likely be separation between family members remaining in Canada and
those returning to Pakistan in any event, as the Officer stated. The Officer’s
findings were reasonable, even if not the one sought, or that I or someone else
may have issued.
[28]
I wish Namra the best of luck, and reiterate
that the reasonableness of this Decision should serve as no legal impediment if
she seeks to lawfully return to Canada in the future. There would be no party
happier than I to welcome her back.
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