Docket: IMM-2446-15
Citation:
2016 FC 356
Ottawa, Ontario, March 30, 2016
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
|
ANTOINE
BECHAALANI AND
RABAB SRAJ
|
Applicants
|
And
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
Mr. Antoine Bechaalani and Mrs. Rabab Sraj seek judicial
review of the decision of a Citizenship and Immigration [CIC] officer refusing their
application for permanent residence from within Canada on humanitarian and compassionate
grounds [H&C] application.
II.
Facts
[2]
The Applicants, husband and wife, are Lebanese
citizens. At the time of the decision on their H&C application, they were
respectively 76 and 70 years old. They have four adult children and a number of
grandchildren living in the province of Québec. They state that they have a
fifth adult child living in the United States, although they both indicate in
their separate IMM 5406 forms that she resides in Beirut, Lebanon.
[3]
The Applicants entered Canada in September 2011
with temporary resident visas for a period of three months. They applied for
refugee protection in October 2011, and those claims were rejected by the
Refugee Protection Division. They subsequently made a Pre-Removal Risk Assessment
application and their H&C application, which were both rejected.
[4]
Since their arrival in Canada, the Applicants have lived with their children and grandchildren. They received
monthly social assistance from the Québec government until March 1, 2014; they
state they asked for social assistance to cease because their daughter in the United
States began to financially support them.
[5]
The Applicants base their H&C application on
the following factors:
they have no
remaining family in Lebanon;
the
best interest of the children would be negatively affected, because their
grandchildren have close bonds and dependence with the Applicants;
their
adult children rely on them for child care and other family support;
the
Applicants have medical conditions: Mr. Bechaalani is diabetic and suffers from
hypertension, and Mrs. Sraj has hygienic requirements that her daughters assist
her with;
there
is general insecurity in Lebanon, and the Applicants would face discrimination
and harassment upon their return.
III.
Impugned Decision
[6]
The immigration officer refused the H&C
application. He began by examining the factors of adverse country conditions
and hardship in Lebanon. He accepted that general instability and security
issues in Lebanon would likely lead to some psychological hardship for the
Applicants. With respect to the Applicants’ stated health conditions, the
officer acknowledged it was possible that they suffered from those conditions,
but that there was minimal expert evidence to demonstrate it. As for the lack
of family support in Lebanon, while the officer accepted that four of the five
adult children lived in Québec, he found that the evidence was inconclusive as
to whether the fifth adult child, Aline, lives in the United States or rather
in Lebanon, given that the Applicants’ applications stated that her present
address was located in Beirut, Lebanon. He also noted that there was minimal
objective evidence to show that no other family member of either Applicant
remained in Lebanon.
[7]
The officer then moved on to the establishment
factor. He gave positive consideration to the Applicants’ emotional bond with
their children and grandchildren, and to the child care and assistance the
Applicants provided to them. However, the officer found that the Applicants had
provided minimal submissions suggesting that if they returned to Lebanon, they would not be able to apply for “super visas” to visit Canada. The Applicants also did not demonstrate that their financial situation was
consistent with an exceptional level of establishment in Canada.
[8]
Finally, the officer found that the fact that
the Applicants had exhausted avenues to regularize their status, yet decided to
remain in Canada, weighed against their case.
IV.
Issue and standard of review
[9]
This application for judicial review raises a
single determinative issue:
- Did the officer
make a reviewable error?
[10]
The Applicants submit that while the standard of
review normally applicable to H&C applications is reasonableness, the
standard of review applicable in the case at bar is correctness, because an officer
applying the wrong test or ignoring a relevant factor in his exercise of
discretion are questions of law (Canada (Citizenship and Immigration) v
Mathew, 2007 FC 685 at para 22). However, their arguments on the merits
allege both “reviewable errors” and “unreasonable” conclusions on the part of the officer
(rather than “incorrect” conclusions).
[11]
I cannot agree with the Applicants that the officer’s
decision should be reviewed against the standard of correctness. The applicable
standard of review for an immigration officer’s decision on an H&C
application is reasonableness (Lopez v Canada (Citizenship and Immigration),
2013 FC 1172 at para 28). This has been established in
the jurisprudence, both pre- and post-Dunsmuir v New Brunswick, 2008 SCC
9 (Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 at para 18). And
as will be discussed below, I do not agree that the officer failed to consider
relevant factors.
V.
Analysis
[12]
With respect to the Applicants’ argument that
the officer failed to address sections 12.5 and 12.8 of the IP-5 Manual, the
Respondent rightly points out that the IP-5 Manual is no longer in use by CIC
in H&C applications. Rather, the CIC website now has “Program Delivery Instructions”, and there is a
section specifically on H&C assessments, which was applicable when the
Applicants filed their H&C application. The following excerpts are
informative [emphasis added]:
The onus is entirely upon the applicant
to be clear in the submission as to exactly what hardship they would face if they were not granted the requested exemption(s). You do not
have to elicit information on H&C factors and are not required to
satisfy applicants that such grounds do not exist.
Applicants must put forth any H&C
factors that they believe are relevant to their case.
...
Fact finding should be done using the usual
standard of proof in administrative law: Balance of probabilities --- is it
more likely than not that the evidence or information presented is true?
…
Applicants may base their requests for
H&C consideration on any relevant facts that they want to have considered
including, but not limited to:
establishment
in Canada for In-Canada applications and ability to establish in Canada for
overseas applications
ties
to Canada
the
best interests of any children affected by their application
factors
in their country of origin, including adverse country conditions
health
considerations including inability of a country to provide medical treatment
family
violence considerations
consequences
of the separation of relatives
inability
to leave Canada has led to establishment (in the case of applicants in Canada).
[13]
These excerpts clearly demonstrate that the onus
is on the Applicants to specify which hardships they would allegedly face, and
demonstrate these on a balance of probabilities. The officer does not need to
elicit information from the Applicants, but must consider all the elements
presented by them. I agree with the Respondent that these guidelines are
neither mandatory nor exhaustive; they are not enforceable by the public (Mohammad
v Canada (Minister of Employment and Immigration), [1989] 2 FC 363 (FCA), [1988] FCJ No 1141 (QL) at para 14); they
are not binding on the officer (Canada (Minister of Public Safety and
Emergency Preparedness) v Cha, 2006 FCA 126 at para 15); and they cannot
fetter the officer’s discretion (Tshidind v Canada (Minister of Citizenship
and Immigration), 2006 FC 561 at para 9).
[14]
This was recently confirmed by the Supreme Court
of Canada in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC
61 at para 32:
“There is no doubt, as this Court has recognized, that the Guidelines
are useful in indicating what constitutes a reasonable interpretation of a
given provision of the Immigration and Refugee Protection Act: Agraira,
at para. 85. But as the Guidelines themselves acknowledge, they are
“not legally binding” and are “not intended to be either exhaustive or
restrictive”: Inland Processing, s. 5. Officers can, in
other words, consider the Guidelines in the exercise of their s. 25(1)
discretion, but should turn “[their] mind[s] to the specific circumstances of
the case”: Donald J. M. Brown and The Honourable John M. Evans, Judicial
Review of Administrative Action in Canada (2014), at p. 12-45. They should
not fetter their discretion by treating these informal Guidelines as if they
were mandatory requirements that limit the equitable humanitarian and
compassionate discretion granted by s. 25(1): see Maple Lodge Farms
Ltd. v. Canada, 1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2, at p. 5; Ha
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49 (CanLII),
[2004] 3 F.C.R. 195 (C.A.), at para. 71.”
[15]
Nevertheless, I find that the officer did not
ignore the H&C factors in the guidelines related to the family. He gave
positive consideration to the Applicants’ bonds and interdependence with their
children and grandchildren, the child care and assistance they provided, and
acknowledged that separation would cause emotional hardship. However, the
officer balanced those considerations with his findings that the Applicants had
not demonstrated they would have difficulty in obtaining visitor visas to
Canada in the future, such as “super visas”, nor
that their financial situation was consistent with exceptional establishment.
It was open to the officer to weigh these different factors.
[16]
Thus, it cannot be said, as the Applicants
contend, that “all factors in the said guidelines were
established in favour of the applicants, except for the support available in
their home country”. The officer had other preoccupations, such as the
lack of evidence that applying for visitor visas would entail particular difficulty.
[17]
With respect to the officer’s finding that the
evidence was “inconclusive” regarding their
daughter Aline’s country of residence, I agree with the Respondent that it was
open to him to reach that conclusion. As this Court held in Obeta v Canada (Citizenship
and Immigration), 2012 FC 1542 at para 25:
As explained earlier, the burden of
providing sufficient information rests on the applicant, and where the
Officer's concerns arise directly from the requirements of the Act or its
Regulations, there is no duty on the Officer to raise doubts or concerns with
the applicant… In terms of
sufficient information, the onus will not shift on the Officer simply on the
basis that the application is "complete". The applicant has the
burden to put together an application that is not only "complete" but
relevant, convincing and unambiguous.
[18]
In my view, the Applicants’ application was
ambiguous as to Aline’s country of residence and the officer was under no duty
to raise that doubt with the Applicants (Singh v Canada (Citizenship and Immigration),
2012 FC 855 at para 32).
[19]
Moreover, I agree with the Respondent that this
finding was not determinative of the officer’s decision. The officer’s
conclusion that there was minimal objective evidence to suggest that no other
family members, or close non-relatives, remained in Lebanon, was not confined
to the finding of inconclusive evidence on Aline’s country of residence, but
was rather a general conclusion that the Applicants must have some family or
friends in Lebanon, given that they lived there for the majority of their
lives.
[20]
Beyond the officer’s concerns as to Aline’s
country of residence and family support in Lebanon, he noted a lack of expert
evidence with respect to the Applicants’ health conditions. These conditions
were only mentioned briefly in one of their daughters’ letters, and were not
confirmed by medical professionals. Again, this finding goes to the sufficiency
of the evidence.
[21]
Given the lack of evidence on their health
conditions, I cannot agree with the Applicants that the officer erred in his best
interests of the child analysis because he did not consider that the Applicants
would be unable to return to Canada due to their diminished health. In fact,
the officer acknowledged that separation would lead to some emotional hardship.
He was “alert, alive and
sensitive” to the
best interests of the Applicants’ grandchildren. However, the officer concluded that the Applicants had not demonstrated that
they would have difficulty in applying for “super visas” in the future. This
finding was reasonable given the evidence before him.
[22]
Overall, I find that the officer’s decision is
reasonable.
VI.
Conclusion
[23]
For these reasons, this application for judicial
review will be dismissed. The parties have not proposed any question of general
importance for certification and none arises from this case.