Docket: IMM-4592-16
Citation:
2017 FC 558
Vancouver, British Columbia, June 7, 2017
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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NASTOOH AVESSTA
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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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JUDGMENT AND REASONS
[1]
This application for judicial review arises from
a decision of the Immigration Appeal Division of the Immigration and Refugee
Board of Canada [Board]. The Applicant, Nastooh Avessta, challenges the Board’s
dismissal of his appeal of a visa officer’s decision refusing the sponsorship
of his Iranian mother, Azar Araghi.
[2]
Ms. Araghi was initially determined to be
inadmissible to Canada on the basis of her non-accompanying husband’s (Seyed
Montazer) medical condition (diabetes and chronic renal failure). The Board was
asked to overturn the decision on humanitarian and compassionate grounds but it
declined to do so.
[3]
The Applicant contends that the Board’s decision
is unreasonable because it is contradictory, incoherent and speculative. The
particular complaint stems from the Board’s treatment of the evidence
concerning the potential for Mr. Montazer to emigrate to Canada at a later date
under the sponsorship of Ms. Araghi. The Applicant argues that the Board
entered the realm of speculation when it considered that risk and when it
dismissed the evidence that Mr. Montazer had no intention of ever leaving Iran.
The particular part of the decision that troubles the Applicant is the
following:
[10] The underlying concern is that if the
applicant becomes a permanent resident she can then sponsor Mr. Montazer. Pursuant
to section 38(2)(a) of the Act spouses are exempt from the provisions of
section 38(1)(c) of the Act. Mr. Montazer could gain permanent resident
status notwithstanding his health problems. The witnesses testified that Mr.
Montazer has no interest in coming to Canada. The applicant is willing enter [sic]
into an undertaking that she will not sponsor Mr. Montazer. I do not doubt
their sincerity. First, however, such an undertaking is not enforceable. Second,
life is unpredictable; circumstances change. Should events compel the applicant
to change her mind about sponsoring Mr. Montazer, nothing could prevent it. The
facts of the appeal must be assessed in that context.
[4]
The Applicant contends that the above-noted
concern amounts to speculation in the face of the Board’s corresponding
acceptance of the testimony from Ms. Araghi and Mr. Montazer that he would
never seek to emigrate to Canada. The argument is captured in the following
passage from the Applicant’s written reply:
Barring a finding of fact that the applicant
and her husband were not credible on their evidence, the Tribunal cannot engage
in the type of speculation that it engaged in, framing the entire appeal in
terms of ‘life is unpredictable and circumstances change’. The Tribunal cannot
have it both ways both ways [sic]. Believing that Mr. Montazer never
wants to immigrate to Canada and then speculating that he may decide to
immigrate to Canada in the future, are mutually exclusive propositions and a
sign that the decision is unintelligible.
[5]
The fundamental weakness in the above argument is
that there is no inconsistency between the witness testimony and the Board’s
observation that Mr. Montazer could change his mind. It is not a matter of
speculation that an unavoidable risk remained that Mr. Montazer might later
seek to come to Canada and thereby impose an excessive demand on Canadian
health care. The Board’s comment that “life is
unpredictable; circumstances change” is not speculation; it is a truism.
It was up to the Board to attribute weight to this risk. It is not the Court’s
function on judicial review to substitute its own view of the evidence for that
of the assigned decision-maker.
[6]
The other point that is missed in the
Applicant’s argument is that the Board based its decision on several other
relevant factors and concluded that little hardship had been shown. It was
particularly noted by the Board that Ms. Araghi was in possession of a
multi-entry Canadian visa which allowed her to frequently visit for extended
periods. Ms. Araghi also testified that she intended to continue to travel back
and forth from Iran as she had in the past, even if she was successful in
securing permanent resident status in Canada. During her anticipated absences
from Canada, the Board found that Ms. Araghi could continue to maintain contact
with her granddaughter via Skype. On the basis of Ms. Araghi’s stated intentions,
the Board reasonably concluded that the hardship of occasional family
separation was self-induced and did not warrant relief.
[7]
In the end, the Board did not place undue weight
on the risk of Mr. Montazer coming to Canada. What was of central concern to
the Board was the absence of a compelling case of family hardship. That finding
was, on the evidence presented, entirely reasonable and it is unimpeachable on
judicial review.
[8]
For the foregoing reasons, the application is
dismissed. Neither party proposed a certified question and no issue of general
importance arises on this record.
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