Docket: IMM-3-17
Citation:
2017 FC 854
[ENGLISH TRANSLATION]
Montréal, Quebec, September 25, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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SHIREEN SHUBBAR
FAKHRI ADHARI
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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
I.
Nature of the case
[1]
This is an application under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA], for a
judicial review of a decision on December 8, 2016, by an immigration officer at
the Canadian Embassy in Ankara, Turkey, whereby the applicant’s application for
a temporary resident visa was rejected.
II.
Facts
[2]
The applicant is 34 years old and is a citizen
of Iraq.
[3]
The applicant is divorced from Mr. Asad Abbas,
with whom she has a child who is now eight years old. The child is a Canadian
citizen and currently lives in Canada.
[4]
The applicant became a permanent resident of
Canada in 2007.
[5]
On or about April 5, 2009, the applicant
received authorization from her husband (now ex-husband) to travel to Iraq with
their son, provided that she return to Canada no later than October.
[6]
Having not returned to Canada with the child on
time, the applicant recounted that her ex‑husband went to get their son
to bring him back to Canada without her. According to the applicant, her
ex-husband also took her permanent resident card and threatened to kill her.
[7]
By all accounts, the applicant therefore did not
return to Canada or try to obtain a new permanent resident card between 2009
and 2015.
[8]
In December 2015, the applicant filed a new
permanent residency application, which was refused by an immigration officer on
April 11, 2016, for non-compliance with her residency obligation.
[9]
That decision is currently being appealed before
the Immigration Appeal Division of the Immigration and Refugee Board.
[10]
On November 4, 2016, the applicant filed an
application for a temporary resident visa to visit her son in Canada and to
initiate legal action regarding his custody.
III.
Decision
[11]
On December 8, 2016, under subsection 11(1) of
the IRPA, the officer refused the applicant’s application for a temporary
resident visa because he was not satisfied that the applicant would leave the
country after her stay in Canada as a temporary resident. In reaching that
conclusion, the officer considered the following factors: her family ties in
Canada and in her country of residence, and the purpose of her visit to Canada.
[12]
The officer also recorded the reasons for his
refusal in the Global Case Management System (GCMS):
PA was previously PR, but did not meet
residency requirements (see R301087023). Letter from representative indicated
that PA wants to go to CDA in order to initiate legal action regarding custody
agreement child name Shireen Shubbar Fakhri DOB: 13DEC2008. PA is divorced and
has very limited ties in country of residence. There is no information provided
indicating any arrangement regarding the child mentioned. I do note however
that the interview notes from R301087023 appear to indicate the PA would have
signed a Power of Attorney document regarding her child and that she recognized
having signing it. I see no information/documentation indicating the legal
action have been initiated as such, nor that the PA has been requested to
testify in court. I have considered the family situation in this case however,
the PA is able to have legal action initiated through a representative. […]
Given the limited ties in the country of residence and the strong pull factors
that would be if the PA is allowed to travel to CDA, I am not satisfied that
the applicant will be a genuine temporary resident who will depart CDA at the
end of the authorized period of stay.
(Notes in GCMS, Embassy file, at p. 3.)
[13]
It is that decision that is the subject of this
application for judicial review.
IV.
Issue
[14]
The Court finds that there is only one issue,
namely whether the officer erred in refusing the applicant’s application for a
temporary resident visa.
[15]
The applicant claims that the decision by an
officer to issue a temporary resident visa is subject to the reasonableness
standard (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 [Dunsmuir]).
The respondent is also of the opinion that it is a discretionary power granted
to visa officers and that the Court must therefore show restraint regarding that
decision in an application for judicial review (Ngalamulume v Canada
(Citizenship and Immigration), 2009 FC 1268, at para 16).
V.
Relevant provisions
[16]
The following provisions of the IRPA apply to
this judicial review:
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Application before entering Canada
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Visa et documents
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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 may be issued if, following an examination, the officer is satisfied
that the foreign national is not inadmissible and meets the requirements of
this Act.
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11 (1) L’étranger doit, préalablement
à son entrée au Canada, demander à l’agent les visa et autres documents
requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un
contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la
présente loi.
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. . .
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. . .
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Obligation on entry
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Obligation à l’entrée au Canada
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20 (1)
Every foreign national, other than a foreign national referred to in section
19, who seeks to enter or remain in Canada must establish,
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20 (1) L’étranger non visé à l’article
19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :
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. . .
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. . .
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(b) to become a temporary resident, that they hold the visa or
other document required under the regulations and will leave Canada by the
end of the period authorized for their stay.
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b) pour devenir un résident temporaire, qu’il détient les visa ou
autres documents requis par règlement et aura quitté le Canada à la fin de la
période de séjour autorisée.
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[17]
The following provision of the Immigration
and Refugee Protection Regulations, SOR/2002-227, is also relevant:
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Temporary Resident Visa
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Visa de résident temporaire
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Issuance
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Délivrance
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179 An
officer shall issue a temporary resident visa to a foreign national if,
following an examination, it is established that the foreign national
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179 L’agent délivre un visa de
résident temporaire à l’étranger si, à l’issue d’un contrôle, les éléments
suivants sont établis :
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(a) has applied in accordance with these Regulations for a
temporary resident visa as a member of the visitor, worker or student class;
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a) l’étranger en a fait, conformément au présent règlement, la
demande au titre de la catégorie des visiteurs, des travailleurs ou des
étudiants;
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(b) will leave Canada by the end of the period authorized for
their stay under Division 2;
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b) il quittera le Canada à la fin de la période de séjour
autorisée qui lui est applicable au titre de la section 2;
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(c) holds a passport or other document that they may use to enter
the country that issued it or another country;
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c) il est titulaire d’un passeport ou autre document qui lui
permet d’entrer dans le pays qui l’a délivré ou dans un autre pays;
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(d) meets the requirements applicable to that class;
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d) il se conforme aux exigences applicables à cette catégorie;
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(e) is not inadmissible;
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e) il n’est pas interdit de territoire;
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(f) meets the requirements of subsections 30(2) and (3), if they
must submit to a medical examination under paragraph 16(2)(b) of the Act; and
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f) s’il est tenu de se soumettre à une visite médicale en
application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues
aux paragraphes 30(2) et (3);
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(g) is not the subject of a declaration made under subsection
22.1(1) of the Act.
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g) il ne fait pas l’objet d’une déclaration visée au paragraphe
22.1(1) de la Loi.
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VI.
Observations by the parties
A.
Submissions by the applicant
[18]
The applicant first claims that the officer
erred in his analysis, as he did not carefully consider the best interests of
the child in reaching his decision.
[19]
To support this argument, the applicant cites
numerous decisions from jurisprudence regarding the need to pay particular
attention to the interests and needs of children.
[20]
The applicant alleges in this regard that the
notes in the Computer Assisted Immigration Processing System that led to the
officer’s decision make no mention of the best interests of the child as part
of an application for a temporary resident visa.
[21]
Finally, the applicant suggests that the officer
made an unreasonable decision, as he made an incorrect assessment of the
applicant’s intention to return to her country of origin following her stay in
Canada.
B.
Submissions by the respondent
[22]
The respondent argues that the officer’s
decision was reasonable, as he appropriately considered all the evidence
presented to him.
[23]
The respondent noted that a visa officer is not
required to assess the best interests of the child as part of an application
for a temporary resident visa. The officer nonetheless considered the applicant’s
family status, noting in particular the lack of evidence regarding any legal
action concerning custody of the child.
[24]
The respondent added that the applicant failed
to show that she would leave Canada following her visit. In fact, as the
applicant has also filed an application for permanent residency, the respondent
claims that the best way to claim humanitarian and compassionate considerations
would be in an application for permanent residency, as the applicant has lost
her father (in a patriarchal society like Iraq, a key point to be considered).
[25]
According to the applicant’s allegations, her
son is her only anchor and her reason for being. If that allegation is in fact
part of the guiding principle of the applicant’s life, it is clear that her
reason for being exists in the desire to live to raise her son.
VII.
Analysis
[26]
For the following reasons, the application for
judicial review is dismissed, while not forgetting, however, that steps have
been taken to obtain permanent residency. The circumstances alleged by the
applicant could also raise the granting of humanitarian and compassionate considerations
to give the applicant a purpose or a goal in her life, as the applicant has
lost her father, as mentioned previously.
A.
Did the officer err in refusing the applicant’s application
for a temporary resident visa?
[27]
In this case, the officer refused the applicant’s
application for temporary residence due to her strong ties to Canada, namely
the presence of her child in Canada, as alleged by the applicant. However, all
the facts noted above can change the applicant’s status in Canada following an
eventual decision regarding her permanent residency.
[28]
If the allegations are proven, the Court
considers that the child, a Canadian citizen, would have the opportunity and
possibility of living in Canada in peace and safety, with his mother. The
child, who is already living in that safe environment, could continue to live
in health and safety in Canada, if possible, without the disruptions to life
found in Iraq (Kanthasamy v. Canada (Citizenship and Immigration Canada),
[2014] 3 FCR 438, 2013 FC 802, at para 51).
[29]
It would be up to the applicant to refute the
presumption of law that any person seeking to enter Canada is deemed to be an
immigrant. The applicant had to convince the officer that she would leave
Canada at the end of her authorized stay (Danioko v. Canada (Minister of
Citizenship and Immigration), 2006 FC 479, at para 15; Li v. Canada
(Minister of Citizenship and Immigration), [2001] FCJ No 1144, 2001 FCT
791, at para 35).
[30]
As the applicant did not discharge her burden of
proof, the officer was justified in not issuing her a visitor visa.
[31]
In that sense, in Rahman v. Canada
(Citizenship and Immigration), 2016 FC 793, Cecily Y. Srickland J., writing
for the Federal Court, stated at para 12:
Further, it is well-established that an
officer must weigh the extent of an applicant’s economic incentives and family
ties in Canada and their home country. The weight to be assigned to these
factors is a matter for the officer’s discretion and is not a basis for
judicial review (Wang v Canada (Minister of Citizenship and Immigration),
2006 FC 1298 at paras 9-10; Chhetri v Canada (Citizenship and Immigration),
2011 FC 872 [Chhetri]). [Emphasis added.]
[32]
After considering all the evidence presented to
him, the officer noted that the applicant had previously been a permanent
resident of Canada, that she had a son loving in Canada, and that she would
therefore be less likely to return to Iraq.
[33]
Moreover, although the officer was not required
to consider the best interests of child as part of an application for temporary
residency, he nonetheless addressed the applicant’s family status in Canada,
particularly in noting that the purpose of her visit was to visit her child and
initiate legal action to obtain custody of her son. The officer also noted that
the power of attorney forms were apparently signed and respected by the
applicant (Farhat v. Canada (Citizenship and Immigration), 2006 FC 1275
at para 36; Afridi v. Canada (Citizenship and Immigration), 2014 FC 193
at para 21).
[34]
The officer’s decision falls within the
possible, acceptable outcomes that are defensible in respect of the fact and
law (Dunsmuir, supra, at para 47).
VIII.
Conclusion
[35]
This application for judicial review is
dismissed.
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