Date: 20060920
Docket: IMM-2085-06
Citation: 2006 FC 1128
Vancouver, British
Columbia, September 20, 2006
PRESENT: The
Honourable Mr. Justice Gibson
BETWEEN:
ARAKSE NALBANDIAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
INTRODUCTION
[1]
These
reasons follow the hearing on the 12th of September, 2006 of an
application for judicial review of a decision of Jeen Kim, First Secretary,
Immigration-Damascus, Syria (the “Officer”), wherein she advised the Applicant
that she was of the opinion that humanitarian and compassionate considerations
did not justify granting the Applicant permanent residence in Canada or an
exemption from any applicable criteria or obligation under the Immigration
and Refugee Protection Act
(the “Act”).
[2]
The
substance of the Officer’s letter of decision is in the following terms:
…You informed me that you moved to Jordan with your daughter in 1991 so
that you could immigrate to Canada and join your siblings, who
had immigrated there earlier. You have been residing at your current residence
in Amman for the past eight years and
attending the same local Armenian church for the past fourteen years. We
discussed how you spend your day and your living situation in Jordan. I am of the opinion that you
have sufficient financial support to meet your day to day needs and that your
residency in Jordan has been stable. I informed
you that I was not of the opinion that there were sufficient humanitarian and
compassionate grounds in your case to warrant exemption from the criteria of
the Act and gave you an opportunity to respond to this. Your responses did not
satisfy me of the above.
[3]
At
the close of the hearing before me, I advised counsel that I would allow this
application for judicial review.
BACKGROUND
[4]
The
Applicant is a citizen of Iraq. She is in her late 60’s or early 70’s.
She is a Christian. She attests that, in 1990, together with her daughter, she
fled to Jordan “…due to the horrific circumstances in Iraq…”.
[5]
The
Applicant further attests in her affidavit sworn the 25th day of
April, 2006:
Although I have been able to remain in Amman [Jordan]
since, I do not have permanent status in Jordan.
[6]
The
Applicant’s second child, her son, followed the Applicant and her daughter to Iraq sometime
later. Both the Applicant’s daughter and son subsequently continued their
flight to the Netherlands where they
claimed and were granted Convention refugee status. The material before the
court indicates that neither the Applicant’s son nor daughter is in a position
to support immigration of the Applicant to the Netherlands.
[7]
The
Applicant’s three brothers and her sister all fled directly to Canada and are now citizens
of this country. They are apparently well settled here and are economically
independent. In fact, they provide substantial economic support to the
Applicant, maintain close ties with her and actively support her application to
come to Canada. They have
provided a detailed plan to support the Applicant’s settlement in Canada if she is
permitted to come here and for her integration into the family and the Canadian
community. The Applicant also has thirteen nephews and nieces who are citizens
of Canada and who
support the Applicant’s desire to come to Canada.
[8]
The
Applicant applied to come to Canada as a permanent resident in February of
2000. It has long been acknowledged that she does not meet the ordinary
criteria for immigration to Canada and that the sole basis on which her
application might succeed is on humanitarian and compassionate grounds.
THE LEGISLATIVE AND
RELATED FRAMEWORK
[9]
Subsection
25(1) of the Act provides a framework that enables persons such as the
Applicant to achieve permanent resident status in Canada on humanitarian
and compassionate grounds. That section reads as follows:
|
25. (1) The Minister shall,
upon request of a foreign national who is inadmissible or who does not meet
the requirements of this Act, and may, on the Minister’s own initiative,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
25. (1) Le ministre doit, sur demande d’un étranger interdit de
territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre
initiative, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
[10]
The
opening words of subsection 3(1) of the Act and paragraph (d) of that
subsection provide:
|
3. (1) The objectives of this Act with respect to immigration are
…..
(d) to see that families are reunited in Canada;
…
|
3. (1) En
matière d’immigration, la présente loi a pour objet :
…
d) de
veiller à la réunification des familles au Canada;
…
|
[11]
The
Respondent’s Manual OP4, at page 9, provides the following guidance to officers
who are charged with the processing of applications under section 25 of the Act.
Under the heading “8. Processing humanitarian and compassionate cases” the
following appears
De facto family members
De facto family members are persons who do not
meet the definition of a family class member. They are, however, in a situation
of dependence that makes them a de facto member of a nuclear family that
is either in Canada or that is applying to
immigrate. Some examples: a son, daughter, brother or sister left alone in the
country of origin without family of their own, an elderly relative such as an
aunt or uncle or an unrelated person who has resided with the family for a long
time. Also included may be children in a guardianship relationship where
adoption as described in R3(2) is not an accepted concept. Officers should
examine these situations on a case-by-case basis and determine whether
humanitarian and compassionate reasons exist to allow these children into Canada.
Consider:
∙ whether
dependency is bona fide and not created for immigration purposes;
∙ the level of
dependency;
∙ the stability of the
relationship;
∙ the length of the
relationship;
∙ the impact of a separation;
∙ the
financial and emotional needs of the applicant in relation to the family unit;
. ability and
willingness of the family in Canada to provide support;
∙ applicant’s
other alternatives, such as family (spouse, children, parents, siblings, etc.)
outside Canada able and willing to provide
support;
∙ documentary
evidence about the relationship (e.g., joint bank accounts or real estate
holdings, other joint property ownership, wills, insurance policies, letters
from friends and family);
∙ any other
factors that are believed to be relevant to the H&C decision.
ANALYSIS
Standard of Review
[12]
The
standard of review on discretionary decisions based on humanitarian and
compassionate grounds has been held to be reasonableness simpliciter. Although the
Baker decision related to a humanitarian and compassionate grounds
application for landing from within Canada, rather than as here, an application
for landing on humanitarian and compassionate grounds from outside Canada, I find no
basis that would justify variation from the standard of judicial review
established by Baker.
[13]
As
to what is an unreasonable decision, Justice Iacobucci provided the following
guidance in Canada (Director of Investigation and Research)
v. Southam Inc. :
…An unreasonable decision is one that, in
the main, is not supported by any reasons that can stand up to a somewhat
probing examination. Accordingly, a court reviewing a conclusion on the
reasonableness standard must look to see whether any reasons support it. The
defect, if there is one, could presumably be in the evidentiary foundation
itself or in the logical process by which conclusions are sought to be drawn
from it. An example of the former kind of defect would be an assumption
that had no basis in evidence, or that was contrary to the overwhelming weight
of the evidence. An example of the latter kind of defect would be a
contradiction in the premises or an invalid inference.
[emphasis added]
Application of the Standard of Review
[14]
Here,
I am satisfied, that the Officer erred in a reviewable manner by failing to
demonstrate or fully disclose “…the logical process by which conclusions are
sought to be drawn from [the background to this application]”.
[15]
While
here, there is no contradiction discernable in the analysis of the Officer and,
indeed, there is no evidence of an invalid inference drawn by her, equally, there
is no evidence before the Court that she was cognisant of the principle enunciated
in paragraph 3(1)(d) of the Act or of the considerations to be taken
into account as enunciated in the elements of OP 4 quoted above in considering
whether a de facto family member, as the Applicant undoubtedly was and
is, should qualify for relief on humanitarian and compassionate considerations.
[16]
Against
the factors to be considered, as quoted above, I reach the following
conclusions on the evidence that was before the Officer:
∙ the
Applicant’s dependency on her siblings in Canada is bona
fide and not created for immigration purposes;
∙ the
level of dependency, both economically and emotionally, is high;
∙ the
stability of the relationship between the Applicant and her siblings in Canada is well
established and the length of the relationship extends to lifetimes;
∙ the
impact of a separation is not directly relevant but the impact of severance of
the relationship between the Applicant and her siblings would likely be severe;
∙ the
financial and emotional needs of the Applicant in relation to her siblings are
well established;
∙ the
ability and willingness of the Applicant’s siblings in Canada to provide
support is well documented;
∙ the
Applicant’s other alternatives, outside of continued physical isolation, appear
to be non-existent;
∙ and
finally, the documentary evidence regarding the relationship between the
Applicant and her siblings in Canada is extensive.
[17]
Against
the foregoing, while the decision arrived at by the Officer might well be open
to her, I am satisfied that, against a standard of review of reasonableness simpliciter,
and against the terms of paragraph 3(1)(d) of the Act and the guidance provided
in OP4 to persons such as the Officer, the Officer erred in a reviewable manner
in not documenting her decision against the prescribed criteria. In the result,
this application for judicial review will be allowed, the decision under review
will be set aside, and the Applicant’s application for permanent residence in Canada will be
referred back to the Respondent for reconsideration and for redetermination by
a different officer.
Directions
[18]
Counsel
for the Applicant urged the Court to provide specific directions to the
Respondent to be followed on the reconsideration and redetermination of the
Applicant’s application. In these reasons to this point, it is apparent that
the Court is of the view that it should be clear on the re-determination that
paragraph 3(1)(d) of the Act and the applicable criteria in OP4 should
be addressed. Beyond that I would go no further than this: I take judicial
notice of what I consider to be the reality that it is difficult in the current
situation in the Middle East today for a person such as the Applicant, a
displaced person with little or no status outside Iraq, to move
around without fear of permanent displacement. If a further interview of the
Applicant is considered to be required for the process of reconsideration and
redetermination, I urge that the Respondent do all possible to accommodate the
Applicant, wherever she may be found.
Costs
[19]
Counsel
for the Applicant seeks costs of this application on the basis that “special
circumstances” here exist that would justify an order for costs. I am satisfied
that “special circumstances” here exist. The Applicant’s application for permanent
residence in Canada has now been
outstanding for more than six years. Until February of 2006, her application
would appear to have been substantially “lost or ignored in process”. While the
Applicant was interviewed in 2003 and a positive recommendation was forthcoming
from that interview, no decision was ever reached despite regular and urgent
inquiries on behalf of the Applicant by her siblings in Canada and by her
legal representatives. Only in 2006 did the matter come alive and at that time
a second interview was required. It was only that second interview that led to
the decision under review.
[20]
While
the Court acknowledges the pressures and circumstances under which persons such
as the Officer whose decision is here under review operate in the Middle East
and elsewhere, I am satisfied that, in the circumstances of this Applicant, and
I emphasize the particularity of those circumstances, for some six years to
elapse between the filing of the application and a decision represents “special
circumstances” that justify an award of costs. I will so order.
CONCLUSION
[21]
Based
on the foregoing analysis, this application for judicial review will be
allowed, the decision under review will be set aside and the Applicant’s
application will be referred back to the Respondent for reconsideration and
redetermination taking into account these reasons.
[22]
The
Applicant is entitled to her costs determined on the ordinary scale.
[23]
At
the close of hearing, counsel were advised in general terms of the outcome and
were consulted on the issue of certification of a question. Neither counsel
recommended certification of a question. However, very shortly after the
hearing, counsel for the Respondent, in writing, advised the Court that,
following consultation with her client, she would like to have an opportunity
to provide submissions requesting certification, after reasons for decision had
been released. An opportunity will be provided. Counsel for the Respondent will
have seven (7) days following the release of these reasons to provide the
Registry and counsel for the Applicant with written submissions on
certification. Thereafter, counsel for the Applicant will have seven (7) days
to respond in writing to the Registry and to counsel for the Respondent. Once
again thereafter, counsel for the Respondent will have three (3) days to reply
in writing to the Registry and counsel for the Applicant. Only thereafter will
an Order issue.
“Frederick E. Gibson”
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