Date: 20030515
Docket: IMM-438-02
Neutral citation: 2003 FCT 592
Ottawa, Ontario, this 15th day of May, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
HAROONI AHMAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of a Citizenship and Immigration counsellor's ("immigration counsellor") decision, dated January 14, 2002, wherein she determined that there were not sufficient humanitarian or compassionate ("H & C") grounds to exempt the applicant from subsection 9.(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant seeks an order quashing the immigration counsellor's decision and remitting the matter back for redetermination by a different immigration counsellor.
Background
[3] The applicant is a citizen of Afghanistan, born on February 3, 1967. In 1992, he married Rangeena Ahmad. He states that he fled Afghanistan in December 1993 because he feared for his life. He arrived in Canada on December 19, 1994 and initiated a refugee claim. By decision dated July 16, 1996, the Convention Refugee Determination Division (the "CRDD") rejected the applicant's refugee claim, finding his story not credible and finding that he should be excluded under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (the "Convention"), Con. T.S. 1969 No. 6 because of his membership in KHAD made him complicit in crimes against humanity.
[4] The applicant stated at his interview that his wife died in a bombing accident. This statement is corroborated by the affidavit of the applicant's friend, Shah Popal, who learned from his own parents in a telephone conversation in 1997 that Rangeena Ahmad had died.
[5] On March 4, 1999, the applicant married Zarhanya Jaan. On or about May 5, 1999, Ms. Jaan submitted a sponsorship application. The applicant submitted a request for exemption from an immigration visa requirement as the spouse of a permanent resident to Citizenship and Immigration Canada.
[6] On December 26, 1999, the applicant's son, Farhad Ahmad, was born.
[7] By letter dated April 2, 2001, the applicant was advised that the immigration counsellor required, inter alia, documentation (a death certificate) indicating that his first wife was deceased. In response to this request, the applicant provided an affidavit of Shah Popal. By fax dated May 31, 2001, the immigration counsellor informed the applicant that she would not accept the statutory declaration and that she required a copy of the death certificate. By letter dated June 4, 2001, the applicant wrote the following in reply:
As you may or may not be aware Afghanistan is being governed by religious fundamentalists who have brought the country further to the edge of chaos than it previously was, if such is possible. . . . The government is barely functioning and many, possibly hundreds are dying on a daily basis.
As you will well understand there is no such thing as a death certificate let alone being able to attain one from such a non-functioning government which is recognized only by two other countries in the world.
The evidence provided by way of Statutory Declaration from a Canadian citizen is under the circumstances, the best and only evidence available.
[8] An interview was held on November 29, 2001, and the applicant, his wife and son were all in attendance, along with counsel.
[9] On January 14, 2002, the immigration counsellor denied the applicant's application. Her reasons were as follows:
· The applicant and Ms. Jaan described the details of their first meeting and marriage differently. In his application, the applicant stated that he received a marriage proposal from Ms. Jaan's family and that he accepted. He stated that they did not meet each other until they got married. During the interview, Ms. Jaan described seeing the applicant in a park, thinking he was a nice guy and speaking to her father about marrying him. When the immigration counsellor requested clarification, the applicant explained that he saw Ms. Jaan in the park, but that they never spoke to each other.
· The applicant did not provide a death certificate for the alleged death of his first wife. The immigration counsellor did not accept the evidence of his friend, Shah Popal and concluded that the applicant could have requested a death certificate from the Consulate General of the Islamic State of Afghanistan in New York where he applied for and was issued a valid passport. Consequently, she found that he had not proven that his first wife was deceased.
· On the applicant's Statement of Marriage, he indicated that he was never married, rather than widowed. The immigration counsellor concluded that the applicant misrepresented his marital status in order to obtain a marriage license. According to the immigration counsellor, she asked whether someone else had completed the form for them and they "did not reply in the affirmative."
· As a result of the above points, the immigration counsellor concluded that the applicant was not legally free to marry Ms. Jaan and therefore was not prepared to accept the sponsorship application.
· The applicant stated that his son, Farhad, could speak Pashtu. On the basis of this fact and the child's young age, the immigration counsellor concluded that Farhad would be able to adapt to life in Afghanistan.
· The immigration counsellor observed that Farhad did not go over to his father once during the interview. Instead, he sat with his mother or counsel. Based on this observation, the immigration counsellor concluded that "at this stage of his life, Farhad is largely dependent upon his mother, and while he would be separated from his father if Mr. Ahmad returns to Afghanistan, he will have a loving, caring mother and home in Canada."
· When asked whether her family would be able to assist her if the applicant were to return to Afghanistan, Ms. Jaan replied "no" without hesitation. The immigration counsellor concluded that this reply was made without reflection and was not satisfied that Ms. Jaan's family would not assist her and her son if they remain in Canada.
· The applicant, through his wife, was receiving welfare payments for a few months after he had obtained employment. The immigration counsellor noted that the applicant did not appear to have integrated into the community through involvement in community organizations, volunteer work or other activities. She was not satisfied that the applicant had established himself in Canada.
· Noting that Afghanistan is rebuilding itself, the immigration counsellor was not satisfied the applicant would suffer imposition of any sanctions should he be returned to Afghanistan.
· Based on the CRDD finding and the Port-of-Entry notes, the immigration counsellor concluded that the applicant was complicit in crimes against humanity and should be excluded under Article 1F(a) of the Convention, supra.
[20] The applicant seeks a judicial review of this decision.
Applicant's Submissions
[21] The applicant submits that the appropriate standard of review is reasonableness simpliciter and that the immigration counsellor's decision was unreasonable.
[22] The applicant submits that the respondent erred in law by failing to properly assess the impact of removal on the applicant's son, who was born in Canada. The applicant submits that his son should have been given notice of the possible removal of his father and should have had the benefit of independent counsel.
[23] The applicant submits that the immigration counsellor breached the rules of natural justice and fairness by failing to give him an opportunity to respond to some of the immigration counsellor's concerns.
[24] The applicant submits that the immigration counsellor did not undertake a full and fair review of the humanitarian and compassionate considerations.
Respondent's Submissions
[25] With regard to the bona fides of the applicant's marriage, the respondent submits that the applicant did not prove that his friend's sworn declaration was the best and only available evidence to substantiate the fact of Rangeena Ahmad's death. The respondent points out that the immigration counsellor decided not to accept the sponsorship application based on the failure to provide a death certificate, the different versions the applicant and Ms. Jaan gave of their first meeting and the misrepresentation on the Statement of Marriage.
[26] The respondent submits that there is no obligation to provide separate notice to a child of his or her parent's possible removal. Furthermore, the respondent submits that, according to the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, there is no presumption that the "children's best interest should prevail, subject only to the gravest countervailing grounds". The respondent submits that the immigration counsellor considered all of the relevant factors and gave appropriate weight to the interests of the child.
[27] The respondent submits that the immigration counsellor reasonably determined that the public interest reasons superceded the humanitarian and compassionate reasons in this case.
[28] The respondent submits that many of the critical issues were discussed during the interview with the applicant and his counsel and thus, the applicant was given an opportunity to respond.
[29] The respondent submits that the immigration counsellor was entitled to refer to and depend on the CRDD decision concerning the applicant's involvement in the KHAD and that she came to her own conclusions regarding the Article 1F(a) exclusion.
Applicant's Reply
[30] The applicant submits in reply that the immigration counsellor must have regard to the bona fides of the relationship and not merely the legality of the actual marriage. The applicant submits that even if the marriage is not technically legal, the applicant and Ms. Jaan are in a bona fide common-law relationship.
[31] The applicant submits that examples of concerns he was not given the opportunity to address are as follows:
1. The legality of the marriage certificate was brought up only at the interview.
2. The applicant learned only through the decision that the immigration counsellor would have been prepared to accept a death certificate from an office of the government of Afghanistan in the United States.
3. The immigration counsellor did not indicate, except in her decision, that she felt that Farhad's ability to speak Pashtu would be sufficient for life in Afghanistan.
[32] The applicant submits that the immigration counsellor erred in law by finding that Ms Jaan's family would support her, as this finding contradicted the evidence before her.
Issues
[33] The issues as stated by the applicant are:
1. Whether a decision on whether the applicant should be denied landing in Canada and removed from Canada be made without the Minister conducting a full and complete risk assessment on the one and soon to be two Canadian born children of the applicant as part of the humanitarian and compassionate process in order to assess the impact on them of the separation of their father being forced to leave Canada and being denied his love and support.
2. Whether the respondent erred in failing to meet the requirement of fundamental justice which required notice to the child of the applicant of the proceedings and ensuring that his rights and interests were considered which is central to humanitarian and compassionate values in Canadian society.
3. Whether the respondent erred in failing to carry out the obligations of the Minister under the Immigration Act, supra whose purpose is to permit immigration and not to prevent it, to provide a thorough and fair and reasonable assessment in compliance with the terms and spirit of the legislation and to facilitate the reunion in Canada of Canadian citizens and permanent residence with their close relatives from abroad.
Relevant Statutory Provisions
[34] The relevant portions of the Immigration Act, supra state:
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2.(1) "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.
114.(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
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2.(1) « réfugié au sens de la Convention » Toute personne:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée.
114.(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.
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[35] The relevant section of the Immigration Regulations, 1978, S.O.R. 78-172, states:
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5. (1) For the purposes of paragraph (2)(i) and subsections (3) to (5), "spouse" includes a person of the opposite sex who is cohabiting with the sponsor in a conjugal relationship at the time the sponsor gives an undertaking, having cohabited with the sponsor for a continuous period of at least one year.
5(2)
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5. (1) Pour l'application de l'alinéa (2)i) et des paragraphes (3) à (5), « _conjoint_ » s'entend notamment d'une personne du sexe opposé qui, au moment de l'engagement du répondant, vit avec celui-ci dans une situation assimilable à une union conjugale et a ainsi vécu avec lui pendant une période continue d'au moins un an.
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[36] Article 1F(a) of the Convention, supra, states:
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Article 1
. . .
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;
. . .
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Article 1
. . .
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser:
a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes;
. . .
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Analysis and Decision
[37] Issue 1
Did the immigration counsellor err in her consideration of the child's interests? (Issue 1 restated).
An immigration counsellor must take into consideration the best interests of a Canadian born child when deciding a parent's H & C application. The following statements were made by Evans J.A. of the Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 F.C.A. 475, F.C.J. No. 1687 (QL) at paragraphs 31, 32 and 40:
Counsel agreed that, under the legal test established by Baker and Legault for reviewing officers' exercise of discretion, the refusal to grant Ms. Hawthorne's H & C application could be set aside as unreasonable if the officer had been "dismissive" of Suzette's best interests. On the other hand, if the decision-maker had been "alert, alive and sensitive" to them (Baker, at para. 75), the decision could not be characterized as unreasonable.
It was also common ground that an officer cannot demonstrate that she has been "alert, alive and sensitive" to the best interests of an affected child simply by stating in the reasons for decision that she has taken into account the interests of a child of an H & C applicant (Legault, at para.13). Rather, the interests of the child must be "well identified and defined" (Legault, at para. 12) and "examined . . . with a great deal of attention" (Legault, at para. 30). For, as the Supreme Court has made clear, the best interests of the child are "an important factor" and must be given "substantial weight" (Baker, at para. 75) in the exercise of discretion under subsection 114(2).
. . .
. . . As Baker and the Guidelines indicate, it is certainly necessary for the decision-maker to consider the seriousness of the harm that a parent's removal is likely to cause to a child. However, unless the decision-maker considers the degree of harm in the context of the best interests of the child, she is likely to be diverted from her duty to be "alert, alive and sensitive" to this important factor in the exercise of discretion. . . .
[38] In the present case, the immigration counsellor wrote in her decision:
Mr. Ahmad has a Canadian born son, Farhad Ahmad. His son turned 2 years of age on 26 December 2001. On his IMM 5001, Mr. Ahmad stated that Pashtu is his son's native tongue. Farhad Ahmad accompanied his parents to the interview during which Mr. Ahmad and Ms. Jaan both confirmed that their son speaks Pashtu and English. . . . Should Ms. Jaan decide to accompany Mr. Ahmad if he is required to return to Afghanistan, Farhad's ability to speak the Pashtu language should help him be able to fit in more easily. If Farhad is taken to Afghanistan with them, given his very young age, I am of the view that he would be able to adapt. While I appreciate that life for Farhad will differ from that in Canada, he will remain with his parents and have their care and support.
The interview was held for 1-1/2 hours and it was observed that Farhad Ahmad did not go over to his father during this time. Farhad spent his time with his mother or with counsel, Mr. Woolf but not with his father. Towards the latter part of the interview, Farhad appeared to be sleepy and tried to sit down with his mother, however, at this time Ms. Jaan was standing looking at the marriage license application and speaking with Mr. Ahmad who was seated. Since he could not lay down with his mother, Farhad sat down in her chair. At no time did he go over to his father to sit down with him. I am satisfied that at this stage of his life, Farhad is largely dependent upon his mother, and while he would be separated from his father if Mr. Ahmad returns to Afghanistan, he will have a loving, caring mother and home in Canada.
[39] At the interview, the applicant's wife indicated that her family would not provide support for her and their child if the applicant was deported to Afghanistan. The immigration counsellor was not satisfied that this would be the case.
[40] Décary J.A. in Hawthorne, supra stated that when determining the best interests of the child, the immigration counsellor must look at both the benefits to the child of the parent's non-removal and as well, the hardship to the child should the parent be removed from Canada. The Federal Court of Appeal in Legault, supra stated at paragraph 12 that interests of the child must be "well identified and defined".
[41] After reading the decision of the immigration counsellor, I am of the opinion that she was not "alert, alive and sensitive" to the child's best interests. The only discussion of the best interests of the child was that at his young age, and with his ability to speak the Pashtu language, he would be able to adapt to life in Afghanistan, and that while life would not be the same as in Canada, he would have his parents' support. This is not an adequate analysis of the best interests of the child. The Board has made a reviewable error. The Board's decision is therefore set aside and the matter is referred back to a different panel of the Board for redetermination.
[42] Because of my decision on Issue 1, I need not deal with the remaining issues.
[43] Neither party wished to propose a serious question of general importance for my consideration for certification.
ORDER
[44] IT IS ORDERED that the Board's decision is set aside and the matter is referred back to a different panel of the Board for redetermination.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 15, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-438-02
STYLE OF CAUSE: HAROONI AHMAD
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, January 8, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Thursday, May 15, 2003
APPEARANCES:
Mr. Harvey Savage
FOR APPLICANT
Mr. Michael Butterfield
FOR RESPONDENT
SOLICITORS OF RECORD:
Rodney L.H. Woolf
1474 Bathurst Street
Suite 100
Toronto, Ontario
M5P 3G9
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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