Date: 20010202
Docket: IMM-3610-00
Citation: 2001 FCT 15
BETWEEN:
HANNA BELYNA ESHETE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORAL REASONS FOR ORDER
McKEOWN, J.
[1] The Applicant seeks judicial review of the May 23, 2000 decision of a member of the Immigration and Refugee Appeal Board, wherein he dismissed the Applicant's s. 77(3)(b) appeal of a decision refusing to approve the sponsored application for landing of her mother (Medhen Tesfaye), her sister (Tigist Eshete) and her brother (Fiseha Eshete).
[2] The issues are: (1) Whether the decision of the Appeal Board member (the "member") was reasonable in saying there were no humanitarian and compassionate considerations that warrant the granting of special relief; and (2) Did the member properly weigh the evidence relating to the birth dates of the Applicant's two siblings being sponsored?
[3] The facts in this case are unusual since the only evidence relating to humanitarian and compassionate considerations relates to the sponsor/Applicant who is already a Canadian citizen. In the member's recital of the facts he does review the personal circumstances of the sponsor/Applicant and sets out her medical and psychological problems. The member makes no further reference to these circumstances in his analysis. There is no evidence setting out any humanitarian and compassionate circumstances relating to the Applicant's mother and the Applicant's two siblings who are the three persons being sponsored.
[4] The Applicant's only evidence relating to the three sponsored persons was that she knew her mother had a small store which burned down in 1997 and that no one in the house was working. She thought that the two siblings were not attending school. The Applicant stated that she sent the family monthly payments ever since she had started working in Canada. She also said her mother would not come to Canada and leave her two children (two of the Applicant's siblings) behind. There are two other siblings who will remain in Ethiopia in any event.
[5] The member stated at page 5 of the reasons:
| Although one of the objectives of the Canadian Immigration Act is family reunification, that allegation in itself is not sufficient for the appeal to be upheld. There would have to be compassionate or humanitarian considerations as well. |
Thus, it was not unreasonable for the member to conclude:
| Furthermore, the evidence does not show the existence of any circumstances of such a kind that compassion would warrant the granting of special relief. |
It should be remembered that s. 77(3)(b) provides for the granting of special relief. Notwithstanding this fact, it should also be remembered, as set out in Baker, that while deference should be given to the member, the decision cannot stand when the manner in which the decision was made and the approach to be taken are in conflict with humanitarian and compassionate values. I am satisfied that the above reasons of the member show that he has met these requirements in this application.
[6] With respect to the mother, the Application is dismissed because there are no compassionate considerations that warrant the granting of special relief. In my view, the Kirpal decision is distinguished from the one before me since, in the present case, the member did not engage in a balancing exercise. At page 4 of his reasons, the member stated the following with respect to the two siblings being sponsored:
| The panel reached the conclusion that the appellant had failed to establish, on the balance of probabilities, the age of her sister Tigist and her brother Fiseha. She simply said she did not know their birth dates, and the documentary evidence filed is, by her own admission, inconclusive. The other documents filed by the appellant, i.e. the baptismal certificates of Tigist and Fiseha, the contents of which were confirmed by a journalist called Abiy Mekuria, cannot be given any more weight, firstly because they were issued on January 30, 1995, i.e. after the persons concerned had applied for permanent residence in Canada, and secondly because the information they contain was also provided by interested parties who made the declarations of birth. |
| Thus Tigist and Fiseha cannot be considered dependants of the applicant and the appeal in their case is dismissed for lack of jurisdiction. |
[7] The member is entitled to prefer the oral evidence of the Applicant to the documents. While I might have been inclined to give more weight to the baptismal certificates of the two siblings since there is some corroborating evidence in the church records that were made contemporary with the date of baptism, I must defer to a reasonable finding of fact by the fact finder. Accordingly, I agree that the case with respect to the two siblings is dismissed for lack of jurisdiction.
[8] For the above reasons, the Applicant's application for judicial review is dismissed.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
February 2, 2001
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