Date: 20101022
Docket: IMM-1408-10
Citation: 2010 FC 1036
Ottawa, Ontario, October 22, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
TAREQ MUGHRABI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Tareq Mughrabi is a citizen of Jordan who arrived in Canada in 2003. He
claims that his aunt, his uncle and their children, who live together in
Winnipeg, would experience hardship if he were required to return to Jordan. On the
basis of this claim, he submitted an application for permanent residence on
humanitarian and compassionate (H&C) grounds under section 25(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
In
March 2010, Immigration Officer Irene Craig rejected Mr. Mughrabi’s application.
[3]
Mr.
Mughrabi seeks to have the decision set aside on the basis that the Officer
erred by failing to properly analyze the best interests of the children, in
particular, by failing to provide a basis for disagreeing with three
psychological assessments.
[4]
He
also seeks specific directions and costs.
[5]
For
the reasons that follow, this application is dismissed.
I. Background
[6]
Mr.
Mughrabi and his brother Mohamad fled Jordan and went to the United
States
in 1998 and 1996, respectively. They remained there until May 2003, when they
came to Canada and
submitted refugee claims. They claimed to fear persecution at the hands of
Jordanian authorities based on their Palestinian ethnicity. Their refugee
claims were denied in June 2004. Mr. Mughrabi and his brother then made similar
claims in their respective applications for a pre-removal risk assessment,
which were denied in June 2005.
[7]
Mr. Mughrabi and his brother then submitted H&C applications.
Those applications were based primarily on the hardship that would be experienced
by their aunt, their uncle and their cousins, particularly their aunt and their
youngest cousin, who was approximately three years old at the time. In support
of those applications, psychological assessment reports prepared in 2005 and
2007 by Pamela Holens, under the direction of two different clinical
psychologists, were submitted.
[8]
In
September 2007, those H&C applications were rejected by Immigration Officer
S. del Rosario. In the course of discussing Mr. Mughrabi’s claims regarding the
hardship that his cousins would suffer if he were removed from Canada, Officer del
Rosario observed:
Children are resilient by nature, and it is not unreasonable to
believe that they would be able to adjust and adapt to the loss of the
applicant, similar to many children who have lost a parent through divorce or
death. I do not accept the applicant’s argument, as it must also be pointed out
that the applicant’s cousins would still have the support of both biological
parents available to them. I am not satisfied that the applicant has
established that severing ties with his family would constitute as [sic]
unusual and undeserved or disproportionate impact.
[9]
With
respect to Mr. Mughrabi’s aunt, Officer del Rosario simply observed that “there
is insufficient evidence to suggest that her condition would be irreparable if
she sought medical treatment.”
[10]
Later
in September 2007, after Mr. Mughrabi and his brother received removal notices,
my colleague Justice Russell granted motions that they each brought for a stay
of removal from Canada. In July 2008, Justice Russell granted their underlying
applications for judicial review of Officer del Rosario’s adverse H&C
decisions.
[11]
With
respect to Officer del Rosario’s rejection of Mr. Mughrabi’s H&C
application, Justice Russell concluded that it was unreasonable for her to have
failed to provide a material basis for disagreeing with the psychological
assessments regarding the impact that Mr. Mughrabi’s removal would likely have
upon his cousins. Stated alternatively, he found that the Officer’s decision
lacked substance and failed to provide any real basis for the Officer’s
disagreement with the advice and conclusions contained in the psychological assessments,
particularly as they related to the specific trauma identified in the reports (Mughrabi
v. Canada (Minister of Citizenship and Immigration), 2008 FC 898, at paras.
15, 23 and 27).
[12]
On
redetermination in March of this year, Officer Craig again rejected Mr.
Mughrabi’s H&C application, after he made additional submissions, provided
a further updated psychological assessment (dated November 19, 2008), and after
he was interviewed by Officer Craig earlier in March.
II. The Decision
under Review
[13]
In
discussing the factors that were considered in reaching her decision, the
Officer began by identifying Mr. Mughrabi’s claim that his cousins, aunt and
uncle would suffer emotional and psychological trauma if he were forced to
leave Canada and to apply
for a visa from outside the country. The Officer then briefly identified
certain other factors, including (i) whether Mr. Mughrabi would face any
hardship or sanctions if he were required to return to Jordan, (ii) his degree
of establishment in Canada, and (iii) the fact that he has a wife who
lives in Chicago.
[14]
The
Officer then identified a number of positive and countervailing factors that
she had considered. The positive factors were an undated letter from a previous
employer and a number of letters of support from friends. The factors not
supporting a positive decision included the following facts:
i.
Mr.
Mughrabi has a spouse in the U.S.;
ii.
Mr.
Mughrabi feels he would qualify under the Provincial Nominee Program, and
therefore it would not be a hardship to leave Canada and apply
under that stream, as processing times are usually approximately one year;
iii.
Insufficient
evidence had been provided regarding the amount of time Mr. Mughrabi spends
with his cousins;
iv.
Recent
and current employment would make it hard to spend evenings and weekends with
his cousins;
v.
Since
coming to Canada, Mr.
Mughrabi has lived with his cousins for only 6 months;
vi.
His
plan to live with his cousins and their parents in their new home had not
materialized and may not materialize now that he has accepted the position of
caretaker of an apartment building, which usually requires “24/7 attention”;
vii.
His
inability to get help at a hospital due to not being eligible for Manitoba
Health and not having the financial means to pay for the services he required
contradicted his aunt’s statement that she and her husband support him as if he
were their own child;
viii.
He
was found guilty and convicted of possessing cocaine in 2008; and
ix.
His
degree of establishment in Canada appears slight and was made with the
knowledge that he may not be permitted to remain in Canada.
[15]
With
respect to his cousins, the Officer stated that she had given substantial
weight to their interests and to the 2008 psychological assessment. She also
noted that the 2007 assessment had mentioned the possibility that the children
had been coached by their parents. In addition, she observed that although the
children may have been close to Mr. Mughrabi when he lived with them for six
months in 2003, there was little evidence to suggest that they have not
adjusted to him living on his own and being unavailable a lot of the time
because of the various jobs that he has had in the intervening period.
[16]
The
Officer further noted that during his interview, Mr. Mughrabi stated that he
tried to visit his cousins as much as possible and that he would sleep there on
weekends. However, she remarked that his ability to see the children when they
are awake is restricted by his work hours.
[17]
The
Officer also noted that Mr. Mughrabi’s uncle owns a company and should be able
to set his own hours, to enable him to assist with the children when the need
arises. She further observed that the family is in a financial position to seek
help from a caregiver if needed.
[18]
The
Officer then considered the ages of the children (13, 12, 10, 9 and 7), and
found that children at that age are likely busy with their own friends and
activities. She further noted that Mr. Mughrabi was not able to state how much
time he actually spends with the children. She observed that, if he were
removed from Canada, he would be
able to communicate with the family by telephone, e-mail, webcams, letters, and
other methods. She also remarked that the issues that had been raised were not
unlike those faced by many people who must juggle work, children and an ailing
spouse.
[19]
Regarding
Mr. Mughrabi’s aunt, the Officer noted that the 2007 psychological assessment (i)
strongly recommended that she seek assistance in managing her depression and
possible anxiety disorder, and (ii) noted that such assistance was important
not only for her own well-being, but also because of the impact that her
impaired functioning has upon her children, who had come to depend on the
uncles to fulfill many of the roles and functions normally fulfilled by a
healthy mother. The Officer found that there was no evidence indicating that
his aunt had followed through with that advice and that it appeared that she
had simply assumed it would be better for her if Mr. Mughrabi remained in Canada.
[20]
In
addition to the foregoing, the Officer’s decision mentioned that Mr. Mughrabi’s
conviction for possession of cocaine in 2008 reflected a disrespect for
Canadian law. It then briefly referred to the statement in Mr. Mughrabi’s
application that he would probably be successful if he were to apply under the
Provincial Nominee Program. It was noted that if he were in fact successful,
his separation from his family would only be for a short period of time and
that the children are old enough to understand this situation.
[21]
That
said, it was then noted that, as Mr. Mughrabi has a wife in the United
States,
lives on his own and is gainfully employed, it would be unreasonable to devote
his whole life to his cousins.
[22]
Based
on the foregoing, and after concluding that Mr. Mughrabi’s removal would not
constitute unusual and undeserved or disproportionate hardship, the Officer
rejected his application for an exemption on H&C grounds, under section 25
of the IRPA.
III. Standard
of review
[23]
The
parties agree that the issue raised by Mr. Mughrabi is reviewable on a standard
of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at paras. 51-56; Kisana v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, at para. 18). In short, the
decision rejecting his H&C application will stand unless it is not within
the “range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir, at para. 47). In this regard, “as long as
the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome” (Canada (Minister
of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339, at para. 59).
IV. Analysis
A.
Did the
Officer fail to properly analyze the best interests of the children?
[24]
Mr.
Mughrabi submits that Officer Craig failed to consider the best interests of
his cousins. He asserts that Officer Craig’s reasons are essentially the same
as those provided by Officer del Rosario, which were found to be inadequate by
Justice Russell. He maintains that Officer Craig once again failed to provide a
basis for disagreeing with the psychological assessments. He further submits
that where this Court has previously made a finding of irreparable harm in
granting a motion to stay an applicant’s removal from Canada, the Officer
who considers a subsequent H&C application must provide clear and specific
reasons, including references to the evidence, to reach an inconsistent
decision.
[25]
I am unable to conclude that Officer Craig erred in any of the ways
alleged by Mr. Mughrabi.
[26]
It is common ground that in reviewing an H&C application, an
immigration officer must be “alert, alive and sensitive” to the interests of
any children who may be impacted by the officer’s decision (Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 75).
However, once that has been done, it is up to the officer to determine what
weight those interests should be given in the circumstances (Legault v. Canada (Minister of
Citizenship and Immigration), [2002] FCA 125, at para. 12). Those
interests are important, but may not be determinative. Stated alternatively,
“an applicant is not entitled to an affirmative result on an H&C
application simply because the best interests of a child favour that result” (Kisana,
above, at paras. 24 and 37). This is especially true in a case such as this
where the children in question will remain in Canada with their
biological parents, both of whom appear to be supportive and loving, and the
person to be removed is a secondary caregiver.
[27]
The
weight accorded to a child’s interests should be a function of the nature and significance
of, and the probability accorded to, (i) the demonstrated potential adverse
impact of the removal in question on the child, (ii) the other factors that are
considered to support a positive decision, and (iii) the factors that are
determined to support a negative decision. Given the “highly discretionary and fact-based nature” of the balancing process (Baker,
above, at para. 61), the ultimate decision of an Immigration Officer should be
accorded “considerable deference” (Baker, at para. 62).
[28]
An implication of the recognized principle that
a child’s interests may not be determinative in an H&C assessment is that
there is no logical or legal inconsistency between a finding of likely
irreparable harm to a child, in the context of a motion to stay an applicant’s
removal, and a subsequent rejection of an H&C application in which the same
interests of the child were at issue. In short, a finding of irreparable harm
to a child in the context of such a motion does not mandate a positive
determination on a subsequent H&C application.
[29]
Moreover, while the decision on the H&C
application needs to be “alert, alive and sensitive” to the interests of any
children who may be impacted by the decision, it does not necessarily need to
specifically address any prior finding of irreparable harm made in the context
of a stay application. In short, there is no “magic formula to be used by
immigration officers in the exercise of their discretion” (Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, at para. 7; Kisana, above, at para. 32).
[30]
In
the case at bar, Officer Craig correctly identified the nature of the harm that
Mr. Mughrabi claimed would be suffered by his cousins and their parents if he
were removed from Canada. Contrary to Mr. Mughrabi’s assertions, Officer
Craig then went beyond the assessment that Officer del Rosario had conducted in
respect of the children, in a number of important respects.
[31]
In
particular, Officer Craig:
i.
explicitly
stated that she had given substantial weight to the best interests of Mr.
Mughrabi’s cousins and the most recent psychological report;
ii.
referred
on four separate occasions to the evidence, or the insufficiency of evidence,
regarding the amount of time Mr. Mughrabi is now able to spend with his
cousins. In this regard, she added that previous and current employment would
make it hard for him to spend evenings and weekends with his cousins, and that
plans for him to live with his cousins in a new family home may not materialize
now that he has accepted a job as a caretaker of an apartment building, where
he may be required to work “24/7”;
iii.
observed
that while the cousins may have been very close to their uncle when they lived
in the same house for six months approximately, that was seven years ago, when
they were younger. She added that there is little evidence that the cousins
have not eventually adjusted to their uncle living on his own and being
unavailable a lot of the time due to his work;
iv.
noted
that the cousins are now 13, 12, 10, 9 and 7, and are likely busy with their
own friends and activities. In my view, based on common experience, this was
not an unreasonable observation to make, particularly given the nature of the
support that Mr. Mughrabi claimed to have provided to the cousins and their
parents when the children were much younger;
v.
noted
that Mr. Mughrabi will be able to communicate with the children by telephone,
webcam, email, letters or other means if he is removed from Canada. Given that
the country to which Mr. Mughrabi would be removed is Jordan, I do not
believe that this was an unreasonable observation to make. In any event, this
was only one of many factors taken into account by Officer Craig;
vi.
observed
that there was no evidence that his aunt had followed up on the strong
recommendation in the 2007 psychologists’ report that she seek assistance in
managing her depression and possible anxiety disorder. It was entirely
appropriate for Officer Craig to mention this fact for two reasons. First, she
was entitled to take into consideration the fact that the aunt’s own actions
impacted upon the H&C grounds claimed by Mr. Mughrabi (Legault,
above, at para. 19). Second, as Officer Craig proceeded to note, the same
psychologists’ report stated that such assistance would be important not only
for the aunt’s own well being, but also because of the impact that her
impaired functioning has upon her children, who have come to depend on the
uncles to fulfill many of the roles and functions normally fulfilled by a
healthy mother” (emphasis added); and
vii.
noted
that since Mr. Mughrabi’s uncle owns his own business, he should be able to set
his own hours and assist with the children when the need arises.
[32]
Several
of the foregoing factors considered by Officer Craig represented changes from
the situation that prevailed at the time that Officer del Rosario made her decision
and at the time when the two psychologists’ reports that were before Officer
del Rosario were prepared.
[33]
It
is also significant that the third psychological assessment did not identify
the same potential trauma to the children that had been identified in the
earlier assessment. In particular, the 2007 assessment stated that two of the
children, Mona and Jenan, “both appear to be in more fragile states currently,
and as such it would potentially be much more difficult for each to adjust to
the loss of their uncles”. That assessment added that Jenan “is showing signs
of psychological distress which are either directly or indirectly (via her
mother’s depression) related to the ever-present potential loss of her uncles.”
It further noted that Mr. Mughrabi’s aunt “appeared to still be suffering from
a Major Depressive Disorder, which had, at best, improved only minimally since
the initial assessment.”
[34]
The
conclusions in the most recent updated psychological assessment did not
identify any similar current states of distress or fragility for Mona or Jenan.
On the contrary, they stated that the children “currently appear well adjusted,
healthy, and by all reports are doing well in school.” The assessment then
proceeded to state that the children would nevertheless be vulnerable to the
devastating effects of attachment disorder.
[35]
In
the context of all of the foregoing, it was not necessary for Officer Craig to
give that psychological assessment the exceptional attention that Justice
Russell stated should have been given by Officer del Rosario to the prior
psychological assessments, based on the circumstances that existed at the time
of Officer del Rosario’s decision. Given the change in circumstances and
evidence, I am satisfied that it was not unreasonable for Officer Craig to have
failed to discuss the most recent updated psychological assessment in greater
detail.
[36]
In
contrast to Officer del Rosario’s decision, Officer Craig’s decision did
reflect that she was “alert, alive and sensitive” to the best interests of Mr.
Mughrabi’s cousins, as well as to the interests of his aunt and his uncle, as
described at paragraph 31 above. In the course of doing so, Officer Craig also
reasonably addressed, directly and indirectly, the most recent updated
psychological assessment. In addition, she identified various reasons why Mr.
Mughrabi’s removal likely would not have the same impact upon the children as
it may have had on them when they were younger and he spent much more time with
them. In doing so, she implicitly provided her basis for disagreeing with the
conclusions contained in the most recent psychological assessment.
[37]
Had
Officer Craig addressed the most recent psychological assessment in greater
detail, she would have given the Applicant a greater sense that the findings of
that assessment had been appropriately considered. She also may have saved
Canadian taxpayers the not insignificant expense that has been associated with
this proceeding. However, her failure to address that assessment in greater
detail did not render her decision unreasonable.
[38]
After
considering the hardships claimed by Mr. Mughrabi and other factors related to
the best interests of his cousins, Officer Craig then identified the various
factors mentioned at paragraph 14 above, which in her view weighed against
making a favourable decision on Mr. Mughrabi’s application. Officer Craig then
implicitly balanced the positive and negative considerations and concluded that
Mr. Mughrabi’s removal from Canada would not constitute unusual and undeserved,
or disproportionate hardship, to justify granting an exemption under section 25
of the IRPA.
[39]
In
my view, Officer Craig’s decision was certainly well within the "range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (Dunsmuir, at para. 47),
particularly given the “highly discretionary and fact-based nature” of the
decision (Baker, above, at para. 61). For the reasons I have explained,
that decision was transparent, intelligible and appropriately justified.
B.
Directions
and costs
[40]
Given my conclusion that Officer Craig did not err in the manner
alleged by the Applicant, it is not necessary to address in detail the
Applicant’s submissions regarding directions and costs.
[41]
In
short, given that I will not be issuing an order to quash Officer Craig’s
decision and remit the matter to a different Immigration Officer, this is not a
case in which directions should be issued.
[42]
However,
I will note in passing that given the “highly discretionary and fact-based
nature” of H&C determinations (Baker, above, at para. 61), it will
rarely be appropriate to give specific directions (Canada (Minister of
Human Resources Development) v. Rafuse, 2002 FCA 31, at para.
14) in such cases.
[43]
As
to costs, the Applicant asserts that the exceptional circumstances of this
matter support an order of costs in his favour. Specifically, the Applicant
submits that Officer Craig ignored Justice Russell’s findings and made the same
errors as Officer del Rosario. Given that I rejected the latter submission, I
am also rejecting the former submission. In my view, there are no “special
reasons,” as contemplated by Rule 22 of the Federal Courts Immigration and
Refugee Protection Rules, SOR/93-22, in this case that would justify the
issuance of such an order.
V. Conclusion
[44]
The
application for judicial review is dismissed.
[45]
There
is no question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES THAT this application for judicial
review is
dismissed.
“Paul S. Crampton”
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