Citation: 2012 FC 336
Ottawa, Ontario,
March 21, 2012
PRESENT: The
Honourable Mr. Justice Zinn
Docket: IMM-4250-11
BETWEEN:
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NOUH
HUSSEIN ABDALLA HAMAD AND ABDALLA, AHMAD, ASIA,
AND ABDERRAHMAN
HAMAD
BY THEIR
LITIGATION GUARDIAN
NOUH HUSSEIN
ABDALLA HAMAD
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Applicants
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and
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THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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AND BETWEEN:
Docket: IMM-4251-11
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MUNIRA SALEH
MAHMOUD
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Hamad and his children are the applicants in Court File IMM-4250-11;
his wife and the mother of his children, Ms. Mahmoud, is the applicant
in Court file IMM-4251-10. The applicants seek to set aside decisions of a
visa officer refusing their requests for visas to come to Canada so that Mr.
Hamad could study, his young children attend school, and Ms. Mahmoud stay at
home or work while in Canada.
[2]
The decisions rendered in each application were identical and these
applications were heard together. As a result, only one set of reasons will
issue but a copy shall be placed in each of the Court files.
[3]
These applications are allowed and the decisions of the visa officer are
set aside, for the reasons that follow.
Background
[4]
Mr. Hamad lives in Benghazi, Libya, with Ms. Mahmoud and their four
children who are all under the age of ten (collectively the applicants). All
the applicants are Libyan citizens. In June of 2011, Mr. Hamad traveled to the
Canadian Embassy in Egypt to apply to study in Canada at George Brown College
in a business administration-accounting program. Following the instruction
given him at the Embassy, he filed separate applications for his wife and his
four children.
[5]
Mr. Hamad has two brothers living in Libya. His third brother is a
Canadian citizen who lives in Toronto and who, as an affiant on the
applications, testified that he was committed to supporting and financially
assisting his brother’s family during their stay in Canada. Mr. Hamad has
previously traveled to Egypt, and in his application stated that he had visited
his brother in Canada in 1991, on a visitor’s visa valid from January 24, 1991
to July 23, 1991, and that he left Canada before the expiry date.
[6]
The applicants have no debts, have a home, an orchard and a well in Libya.
Mr. Hamad also owns a transport truck and an interest in a building supply
store. He is Head of Teaching Staff Human Resources, Faculty of Agriculture, Garyounis
University in Benghazi, and his wife is a teacher. Both of them arranged for
leaves of absence from their jobs while in Canada.
[7]
On June 14, 2011 their applications were refused. The refusal was
because the officer not being satisfied that the applicants would return to Libya
after their visit. In reaching this view, the officer examined their travel
history; their purpose for the visit; family ties in Egypt, Libya and Canada;
employment prospects in Libya; and incentives to return.
[8]
The relevant portion of the decision is brief and reads as follows:
…letter from
representative stating Libya “is a country
experienceing [sic] sever [sic] instability. The normal patterns
of life for its poulation [sic] have been disrupted and it is not
possible to discoun [sic] the risk of harm. By coming to Canada for
several years to study Mr. Hamad can ensure that his children are safe adn [sic]
settled.” and “It is not possible, of course, to predict the
outcome of the conflict in Libya…”, “Should the conditions in the country worsen rather than improve
in the next several years, then Mr. Hamad would take legal and appropriate
steps to retain his status in Canada until it is resolved…” Evidence of funds:-
stat dec from brother, employment letter, Notice of assessment showing funds of
$1,360,147 in 2011 – company docs for building materials company, vehicle, real
estate docs I am not satisfied that the applicants meet the requirements for a
temporary resident visa based on the applicants’ travel history (only limited travel
to Egypt in ppts, no documentation given of other travel, purpose for visit
(reps letter states his decision to pursue studies in CDA was based on the
unstable situation in Libya), family ties in Egypt/Libya and Canada (while
family is travelling to CDA), limited employment prospects in Libya (although
PA and spouse state they are employed, current situation in Libya is very
unstable and future employment is not certain) and weak incentives to return
(rep. letter states PA and family will seek to stay in CDA as long as the
situation in Libya remains unstable). Applicants lack strong ties which would
ensure return after visit as per R179(b).
Therefore, this application is refused.
Issues
[9]
The applicants in their memoranda raise the following issues:
1. Did the officer err in law in applying section 179 and
consequent provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 with respect to dual intent, and unreasonable conclusions;
2. Did the officer breach the duty
of fairness owed to the applicants; and
3. Did the officer err in not
providing adequate reasons?
[10]
In my view, the real issue in this application is whether the officer’s
decision was reasonable in the manner described in Dunsmuir v New Brunswick,
2008 SCC 9.
Analysis
[11]
I find that the decision of the officer lacks justification in the
decision-making process and falls outside a range of possible, acceptable
outcomes defensible in respect of the facts. The following summarizes why I
have reached this view.
[12]
First, the officer noted only Mr. Hamad’s limited travel to Egypt but
completely disregarded or ignored his travel to Canada in 1991 and the fact
that he returned to Libya before the expiry of his Canadian visa.
[13]
Second, the officer’s conclusion that the applicants’ ties to Libya were
weak is unreasonable and not supported by the record. The evidence is that Mr.
Hamad has one brother in Canada, but he has his mother and his two brothers and
their families in Libya. Ms. Mahmoud has no immediate family in Canada, but
she has her parents, two sisters and two brothers and their families in Libya.
[14]
Third, the officer’s finding of limited future
employment in Libya resulting
from the current instability is speculative, and an unreasonable conclusion not
supported by the record. The evidence before the officer was that Mr. Hamad and
his wife have been working for years, and that Mr. Hamad owns businesses, a
transport truck and a building supply store, all of which he intends to leave
in the control of his brothers and business partner while in Canada.
[15]
Fourth, the officer’s statement that “the family will seek to stay in [Canada]
as long as situation in Libya remains unstable” mischaracterizes the statements
made in the application. What the letter from the applicants’ counsel states
is that the applicants, although expecting the situation to improve, would take
all legal steps to remain in Canada if the conditions in Libya worsened
but that they would not remain in Canada without status. It reads as follows:
He has every
expectation that the country will stabilize, as it cannot continue as it is at
present. He wants to return when he completes his course and contribute to the
development of the country. Should the conditions in the country worsen rather
than improve in the next several years, then Mr. Hamad would take legal and
appropriate steps to retain his status in Canada until it is resolved. Please
be assured that he has no intention, with a wife and four children, of
attempting to remain without status in Canada.
It is also of note that the visa
was requested for a three year period ending in 2014. The officer made his
decision at a time the citizens of Libya were attempting, with the support of
the international community, to oust Muammar Gaddafi. The danger
of the officer’s speculation as to the country conditions some three years in
the future is shown by the fact that since then, Muammar Gaddafi has been
ousted and killed, and although the current administration has issues, the
stability in Libya has significantly improved.
[16]
Fifth, the officer unreasonably suggests that
the entire purpose of the visit to Canada is to escape the instability in Libya. He writes: “the decision to pursue
studies in [Canada] was based
on the unstable situation in Libya.” This is not an accurate reflection of the information in the
record which was more aptly described by counsel as the instability in Libya
affected the timing of the study in Canada, not its validity. Although there is little doubt that all were
looking to Canada as a safer
environment for the children, this does not imply that the study was not bona
fide, especially when, as here, there is a description of the value of the
study to Mr. Hamad as was outlined in the application.
Mr. Hamad has the opportunity to develop his English language
abilities and his professional skills, which he can put to good use in Libya when he and his family return there,
and at the same time he can remove his family from danger and uncertainty in
their lives for the next three years. It can be expected that the children will
become fluent in English, which will benefit them in their later lives.
[17]
Neither party proposed a question for
certification.
[18]
The visa applications indicate that Mr. Hamad,
who he can speak English, was to take an intensive English program from the end
of August to the end of the year before embarking in January on the
administration-accounting program at George Brown College in Toronto. In light
of the timing of these programs, I find it appropriate to direct that the
applications be considered and a new determination made within the next ninety
(90) days. He should not lose a second year due to any delay in making the
determination.
JUDGMENT
THIS COURT ORDERS
that the decisions of the visa officer refusing the applicants’ visa is set
aside; the applicants’ applications are referred to a different visa officer
for determination to be made no later than 90 days from the date hereof in
accordance with these reasons; and no question is certified.
"Russel W. Zinn"
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