Date: 20110711
Docket: IMM-4448-10
Citation: 2011 FC 865
Ottawa, Ontario, July 11, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
|
|
ZINAH AL JAMIL
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant challenges the legality of the decision of a Citizenship and
Immigration Officer (the Officer), dated July 12, 2010, rejecting her application
for permanent residence from within Canada made on humanitarian and
compassionate grounds and based on subsection 25(1) of the Immigration and
Refugee Protection Act (the Act), SC 2001, c 27 (the H&C application).
[2]
The
applicant, Ms. Zinah Al Jamil, is a single woman. She is a Syrian national of
Lebanese residence. Her father is a Syrian Muslim and her mother is a Lebanese
Christian. The applicant was born in Syria but lived the majority
of her life in Lebanon. She first came under a temporary student visa
to Canada in 2006 to attend Dalhousie University. She lives
with her sister in Halifax. Her brother and a significant number of
extended family members also live in Halifax.
[3]
The
applicant made a refugee claim in 2007, based on the constant discrimination,
harassment, intimidation and fear for her security and life that she alleges to
have experienced and would experience as a Syrian in Lebanon, as well as being
the product of a mixed-religion marriage. The claim was rejected on April 20,
2009. Subsequently, the applicant applied for a PRRA, which is still pending.
The applicant also made an H&C application, which focused on the close
family ties and integration into Canadian society of the applicant, as well as
the discrimination she would face in Lebanon as a single female Syrian
Muslim.
[4]
Essentially,
the Officer decided that the applicant would not suffer unusual and underserved
or disproportionate hardship. Before going further, it is useful to briefly outline
some relevant principles and the standard of review according to which the legality
of the impugned decision has to be evaluated.
[5]
Immigration
legislation does not clearly establish what constitutes humanitarian and
compassionate grounds for an exemption under subsection 25(1) of the Act. This
lack of an official test is part of the discretionary nature of any H&C
decision (Paz v Canada (Minister of
Citizenship and Immigration), 2009 FC 412 at para 28). That being said,
the IP 5 Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds Guidelines suggest that the officer must determine
whether, on the basis of the proof submitted, a refusal to grant the request
for an exemption would, more likely than not, result in unusual and undeserved
or disproportionate hardship. Thus, the criterion of “unusual and undeserved or
disproportionate hardship” is an appropriate test (Singh v Canada (Citizenship
and Immigration), 2009 FC 11 at para 2). The burden of proof is entirely on
the applicant.
[6]
The
standard of review for H&C determinations by immigration officers has
generally been found to be reasonableness (Ahmad v Canada (Minister of
Citizenship and Immigration), 2008 FC 646 at para 11). Reasonableness
is concerned principally with the existence of justification, transparency and
intelligibility in the decision-making process. It also relates to whether the
decision falls within the range of acceptable outcomes that are defensible in
fact and in law (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47). H&C decisions are discretionary in nature and therefore there is a
wider scope of possible reasonable outcomes available (Inneh v Canada (Citizenship
and Immigration), 2009 FC 108 at para 13).
[7]
Basically,
the applicant submits that the Officer’s reasons or lack of proper analysis do
not permit the applicant, and by extension, this Court, to be satisfied that
the Officer duly considered the personal circumstances of the applicant and
made a global assessment of the H&C application in the context of the
evidence and the objectives of the Act, notably paragraph 3(1)(d) of the Act.
Having considered the respondent’s response to applicant’s arguments, the Court
accepts these grounds of review and finds the impugned decision unreasonable.
[8]
First,
with respect to integration, the Officer’s noted that the applicant had made
friends through school and work, and was reasonably integrated into Canadian
society, but that the integration was not out of the ordinary. This conclusion
was open to the Officer, even though her lack of community involvement is certainly
understandable (considering that the applicant was both studying and working
during the four year period considered).
[9]
In
contrast, the Officer’s conclusion regarding the applicant’s family situation
in Canada is not
reasonable. The Officer dismissed the applicant’s argument in two sentences,
stating that all family members other than her siblings were cousins or spouses
of cousins, and that her parents and other family members are in Lebanon. In doing
so, the Officer revealed a complete lack of consideration for the enhanced
importance that family plays in Middle Eastern culture, and ignored or
otherwise dismissed without proper reasoning and explanations, relevant
evidence.
[10]
More
particularly, the applicant’s personal statement speaks eloquently to her close
connection to her family in Canada. The applicant also explains that she is
not close to her father’s family, which is back in Lebanon, because
they disapproved of her parents’ marriage. Rather, she is very close to her
mother’s family, of which a large number of members are in Canada. The
applicant also discusses the fact that her parents hope to immigrate to Canada,
which would leave the applicant alone in Lebanon. The
Officer’s decision to reject this as a possible ground for H&C
consideration is unreasonable, in light thereof.
[11]
The
Officer’s discussion of the possible difficulties awaiting the applicant in Lebanon completely
misses the point. The Officer only discusses the fact that the applicant knows
the language and the culture, and could live with her parents. The applicant
does not deny that she knows the language and the culture, or that she could
live with her parents in Lebanon (even though she did
state that she is more comfortable in English than in Arabic, and that her
parents eventually intend to immigrate to Canada).
Regardless, the real problem with the Officer’s reasons is that neither point
was among the grounds that the applicant suggested to justify her H&C
application.
[12]
Again,
the issue before the Officer was not whether the applicant had a place to live
in Lebanon, or whether
she was familiar with the culture and language, but rather, whether she would
suffer discrimination based on her status as a single, female Syrian Muslim. The
Officer’s focus on the applicant’s having somewhere to stay in Lebanon and the
ability to communicate is misplaced. While accepting that the Officer is better
placed to weigh the evidence, insufficient reasons have been provided to
dismiss the claim that constant discrimination in Syria would
constitute unusual and undeserved or disproportionate hardship in view of her
personal situation.
[13]
The
Officer also seems to suggest that the applicant may not have been actually
enrolled at Dalhousie University,
for example. However, if a negative decision contains a finding of lack of
credibility, this should at the very least be explicit. A simple casual
statement that the applicant did not provide transcripts is not adequate. The
Officer’s failure to address the letter of commendation from the applicant’s
professor is also unacceptable, in light of the Officer’s offhand comment.
[14]
The
Officer could also have chosen to disregard the importance of the family
connection which the applicant enjoys in Canada. However, in
light of the evidence submitted, which included her personal statement,
statements made by her siblings and numerous photographs of family events in Canada, the Officer
had to at least address this argument in a clear and culturally sensitive
manner. Thus, the Officer’s blunt statement that “although it would be
difficult to leave her family members and friends here in Canada, [she was]
not convinced that this hardship alone [was] sufficient to justify an exemption
under humanitarian and compassionate considerations” is highly questionable.
[15]
In
final analysis, considering the absence of adequate reasons and the
accumulation of problems in the reasoning of the Officer, the Court finds the
decision, as a whole, reviewable. This application for judicial review shall be
accordingly granted. The decision shall be set aside and the matter returned
for reconsideration by a different Officer. Counsel agrees that there is no
serious question of general importance.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review be granted. The
impugned decision is set aside and the matter returned for reconsideration by a
different Officer. No question is certified.
“Luc
Martineau”
Email this Content