Docket: IMM-1443-11
Citation: 2011 FC 1296
Ottawa, Ontario, November 10,
2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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NAZIH CHARIF HAMAM
GHADA YEHYA ISSA
MOHAMMAD ALI HAMAM
SARA NAZIH HAMAM
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Nazih
Charif Hamam and his family apply for judicial review of the Immigration
Officer’s decision dated January 18, 2011, refusing their applications for
permanent residence processed from within Canada on
humanitarian and compassionate (H&C) grounds.
[2]
The
Applicants are a family with four children. The father Nazih Charif Hamam (the
“Father”) and mother Ghada Yehya Issa (the “Mother”) are both citizens of Lebanon. The two
oldest children are citizens of the United States and the two youngest
children are Canadian citizens. They currently live in London, Ontario.
[3]
The
Officer addressed the three H&C grounds claimed by the Applicants.
1. Risk of returning to Lebanon
2. Establishment in Canada, and
3. The best interests of the
children.
[4]
The
Officer concluded in respect to each of these grounds that the Applicants had
not satisfied the burden of proving they would face unusual, undeserved or
disproportionate hardship if their H&C application was not accepted.
[5]
The
Applicants submit the Officer erred by assessing the Applicants’ personal risk
rather than the degree of hardship arising on return to Lebanon, failed to give
adequate reasons for concluding the Applicants have not demonstrated sufficient
establishment in Canada such that their removal would constitute unusual,
undeserved or disproportionate hardship and applying the wrong test for the
best interests of the children involved.
[6]
I
have concluded the application for judicial review should be granted for the
reasons that follow.
Background
[7]
The
Applicants came to Canada in January 2005 after a failed claim for asylum in
the United
States.
Their claim for refugee status in Canada was also unsuccessful.
[8]
In
2009, the Applicants submitted an inland application for permanent residence on
the following H&C grounds:
1. risk of returning to Lebanon,
2. establishment in Canada, and
3. the best interests of the
children.
[9]
The
application was forwarded to the Montreal Pre-Removal Risk Assessment (PRRA)
Office in October, 2010. An update to the file was provided by the Applicants
in November, 2010. The Officer reviewed the Applicants’ file. She denied their
H&C application giving reasons for the decision in a letter dated January
18, 2011.
Decision under Review
[10]
The
reasons for decision were written in French. However, a translated copy of the
decision (by the Translation Bureau) is included within the Certified Tribunal
Record (CTR). For the purposes of this decision, I will refer to the English
translation. The Officer’s reasons address the three H&C grounds claimed by
the Applicants.
Risk on
returning to Lebanon
[11]
The
Officer starts by briefly summarizing the allegations made by the Father in his
refugee protection claim before the Refugee Protection Division (RPD). The
Officer notes the RPD determined that the Applicants had not established the
alleged risks and were neither convention refugees nor persons in need of
protection. The Officer also noted the Federal Court dismissed their
application for leave for judicial review of the RPD’s decision.
[12]
The
Officer specifically states that her role was not to overturn the RPD’s
determinations as the Officer was neither sitting in appeal of nor reviewing
the RPD’s decisions. The Officer observes that in the current application, the
Applicants repeated the allegations they made before the RPD and filed the
evidence submitted to the RPD, the RPD’s reasons, the Father’s PIF, and other
documentation. The Officer notes that the additional documentation did not
confirm that the Applicants would be exposed to personal risks, but that it was
consistent with the documentary sources the Officer had consulted. The Officer
found that these sources indicated that although the security situation in Lebanon remained a
cause for concern, the government and the armed forces continued to fulfill
their roles.
[13]
The
Officer concludes by stating that the onus was on the Applicants to demonstrate
a connection between the latent crisis situation in Lebanon and their
personal risk and that the Applicants had failed to do so.
Establishment
in Canada
[14]
The
Officer begins by noting that the Applicants arrived in Canada on January
5, 2005. The Officer then goes on to discuss the Applicants’ English ability.
The Officer notes that the Father stated he speaks English and the Mother speaks,
reads and writes English; however, the Officer found no independent assessment
documents were submitted to confirm any effort made to learn or know the
language. The Officer was of the opinion the Father’s functioning in English is
very likely limited.
[15]
The
Officer notes the Father runs his own business as a carpet layer and that
notices of assessment indicate a taxable income of about $14,000 over the
previous three years. The Officer notes the same amount is shown on the
Mother’s notices for 2008 and 2009. The Officer acknowledges that as the mother
of young children, the Officer can understand it having been more difficult for
her to enter the job market. However, the Officer notes that while her IMM 5001
form states that she does not plan to work in the future, the Mother apparently
accepted a full-time job to teach Arabic in London in 2010.
[16]
The
Officer notes the Applicants’ file contains a bank statement estimating the
Father’s assets at over $40,000 and numerous letters and attestations from his
business contacts touting his professionalism. The Officer notes that this is a
positive aspect in the application.
[17]
The
Officer then lists some of the documentation submitted to demonstrate the
Applicants’ establishment in Canada including:
·
A petition
signed by 121 persons showing that the applicants have contributed
substantially to the Muslim community and London, Ontario, as a whole;
·
Attestations
from three Muslim organizations, including two schools, confirming this
favourable opinion;
·
Approximately
30 letters of support from relatives and friends illustrating the merits and
virtues of each of the Applicants.
The Officer notes that these are all
positive aspects.
[18]
Before
making her conclusions on establishment, the Officer quotes from a decision of
Justice Blanchard in Uddin v Canada (Minister of Citizenship and
Immigration), 2002 FCT 937, 116 ACWS (3d) 930 [Uddin], which defines
the contours of analysis for the test for determining whether an applicant has
demonstrated a sufficient degree of establishment in Canada such that their
removal would constitute an unusual, undeserved or disproportionate hardship.
[19]
The
Officer then concludes by stating that the Applicants will inevitably
experience hardship if they return to Lebanon after such a long absence if required
to apply from Lebanon for a
permanent resident visa. However, the Officer concludes that this hardship
would not be unusual, undeserved or disproportionate.
The best interests of
the children
[20]
The
Officer considered the best interests of the four children, two born in the
United states and two in Canada, who were respectively nine, six, five and
three years of age. The Officer acknowledged it was her duty to be alert, alive
and sensitive to the interest of these children.
[21]
The
Officer notes there is no doubt that these children were very attached to their
three Canadian uncles and other relatives, including, in particular, their
cousins. The Officer states that the Father and Mother have an even greater
number of siblings in Lebanon and that no reason had
been advanced that the children would not benefit from contact with their
Lebanese close relatives whom they had not yet met.
[22]
The
Officer comments on the Father and Mother’s assertions that the children speak
little or no Arabic and cannot read or write in that language at all. The
Officer finds these assertions confusing as the evidence appears to show that
the Mother had given Arabic lessons to children on a volunteer basis. The
Officer also notes the oldest child’s school report card emphasized his
excellent academic performance in Arabic. The Officer therefore did not rely on
the Father and Mother’s statements with regard to the impact that the children’s
leaving would have on their education.
[23]
The
Officer notes nothing is specifically mentioned about the children’s health,
particular needs or vital interests or the challenges they would face.
[24]
The
Officer concluded the best interests of the children analysis by stating that
the onus was on the Applicants to meet the burden of proving that there would
be unusual, undeserved or disproportionate hardship in the event they returned
to Lebanon and that the
Applicants had failed to do so.
Relevant
Legislation
[25]
The
Immigration and Refugee Protection Act, SC 2001, c 27 provides:
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11.
(1) A foreign national must, before entering
Canada, apply to an officer for a
visa or
for
any other document required by the regulations.
The
visa or document may be issued if,
following
an examination, the officer is satisfied
that
the foreign national is not inadmissible
and
meets the requirements of this Act.
…
25.
(1) The Minister must, on request of a
foreign
national in Canada who is inadmissible
or
who does not meet the requirements of this
Act,
and may, on request of a foreign national
outside
Canada, examine the circumstances
concerning
the foreign national and may grant
the
foreign national permanent resident status
or
an exemption from any applicable criteria or
obligations
of this Act if the Minister is of the
opinion
that it is justified by humanitarian and
compassionate
considerations relating to the
foreign
national, taking into account the best
interests
of a child directly affected.
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11.
(1) L’étranger doit, préalablement à son
entrée
au Canada, demander à l’agent les visa
et
autres documents requis par règlement.
L’agent
peut les délivrer sur preuve, à la suite
d’un
contrôle, que l’étranger n’est pas interdit
de
territoire et se conforme à la présente loi.
…
25.
(1) Le ministre doit, sur demande d’un
étranger
se trouvant au Canada qui est interdit
de
territoire ou qui ne se conforme pas à la présente
loi,
et peut, sur demande d’un étranger se
trouvant
hors du Canada, étudier le cas de cet
étranger;
il peut lui octroyer le statut de résident
permanent
ou lever tout ou partie des critères
et
obligations applicables, s’il estime que
des
considérations d’ordre humanitaire relatives
à
l’étranger le justifient, compte tenu de
l’intérêt
supérieur de l’enfant directement touché.
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Issues
[26]
I
consider the issues in this case to be:
1.
Did the
Officer err in her assessment of risk or hardship?
2.
Were the
Officer’s reasons in her assessment of the Applicants’ establishment in Canada inadequate?
3.
Did the
Officer err in her assessment of the best interests of the children?
Standard of Review
[27]
The
appropriate standard of review for a decision on H&C grounds is
reasonableness: Ramirez v Canada (Minister of
Citizenship and Immigration), 2006 FC 1404, 60 Imm LR (3d) 27 [Ramirez]
at para 30. Given the discretion an Immigration Officer has in a H&C
application, a heavy burden rests on the Applicants to satisfy the Court that
the decision under section 25 requires the intervention of the Court: Mikhno
v Canada (Minister of Citizenship and Immigration), 2010 FC 386, [2010] FCJ
no 583 (QL) (TD) at para 25.
[27]
[28]
Errors
of law and breaches of procedural fairness should be reviewed on a standard of
correctness: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paras 47-50.
Analysis
[29]
The
Applicants allege errors by the Officer in her assessment under all three
H&C grounds. The Applicants submit the Officer erred by failing to assess
their new allegation of risk from Hezbollah and also by requiring personalized
risk to the Applicants rather than assessing risk informed by hardship on
removal to Lebanon. The
Applicants also submit the Officer failed to provide adequate reasons as to why
the hardship they would experience if required to return to Lebanon, despite
their acknowledged establishment in Canada, did not give rise to
unusual or undeserving and disproportionate hardship. Finally, the Applicants
submit the Officer erred in applying the test of undeserved hardship in
considering the best interests of the children.
Risk
[30]
The
Applicants submitted the Officer made two errors in her assessment of risk: the
first is that the Officer failed to consider new evidence submitted by the
Applicants that demonstrated fear of returning because of the presence of
Hezbollah in the portion of Lebanon from which the Applicants are originally
from; and the second is that the Officer applied the incorrect legal test for
assessing risk in the context of an H&C application.
[31]
The
Respondent argues the Officer was responsive to the submissions and evidence
before her and that the Applicants essentially attempted to reargue their
entire refugee claim in their H&C application. The Respondent submits the
Applicants have an obligation to identify specific incidents or threats that
they say give rise to unusual undeserving hardship and support them with
evidence. This, the Respondent submits, the Applicants did not do.
[32]
The
Officer stated that her role was not to overturn the RPD’s determination. She
noted that the Applicants filed the evidence submitted to the RPD, the RPD
reasons, and other material. The Applications submitted they feared return to Lebanon for the same
reasons as they advanced in their refugee claim, but also because of risks
posed by Hezbollah who were hostile to western culture. The Applicants submit
that the Officer analyzed their first allegation in her reasons but ultimately
rejected the Applicants’ submissions by noting that her role was not to
overturn the RPD’s determination.
[33]
The
Applicants said their H&C application also contained allegations of risk
that were not before the RPD which the Officer failed to expressly acknowledge.
The Applicants’ submissions and documentary evidence made in support of the
H&C application indicated that the Applicants, in addition to the risk set
out in their failed refugee claim, feared to return to Lebanon due to the
presence of Hezbollah in the area the Applicants are originally from. The
Applicants stated in reply they provided a number of articles highlighting the
presence of Hezbollah in Lebanon to support their claim.
[34]
The
Applicants claim that the Officer completely failed to address the risk posed
by Hezbollah. The Applicants argue that the Officer “specifically indicated
that the ‘only’ risks brought forward were those advanced at the RPD,” and
since the second ground of risk was not before the RPD, the Officer must have
failed to consider it. The Applicants rely on the following paragraphs from Tariq
v Canada (Minister of
Citizenship and Immigration), 2005 FC 404, 44 Imm LR (3d) 256 [Tariq],
to show that this was a reviewable error:
[20] The respondent submits that the
Board is presumed to have considered all of the evidence before it, and that I
should therefore interpret the Board’s statement that the applicant had
provided “no evidence” that they would be targeted by Sunni extremists if they
were to return to Pakistan to mean that there was no such evidence that the
Board found to be persuasive.
[21] I do not accept this
submission. It is true that a tribunal will ordinarily be presumed to have
considered all of the evidence before it, even if no reference is specifically
made to any given piece of evidence in the tribunal’s decision. That is not,
however, the situation that we have here. This is not a case where the Board
omitted to mention evidence. What we have here is a clear assertion by the
Board that there was no evidence before it on a particular point when there was
indeed just such evidence.
[22] In my view, this leads to the
inescapable inference that the evidence was overlooked by the Board.
[35]
After
a careful review of the Officer’s decision, I am unable to conclude that the
Officer specifically indicated that she “only” took into account the evidence
and claims that were before the RPD.
[36]
The
Officer begins her assessment of risk by setting out the original allegations
of fear put before the RPD and the history of the Father’s refugee claim. The
Officer states that it was not her role to overturn the RPD’s determinations.
The Officer then states:
In this application for a visa exemption,
the applicants repeated the allegations they made before the RPD. They filed
the evidence that was submitted to the RPD, the RPD’s reasons, the principal
applicant’s PIF, fifteen articles and general documents on the human rights
situation in Lebanon and an attestation from a Muslim aid organization,
which echoes Ms. Issa’s statements regarding the risks she ascribes to her
husband’s problems with the Syrian services and the security situation arising
from the conflict with Israel. (Emphasis added).
[37]
While
it is true that the Officer’s reasons do not mention the Applicants’ specific
allegation of risk from Hezbollah, the Officer did take into account the
evidence that was not before the RPD. The Officer acknowledged the Applicants’
submission of “fifteen articles and general documents on the human rights
situation in Lebanon and an
attestation from a Muslim aid organization.” The inference can be made that
these documents were not part of the evidence before the RPD. Had they been it
would have been unnecessary for the Officer to mention them specifically.
[38]
The
situation in this case is not the same as in Tariq. The Officer did not
claim that the only evidence she considered was that which had already been
before the RPD. While it would have been preferable the Officer make specific
mention of the second allegation made by the Applicants, it appears the Officer
did at least acknowledge the evidence submitted on the risk from Hezbollah.
[39]
I
conclude that the presumption that the Officer considered all the evidence
remains in this case and that the Officer did consider the evidence of the
Applicants’ fear of returning to Lebanon because of the presence
of Hezbollah. No reviewable error was made by the Officer on this point.
[40]
The
Applicants also submit the Officer misapplied the legal test from a PRRA
analysis into this H&C application. The Applicants argue there is a clear
difference between how an applicant’s claims of ‘risk’ in a PRRA should be
treated, as opposed to ‘risk’ alleged in an H&C application. The Applicants
submit a PRRA requires a decision maker to assess whether an applicant would be
personally subjected to torture or to a risk to life or cruel and unusual
punishment. On the other hand, the Applicants submit an H&C application
requires whether the applicant would face “unusual, undeserved or
disproportionate hardship”.
[41]
The
jurisprudence sets out that the risk in an H&C application is that of
hardship which is different from the risk to be considered in a PRRA
application. As Justice Montigny stated in Ramirez, “[i]t is beyond
dispute that the concept of ‘hardship’ in an H&C application and the ‘risk’
contemplated in a PRRA are not equivalent and must be assessed according to a
different standard.”
[42]
In
Dharamraj v Canada (Minister of
Citizenship and Immigration), 2006 FC 674, 294 FTR 156, Justice O’Keefe
stated:
[24] There is no dispute that there
is a higher burden on the applicants to establish risk for the purposes of a
PRRA than there is for H & C purposes. Consequently, there may be
circumstances where risk would be relevant for an H & C application but not
for a PRRA application.
[25] In the present case, the
officer merely adopted the assessment of risk made by the IRB and the PRRA
officer without further analysis for the purposes of the H & C application.
In my opinion, the officer made an unreasonable decision because she did not
consider the risk factors in the context of the H & C application.
[43]
This
appears to be the same situation as the case at bar. In this case, the Officer
appears to have confused the duty given to her in this case which is to assess
the Applicants’ allegation of risk under the context of an H&C application,
not a PRRA. The Officer’s error is clear from the following passage from her
decision:
This set of documents does not confirm
that the applicants will be exposed to personal risks, but it is
consistent with the documentary sources I consulted. These sources indicate
that although the security situation in Lebanon remains a cause for concern,
the government and the armed forces continue to fulfill their riles. In particular,
the attacks and assassinations more specifically targeted anti-Syrian figures
or persons having a political profile. The onus was on the applicants to
demonstrate a connection between the latent crisis situation in Lebanon and their personal risk. They
failed to do so.
With regard to the first ground, I am therefore of the opinion that they would
not face unusual and undeserved or disproportionate hardship in the event that
they return to Lebanon to apply for permanent
residence. [Emphasis added].
[44]
It
is clear the Officer required the Applicants to demonstrate personal risk and
found that the Applicants were unable to do so. However, this was the wrong
legal test for an H&C application. The Officer does not express any
appreciation that the test for hardship in an H&C context is different from
the test for personalized risk in a PRRA assessment.
[45]
The
Officer’s statement that the Applicants would not face unusual and undeserved
or disproportionate hardship follows the Officer’s analysis with respect to
personalized risk. The analysis is unreasonable as the wrong test was employed
and it is not saved by reverting to a recitation of the proper H&C test in
conclusion.
[46]
I
conclude the Officer applied the incorrect legal test for assessing risk in an
H&C application. This is a reviewable error.
Establishment in Canada
[47]
The
Applicants submit that the Officer identifies numerous positive factors about
the Applicants’ establishment in Canada but then concludes, without reasons,
that the hardship they would experience if they return to Lebanon would not
constitute unusual, undeserved or disproportionate hardship were they to return
to Lebanon to apply for
permanent residence.
[48]
The
Applicants rely on Justice Mactavish’s analysis in Adu v Canada (Minister of
Citizenship and Immigration), 2005 FC 565 [Adu], where she
held:
[14] In my view, these ‘reasons’ are
not really reasons at all, essentially consisting of a review of the facts and
the statement of a conclusion, without any analysis to back it up. That is, the
officer simply reviewed the positive factors militating in favour of granting
the application, concluding that, in her view, theses factors were not
sufficient to justify the granting of an exemption, without any explanation as
to why that is. This is not sufficient, as it leaves the applicants in the
unenviable position of not knowing why their application was rejected.
…
[20] In contrast, in this case, the
officer reviewed the evidence of establishment in Canada offered by the applicants in support of
their applications, and then simply stated her conclusion that this was not
enough. We know from the officer’s reasons that she did not think that the
applicants would suffer unusual, undeserved or disproportionate harm if they
were required to apply for permanent residence from abroad. What we do not know
from her reasons is why she came to that conclusion.
[21] As a consequence, it is
impossible to subject the officer’s reasoning to a ‘somewhat probing’ analysis.
[49]
In
this case, the Officer found that the Applicants were established in Canada. This is
evident from the reasons where the Officer stated that the Applicants “have
contributed substantially to the Muslim community and to the community in
London, Ontario as a whole”, that “the applicants have close ties with numerous
people in London”, and that “their efforts convey a willingness to integrate
that is directed primarily towards their own community in this city”.
[50]
The
Respondent submits that the Officer’s decision regarding the Applicants’
establishment in Canada was reasonable. The Respondent argues the
Applicants have failed to show how their evidence of establishment in the
community creates hardship on return to Lebanon that rises
to the level of unusual, undeserved, or disproportionate.
[51]
The
Respondent points out that the Officer’s reasons refer to the Uddin case
as having informed her analysis, in particular the included quote from Irmie
v Canada (Minister of Citizenship and Immigration) (2000), 10 Imm LR (3d)
206, [2000] FCJ no 1906 (FCTD), which stated:
I return to my observation that the
evidence suggests that the applicants would be a welcome addition to the
Canadian community. Unfortunately, that is not the test. To make it the test is
to make the H & C process an ex post facto screening device which
supplants the screening process contained in the Immigration Act and Regulations.
This would encourage gambling on refugee claims in the belief that if someone
can stay in Canada long enough to demonstrate that they are the kind of persons
Canada wants, they would be allowed to stay. The H & C process is not
designed to eliminate hardship; it is designed to provide relief from unusual,
undeserved or disproportionate hardship. There is no doubt that the refusal of
an applicants’ H & C application will cause hardship but, given the
circumstances of the applicants’ presence in Canada and the state of the record, it is not
unusual, undeserved or disproportionate hardship. . . .
[52]
In
Raudales v Canada (Minister of Citizenship and Immigration), 2003 FCT
385, 121 ACWS (3d) 932 at paragraph 19, Justice Dawson, now of the Federal
Court of Appeal, held that since establishment is a relevant factor to consider
when assessing an application on H&C grounds, in the absence of a proper
assessment of establishment in Canada, a proper determination cannot be made as
to whether an applicant would suffer hardship if required to apply for
permanent residence abroad.
[53]
The
Applicants, as a family, were well established in Canada. This was
evident where the Officer stated that the Applicants “have contributed
substantially to the Muslim community and to the community in London, Ontario as a whole”,
that “the applicants have close ties with numerous people in London”, and that
“their efforts convey a willingness to integrate that is directed primarily
towards their own community in this city”.
[54]
The
situation in the case at bar is strikingly similar to the case before Justice
Mactavish in Adu. The only significant difference is the Officer’s
reliance on Uddin to the effect that the H&C process is not designed
to eliminate hardship, but rather is designed to provide relief from unusual,
undeserved or disproportionate hardship. However, Uddin does not stand
for the proposition that positive evidence of establishment is not a
significant factor to be considered and weighed in analysis.
[55]
The
Officer was correct in relying on Uddin as the appropriate legal
framework in which to ground her analysis. The problem is that the Officer listed
the Applicants’ positive establishment evidence, failed to conduct any
analysis, and simply concluded that the hardship the Applicants would face
would not be unusual, undeserved or disproportionate.
[56]
I
agree with the Applicants that the Officer simply provided her conclusion
without providing reasons as to why she made the conclusion she did. This is
also a reviewable error.
Best Interests of the
Children
[57]
The
Applicants submit that the Officer only dealt with two concerns regarding the
best interests of the children:
1.
the
children would be losing their close relationship with their extended family in
Canada, and
2.
the
children’s education would suffer due to their alleged difficulty with the
Arabic language.
[58]
The
Applicant submits that the Officer erred in not considering the best interests
of a disabled nephew who had formed a close relationship with the Applicants.
The Applicants further submit that the Officer again erred by applying the
wrong approach to the best interests of the child analysis by finding the
Applicants have not discharged the onus to prove there would be unusual,
undeserved or disproportionate hardship in the event they returned to Lebanon
to apply for permanent residence in Canada. They say the best interest of a
child analysis does not engage a question of finding underserved hardship.
[59]
The
Respondent submits that the Officer noted the Applicants’ children would suffer
dislocation if they had to travel to Lebanon with their parents, but also found
that they would likely have significant family support in Lebanon. The
Respondent interprets the Officer’s conclusion that the interest of the
children did not establish that the family would face unusual, undeserved or
disproportionate hardship if they have to live in Lebanon. This, the
Respondent submits, was a correct application of the H&C test.
[60]
This
Court’s decision in Kolosovs v Canada (Minister of
Citizenship and Immigration), 2008 FC 165, 323 FTR 181, sets out some
of the factors to be taken into account when assessing the children’s best
interests.
[61]
Upon
a review of the Officer’s decision, it does appear that the Officer was alert,
alive and sensitive to the interests of the children. The Officer took into
account the factors put forward by the Applicants such as the children’s age,
their level of dependency on the Father and Mother, and their establishment in Canada.
[62]
While
the Applicants submit that the Officer did not take into account the best
interests of the nephew who has special needs and is close to the Applicants, the
evidence does not, in my view, establish a level of bonding or dependency that
requires the Officer to include that relationship in the H&C consideration
of the best interests of the child.
[63]
The
only issue I believe that would require a closer look is whether the Officer
erred by incorporating the “unusual and undeserved hardship” threshold
standards into the assessment of the best interest of the child. As Justice
Barnes stated in Arulraj v Canada (Minister of
Citizenship and Immigration), 2006 FC 529, 148 ACWS (3d) 305, at
paragraph 14:
… The similar terms found in the IP5
Guidelines of “unusual”, “undeserved” or “disproportionate” are used in the
context of considering an applicant’s H & C interests in staying in Canada and not having to apply for
landing from abroad. It is an error to incorporate such threshold standards
into the exercise that aspect of the H & C discretion which requires that
the interests of the children be weighed.
[64]
The
Officer’s wording is unclear. The Officer said the onus was on the Applicants
to meet the burden of proving there would be unusual, underserved or
disproportionate hardship in the event of return to Lebanon. The Officer
both concludes the paragraph on the best interests of the children and ends the
overall analysis at this point. It is unclear whether the Officer makes the
statement about hardship as her conclusion in the analysis of the best
interests of the children or as her overall conclusion.
[65]
Given
that the Officer’s decision is an English translation from French, I do not
think it wise to decide this issue on the material and submissions before me. As
I have already found that the Officer’s decision should be set aside, I need
not decide this question.
Conclusion
[66]
The
application for judicial review is granted. The matter is referred back for
redetermination by a different decision maker.
[67]
No
question of general importance is certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is granted. The matter is referred back for redetermination
by a different decision maker.
2.
No
serious question of general importance is certified.
“Leonard
S. Mandamin”
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