Date: 20080303
Docket: IMM-2246-07
Citation: 2008 FC 280
Ottawa, Ontario, March 3,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SAYADA MOHSINA
SAMIA MOHSIN
MERAJ MOHSIN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
(Judgment delivered from the Bench at Toronto, Ontario, on February 28, 2008)
[1]
This is an application for judicial review of a decision of a visa
officer refusing an application brought by Sayada Mohsina to allow her to
sponsor her two children on humanitarian and compassionate grounds,
notwithstanding that they had not been disclosed on her application for
permanent residence.
[2]
Having considered the submissions of counsel for the applicant and for
the respondent, I find that the decision under review was unreasonable, and
should be set aside for the following reasons:
1.
The visa officer noted that there was “some incoherence” between the
applicant’s sponsorship immigration history, the affidavits signed by the children’s
father, and the explanations provided in the applicant’s submissions. Not only
is there no indication as to what these areas of “incoherence” were, there were
no affidavits provided by the children’s father in the record before the visa
officer.
2.
The visa officer found that the claims that the children faced undue
hardship in Bangladesh were undermined by the fact that their mother had waited
until such time as she had become a Canadian citizen before trying to sponsor
the children. However, a review of the record discloses that Ms. Mohsina filed
her application for an H&C exemption in relation to her sponsorship of her
children before she had obtained her Canadian citizenship, rendering this
finding patently unreasonable.
3.
The visa officer noted a “serious contradiction” in the evidence
provided by the applicants with respect to the alleged abduction of the
children by their father, noting that the children had been in continuous
attendance at the same school in Bangladesh since October of 1998. The
children were allegedly abducted by the father in February of 1998. As a
consequence, the fact that the children had attended the same school for some
years after their abduction did not contradict the applicants’ story in any
way.
4.
The visa officer failed to come to grips with the reality of the
children’s situation in Bangladesh, finding that the children had both family
support and a social network in that country. This finding was made in the
face of uncontradicted evidence that the children had been abandoned by their
father, their grandmother had died, and they were living with an aunt who did
not want them. Moreover, the finding that the children would have a social
network because they were students is based on nothing more than speculation.
5.
The visa officer did not address the explanation provided by Ms.
Mohsina for her failure to seek H&C relief earlier, namely that it was not
clear that such relief was even available to a person in her situation prior to
the decision of the Federal Court of Appeal in De
Guzman v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2119.
6.
It was unreasonable for the visa officer to discount evidence with
respect to the children’s living conditions in Bangladesh, and to conclude that
they were living in circumstances that were “at least in the upper middle
class”, based upon photographs of the children with their mother in an
unidentified location.
7.
While the above considerations provide a sufficient basis for setting
aside the visa officer’s decision, I would also note that there are also issues
as to the fairness of the process followed by the visa officer, as it appears
from the CAIPS notes that the visa officer had concerns with respect to the
applicants’ application which were not shared with them.
[3]
As a consequence, the application for judicial review is allowed, and
the matter is remitted to a different visa officer for reassessment, such
reassessment to commence forthwith.
Certification
[4]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. This application for judicial review is allowed, the
application for judicial review is allowed, and the matter is remitted to a
different visa officer for reassessment, such reassessment to commence
forthwith; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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