Date: 20080916
Docket: IMM-560-08
Citation: 2008 FC 1039
Vancouver, British Columbia, September
16, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SUHAILA ODICHO
DANIEL SAMANO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mrs.
Suhaila Odicho, wife and Mr. Daniel Samano, husband (collectively “the
Applicants”) seek judicial review of a decision of a Visa Officer (the “Visa
Officer”) of the Embassy of Canada in Damascus, Syria, who refused
to issue a permanent resident visa to the wife. The decision was made on May 3,
2007.
[2]
The
Applicants were married in Syria on September 16, 2004. In September 2004,
the husband was informed by his brother that a sponsorship application on his
behalf had been approved. The husband was landed in Canada on January
26, 2005, and first submitted an application to sponsor his wife in May 2005.
[3]
The
application was refused and a new application was submitted in November 2006.
[4]
The
application was initially refused in a decision made on February 6, 2007. The
wife’s application was rejected on the grounds that the husband had failed to
disclose his marriage when he landed as a permanent resident in Canada on January
26, 2005. The application on behalf of the dependent child was refused for the
same reason.
[5]
Upon
reconsideration of the February 6, 2007 decision, the refusal of the
application relative to the dependent child was reversed. However, the Visa
Officer maintained the rejection of the application on behalf of the wife on
the basis of paragraph 117(9)(d) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the “Regulations”). The reconsideration decision
was made on May 3, 2007.
[6]
The
Applicants argue that the Visa Officer erred by failing to consider
humanitarian and compassionate (“H & C”) grounds, pursuant to subsection 25
of the Immigration and Refugee Protection Act, S.C. 2001, c-27 (the
“Act”). They submit that they specifically requested that the wife’s
application for permanent residence in Canada be
considered on the basis of section 25 of the Act.
[7]
The
Minister of Citizenship and Immigration (the “Respondent”) says that the
husband made a misrepresentation about his marital status, and the Applicants
are now trying to avoid the consequences of this misrepresentation by asking
for the exercise of discretion pursuant to section 25 of the Act. The Respondent
submits that the evidence submitted by the Applicants with respect to the
factors to be considered under section 25(1), including the best interests of
the dependent infant child, is deficient.
[8]
Since
the recent decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, the Court is required to review the decision of statutory
decision-makers upon either the standard of correctness or that of
reasonableness. The decision here in issue required the Visa Officer to assess
the evidence that was presented and, in my opinion, the appropriate standard of
review is reasonableness.
[9]
In
my opinion, the decision here fails to meet the standard of reasonableness. The
refusal letter of May 3, 2007, contains the following reason for the rejection
of the Applicants’ application on H & C grounds:
I have completed the assessment of your
request for humanitarian and compassionate consideration pursuant to subsection
25(1) of the Immigration and Refugee Protection Act. I am of the opinion
that humanitarian and compassionate considerations do not justify granting you
permanent residence or an exemption from any applicable criteria or obligation
of the Act. You have not provided sufficient evidence of any such
considerations in your application for permanent residence in the Family Class
category. This decision applies only to you, Suhaila Odicho. If you wish to go
ahead with processing for a permanent resident visa for Odicho Samano, please
notify this office within 45 days of receipt of this letter.
As a result, you do not meet the
definition of a member of the family class.
Subsection 11(1) of the Act provides that
a foreign national must, before entering Canada, apply to an officer for a visa or any
other document required by the regulations. The visa or document shall be issued,
if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of this Act. For the
reasons set out above, I am not satisfied that you are not inadmissible and
that you meet the requirements of the Act. I am therefore refusing your
application.
[10]
In
reading this conclusion, the Visa Officer apparently ignored the submissions
that were made in support of the H & C application, as set out in the
letter dated December 12, 2006, written by counsel for the Applicants:
…
When the sponsor returned home he began
preparing to depart for Canada. He did not think to advise
Immigration Canada about his new marriage as he believed that immigration would
then take back the visa and refuse the application. He did not understand the
implication for the future sponsorship of his wife with respect to his
decision.
The sponsor therefore travelled to Canada and arrived January 26, 2005.
When he arrived at the airport, he followed all the other passengers to
customs. The sponsor advises that customs officials took his photographs and
then brought him to the airport exit where he met his relatives who had come to
pick him up. Customs officials did not ask him any questions as he did not
speak or understand English. The sponsor advises that there were not [sic] interpreters
at the airport and that he was simply allowed to enter Canada. The sponsor further advises that his
relatives were not asked to help translate and that there were no authorities
that wanted to speak with him.
…
It is submitted that the circumstances
are unusual and clearly explained. There was no bad faith on the part of the
sponsor. His decision not to include his wife in the original application was
misguided and unnecessary as had he included her there is no reason she would
have been refused. The sponsor has been a successful immigrant. It is further
submitted that his omissions were in fact not material as his spouse and for
that matter his dependent child are not medically or criminally inadmissible.
…
[11]
There
is no dispute that the husband failed to declare his wife as a non-accompanying
dependent when he landed in Canada in January 2005. There is no evidence to
challenge the bona fide of the marriage of the Applicants. There
is no evidence to challenge the status of the infant as their child. Indeed,
the Respondent did not file an affidavit from the Visa Officer.
[12]
There
is one critical fact and that is the husband’s failure to declare the change in
his marital status when he landed in Canada. This failure gave rise
to the exclusion of his wife pursuant to the terms of paragraph 117(9)(d) of
the Regulations which provides as follows:
|
117(9)
A foreign national shall not be considered a member of the family class by
virtue of their relationship to a sponsor if
…
(d)
subject to subsection (10), the sponsor previously made an application for
permanent residence and became a permanent resident and, at the time of that
application, the foreign national was a non-accompanying family member of the
sponsor and was not examined.
|
117(9)
Ne sont pas considérées comme appartenant à la catégorie du regroupement
familial du fait de leur relation avec le répondant les personnes suivantes :
…
d)
sous réserve du paragraphe (10), dans le cas où le répondant est devenu
résident permanent à la suite d’une demande à cet effet, l’étranger qui, à
l’époque où cette demande a été faite, était un membre de la famille du
répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrôle.
|
[13]
Subsection
25(1) of the Act provides a means for persons to overcome the consequences of non-compliance
with the requirements of the Act and the Regulations. Subsection 25(1) provides
as follows:
|
Humanitarian
and compassionate considerations
25.
(1) The Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or 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 obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
Séjour
pour motif d’ordre humanitaire
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,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
[14]
This
provision of the Act addresses the examination of the “circumstances” of a
foreign national who is inadmissible or who does not meet the statutory
requirements, including the requirements of the Regulations. It is an
ameliorative provision.
[15]
In
the present case, the Visa Officer apparently ignored the material that was
submitted concerning the “circumstances” of the husband’s failure to declare
the change in his marital status at the time he landed in Canada. In my view,
the Applicants tendered the essential evidence, which is the existence of a
marriage, of a family and of a desire to be together. The husband provided an
explanation for his initial failure to disclose the change in his marital
status and, in my view, there is nothing more to be said. The Applicants have
submitted the necessary facts. They carry the burden of establishing the
evidence to justify an exercise of discretion, but in my opinion the discharge
of this burden does not require superfluity.
[16]
The
Visa Officer’s decision does not demonstrate an understanding of the purpose of
subsection 25(1), which is to overcome the consequences of being in breach of
the statutory requirements. The initial decision of February 6, 2007, which
excluded the child, as well as the wife, illustrates an excess of zeal on the
part of the original decision-maker, if not a misunderstanding of section 117
of the Regulations.
[17]
As
a result, the application for judicial review is allowed. The decision of May
3, 2007, is quashed and the matter is remitted for reconsideration by a
different member of the Canadian Embassy in Syria.
[18]
There
is no question for certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed. The decision of May 3, 2007, is
quashed and the matter is remitted for reconsideration by a different member of
the Canadian Embassy in Syria. No question is certified.
“E. Heneghan”
Email this Content