Date: 20080828
Docket: IMM-672-08
Citation: 2008
FC 978
Toronto, Ontario, August 28, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MARK
LABOK
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mark and Elena,
husband and wife, twice; first in Russia
in 1955 and again in Canada in 2006. Mark, sponsored by
Elena, asked that he be permitted on Humanitarian and Compassionate grounds to
remain in Canada while his application for
permanent residence was being processed. The authorities refused. This is a
judicial review of that decision.
[2]
Mark Labok
and Elena Voikhansky divorced in 1976. Ms. Voikhansky and their daughter
Svetlana moved to Israel and then to Canada.
They are both Canadian citizens.
[3]
Mr. Labok
began visiting them and friends, in 1993, always returning to Russia. He last came here in 2003,
filed a claim for Refugee Protection and began to co-habit with Elena whom he
re-married in 2006. His refugee claim was declared abandoned.
[4]
In 2006 he
applied for permanent resident status. The normal rule is that such
applications are to be made from outside Canada. However, section 25 of the Immigration
and Refugee Protection Act authorises the Minister to waive requirements on
Humanitarian and Compassionate (“H&C”) considerations. Mr. Labok applied,
with his wife’s sponsorship, under the general IP 5 “Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds”. It must be kept in mind that such an application does
not necessarily stay the applicant’s removal from Canada. An Immigration Officer pointed out to
him that a new public policy, set out in a document entitled IP 8 “Spouse or
Common-law partner in Canada Class”, came into effect in 2005. If certain
conditions are met, the Minister automatically defers removal from Canada while the application is
being processed. One of the requirements however, is that the applicant hold a
current valid travel document or passport.
[5]
Mr. Labok,
through his former counsel, wrote back to say that he had applied under IP 5
rather than IP 8 because his passport had expired and he was unable to obtain a
new one from the Russian Consulate in Canada. Apparently, it was a condition
precedent that he renew his internal passport, and that could only be done from
within Russia.
[6]
To
complete the picture, following the negative H&C results, a negative Pre-Removal
Risk Assessment was handed down. Mr. Labok was removal ready, but Madam Justice
Dawson issued a stay order.
[7]
At the
hearing, counsel for Mr. Labok raised three issues: (a) the Officer failed to
mention that this was a sponsorship application; (b) the Officer failed to
consider why IP 8 did not apply and (c) in considering the hardship he would
face in Russia, based on his Jewish religion, the Officer arbitrarily gave
short shrift to a photocopy of a police report.
[8]
It is not
necessary for me to consider the merits of the first and third issues. I am
satisfied that the Officer’s analysis of Mr. Labok’s situation in Canada was unreasonable. The issue
is whether Mr. Labok would face an unusual and undeserved hardship, or
disproportionate hardship if required to leave Canada and apply for a permanent resident visa
in the normal way. The Officer found that his current marriage to a Canadian
did not automatically result in the granting of a H&C application. That is
true under IP 5, but not under IP 8, provided the technicalities are met.
Indeed, one might wonder why a person is granted a deferral of removal if he or
she has valid current travel documents, but runs a risk of removal if not.
[9]
In
consideration of his connections with Canada,
the Officer, after mentioning the marriage, said:
However, I find that it is reasonable for
the Applicant and his wife to have anticipated that there would be a period of
separation considering that the Applicant’s immigration status had not been
normalised at the time of their marriage.
As to the best interest of children, meaning his daughter
and her children he simply said “I am not persuaded that any child’s best
interests would not be met if the Applicant was required to leave Canada and apply for permanent
residence in the normal manner.” There is no explanation as to why it is in Mr.
Labok’s daughter’s and grandchildren’s best interests that he be removed from the
life he currently enjoys with them.
[10]
The
creation of the public policy enunciated in IP 8 does not relieve an Officer in
an IP 5 application from considering the factors raised therein simply because
the applicant is technically ineligible. The program objective is to promote
family unity. This is completely consistent with the objective set out in
section 3 of the Immigration and Refugee Protection Act, ie. “to
facilitate the reunion in Canada of Canadian citizens and permanent residents
with their close relatives from abroad”.
[11]
It was
quite wrong to say that it was reasonable for Mr. Labok and his wife “to have
anticipated that there would be a period of separation - - ”. While that
possibility was foreseeable, it was also foreseeable that some compassion might
be shown. Mr. and Mrs. Labok were entitled to hope and no adequate reason has
been given why that hope was dashed. His age (75) and financial situation were
mentioned, but not considered.
[12]
The
reasons almost suggest that it is a foregone conclusion that there is insufficient
connection with Canada if the spousal application
does not fall within IP 8. The Officer fettered his or her discretion. The H&C
considerations which led to IP 8 were either not grasped or were disregarded.
It follows that the decision was unreasonable (R. v. Sheppard,
[2002] 1 S.C.R. 869, particularly at paragraphs 31 and 32).
ORDER
The application for judicial review is granted.
The matter is referred back to another decision maker for a fresh
determination. There is no question to certify.
“Sean Harrington”
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