Date:
20130326
Docket:
IMM-1308-12
Citation:
2013 FC 303
Ottawa, Ontario,
March 26, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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MUHAMMAD IBRAHIM JAMIL,
NASIMA JAMIL, AMNA
JAMIL,
ARQUM KHAN, FILZA
JAMIL
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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
I. Overview
[1]
The
Jamil family, originally from Pakistan, has lived in Canada since 2003. Their
refugee claim and their pre-removal risk assessment were both unsuccessful.
They then applied for humanitarian and compassionate relief (H&C) and that
application was also turned down by an immigration officer.
[2]
In
this application for judicial review, the applicants argue that the officer’s
H&C decision was unreasonable, primarily because the officer failed to
adequately analyze the best interests of their son, Arqum Khan, who was 18
years old at the time of the officer’s decision. Arqum experiences Pervasive
Developmental Disorder and Mild Intellectual Disability.
[3]
The
officer accepted the medical evidence that Arqum required special attention and
schooling. However, the officer concluded that the applicants had not shown
that the treatment Arqum required would be unavailable in Pakistan or that they could not afford it. The officer found that the family would not
experience unusual, undeserved or disproportionate hardship if they returned to
Pakistan.
[4]
The
sole issue is whether the officer’s analysis of Arqum’s best interests was
unreasonable. In my view, the officer’s analysis was unreasonable because it
overlooked important evidence relating to Arqum’s circumstances.
II. Was the officer’s
decision unreasonable?
[5]
In
their H&C application, the applicants pointed out that Arqum has little
ability in the Urdu-Punjabi language, and has difficulty adjusting to changes in
his routines. In fact, the family supplied a detailed psycho-educational
assessment of Arqum’s circumstances, which disclosed the following:
• Arqum’s
cognitive memory and visual-motor abilities are in the extremely low range,
well below average;
• He has
problems with memory and in processing information;
• He has
difficulty forming and maintaining social connections;
• He has
trouble adapting to changes in his routines, and taking care of himself; and
• He
experiences symptoms of anxiety.
[6]
In
my view, given that the officer made no mention of this evidence, the officer’s
decision was unreasonable. The officer had a duty at least to consider this
evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425, at para 15), especially in respect of a
child with special needs (Kimotho v Canada (Minister of Citizenship and Immigration),
2005 FC 1004, at para 2).
III. Conclusion and
Disposition
[7]
The
officer overlooked important evidence relating to the best interests of Arqum
Khan and, in doing so, rendered an unreasonable decision on the applicants’
H&C. Therefore, I must allow this application for judicial review and order
another officer to reconsider the family’s application. Neither party proposed
a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration;
2.
No
question of general importance is stated.
“James W. O’Reilly”
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