Docket: IMM-2861-13
Citation:
2014 FC 533
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, June 2, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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MOHAMED ARBIA
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MERIEM OUGGAD
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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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JUDGMENT AND REASONS
(Judgment delivered from the bench)
[1]
The applicants, an older couple, are seeking
judicial review of a decision by an officer refusing an application for an
exemption from the condition requiring them to obtain their permanent resident
visa outside Canada for humanitarian and compassionate considerations [H&C],
in accordance with subsection 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
Seven of the applicants' children are
established in Canada and they would like to live near them.
[3]
Knowing that, aside from exceptional cases, any
person who wishes to become a permanent resident is required to apply from
outside Canada (Section 11 of the IRPA and section 6 of the Immigration and
Refugee Protection Regulations, SOR/2002-227), the Court considers this
legislative provision in and of itself.
[4]
According to section 25 of the IRPA, it is the
officer who determines whether the individual would face unusual, undeserved or
disproportionate hardship if they were to comply with the usual legislative
requirements.
[5]
Although the respondent argues that the
officer's decision is reasonable, the Court, analyzing all the evidence, finds
that this evidence, when read carefully as a whole, shows that the applicants'
establishment in Canada, as well as the best interest of the children and
grandchildren, requires attention. This is true despite Hawthorne v Canada
(Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 FC 555 (FCA),
which does not necessarily apply in this case. It is a particular case,
considering the personal situation of the applicants according to the evidence
from within their country of origin and also considering their situation in Canada.
The applicants have a daughter who is separated from the father of her child; in
addition to this, there are circumstances that clarify the situation of the
other family members.
[6]
The Court also notes that the applicants'
children have shown a strong desire to sponsor their parents considering the
parents' and the family's situation as shown by the supporting evidence. This
evidence requires at the very least an overall analysis.
[7]
For all the above-noted reasons and knowing that
an application for permanent residence is at stake, the applicants' application
for judicial review is allowed and the case is referred to another officer for
reassessment.
JUDGMENT
THIS COURT ORDERS
that the applicants'
application for judicial review be allowed and that the case be reconsidered by
another officer. There is no question of general importance for certification.
"Michel M.J. Shore"
Certified true
translation
Elizabeth Tan,
translator
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