Federal Court Decisions

Date: 20040917

Docket: IMM-6194-03

Citation: 2004 FC 1281

Ottawa, Ontario, this 17th day of September, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                       AHMED NABIL ABEIDIA

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended ("IRPA"), of a decision of an immigration officer, dated July 15, 2003, wherein the application of Ahmed Nabil Abeidia (the "applicant") for permanent residence from within Canada on humanitarian and compassionate grounds (the "H & C application") was denied.

[2]                The applicant requests that the immigration officer's decision be set aside and the matter be referred back to a different officer for redetermination.

Factual Background

[3]                The applicant is a 27 year-old citizen of Libya, who came to Canada on a student visa in January 1998. In July 1999, the applicant's mother came to Canada from Libya. The applicant's mother's refugee claim was accepted in February 2001. She subsequently applied for permanent residence status in Canada, including the applicant as a dependent. The immigration officer reviewing the application found that the applicant did not meet the definition of dependent as described in subsection 2(1) of the Immigration Regulations, 1978, S.O.R./78-172 since he was able to support himself out of his inheritance.

[4]                In November 2002, the applicant submitted an H & C application, seeking an exemption from the statutory requirement that he apply for permanent residence outside of Canada, on the basis that it would be a great hardship for his mother and himself if he were required to leave Canada in order to apply for permanent residence.

[5]                In June 2003, the immigration officer requested further documentation with respect to the applicant's H & C application. In response, the applicant forwarded additional documentation on July 9, 2003 and July 17, 2003. On July 15, 2003, the immigration officer reviewed the applicant's H & C application and decided not to grant him an H & C exemption.

The Immigration Officer's Decision

[6]                The immigration officer determined that she was not satisfied that the applicant's personal circumstances were such that the hardship of having to obtain a permanent resident visa from outside Canada would be either unusual and undeserved or disproportionate.

[7]                In particular, the immigration officer found that the applicant's mother was not incapable of caring for herself in Canada, that the applicant and his mother had lived apart for more than a year recently, and that the applicant's mother was receiving financial assistance from the Canadian government. The immigration officer was not satisfied that the applicant's return to Libya would cause him disproportionate hardship since he had skills and funds available to assist him. Further, the immigration officer was not satisfied that the applicant would be at personal risk if returned to Libya.

[8]                The immigration officer acknowledged the applicant's establishment in Canada, but found that it was insufficient in and of itself to grant him an H & C exemption.

Applicant's Submissions

[9]                The applicant submits that the standard of review applicable to the immigration officer's decision is reasonableness.

[10]            The applicant submits that the immigration officer ignored the additional evidence submitted by the applicant by letter dated July 17, 2003, and that therefore, the matter should be referred back to a different immigration officer for redetermination.

[11]            The applicant submits that the immigration officer relied upon irrelevant evidence or misinterpreted the evidence in concluding that the applicant's mother would be capable of caring for herself in Canada. The applicant contends that his mother's ability to manage his inheritance and arrange for his study in Canada was not evidence that she was resourceful, but rather was evidence that she was a desperate woman who feared for her life and that of her son.

[12]            Moreover, the applicant contends that the immigration officer failed to consider the fact that the since the applicant's mother arrived in Vancouver, the applicant has paid for the rent and his mother's expenses, and that his mother's social assistance does not cover her expenses. The applicant also alleges that the immigration officer erred in making the assumption that the applicant's mother will continue to receive financial aid. The applicant also contends that he is prepared to work and support his mother, but cannot do so because he is not entitled to apply for a work permit.

[13]            The applicant also submits that the immigration officer misinterpreted the evidence in determining that the separation of the applicant and his mother would not cause them any hardship. The applicant alleges that their separation between January 1998 (when the applicant came to Canada on a student visa) and July 1999 (when the applicant's mother was able to leave with the consent of her abusive and threatening husband) was beyond their control.

[14]            The applicant alleges that the immigration officer erred in concluding that the applicant would not be targeted by his mother's husband or her husband's family members, and that the immigration officer misinterpreted the documentary evidence regarding Libya which suggests that the military regime of Colonel Muammar al-Qadhafi monopolizes political power in Libya, and would endanger the lives not only of the applicant's mother, but of the applicant as well.

[15]            Furthermore, the applicant submits that the immigration officer erred in considering that the applicant's establishment in Canada was not a factor to be considered in assessing the hardship that he would experience if he were to be returned to Libya. The applicant's movable and immovable assets are all located in Canada (apartment and car), and the applicant has no immediate family living in Libya.

[16]            Finally, the applicant submits that the immigration officer erred by considering evidence of the applicant's education, skills, and funds that would assist him in resettling in Libya. The applicant contends that this evidence is irrelevant to the determination of whether the applicant and his mother will suffer hardship due to their separation, and that greater emphasis should have been placed upon their need for family support and the dangers faced by the applicant should he be forced to return to Libya.

Respondent's Submissions

[17]            The respondent submits that the standard of review applicable to the immigration officer's decision is reasonableness.

[18]            The respondent submits that there is no evidence that the information contained in the applicant's further affidavit (or any of the documents attached to it) was before the immigration officer when she made her decision, and that such information should not be considered in this application for judicial review: Asafov v. Canada (Minister of Employment and Immigration), _1994_ F.C.J. No. 713 (T.D.)(QL); Lemiecha (Litigation Guardian of) v. Canada (Minister of Employment and Immigration), _1993_ F.C.J. No. 1333 (T.D.)(QL).

[19]            The respondent submits that the applicant is essentially requesting that the Court re-weigh the evidence before the immigration officer, which is not the role of a reviewing Court.

[20]            The respondent alleges that there was evidence before the immigration officer that would have enabled her to reasonably conclude that the applicant's mother was not incapable of caring for herself (i.e. she had cared for both herself and the applicant in the past). Contrary to the applicant's arguments, the immigration officer recognized that their separation would be difficult for the applicant and his mother, but concluded that such separation would not constitute undue or disproportionate hardship given the fact that they had lived apart for more than a year recently. The respondent also contends that the immigration officer considered the economic support arguments raised by the applicant.

[21]            The respondent submits that the immigration officer's conclusion that the applicant would not be at personal risk in Libya was reasonable since the applicant had failed to provide evidence that he, unlike his mother, had suffered mistreatment in Libya. Furthermore, the respondent notes that the applicant had not sought refugee protection.

[22]            The respondent submits that the immigration officer did not find that the applicant's establishment in Canada was irrelevant to his H & C application, rather she found that his establishment was insufficient, in and of itself, to warrant an H & C exemption. The applicant chose to attend school in Canada, and therefore, any hardship resulting from him having to apply for permanent residence from outside Canada was not the result of circumstances beyond his control, and the applicant should have been aware that he might have to leave Canada in order to apply for permanent residence status. Moreover, the respondent contends that evidence relating to the applicant's financial situation was clearly material to the hardship that might be suffered by the applicant if returned to Libya, and was properly considered by the immigration officer.

Relevant Statutory Provisions

[23]            Subsection 11(1) of IRPA requires that application for permanent residency be made outside of Canada:

[24]            Subsection 25(1) of IRPA provides for an exemption of this requirement on humanitarian and compassionate grounds as follows:

Issue

[25]            Was the immigration officer's decision not to grant the applicant's H & C application reasonable?

Analysis and Decision

Preliminary Issues

Standard of Review

[26]            The standard of review applicable to decisions of immigration officers dealing with H & C applications is reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

Further Affidavit Evidence

[27]            It is trite law that, generally speaking, evidence that was not before the immigration officer when she made her decision cannot be introduced on an application for judicial review: Lemiecha and Asafov, supra. Accordingly, any evidence in the applicant's further affidavit that was not before the immigration officer with the exception of the July 17, 2003 letter from the applicant to officer A. Baker, is not admissible on the judicial review application.

[28]            Issue

Was the immigration officer's decision not to grant the applicant's H & C application reasonable?

I wish to first deal with the issue of the July 17, 2003 letter from the applicant to the immigration officer. This letter contained further information as to how the applicant cared for his mother. This letter was not considered by the immigration officer, as the officer made her decision on July 15, 2003. The officer had informed the applicant by her letter dated June 25, 2003 that he had thirty days from the date of the letter to provide further information to the officer. The July 17, 2003 letter was sent within the thirty day time period but the immigration officer had already made her decision.

[29]            I note from the letter that the applicant paid for portions of his mother's dental bills and that a phone number had to be changed because of fear of the applicant's mother's husband who was calling the applicant and his mother and threatening both of them. I do not know how this information may have influenced the immigration officer's decision. I am of the view that it was a breach of the duty of fairness to make a decision on the applicant's claim before the time period for providing further information had expired. The time period was set by the immigration officer.

[30]            Because of my finding, I will not deal with the other arguments raised by the application.

[31]            The application for judicial review is allowed and the matter is referred to a different immigration officer for redetermination.

[32]            Neither party wished to propose a serious question of general importance for my consideration.

                                                                       ORDER

[33]            IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different immigration officer for redetermination.

                                                                             

            "John A. O'Keefe"           

J.F.C.

Ottawa, Ontario

September 17, 2004

                                                 FEDERAL COURT OF CANADA

                                                              TRIAL DIVISION

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-6194-03              

STYLE OF CAUSE:                          AHMED NABIL ABEIDIA

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                             

PLACE OF HEARING:                    Vancouver, British Columbia

DATE OF HEARING:                      March 17, 2004

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                                             September 17, 2004

APPEARANCES:

Sawsan A. Habbal

FOR APPLICANT

Keith Reimer

FOR RESPONDENT

SOLICITORS OF RECORD:

Sawsan A. Habbal

Vancouver, British Columbia

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT

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