Date: 20050127
Docket: IMM-1861-04
Citation: 2005 FC 140
Toronto, Ontario, January 27th, 2005
Present: The Honourable Madam Justice Heneghan
BETWEEN:
ARAKEL MOSIS, MARIA KEJEJIAN,
SAKO MOSIS, SIROP MOSIS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Arakel Mosis, his wife Maria Kejejian and their minor children Sako Mosis and Sirop Mosis (the "Applicants") seek judicial review of the decision of Immigration Officer Robert Lidstone (the "Officer"), dated February 18, 2004. In his decision the Officer rejected the Applicants' application for permanent residence in Canada on humanitarian and compassionate grounds ("H & C application") pursuant to the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[2] The Applicants are citizens of Syria. They came to Canada in September 2000 and claimed Convention refugee status on the basis of their ethnicity, religion and membership in a particular social group, that is as Armenian Christians living in a Muslim country. In a decision dated October 23, 2002 the Immigration and Refugee Board rejected that claim.
[3] The Applicants filed their H & C application on January 27, 2003. Among other things, the Applicants outlined their fear of returning to Syria, including a fear of discrimination on the basis of their status as Christians. The submissions also referred to the establishment of the children in Canada and their academic successes.
[4] The Applicants filed supplementary submissions addressing the issue of risk, on December 3, 2003. In this regard, they submitted an extract from the U.S. Department of State report dated 2002, titled "International Religious Freedom Report 2002: Syria".
[5] The Officer concluded that the Applicants would not suffer "unusual and undeserved or disproportionate hardship" if required to apply for permanent residence status from outside Canada and dismissed their H & C application.
[6] The sole question arising in this application for judicial review is whether the Officer committed a reviewable error in the exercise of discretion or failed to observe the rules of procedural fairness. The Applicants argue that he erred by failing to weigh the best interests of the minor children or, alternatively, that there was a breach of procedural fairness flowing from the fact that additional H & C submissions were limited only to the issue of risk, thereby depriving the Applicants of the opportunity to advance further submissions on changes to their personal circumstances since filing their H & C application in January 2003.
[7] I am not persuaded that the request for further submissions only on the issue of risk gives rise to a breach of procedural fairness. The Applicants bear the onus of submitting information that is relevant to their particular application and could have filed information about a change in their personal circumstances that was, in their opinion significant. I conclude that there was no breach of procedural fairness.
[8] I turn now to the substantive argument alleging failure of the Officer to weigh the best interests of the children as opposed to merely reciting the facts concerning those children. According to the decisions in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) and Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.), the mere reference to the "best interests" of children is insufficient to meet the legal requirements of considering those interests. It is clear from his decision that the Officer did not conduct a detailed analysis of those interests in this case, as appears from the following:
I have considered the best interest of the client's children, Sako and Sirop Mosis. I have noted the close relationship the children have with their family in Canada, especially their grandparents. I have noted that the children are adapting to life in Canada and are well-adapted to their school-life.
[9] However, the matter does not end there, having regard to the material that was submitted by the Applicants. From my review of their submissions, it appears that the concerns relative to the two sons were their adaptation to Canadian society, their recovery from stress associated with discrimination in Syria, the benefits of their relationships with extended family in Canada, and their record of scholastic achievement.
[10] There are positive factors but the problem, in my opinion, lies in a paucity of evidence to show that the removal of these children from Canada, with their parents, would cause unusual, undeserved or disproportionate hardship. In the absence of evidence, the Officer was not obliged to engage in a detailed analysis of the best interests of the children; see Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635 (C.A.).
[11] In the result, there is no basis for judicial intervention here and the application for judicial review is dismissed. There is no question for certification arising.
ORDER
This application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1861-04
STYLE OF CAUSE:
ARAKEL MOSIS, MARIA KEJEJIAN,
SAKO MOSIS, SIROP MOSIS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: January 26, 2005
REASONS FOR ORDER AND
ORDER BY: HENEGHAN J.
APPEARANCES BY:
Ms. Chantal Desloges
For the Applicants
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD:
Ms. Chantal Desloges
GREEN AND SPIEGEL
Barristers and Solicitors
Toronto, Ontario For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent