Date: 20040810
Docket: IMM-3400-03
Citation: 2004 FC 1099
BETWEEN:
AHMAD SHARIF MALEKZAI
(a.k.a.: KHESROW MALEKZAI and SULTAN MOHAMAD MALEKZAI)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of an immigration officer (the "H & C Officer"), dated April 23, 2003, wherein it was determined that there were insufficient humanitarian and compassionate grounds to warrant processing the applicant's permanent residence application from within Canada and to permit an exemption from subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[2] The applicant requests an order quashing the H & C Officer's decision and directing the respondent to process his application for landing from within Canada in accordance with the policy provisions set out in the pre-IRPA Inland Processing 5 ("IP-5") Guidelines.
Background
[3] The applicant, Ahmad Sharif Malekzai (the "applicant", who is also known as Khesrow Malekzai and Sultan Mohammad Malekzai) alleges to be a citizen of Afghanistan. He arrived in Canada in February 1995 and made a claim for refugee protection upon his arrival.
[4] In a decision dated December 17, 1996, the Convention Refugee Determination Division (the "CRDD" as it was then constituted under the former Immigration Act, R.S.C. 1985, c. I-2, which was repealed by S.C. 2001, c. 27, section 274) denied the applicant's refugee claim. The CRDD found the applicant lacked credibility regarding his identity (at page 5 of its decision):
Thus, the panel has no credible or trustworthy evidence to find that the claimant was indeed from Afghanistan.
[5] The CRDD went on to state (still at page 5 of its decision):
In the alternative, even if the panel believes that the claimant was credible and was from Afghanistan, he admitted at the hearing that he was given KHAD membership when he worked at the Parachute unit in the military where his father was a high ranking official.
[6] Based on his membership in KHAD, a secret police organization, the CRDD held that the applicant was excluded from the Convention refugee definition under Article 1(F)(a), which states:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international agreements drawn up to make provision in respect of such crimes;
. . .
[7] The applicant sought leave to commence judicial review of the CRDD's decision. His leave application was dismissed in June 1997.
[8] In January 1998, the applicant married a Canadian citizen. The applicant subsequently applied for permanent residence from within Canada, asking for an exemption from the requirement of applying from outside the country on the basis of humanitarian and compassionate factors. This first H & C application was filed in March 1998.
[9] In January 1999, the applicant's application for membership in the post-determination refugee claimants in Canada ("PRDCC") class under the former Immigration Act, supra, was dismissed.
[10] In August 1999, Citizenship and Immigration Canada's ("CIC") Ontario Region War Crimes Unit advised the applicant that his H & C application was refused because the immigration officer was not satisfied that the hardship arising from the separation of spouses was great enough to warrant waiving subsection 9(1) of the former Immigration Act, supra. In March 2000, the applicant was denied leave to seek judicial review of this decision.
[11] In October 2000, the applicant filed another permanent residence application, again requesting inland processing on the basis of humanitarian and compassionate grounds.
[12] In March 2001, the applicant's wife gave birth in Canada to a girl named Neelofar.
[13] On June 28, 2002, IRPA came into force.
[14] By letter dated January 2, 2003, the H & C Officer advised the applicant that his H & C application would be assessed pursuant to IRPA and invited the applicant to provide within 30 days, an updated H & C application and any further information he wished to be considered. In response, the applicant submitted an updated application and a two page written submission.
[15] By letter dated April 23, 2003, the H & C Officer advised the applicant that his H & C application was refused. This proceeding is the judicial review of the H & C Officer's negative decision.
Reasons of the H & C Officer
[16] The H & C Officer's "narrative report", dated April 21, 2003 contains her reasons for rejecting the applicant's H & C application.
[17] The H & C Officer was not satisfied that the applicant would suffer undue, disproportionate or undeserved hardship if he were required to apply for permanent residence from outside Canada for the following reasons:
(i) although the applicant has shown some establishment in Canada by being employed and starting his own business, the H & C Officer was not satisfied that he would be unable to transfer his skills and re-establish himself in Afghanistan;
(ii) although the applicant's marriage to a Canadian citizen was accepted as bona fide, and it was acknowledged that separation from his spouse would cause emotional and financial suffering, the H & C Officer concluded that it is not unreasonable to expect that there would be separation for immigration processing where one spouse does not have legal status in Canada;
(iii) the best interests of the applicant's daughter did not dictate that the applicant's H & C application must be granted, since she could remain in the care of the applicant's wife, a Canadian citizen. The applicant's wife and child could visit or join the applicant in Afghanistan if they wished. The H & C Officer noted that the best interests of a child is only one of many important factors to consider, and was not satisfied that in this case, separation would result in undue, undeserved or disproportionate hardship;
(iv) the H & C Officer took into consideration the CRDD decision which found the applicant excluded from the refugee definition pursuant to Article 1(F)(a). It was noted that although the applicant's PIF and his testimony before the CRDD was that he was a member of KHAD, he now alleged that he had fabricated his involvement with KHAD and was never actually a member. The H & C Officer noted that insufficient evidence was provided to support the statement that he had fabricated his KHAD involvement;
(v) although the applicant would have difficulty re-adapting to life in Afghanistan without his wife and daughter or his immediate family (who live in Pakistan), the H & C Officer noted that the applicant had lived most of his adult life in Afghanistan and being required to apply from there would not result in undue, undeserved or disproportionate hardship.
[18] The H & C Officer concluded (at page 8 of her narrative report):
Based on the information submitted and in consideration of all factors I am not persuaded that there would be undue, undeserved or disproportionate hardship if Mr. Malekzai were asked to apply for his permanent residence status outside Canada in the normal matter.
The request for an exemption of subsection 11(1) of IRPA is refused.
Applicant's Submissions
[19] Standard of Review
Relying on Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.), the applicant states that the standard of review of the H & C Officer's decision is reasonableness simpliciter.
[20] Bias
The applicant submits that the H & C Officer's location in the centralized War Crimes Unit along with enforcement officers gives rise to a reasonable apprehension of bias and therefore the decision should be set aside on the basis of unfair procedure.
[21] The applicant submits that the test for a reasonable apprehension of bias is whether a reasonable person looking at the circumstances would conclude that the H & C Officer was biased. The applicant submits that actual bias does not need to be established in order to set aside the H & C Officer's decision: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 and Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623.
[22] In support of this bias argument, the applicant put before the Court an affidavit sworn by Maureen Silcoff, an immigration law practitioner and former member of the Immigration and Refugee Board. Ms. Silcoff states that the purpose of the War Crimes Unit set up by CIC is to process the removal of war criminals from Canada as quickly and as expeditiously as possible. Furthermore, Ms. Silcoff states that while other H & C applications are handled by local offices, those submitted by war criminals are considered by immigration officers located in the War Crimes Unit. Ms. Silcoff goes on to state that in her view, the proximity of these H & C Officers to removal officers creates a reasonable apprehension of bias.
[23] The applicant submits that H & C determinations and enforcement are two separate processes and should be treated that way by CIC, even for alleged war criminals. In the applicant's view, the decision on his H & C application was tainted and rendered unfair by the War Crimes Unit's overriding concern with removal.
[24] In support of his argument that the circumstances of this case give rise to a reasonable apprehension of bias, the applicant relies on the Federal Court of Appeal's decision in Ahumada v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 605, 2001 FCA 97. In that case, it was held that a reasonable apprehension of bias was raised by a CRDD panel member being someone on leave from CIC's Enforcement Branch.
[25] The applicant disputes that he waived his opportunity to object on the grounds of bias, since he had no way of knowing that the H & C Officer who decided his case would be located in the War Crimes Unit itself until after the decision was made. Furthermore, the applicant distinguishes the case law cited by the respondent regarding waiver on the basis that in all of those cases, it was possible to raise an objection in the context of a hearing. Here, there was no such hearing or interview that would have afforded the applicant a chance to raise the bias issue.
[26] Best Interests of the Child
The applicant submits that the H & C Officer's assessment of the best interests of his child was perverse, unreasonable and completely deficient.
[27] Although it is acknowledged that the best interests of a child cannot be a determinative factor, the applicant submits that cases such as Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, 222 D.L.R. (4th) 265, indicate that the H & C Officer was required to do a careful and sympathetic assessment of the child's best interests, which the applicant states was not done in this case.
[28] The applicant submits that the H & C Officer failed to consider the emotional impact on the child of permanent separation from her father. As a basis for this argument, the applicant argues that he would be precluded from re-gaining admission to Canada if he applied for permanent residence outside the country, based on his likely inadmissibility pursuant to subsection 35(1)(a) of IRPA as a war criminal. Furthermore, the applicant states that even though there was evidence before her that it would be unsafe for the applicant's wife and child to travel to Afghanistan, the H & C Officer failed to appreciate the safety risks, and in fact, commented that nothing prevented visits or a permanent move to Afghanistan.
[29] The applicant points out that when cross-examined on her affidavit, the H & C Officer acknowledged that it would not be safe for a child to go to Afghanistan, yet she failed to be "alert, alive and sensitive" to the emotional impact of permanent separation of the applicant's child from her father. The applicant contends that the H & C Officer's statements regarding best interests were patently unreasonable, given the documentary evidence before her.
[30] Impact on the applicant's wife
The applicant submits that it was patently unreasonable for the H & C Officer to state that the emotional and financial impact of family separation is not unreasonable where a couple decides to marry despite the fact that one spouse has no legal status in Canada. The H & C Officer went on to state that procedures for overseas sponsorship were in place for such situations.
[31] The applicant contends that this reasoning is patently unreasonable for two reasons. Firstly, there was no basis to conclude that the applicant would be able to return to Canada under a sponsorship given his inadmissibility pursuant to paragraph 35(1)(a) of IRPA. Secondly, there was no reason for the applicant and his wife to anticipate a separation either at the time of marriage or his H & C application, because CIC's former IP-5 Guidelines at the time viewed a genuine marriage as generally sufficient for a positive H & C determination. The applicant argues that the H & C Officer erred in law by using the post-IRPA updated IP-5 Guidelines as the relevant starting point for her conclusion that spousal separation should have been anticipated.
[32] Irrelevant considerations
The applicant submits that the H & C Officer erred in treating him as someone excluded as a war criminal, when that finding by the CRDD was only in the alternative to its main reasoning that the applicant was not credible. Since the H & C Officer's decision relied heavily on the fact that the applicant has been excluded from the refugee definition when this was not the basis of the CRDD's conclusion, the applicant submits that the H & C Officer erred.
[33] Inland processing guidelines
The applicant submits that the H & C Officer erred by applying the post-IRPA inland processing guidelines (the "updated IP-5 Guidelines") rather than the old inland processing guidelines (the "former IP-5 Guidelines") that were in effect when his application was filed in October 2000.
[34] In the applicant's view, the former IP-5 Guidelines were much more favourable to spousal sponsorship applicants. It is the applicant's position that the former IP-5 Guidelines provided that a genuine marriage, in the absence of adverse factors, was sufficient to warrant an exemption on H & C grounds. Under the updated IP-5 Guidelines, which were put in place during the fall of 2002, a genuine marriage is only one of many factors considered and on its own is insufficient to warrant an exemption.
[35] The applicant's argument on this point is, therefore, two-fold. First, that the H & C Officer erred in applying the updated IP-5 Guidelines instead of the former IP-5 Guidelines. Second, even if this Court disagrees with the applicant regarding which guidelines should have been applied, it is argued that there was no basis for the H & C Officer's statement that separation should have been anticipated since this never came to the applicant's attention until the negative H & C decision was made, given CIC's policy in 2000.
Respondent's Submissions
[36] Bias
While the respondent agrees that the applicable test for reasonable apprehension of bias is that set out in National Energy Board, supra, it is submitted that the applicant either waived his right to object on the basis of bias, or has not established that the organization of the War Crimes Unit raises a reasonable apprehension of bias.
[37] On the issue of waiver, the respondent submits that in October 2000 when the applicant submitted his H & C application, he was aware that the War Crimes Unit was in possession of his file. This was especially clear, since the applicant's first H & C application, submitted in 1998, was refused by an officer from within the War Crimes Unit and because in January 2003 he received a letter from an officer in the War Crimes Unit asking for further submissions.
[38] Since the applicant did not raise an objection in 1998 or in 2000 to the assessment of his H & C application by an officer within the War Crimes Unit on the basis of an apprehension of bias or lack of independence/impartiality, the respondent submits that the applicant has waived his right to subsequently object: Re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (C.A.); Cetoute v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 62 (F.C.A.).
[39] Alternatively, the respondent submits that the applicant's arguments regarding bias are without evidentiary foundation. The facts deposed to in the supporting affidavit of Maureen Silcoff are, in the respondent's view, presumptive, speculative and vague.
[40] Furthermore, the respondent contends that immigration officers can and do perform various statutory obligations under IRPA. This Court, in Zolotareva v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1596 (QL), 2003 FC 1274, held that enforcement officers have the authority to make H & C determinations and in Haddad v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 579 (QL), 2003 FCT 405, that exercising one type of function does not disqualify an immigration officer from exercising another function. These cases, according to the respondent, undermine the applicant's argument that strict barriers or separation must be maintained between various statutory decision-makers and that a failure to do so in the War Crimes Unit raises the spectre of unfairness.
[41] The respondent points out that the objectives of the regional War Crime Units established by CIC are several, and involve more than simply the enforcement side of removing war criminals from Canada. Furthermore, the respondent submits that there is no evidence that the H & C Officer interacted with enforcement officers in arriving at her decision, or that her discretion was fettered in any way. In the absence of specific evidence supporting an allegation of bias, the respondent states that it would be inappropriate for this Court to make a finding of unfairness.
[42] In sum, on the issue of bias, the respondent submits that an informed person would not view the placement of an H & C Officer within the regional War Crimes Unit as improperly influencing their decision-making process. To the contrary, the respondent submits that the informed person would expect such an H & C Officer to have some knowledge or expertise in war crimes issues so as to ensure a full and fair humanitarian and compassionate review.
[43] Best interests of the child
The respondent submits that the H & C Officer gave appropriate consideration to the best interests of the applicant's daughter. Implicit in her decision, the respondent argues, was an awareness that the applicant was excluded from the definition of a Convention refugee and therefore that he may be inadmissible to Canada.
[44] The respondent further submits that the H & C Officer's assessment was certainly reasonable given the nature of the submissions made by the applicant, which did not extend beyond the usual statements of emotional and financial hardship.
[45] While the unfortunate reality for the applicant is that his re-admission to Canada in the future may be precluded by reason of being found excluded pursuant to Article 1(F)(a), the respondent submits that being unable to visit his daughter in Canada is not an overriding factor. The respondent cites and relies on Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, 2002 FCA 125, leave to appeal to the S.C.C. denied, [2002] S.C.C.A. No. 220 (QL), in support of this argument.
[46] While acknowledging that the situation in Afghanistan may be less than perfect, the respondent states that it is still open to the applicant's wife and child to visit the applicant there, should he be removed from Canada. Further, the respondent submits that it was not unreasonable for the H & C Officer to not assess risk in Afghanistan, since the applicant did not allege risk in his H & C application.
[47] Application of the updated IP-5 Guidelines
Contrary to the applicant's argument, the respondent submits that no duty of fairness was breached by applying the updated IP-5 Guidelines and not the ones in effect under the former legislation.
[48] First, the respondent submits that under the former IP-5 Guidelines, a genuine marriage did not automatically lead to a positive H & C determination. In Agot v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 607 (QL), 2003 FCT 436, this Court observed that although a positive spousal sponsorship application is a favourable H & C factor, it is not determinative. Furthermore, it is submitted that the guidelines are not binding, they cannot restrict the discretion of the H & C Officer, and a claimant cannot complain if an immigration officer fails to follow the guidelines: Legault, supra, and Vidal v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 123 (F.C.T.D.).
[49] The respondent denies that the applicant could have reasonably been under the impression that a genuine marriage was determinative of his H & C application. Not only did the former IP-5 Guidelines state that other factors must be assessed, the applicant's first H & C application was refused even though he was involved in a bona fide marriage. On this basis, the respondent states that the applicant's argument that he was misled by CIC policy is baseless.
[50] Finally, the respondent states that the H & C Officer did not err in applying the updated IP-5 Guidelines, since this Court has recently held that the updated guidelines are properly applied to all pending H & C applications, regardless of when they were filed: Osadolor v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 895 (QL), 2004 FC 737.
[51] The respondent requests that this application for judicial review be dismissed.
Issues
[52] The issues are:
1. What is the standard of review?
2. Is there a reasonable apprehension of bias as a result of the location of the H & C Officer in the War Crimes Unit?
3. Did the H & C Officer err by failing to properly assess the best interests of the applicant's child?
4. Did the H & C Officer err by relying on the updated IP-5 Guidelines as opposed to the former IP-5 Guidelines?
5. Has the applicant established any other basis for this Court's intervention?
Relevant Statutory Provisions
[53] Subsection 11(1) of IRPA requires a foreign national to apply for a visa before entering Canada:
|
11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. |
11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi. |
[54] Subsection 25(1) states:
|
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient. |
Analysis and Decision
[55] Issue 1
What is the standard of review?
On the basis of the decision in Baker, supra, I am of the opinion that the standard of review is reasonableness simpliciter.
[56] I will now deal with Issue 3 which is:
Did the H & C Officer err by failing to properly assess the best interests of the applicant's child?
This Court has always emphasized the importance of a H & C officer being alert to the best interests of a Canadian born child. It should also be noted that the existence of a Canadian born child is not determinative of a H & C application nor is the wish to have a child be with his or her parents an overriding factor. On the other hand, careful consideration must be given to the best interests of the child.
[57] Décary J.A. of the Federal Court of Appeal stated in Hawthorne, supra, at pages 562 to 563:
The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the "child's best interests" factor will play in favour of the non-removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer.
To simply require that the officer determine whether the child's best interests favour non-removal is somewhat artificial -- such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer's task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.
[58] In this case, the H & C Officer's decision states that she took into account the CRDD's determination that the applicant was excluded from the definition of a Convention refugee. The applicant argues, in essence, that the H & C Officer was required to go further and assess the best interests of the applicant's daughter in the context of the applicant's potential inadmissibility to Canada by reason of paragraph 35(1)(a) of IRPA. By ignoring that the child's separation from her father may be permanent, or at least prolonged, the applicant alleges that the H & C Officer erred.
[59] The H & C Officer, when cross-examined on her affidavit, stated that she did not take into account whether the applicant would be able to return to Canada (at pages 9 and 10 of the cross-examination transcript):
Q: Well, okay, did you consider, at all, whether the father would be able to return to Canada once he was removed?
A: No.
Q: It wasn't a factor that you took into account?
A: No.
Q: Okay, are you aware about - you've said you're aware that he's inadmissible under 35-1, because of the finding of the Refugee Division. That's correct?
A: Yes.
[60] I am satisfied that the H & C Officer did not take into consideration the potential inadmissibility of the applicant when assessing the best interests of the applicant's Canadian-born child. I wish to make it clear that I am not saying that the H & C Officer should have made a ruling on the applicant's inadmissibility or admissibility to Canada as that is not for the H & C Officer to decide. The H & C Officer should have taken into consideration as a factor, however, the applicant's possible inadmissibility to Canada, when assessing the best interests of the child, especially since section 15 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 deems the Board's findings of fact regarding war crimes conclusive on subsequent decisions regarding inadmissibility.
[61] The direction of the Federal Court of Appeal in Hawthorne, supra is that an H & C Officer is obliged to determine "the likely degree of hardship to the child caused by the removal of the parent" and the weigh that against other factors. While I agree that the H & C Officer is not obliged or empowered to make an admissibility determination, her disregard for the reality of IRPA's statutory scheme resulted in a completely artificial assessment of the degree of hardship that would be suffered by the applicant's child. A meaningful assessment of hardship could not ignore the length of parent-child separation, especially given the country conditions in Afghanistan.
[62] The H & C Officer's reasoning also commented that the applicant's wife and his daughter could visit or join him in Afghanistan. The country condition documentation before the H & C Officer, however, spoke to an extremely dangerous situation in that country and in fact, the Canadian government issued a travel advisory stating that Canadians should not travel to Afghanistan. It was, therefore, unreasonable for the H & C Officer to state that the applicant's wife and daughter could visit him in Afghanistan.
[63] If part of the H & C Officer's reasoning for finding insufficient humanitarian and compassionate grounds to grant the applicant an exemption was that his family could visit him in Afghanistan or that they could relocate there, those conclusions must have some basis in the evidence. The H & C Officer, on cross-examination, admitted that Afghanistan would not be a safe place for a child, and I see no explicit consideration of country conditions in her written decision, even though plenty of documentation was before her on this issue.
[64] My reasoning on this issue does not go so far as to impose a general obligation on H & C Officers to analyze country conditions even where risk is not alleged by an applicant, however, where the officer's justification for refusing an application is grounded in the possibility of certain events, those events must not merely be illusory. Where country conditions are as they are in Afghanistan, it is unreasonable for the H & C Officer to base her decision on the ability of a family to reunite there if it is not safe to do so.
[65] I am of the opinion that the H & C Officer's decision was unreasonable as it was not alive, alert and sensitive to the best interests of the applicant's Canadian-born child. I have no way of knowing what the H & C Officer's decision might have been had she considered the fact of a separation to be brought about should the applicant be declared to be inadmissible to Canada.
[66] Based on my view of this issue, I need not deal with the remaining issues raised by the applicant.
[67] The application for judicial review is allowed and the matter is referred to a different H & C Officer for redetermination.
[68] The parties shall have one week from the date of this decision to submit any proposed serious question of general importance for my consideration and the parties shall have a further four days for any further submissions.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
August 10, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3400-03
STYLE OF CAUSE: AHMAD SHARIF MALEKZAI
(a.k.a.: KHESROW MALEKZAI and
SULTAN MOHAMAD MALEKZAI)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 22, 2004
REASONS FOR ORDER OF O'KEEFE J.
APPEARANCES:
Krissina Kostadinov
FOR APPLICANT
Neeta Logsetty
FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT