PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Mr. Alwan left Lebanon in December 1999 and, after passing through several European countries, and arrived here in May 2000. His claim to refugee status was eventually dismissed on the grounds that he was a member of the South Lebanese Army and was excluded from consideration under section 98 of the Immigration and Refugee Protection Act (IRPA) and Article 1F(a) of the United Nations Convention relating to the status of refugees. It was thought that he had committed a crime against peace, a war crime, or a crime against humanity.
[2] He married a Canadian, Debra, who gave birth to their daughter Lyla in May 2003. Lyla was soon taken away from them by the Alberta Child Welfare authorities. She has serious health issues consistent with non-accidental head injuries (shaken baby syndrome). He denies ever harming Lyla. The Alwans are now separated, and he has instituted divorce proceedings. Lyla was returned to him. No charges were laid. His wife, Debra, seems to have disappeared.
[3] Mr. Alwan sought permanent residency status from within Canada. Normally one must apply from outside the country. However, the Minister in his discretion may make an exception for humanitarian and compassionate considerations, as permitted by section 25 by IRPA. The immigration officer decided there were insufficient grounds to exempt him from the normal legislative requirements. This is a judicial review of that decision.
[4] Mr. Alwan has some connections with Canada, apart from his Canadian born daughter. He has two brothers in Edmonton. However he also has an extensive family in Lebanon. Were it not for Lyla, Mr. Alwan would have no case at all. However, section 25 of IRPA, drawing upon the decision of the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 mandates that "the best interests of a child directly affected" and "public policy considerations" be taken into account.
ISSUES
[5] Mr. Alwan submits there are two issues. The first relates to procedural fairness. The Immigration officer had access to the Alberta Child and Family Services files. He submits that the decision is fatally flawed because the officer relied upon information in making the decision which information had not been provided to him. Secondly, the standard of judicial review in cases such as this is reasonableness simpliciter, Baker, supra. It is submitted that the decision was unreasonable.
ANALYSIS
[6] The Immigration officer had access to the child welfare files because Mr. Alwan gave her written consent. She cannot be criticized for the simple fact that she did not provide him with a copy of the file. The duty of fairness required that issues she considered relevant be put to him and that he be given a reasonable opportunity to reply. Although he was not entitled as of right to be interviewed, in this case he was interviewed, and had counsel present. The Immigration officer was obliged to put to Mr. Alwan her concerns which arose from her review of extrinsic evidence. (Haghighi v. Canada(Minister of Citizenship and Immigration) (C.A.), [2000] 4 F.C. 407; Mehboob Ali v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 948 (QL); and Mazumder v. Canada(Minister of Citizenship and Immigration 2005 FC 444).
[6] The Immigration officer put a number of issues to Mr. Alwan. None took him by surprise and he was able to answer. These pertained to the care and custody of Lyla. Although there is no court order depriving Mr. Alwan of custody, he is a working single parent. His sister-in-law cares for Lyla during the day. According to the Alberta Child and Family Services file Mr. Alwan had stated that his brother and his wife cared for Lyla on a full time basis and that he only saw her on weekends. He told the immigration officer he had lied to the authorities just to collect the child tax benefit.
[7] The Immigration officer relied heavily upon an opinion from a pediatrician that Lyla's medical condition was such that she should not go to Lebanon. She is a Canadian citizen and cannot be forced to go there. However, she is too young to have a mind of her own. Unless there is an intervention by the Alberta courts, if Mr. Alwan is removed from Canada, there is nothing to prevent him from taking Lyla with him. There are some nuances here. Did the Immigration officer consider that Mr. Alwan was threatening to take Lyla with him to induce her to grant the H & C application? On the other hand, the officer seems to suggest that Lyla might be better off without him, which leads to the suspicion that there might be something in the file which casts doubt on his assertion that he did not cause the injuries which led to Lyla's hospitalization.
[8] The officer concluded her decision by saying:
"In rendering this decision, I have considered most extensively all of the above factors and the information on file as a whole. With all the evidence before me, I am not satisfied that the requested exemption is justified by humanitarian and compassionate considerations."
[Emphasis Added]
[9] The Court does not know what information on file she considered apart from the "above factors" and what all the evidence was.
[10] The record before the Court is defective in that it does not accord with the Federal Court's Immigration and Refugee Protection Rules. Rule 17 requires the Tribunal, among other things, to file a record containing "all papers relevant to the matter that are in the possession or control of the Tribunal." Certainly a copy of the file had been in the immigration officer's possession. It should have been made available. (Sogi v. Canada(Minister of Citizenship and Immigration) [2005] 1 F.C.R. 171 (C.A.). However, even if the record were before the Court one would not know what unspecified information and evidence was relied upon.
[11] Although a criminal case, R. v. Sheppard, [2002] 1 S.C.R. 869, is nevertheless a useful guide. Mr. Alwan was entitled to know why his claim was rejected. Justice must not only be done, it must be seen to be done. A reviewing court must know the basis of a decision before it can determine if it was unreasonable. "The information on file" simply does not meet this standard.
ORDER
1. The application for judicial review of the decision of the immigration officer, rendered 12 July 2005 in file number 4712-4173-7837, refusing the applicant's application for landing on humanitarian and compassionate grounds is granted.
2. The matter is referred back for redetermination by another immigration officer.
3. There is no serious question of general importance to certify.
"Sean Harrington"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4541-05
STYLE OF CAUSE: RIAD ABOU ALWAN v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Edmonton, Alberta
APPEARANCES:
| Mr. Kevin E. Moore
|
FOR THE APPLICANT |
| Mr. Rick Garvin
|
SOLICITORS OF RECORD:
| Kevin E. Moore Law Office Barristers & Solicitors Edmonton, Alberta
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |