Ottawa, Ontario, August 11, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant was determined, by a visa officer (Visa Officer), not to be eligible to be sponsored as a private group sponsored refugee to Canada because he was not outside his country of habitual residence. This is the judicial review of the Visa Officer’s decision.
II. Facts
[2] The Applicant was sponsored to come to Canada as part of a group sponsorship. Following his interview in Egypt, where he currently lives, the Visa Officer concluded that the Applicant did not fall within s. 147 of the Immigration and Refugee Protection Regulations (Regulations), which reads:
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147. A foreign national is a member of the country of asylum class if they have been determined by an officer to be in need of resettlement because
(a) they are outside all of their countries of nationality and habitual residence; and
(b) they have been, and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in each of those countries. |
147. Appartient à la catégorie de personnes de pays d’accueil l’étranger considéré par un agent comme ayant besoin de se réinstaller en raison des circonstances suivantes :
a) il se trouve hors de tout pays dont il a la nationalité ou dans lequel il avait sa résidence habituelle;
b) une guerre civile, un conflit armé ou une violation massive des droits de la personne dans chacun des pays en cause ont eu et continuent d’avoir des conséquences graves et personnelles pour lui. |
[3] The facts are not in dispute. The Applicant, born in Jordan in 1973, is a stateless Palestinian. His family moved to Egypt in the 1980s where he completed his preparatory, secondary and university education. All of his siblings still live in Egypt.
[4] In June 1998 the Applicant left Egypt for employment in Gaza. He remained in Gaza legally until November 1998 at which point he lost his status for failure to renew his visitor’s permit. He had also lost his right to return to Egypt by failing to return to Egypt every six months to renew his residency permit.
[5] In March 2003, the Applicant attempted to re-enter Egypt but was caught and detained for 20 days because of his illegal entry. Since his release, he has remained in Cairo.
[6] The Visa Officer, in reaching his conclusion, relied on the decision of Mr. Justice Cullen in Maarouf v. Canada (Minister of Employment and Immigration) (T.D.), [1994] 1 F.C. 723, [1993] F.C.J. No. 1329 (QL) where the Court discussed the concept of “former habitual residence”. The Visa Officer’s conclusion was:
Since you are inside your country of habitual residence, I find that you do not meet the requirements of section 147(a) of the regulations.
III. Analysis
[7] In my view the standard of review in this case is “reasonableness simpliciter”. To the extent that Tarakhan v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1525 (QL) reaches a different conclusion, I cannot concur. The determination to be made by a visa officer is not merely factual as to the when, where or how (and other relevant questions) of an applicant’s living in countries but whether all those facts taken together constitute the legal term “habitual residence”. As such, the decision is one of mixed fact and law.
In any event, the different standards of review are not determinative of this case as I find that the Visa Officer’s conclusion was reasonable.
[8] The Applicant criticizes the Visa Officer’s decision for not considering Gaza (Israel) or Jordan as countries of habitual residence. He also criticizes the finding that Egypt is the only country of habitual residence.
[9] With respect, the Applicant’s argument is of no assistance as long as Egypt is one of the countries of habitual residence since the Applicant must be outside all countries of habitual residence.
[10] The fact that Maarouf, above, spoke in terms of “former habitual residence” is immaterial. Section 147 of the Regulations captures both former and current countries of habitual residence. The factors to be considered are the same under either terminology including that a right of return (or its absence) is not the only criterion for a country of habitual residence.
[11] This case turns on whether the Visa Officer’s conclusion is reasonable. This conclusion was based upon the following factors:
· the Applicant completed all of his secondary and university education in Egypt;
· he lived in Egypt from the 1980s until 1998;
· he has lived in Egypt again from 2003 to 2005;
· his siblings live in Egypt;
· while the Applicant’s right to return to Egypt has lapsed, he was allowed to stay in Egypt for the last two years; and
· the Egyptian government has a policy of not removing long-term Palestinian residents from Egypt.
[12] Against all of that factual background, it is at least reasonable to conclude that Egypt is a country of habitual residence for the Applicant.
[13] The Applicant’s argument that the Visa Officer erred in not considering whether the Applicant was a member of a “source country class” under s. 148 of the Regulations must fail. A source country under that provision is one named in Schedule 2 – none of Egypt, Jordan or Gaza (Israel) is listed in the Schedule.
[14] Therefore, this application for judicial review must be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4949-05
STYLE OF CAUSE: ABDEL RAOUF MOHAMED EL KARM
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
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Mr. Edward Corrigan
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Ms. Leanne Briscoe
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SOLICITORS OF RECORD:
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MR. EDWARD CORRIGAN Barrister & Solicitor London, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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