Federal Court Decisions

 

 

 

 

Date: 20060920

Docket: IMM-2085-06

Citation: 2006 FC 1128

Vancouver, British Columbia, September 20, 2006

PRESENT:     The Honourable Mr. Justice Gibson

 

 

BETWEEN:

 

ARAKSE NALBANDIAN

 

Applicant

and

 

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

Respondent

 

 

REASONS FOR ORDER

INTRODUCTION

[1]               These reasons follow the hearing on the 12^th of September, 2006 of an application for judicial review of a decision of Jeen Kim, First Secretary, Immigration-Damascus, Syria (the “Officer”), wherein she advised the Applicant that she was of the opinion that humanitarian and compassionate considerations did not justify granting the Applicant permanent residence in Canada or an exemption from any applicable criteria or obligation under the Immigration and Refugee Protection Act[1] (the “Act”).

 

[2]               The substance of the Officer’s letter of decision is in the following terms:

…You informed me that you moved to Jordan with your daughter in 1991 so that you could immigrate to Canada and join your siblings, who had immigrated there earlier. You have been residing at your current residence in Amman for the past eight years and attending the same local Armenian church for the past fourteen years. We discussed how you spend your day and your living situation in Jordan. I am of the opinion that you have sufficient financial support to meet your day to day needs and that your residency in Jordan has been stable. I informed you that I was not of the opinion that there were sufficient humanitarian and compassionate grounds in your case to warrant exemption from the criteria of the Act and gave you an opportunity to respond to this. Your responses did not satisfy me of the above.

 

 

[3]               At the close of the hearing before me, I advised counsel that I would allow this application for judicial review.

 

BACKGROUND

[4]               The Applicant is a citizen of Iraq. She is in her late 60’s or early 70’s. She is a Christian. She attests that, in 1990, together with her daughter, she fled to Jordan “…due to the horrific circumstances in Iraq…”.

 

[5]               The Applicant further attests in her affidavit sworn the 25^th day of April, 2006:

Although I have been able to remain in Amman [Jordan] since, I do not have permanent status in Jordan.

 

 

[6]               The Applicant’s second child, her son, followed the Applicant and her daughter to Iraq sometime later. Both the Applicant’s daughter and son subsequently continued their flight to the Netherlands where they claimed and were granted Convention refugee status. The material before the court indicates that neither the Applicant’s son nor daughter is in a position to support immigration of the Applicant to the Netherlands.

 

[7]               The Applicant’s three brothers and her sister all fled directly to Canada and are now citizens of this country. They are apparently well settled here and are economically independent. In fact, they provide substantial economic support to the Applicant, maintain close ties with her and actively support her application to come to Canada. They have provided a detailed plan to support the Applicant’s settlement in Canada if she is permitted to come here and for her integration into the family and the Canadian community. The Applicant also has thirteen nephews and nieces who are citizens of Canada and who support the Applicant’s desire to come to Canada.

 

[8]               The Applicant applied to come to Canada as a permanent resident in February of 2000. It has long been acknowledged that she does not meet the ordinary criteria for immigration to Canada and that the sole basis on which her application might succeed is on humanitarian and compassionate grounds.

 

THE LEGISLATIVE AND RELATED FRAMEWORK

[9]               Subsection 25(1) of the Act provides a framework that enables persons such as the Applicant to achieve permanent resident status in Canada on humanitarian and compassionate grounds. That section reads as follows:

[10]           The opening words of subsection 3(1) of the Act and paragraph (d) of that subsection provide:

[11]           The Respondent’s Manual OP4, at page 9, provides the following guidance to officers who are charged with the processing of applications under section 25 of the Act. Under the heading “8. Processing humanitarian and compassionate cases” the following appears

De facto family members

De facto family members are persons who do not meet the definition of a family class member. They are, however, in a situation of dependence that makes them a de facto member of a nuclear family that is either in Canada or that is applying to immigrate. Some examples: a son, daughter, brother or sister left alone in the country of origin without family of their own, an elderly relative such as an aunt or uncle or an unrelated person who has resided with the family for a long time. Also included may be children in a guardianship relationship where adoption as described in R3(2) is not an accepted concept. Officers should examine these situations on a case-by-case basis and determine whether humanitarian and compassionate reasons exist to allow these children into Canada.

 

Consider:

 

∙           whether dependency is bona fide and not created for immigration purposes;

∙           the level of dependency;

∙           the stability of the relationship;

∙           the length of the relationship;

∙           the impact of a separation;

∙           the financial and emotional needs of the applicant in relation to the family unit;

.           ability and willingness of the family in Canada to provide support;

∙           applicant’s other alternatives, such as family (spouse, children, parents, siblings, etc.) outside Canada able and willing to provide support;

∙           documentary evidence about the relationship (e.g., joint bank accounts or real estate holdings, other joint property ownership, wills, insurance policies, letters from friends and family);

∙           any other factors that are believed to be relevant to the H&C decision.

 

 

ANALYSIS

 

Standard of Review

 

 

[12]           The standard of review on discretionary decisions based on humanitarian and compassionate grounds has been held to be reasonableness simpliciter.[2] Although the Baker decision related to a humanitarian and compassionate grounds application for landing from within Canada, rather than as here, an application for landing on humanitarian and compassionate grounds from outside Canada, I find no basis that would justify variation from the standard of judicial review established by Baker.

 

[13]           As to what is an unreasonable decision, Justice Iacobucci provided the following guidance in Canada (Director of Investigation and Research) v. Southam Inc.[3] :

…An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.

[emphasis added]

 

Application of the Standard of Review

 

 

[14]           Here, I am satisfied, that the Officer erred in a reviewable manner by failing to demonstrate or fully disclose “…the logical process by which conclusions are sought to be drawn from [the background to this application]”.

 

[15]           While here, there is no contradiction discernable in the analysis of the Officer and, indeed, there is no evidence of an invalid inference drawn by her, equally, there is no evidence before the Court that she was cognisant of the principle enunciated in paragraph 3(1)(d) of the Act or of the considerations to be taken into account as enunciated in the elements of OP 4 quoted above in considering whether a de facto  family member, as the Applicant undoubtedly was and is, should qualify for relief on humanitarian and compassionate considerations.

 

[16]           Against the factors to be considered, as quoted above, I reach the following conclusions on the evidence that was before the Officer:

∙           the Applicant’s dependency on her siblings in Canada is bona fide and not created for immigration purposes;

∙           the level of dependency, both economically and emotionally, is high;

∙           the stability of the relationship between the Applicant and her siblings in Canada is well established and the length of the relationship extends to lifetimes;

∙           the impact of a separation is not directly relevant but the impact of severance of the relationship between the Applicant and her siblings would likely be severe;

∙           the financial and emotional needs of the Applicant in relation to her siblings are well established;

∙           the ability and willingness of the Applicant’s siblings in Canada to provide support is well documented;

∙           the Applicant’s other alternatives, outside of continued physical isolation, appear to be non-existent;

∙           and finally, the documentary evidence regarding the relationship between the Applicant and her siblings in Canada is extensive.

 

[17]           Against the foregoing, while the decision arrived at by the Officer might well be open to her, I am satisfied that, against a standard of review of reasonableness simpliciter, and against the terms of paragraph 3(1)(d) of the Act and the guidance provided in OP4 to persons such as the Officer, the Officer erred in a reviewable manner in not documenting her decision against the prescribed criteria. In the result, this application for judicial review will be allowed, the decision under review will be set aside, and the Applicant’s application for permanent residence in Canada will be referred back to the Respondent for reconsideration and for redetermination by a different officer.

 

Directions

[18]           Counsel for the Applicant urged the Court to provide specific directions to the Respondent to be followed on the reconsideration and redetermination of the Applicant’s application. In these reasons to this point, it is apparent that the Court is of the view that it should be clear on the re-determination that paragraph 3(1)(d) of the Act and the applicable criteria in OP4 should be addressed. Beyond that I would go no further than this: I take judicial notice of what I consider to be the reality that it is difficult in the current situation in the Middle East today for a person such as the Applicant, a displaced person with little or no status outside Iraq, to move around without fear of permanent displacement. If a further interview of the Applicant is considered to be required for the process of reconsideration and redetermination, I urge that the Respondent do all possible to accommodate the Applicant, wherever she may be found.

 

Costs

[19]           Counsel for the Applicant seeks costs of this application on the basis that “special circumstances” here exist that would justify an order for costs. I am satisfied that “special circumstances” here exist. The Applicant’s application for permanent residence in Canada has now been outstanding for more than six years. Until February of 2006, her application would appear to have been substantially “lost or ignored in process”. While the Applicant was interviewed in 2003 and a positive recommendation was forthcoming from that interview, no decision was ever reached despite regular and urgent inquiries on behalf of the Applicant by her siblings in Canada and by her legal representatives. Only in 2006 did the matter come alive and at that time a second interview was required. It was only that second interview that led to the decision under review.

 

[20]           While the Court acknowledges the pressures and circumstances under which persons such as the Officer whose decision is here under review operate in the Middle East and elsewhere, I am satisfied that, in the circumstances of this Applicant, and I emphasize the particularity of those circumstances, for some six years to elapse between the filing of the application and a decision represents “special circumstances” that justify an award of costs. I will so order.

 

CONCLUSION

[21]           Based on the foregoing analysis, this application for judicial review will be allowed, the decision under review will be set aside and the Applicant’s application will be referred back to the Respondent for reconsideration and redetermination taking into account these reasons.

 

[22]           The Applicant is entitled to her costs determined on the ordinary scale.

 

[23]           At the close of hearing, counsel were advised in general terms of the outcome and were consulted on the issue of certification of a question. Neither counsel recommended certification of a question. However, very shortly after the hearing, counsel for the Respondent, in writing, advised the Court that, following consultation with her client, she would like to have an opportunity to provide submissions requesting certification, after reasons for decision had been released. An opportunity will be provided. Counsel for the Respondent will have seven (7) days following the release of these reasons to provide the Registry and counsel for the Applicant with written submissions on certification. Thereafter, counsel for the Applicant will have seven (7) days to respond in writing to the Registry and to counsel for the Respondent. Once again thereafter, counsel for the Respondent will have three (3) days to reply in writing to the Registry and counsel for the Applicant. Only thereafter will an Order issue.

 

 

“Frederick E. Gibson”

 

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-2085-06

 

STYLE OF CAUSE:                          ARAKSE NALBANDIAN

                                                                                                                                    Applicant

 

                                                            and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

                                                                                                                        Respondent

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      September 12, 2006

 

REASONS FOR ORDER:               GIBSON J.

 

DATED:                                             September 20, 2006

 

 

 

APPEARANCES:

 

Randolph K. Hahn	FOR THE PLAINTIFF
Vanita Goela	FOR THE DEFENDANT

 

SOLICITORS OF RECORD:

 

Guberman, Garson, Bush Toronto, Ontario	FOR THE PLAINTIFF
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE DEFENDANT