Ottawa, Ontario, February 3, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of the decision of Nathalie Smolynec, Immigration Program Manager with the Canadian Embassy in Vienna, Austria, refusing the applicant's application for permanent residence on humanitarian and compassionate grounds pursuant to subsection 25(1) of the Act.
BACKGROUND
[2] The applicant Alma Bajrakterevic is a citizen of Bosnia and Herzegovina. She was born on September 23, 1967 in Brcko. She now resides in Samac with her parents, her common-law spouse Ilko Markovic, and their twin sons Mario and Dario, born August 11, 1996.
[3] The applicant is a Bosnian Muslim, a group which experienced harsh treatment and ethnic cleansing at the hands of the Serbian forces between 1992 and 1995. She was imprisoned in a prison camp between April and November of 1992.
[4] The applicant's common-law spouse is a Catholic Bosnian Croat, and they have been living together since 1995 in a mostly Bosnian Serb area of Bosnia and Herzegovina. She claims that they are both unable to find work and survive financially because of ethnic and religious tensions in their area, and cannot afford to move to Croatia where the cost of living is prohibitively high.
[5] The applicant's sister, Mirzeta Ibralic, is a Canadian citizen living in Toronto with her husband and three children. She has been sponsoring the applicant's application with the assistance of Saint James-Bond United Church.
[6] The applicant initially applied for permanent residence in 1999 pursuant to the Humanitarian Designated Classes Regulations (HDC regulations) SOR/97-183 under the old Immigration Act, R.S.C. 1985, c. I-2, whereby Canadahad a temporary program to offer resettlement to persons who had been affected by the civil strife in Bosnia and Croatia. However, her application was refused when Bosnia and Herzegovina and Croatia were removed from the source country schedule in 2001. Another application as a Convention Refugee Seeking Resettlement was also refused in 2001 because the applicant did not meet the definition of "Convention Refugee" under subsection 2(1) of the Immigration Act.
[7] The applicant applied for permanent residence pursuant to subsection 25(1) of the Act on August 31, 2004, and her application was again sponsored by her sister and the Saint James-Bond United Church. She and her common-law spouse were interviewed in Sarajevo on February 15, 2005 by William Hawke, a Visa Officer working for the Canadian Embassy in Vienna, Austria.
[8] The applicant later received a letter dated February 18, 2005 from Nathalie Smolnyek (the "Officer"), the Immigration Program Manager working for the Canadian Embassy in Vienna, where she stated that her application was refused.
DECISION UNDER REVIEW
[9] The Officer's decision reads as follows:
Dear Ms. Bajraktarevic:
I have completed the assessment of your request for humanitarian and compassionate consideration pursuant to subsection 25(1) of the Immigration and Refugee Protection Act (the "Act").
Having examined all the submissions in support of your application, and having considered your living conditions and the living conditions of your dependants, and having considered those conditions generally in Bosnia Herzegovin [sic] and in Bosanski Samac, I have concluded that humanitarian and compassionate considerations do not justify granting you permanent residence or an exemption from any applicable criteria or obligation of the Act.
As a result, your application for permanent residence in Canada is refused.
[10] The Computer Assisted Immigration Processing System (CAIPS) notes on the applicant's file contain the following entry:
HAVING CONSIDERED ALL THE SUBMISSIONS ON THIS (AND ON PREV) FILE, INCL SUBJECT'S SUFFERING DURING WAR, RELATIVES IN CDA, CONDITIONS FOR CHILDREN OF RETURNEES AND FOR RETURNEES THEMSELVES IN THIS AREA OF BOSNIA, AS WELL AS THE GENERAL CONDITIONS IN BOSNIA AND CIRCUMSTANCES OF THIS FAMILY AS COMPARED TO OTHER FAMILIES IN BOSNIA, I AM NOT SATISFIED THE (SIC) THERE ARE H & C GROUNDS WHICH WARRANT THE WAIVER OF NORMAL IMMIGRATION CRITERIA.
ISSUE
[11] Did the Officer commit a reviewable error of law in determining that there were insufficient humanitarian and compassionate grounds to approve the applicant's application?
[12] For the following reasons, the application is allowed.
ANALYSIS
[13] Subsection 25(1) of the Act reads as follows:
| 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. |
[14] Following the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the jurisprudence of this Court regarding the applicable standard of review for decisions relating to applications made pursuant to subsection 25(1) of the Act has established that the applicable standard is that of reasonableness simpliciter. In Agot v. Canada(Minister of Citizenship and Immigration), 2003 FCT 436, Justice Layden-Stevenson wrote:
It is useful to review some of the established principles regarding H & C applications. The decision of the ministerial delegate with respect to an H & C application is a discretionary one: Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). The standard of review applicable to such decisions is that of reasonableness simpliciter: Baker. The onus, on an application for an H & C exemption, is on the applicant: Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 94, [2003] F.C.J. No. 139 per Gibson J. citing Prasad v. Canada(Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 91 (F.C.T.D.) and Patel v. Canada(Minister of Citizenship and Immigration) (1997), 36 Imm.L.R. (2d) 175 (F.C.T.D.). The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Legault v. Canada(Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (Legault). The ministerial guidelines are not law and the Minister and her agents are not bound by them, but they are accessible to the public and the Supreme Court has qualified them as being of great assistance to the court: Legault. An H & C decision must be supported by reasons: Baker. It is inappropriate to require administrative officers to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.).
[15] In this case, the applicant argues that the Officer committed a reviewable error in failing to provide any analysis or assessment of the bases put forward by the applicant in support of her application, thus providing inadequate and insufficient reasons.
[16] The applicant also submits that the poor living conditions and circumstances of others living in the applicant's area are not a relevant criteria and the Officer committed a reviewable error by basing her decision on such an irrelevant factor.
[17] The respondent states that the applicant has failed to meet the onus of establishing the existence of humanitarian and compassionate grounds to justify an exemption from the requirements of Canadian immigration legislation, that the Officer's reasons were adequate, and that she committed no reviewable error in assessing and refusing the applicant's application.
[18] Despite the respondent's counsel's capable submissions to the contrary, I find that the Officer's reasons were clearly insufficient, and that a simple restatement of the considered factors followed by a conclusion cannot be deemed to constitute proper assessment and analysis of an application.
[19] In Adu v. Canada(Minister of Citizenship and Immigration) 2005 FC 565, Justice MacTavish wrote at paragraph 14:
In my view, these 'reasons' are not really reasons at all, essentially consisting of a review of the facts and the statement of a conclusion, without any analysis to back it up. That is, the officer simply reviewed the positive factors militating in favour of granting the application, concluding that, in her view, these factors were not sufficient to justify the granting of an exemption, without any explanation as to why that is. This is not sufficient, as it leaves the applicants in the unenviable position of not knowing why their application was rejected.
[20] Justice Russell came to a similar conclusion in Jasim v. Canada (Minister of Citizenship and Immigration), 2003 FC 1017, where he found that a summary restatement of the factors considered by an Officer followed by a conclusion did not constitute sufficient analysis, and that the Officer had committed a reviewable error in failing to provide reasons for her refusal of the applicant's application.
[21] The applicant was extremely thorough in her submissions in support of her application, and was entitled to be given adequate reasons for the refusal of her application for permanent residence on humanitarian and compassionate grounds. In this case, the Officer's letter of February 18, 2005 and the notes in the applicant's CAIPS file cannot be deemed to constitute sufficient and adequate reasons.
[22] The parties declined to submit questions for certification and none arises.
ORDER
THIS COURT ORDERS that the application for judicial review is granted. The Officer's decision is set aside, and the applicant's application is referred back for redetermination by a different visa officer. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1612-05
STYLE OF CAUSE: ALMA BAJRAKTAREVIC
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 31, 2006
APPEARANCES:
Paul VanderVennen FOR APPLICANT
Marina Stefanovic FOR RESPONDENT
SOLICITORS OF RECORD:
VanderVennen Lehrer FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General