Date: 20040402
Docket: IMM-1870-03
Citation: 2004 FC 499
Toronto, Ontario, April 2nd, 2004
Present: The Honourable Madam Layden-Stevenson
BETWEEN:
EDMOND SALIAJ
EVI SALIAJ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Edmond Saliaj and his daughter Evi Saliaj are Albanian citizens who applied, on humanitarian and compassionate (H & C) grounds, for exemption from the normal requirement to apply for permanent residence from outside Canada. They had previously claimed refugee status, but that claim was denied in December 1999. They received a negative PDRCC decision in December 2001, and a removal order has existed since November 1998.
[2] Mr. Saliaj's wife and teen-aged son are also in Canada and have claimed refugee status separately. Their refugee claims were outstanding at the time of the H & C determination and they were not included in Mr. Saliaj's application. Mr. Saliaj's sister is a Canadian citizen and his parents are both permanent residents. He has no relatives in Albania other than his wife's parents.
[3] As soon as Mr. Saliaj received a work permit, he became employed. He had been employed as a machinist with the same company for three years as of the date of the H & C determination, earning approximately $28,000 per year. The family had savings of nearly $4,000, an R.R.S.P. of $1,300, and they owned a home with a value of $193,000. Mr. Saliaj was very involved with the immigrant community and several reference letters attest to his character and the assistance he has given to new immigrants. He is also an active member of the Canadian-Albanian Cultural Club.
[4] Evi attended four years of high school in Canada and performed well (A average). She was accepted at Waterloo University, but was not able to afford the tuition (based on her international status) and is currently working.
[5] The application for exemption was rejected on the basis that there was no evidence that the applicants would experience unusual, undeserved or disproportionate hardship if they were required to apply for landing from outside Canada. The officer found that there had been some attempt at establishment, but Mr. Saliaj had not demonstrated establishment to the point where leaving would cause disproportionate hardship. The officer considered the best interests of the child and concluded that Evi would not be at risk in Albania, where she knows the language and customs. There was no evidence that she could not attend university in Albania.
[6] The applicants allege that the officer failed to assess the matter on the basis of the guidelines applicable to H & C applications, specifically those regarding establishment. While not binding, the guidelines ought to have been considered. A review of the officer's notes to file indicates that she did canvass the questions suggested under the heading "Degree of Establishment Demonstrated". The only fact she failed to note, under this heading, was the presence of Mr. Saliaj's sister and parents in Canada. This information is, however, mentioned elsewhere in the notes. The officer found some attempt at establishment, but not to the point where leaving Canada would cause disproportionate hardship. She noted that the applicants had been in Canada for a relatively short period of time. While I might have found differently, it is not my function to substitute my opinion for that of the officer. I cannot conclude that the officer's decision with respect to establishment was not reasonably open to her.
[7] The applicants also allege that the officer failed to provide any analysis as to why the hardship suffered by the applicants would not be disproportionate. The short answer to this allegation is that the evidence before the officer did not lead to a conclusion that the hardship would be disproportionate. Absent evidence of disproportionate hardship, it could not be analyzed.
[8] Finally, the applicants allege that the officer failed to come to a reasonable conclusion regarding the best interests of the child, Evi. In this respect, I agree with the applicants. The Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), subsection 25(1) mandates that the best interests of a child directly affected by the decision be considered. Here, the officer did consider the best interests of the child, but failed to consider a relevant factor - the separation of the child from her family. Her mother, brother, paternal grandparents and aunt were all in Canada. The contents of the various reference letters submitted in support of the H & C application indicated that the family was close-knit. I agree with the respondent that the weight to be accorded the best interests of the child is a matter for the officer to determine and that the best interests of the child is not a determining factor. However, failure to consider a relevant factor when considering the child's best interests does constitute reviewable error and renders the assessment unreasonable. On the basis of this error, the application for judicial review will be allowed.
[9] Counsel did not suggest a question for certification. This matter raises no serious issue of general importance.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is remitted for redetermination before a different ministerial delegate. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1870-03
STYLE OF CAUSE: EDMOND SALIAJ
EVI SALIAJ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 31, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY:
Mr. Lorne Waldman FOR THE APPLICANTS
Mr. Martin Anderson
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040402
Docket: IMM-1870-03
BETWEEN:
EDMOND SALIAJ
EVI SALIAJ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER