Date: 20050609
Citation: 2005 FC 824
Ottawa, Ontario, Thursday the 9th day of June 2005
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JOUMANA NADDAF
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Joumana Naddaf is a citizen of Lebanon and the holder of the United States' Resident Alien card which was issued in 1996 and which expires in 2006. Ms. Naddaf has two daughters who are, respectively, 12 and 13 years of age and who are citizens of the United States. Ms. Naddaf brings this application for judicial review of the decision of an immigration officer that insufficient humanitarian and compassionate considerations exist to warrant exempting Ms. Naddaf from the requirement that she apply from abroad for status as a permanent resident of Canada.
[2] Ms. Naddaf originally came to Canada from the United States, with her daughters, in order to seek safety from her violent and abusive husband. While she was in Canada, her husband died suddenly.
[3] In rejecting Ms. Naddaf's application for relief on humanitarian and compassionate grounds, the immigration officer wrote in the portion of her notes entitled "Decision and Rationale" as follows:
After examining all the circumstances of Ms. Naddaf's case, I am not satisfied that she would experience unusual, undeserved or disproportionate hardship if she were to return to the USA. Ms. Naddaf came to Canada in distress and has had the opportunity to gain her strength back. The element of her distress does no longer exist. Her former husband has left her with support through social security - pension and also the children is [sic] heir to his estate which is directed to above client at a Michigan address. The United States have all the essentials of Canada to offer her and her children safety and security.
Ms. Naddaf stated that more than anything she wants to stay with her family here in Canada. She has permanent status in the USA valid to 2006 and her children are American citizens. She has many possibilities including living in closer proximity to her family and visiting Canada. Ms. Naddaf had the opportunity to gain valuable workforce experience which is beneficial to her in future.
[4] In oral argument, counsel for Ms. Naddaf confined herself to two issues: first, did the immigration officer err in concluding that Ms. Naddaf could return to the United States, and therefore further err by failing to consider the hardship Ms. Naddaf and her children would suffer if returned to Lebanon; and second, did the immigration officer improperly assess the best interests of the children?
[5] It is common ground between the parties that the standard of review to be applied to an immigration officer's decision assessing the sufficiency of humanitarian and compassionate grounds is reasonableness simpliciter. Thus, so long as an officer considers the relevant factors, and ignores irrelevant factors, it is not for the Court to interfere with the weight an officer gives to different factors. That said, an officer's reasons must stand up to a somewhat probing examination. This requires a reviewing Court to inquire into whether the decision is supported by reasons that are, in turn, supported by a proper evidentiary basis. The reviewing Court must also be satisfied that the conclusions drawn by an officer from the evidence are logically valid. See: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 63.
[6] With respect to the first issue raised by Ms. Naddaf, of significance is that at no point in the immigration officer's notes (which stand as her reasons) did the officer expressly address whether Ms. Naddaf was entitled to re-enter and remain in the United States.
[7] There is a dispute in the evidence about what information was provided by Ms. Naddaf to the immigration officer about Ms. Naddaf's ability to re-enter the United States. Ms. Naddaf swears that, in a telephone conversation, she advised the officer that she had lost her permanent resident status in the United States and that, after the conversation, she faxed to the officer a document, obtained from a U.S. government website, which set out that:
You may be found to have abandoned your permanent resident status if you:
C Move to another country intending to live there permanently.
C Remain outside of the US for more than one year without obtaining a reentry permit or returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
C Remain outside of the US for more than two years after issuance of a reentry permit without obtaining a returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
C Fail to file income tax returns while living outside of the US for any period.
C Declare yourself a "nonimmigrant" on your tax returns.
[8] The immigration officer swears that, in the telephone conversation, Ms. Naddaf told her that she was still a U.S. "Resident Alien" and that such status was valid until 2006.
[9] The certified tribunal record reflects that Ms. Naddaf did fax to the immigration officer the document quoted above, and that the officer received the document.
[10] Each deponent was cross-examined on her affidavit.
[11] In my view, it is unnecessary to resolve the dispute between what each deponent recalls of their telephone conversation because of:
(a) the immigration officer's admission on cross-examination that she knew that:
(i) U.S. law was similar to Canadian law with respect to maintaining permanent resident status, and the holder of an otherwise valid permanent resident card being given, or not given, entry to the country;
(ii) under Canadian law, the mere fact that a person holds a permanent resident card is not determinative of the person's right to enter Canada after an extended absence;
(b) the officer's receipt of the faxed document that showed that a person may be found to have abandoned their permanent resident status in the United States if, among other things, the person moved to another country intending to live there permanently, remained outside of the United States for more than one year without obtaining a re-entry permit or returning resident visa, or remained outside the United States for more than two years after the issuance of a re-entry permit without obtaining a returning resident visa.
[12] In my view, once the immigration officer knew that:
· possession of an unexpired United States' Resident Alien card did not, by itself, entitle Ms. Naddaf to re-enter and remain in the United States;
· Ms. Naddaf had moved to Canada in 2000, and in 2002 applied for permanent resident status in Canada; and
· Ms. Naddaf had remained outside of the United States for more than one year.
it was incumbent on the immigration officer to expressly address in her reasons the basis for her conclusion that Ms. Naddaf was entitled to re-enter and remain in the United States. Without such consideration there was a defect in the logic that led the officer to conclude that Ms. Naddaf would not experience unusual, undeserved or disproportionate hardship if she were to return to the United States. Such defect in the officer's logic amounts to a reviewable error.
[13] In so concluding, I have considered the Minister's submission that the onus is upon an applicant to present all relevant information to an immigration officer. That is undoubtedly so, but in the present case I find that Ms. Naddaf provided sufficient information to the immigration officer so as to require the officer to direct her attention to the issue of the right of re-entry and permanent status in the United States.
[14] I have also considered the immigration officer's statement in her affidavit that "I considered the Applicant's submission that she had lost her residency status in the United States, and I rejected it, on the basis that there was inadequate evidence provided to satisfy me that she had lost her status". However, I cannot conclude from the text of the officer's notes that she did address the important issue of Ms. Naddaf's right to return to the United States. I consider the officer's notes to be more accurate than the officer's subsequent affidavit, because the notes were made after the officer's review of the file and at the time of her decision.
[15] For these reasons, the application for judicial review will be allowed. It is unnecessary for me to consider, and I do not consider, the adequacy of the immigration officer's assessment of the best interests of the children.
[16] Counsel submitted that no question for certification arose out of the issue I have found to be determinative, and I agree. Therefore, no question will be certified.
ORDER
[17] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed, and the decision of the immigration officer, dated April 20, 2004, is hereby set aside.
2. The application is remitted for re-determination before a different immigration officer.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4814-04
STYLE OF CAUSE: JOUMANA NADDAF v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 19, 2005
REASONS FOR ORDER AND ORDER BY
THE HONOURABLE MADAM JUSTICE DAWSON
APPEARANCES:
Chantal Desloges FOR THE APPLICANT
Bridget O'Leary FOR THE RESPONDENT
SOLICITORS OF RECORD:
Green & Spiegel FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT