Date: 20041115
Docket: IMM-3873-04
Ottawa, Ontario, November 15th, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
AKBAR KALABI
NARGES HABIBI NASRABADI
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of an immigration officer dated April 15, 2004 in which the applicants' request for permanent resident status on humanitarian and compassionate grounds was denied.
[2] The issue in this application is whether the immigration officer failed to consider the best interests of the applicants' nephew in rendering her decision.
FACTS
[3] The applicants are citizens of Iran and are married. Akbar Kalabi is 32 years old and his wife, Narges Habibi Nasrabadi, is 27 years old. They have no children.
[4] The applicants came to Canada in October 2000 and claimed refugee status. Their claim was denied and, in July 2002, they applied for permanent resident status on humanitarian and compassionate grounds ("H & C application"). At the time they made their H & C application, the applicants indicated that they would be at risk of death, torture or inhumane treatment or severe sanction if they were to return to Iran and that they had become successfully established in Canada.
[5] In February 2004, the applicants submitted additional information for consideration by the Immigration Officer regarding Mr. Kalabi's relationship with his (then) ten-year old nephew. They advised that Ms Nasrabadi's sister and nephew had been granted Convention refugee status in July 2003 and that the applicants were the only relatives that the sister and nephew had in Canada. Moreover, that Mr. Kalabi and his nephew have an especially close relationship and that Mr. Kalabi has become like a father to his nephew, whose own father died in Iran. The applicants claimed that it would be devastating for their nephew if they were to be separated from him.
THE DECISION
[6] On April 15, 2004, an immigration officer denied the applicants' H & C application. In her reasons, the officer states that she reviewed and considered all of the submissions made by the applicants including the additional information supplied in February 2004. The following are the comments made by the officer regarding the applicants' relationship with their nephew:
The clients' family members in Canada consist of Narges's sister and nephew, as well as her aunt and cousin.
In submission letter dated 02FEB2004 counsel states that a "close relationship" has developed between Siavash (Narges nephew, 10 yrs old) and Akbar and that "it would be devastating for Tahereh (Narge's sister) and her son to find themselves alone now."
It is noted that a relationship exists between Siavash and Akbar, nevertheless, he is being raised and supported by his mother.
Narge's sister and nephew entered Canada and made CR [convention refugee] claims on 17AUG2001, LBPIA [Lester B. Pearson International Airport]. Narges and Akbar arrived in Canada 11OCT2000, leaving the nephew and sister behind in Iran, which resulted in separation for approximately one year. As stated on the H & C application, Narges has an aunt and a 41 year old male cousin, who reside in the Kitchener area. These relatives are also related to her sister and nephew.
[7] The officer concluded that the applicants' personal circumstances were such that it would not constitute unusual or disproportionate hardship for them to apply for permanent residence status from outside Canada, and that consequently, they did not qualify for an exemption on humanitarian and compassionate grounds.
ISSUE
[8] The sole issue is whether the immigration officer failed to consider the best interests of the applicants' nephew in rendering her decision.
STANDARD OF REVIEW
[9] The standard of review applicable to the discretionary decision of an immigration officer in the context of a humanitarian and compassionate application is reasonableness simpliciter. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Accordingly, the decision should only be interfered with by the Court if it is not supported by any reasons that can stand up to a somewhat probing examination. Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
Applicant's Position
[10] The applicants submit that the immigration officer failed to consider the impact that their departure would have on their nephew as required by the Supreme Court of Canada in Baker, supra, and Legault v. Canada (Minister of Citizenship and Immigration) (2002), 212 D.L.R. (4th) 139. They state that the officer failed to consider the nature of Mr. Kalabi's relationship with his nephew and that, in fact, she trivialized it. They also point out that she made a factual error by assuming that a male cousin of Ms Nasrabadi was related to the nephew, which he is not.
Respondent's Position
[11] The respondent agrees that the best interests of the nephew was a factor to be taken into account in the H & C application, however, in their view, the officer properly balanced this factor against other relevant factors. The respondent submits that the applicants' relationship with their nephew was not determinative of the case and that the Court should not re-examine the weight assigned to various factors by the officer.
ANALYSIS
[12] The Court should not re-examine the weight given to various factors by an immigration officer and that her decision should not be read microscopically. See Legault, supra at para. 11 and Jones v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 157 at para. 14. As discussed by the Federal Court of Appeal in Legault, supra, and Hawthorne, [2002] F.C.J. No. 1687, it is not sufficient for an officer to merely make mention of a child, rather the interests of the child must be examined and weighed.
[13] In the present case, the officer recognized the "close relationship" between Mr. Kalabi and his nephew. Her exact words were "it is noted that a relationship exists between Siavash and Akbar, nevertheless, he is being raised and supported by his mother."
[14] The Court agrees that the H & C officer did not properly assess the best interests of the child, and then weigh this factor against the other factors like public policy. However, I cannot fault the H & C officer because the applicants based their H & C application on "risk", not on the best interests of the child. When the negative risk assessment was received, the applicants' counsel submitted two letters disagreeing with the risk assessment, and added to the end of the last letter a short paragraph stating that there is "an especially close relationship" between the male applicant and his nephew in Canada, like father and son. No evidence of the effect on the child was presented. No clear request that the best interests of the child be assessed was made. As the Federal Court of Appeal held in Owusa v. Canada (Minister of Citizenship and Immigration), [2004] 2 FCR 635, "The applicants have the burden of adducing proof of a H & C claim based on the best interests of the child".
[15] In the case at bar, the applicants provided no evidence to support the claim. The principal ground for the H & C claim was risk of harm upon being returned to Iran. In the Court's view, the H & C application did not adequately raise the impact on the best interests of the child so as to require the immigration officer to more fully assess the best interests of the child, and then weigh this factor against other factors such as public policy.
[16] At the hearing, the respondent said that the applicants can file a new H & C application which would properly address the issue of the best interests of the child. The applicants' capable counsel indicated that they would make such an application immediately.
[17] For these reasons, this application must be dismissed.
[18] Neither counsel proposed a question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3873-04
STYLE OF CAUSE: AKBAR KALABI ET AL v. MCI
DATE OF HEARING: Wednesday, November 10, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: Monday, November 15, 2004
APPEARANCES BY: Ms. Chantal Desloges
For the Applicant
Ms. Anshumala Juyal
For the Respondent
SOLICITORS OF RECORD:
Chantal Desloges
Green and Spiegel
Toronto, Ontario
M5H 2Y2
For the Applicant
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
FEDERAL COURT
Date: 20041115
Docket: IMM-3873-04
BETWEEN:
AKBAR KALABI
NARGES HABIBI NASRABADI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER