Arbia v. Canada (Ciitizenship and Immigration)

Arbia v. Canada (Ciitizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-06-02
Neutral citation
2014 FC 533
File numbers
IMM-2861-13
Decision Content
Date: 20140602
Docket: IMM-2861-13
Citation: 2014 FC 533
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, June 2, 2014
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MOHAMED ARBIA
MERIEM OUGGAD
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
(Judgment delivered from the bench)
[1] The applicants, an older couple, are seeking judicial review of a decision by an officer refusing an application for an exemption from the condition requiring them to obtain their permanent resident visa outside Canada for humanitarian and compassionate considerations [H&C], in accordance with subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] Seven of the applicants' children are established in Canada and they would like to live near them.
[3] Knowing that, aside from exceptional cases, any person who wishes to become a permanent resident is required to apply from outside Canada (Section 11 of the IRPA and section 6 of the Immigration and Refugee Protection Regulations, SOR/2002-227), the Court considers this legislative provision in and of itself.
[4] According to section 25 of the IRPA, it is the officer who determines whether the individual would face unusual, undeserved or disproportionate hardship if they were to comply with the usual legislative requirements.
[5] Although the respondent argues that the officer's decision is reasonable, the Court, analyzing all the evidence, finds that this evidence, when read carefully as a whole, shows that the applicants' establishment in Canada, as well as the best interest of the children and grandchildren, requires attention. This is true despite Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 FC 555 (FCA), which does not necessarily apply in this case. It is a particular case, considering the personal situation of the applicants according to the evidence from within their country of origin and also considering their situation in Canada. The applicants have a daughter who is separated from the father of her child; in addition to this, there are circumstances that clarify the situation of the other family members.
[6] The Court also notes that the applicants' children have shown a strong desire to sponsor their parents considering the parents' and the family's situation as shown by the supporting evidence. This evidence requires at the very least an overall analysis.
[7] For all the above-noted reasons and knowing that an application for permanent residence is at stake, the applicants' application for judicial review is allowed and the case is referred to another officer for reassessment.
JUDGMENT
THIS COURT ORDERS that the applicants' application for judicial review be allowed and that the case be reconsidered by another officer. There is no question of general importance for certification.
"Michel M.J. Shore"
Judge
Certified true translation
Elizabeth Tan, translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-2861-13
STYLE OF CAUSE:
MOHAMED ARBIA, MERIEM OUGGAD v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
Montréal, QuEbec
DATE OF HEARING:
JUNE 2, 2014
JUDGMENT AND REASONS:
jUSTICE SHORE
DATE OF REASONS:
JUNE 2, 2014
APPEARANCES:
Noël Saint-Pierre
FOR THE APPLICANTS
Édith Savard
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Saint-Pierre Leroux Avocats Inc.
Lawyers
Montréal, Quebec
FOR THE APPLICANTS
William F. Pentney
Deputy Attorney General of Canada
Montréal, Quebec
FOR THE RESPONDENT