Abedin v. Canada (Minister of Citizenship and
Immigration)
Between
Jabbar Mozayen Abedin, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1328
2012 FC 1197
Docket IMM-5666-11
Federal Court
Toronto, Ontario
Pinard J.
Heard: September 6, 2012.
Judgment: October 17, 2012.
Docket IMM-5666-11
Federal Court
Toronto, Ontario
Pinard J.
Heard: September 6, 2012.
Judgment: October 17, 2012.
(19 paras.)
· REASONS FOR JUDGMENT AND JUDGMENT
1 PINARD J.:-- On August 22, 2011, Jabbar
Mozayen Abedin (the "applicant"), filed the present application for
judicial review of the decision of David P.F. Lee, a member of the Immigration
Appeal Division of the Immigration and Refugee Board of Canada (the
"IAD"), pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the
"Act"). The IAD refused part of the applicant's appeal of the visa
officer's determination that the applicant and his family failed to comply with
the residency requirements under the Act.
2 The
applicant was born in Iran. He and his family became permanent residents of
Canada when they landed on November 20, 2003. The applicant's wife, Taheri
Masoumeh, their son, Armin Mozayen Abedin, who was 25 years old at the time of
the IAD's decision, and their 15 year-old son Arvan Mozayen Abedin, were found
by a visa officer to have failed to comply with their residency obligations
under the Act. The officer further considered there to be insufficient
humanitarian and compassionate reasons to allow them to retain their status as
permanent residents. The applicant and his family appealed this decision,
arguing that there were sufficient humanitarian and compassionate grounds to
warrant special relief, considering the best interests of the children affected
and challenging the legal validity of the decision.
3 The
IAD allowed the appeal for all of the members of the applicant's family except
for his adult son Armin, concluding that there were sufficient humanitarian and
compassionate considerations to warrant special relief from the residency
requirements. Thereby, Armin's appeal was dismissed. In the present application
for judicial review, the applicant solely challenges the IAD's conclusion as to
the dismissal of Armin's appeal.
4 The
only real issue raised by the applicant in the present application for judicial
review is whether the IAD erred by making factual determinations in a perverse
or capricious manner, or without regard to the evidence before it.
5 This
issue, being a question of fact, is to be reviewed based on a standard of
reasonableness (see Canada (Citizenship and Immigration)
v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras
59-60; Ikhuiwu v. Minister of Citizenship and
Immigration, 2008 FC 35 at paras 15-16). Therefore,
this Court must determine whether the IAD's decision falls within the
"range of possible, acceptable outcomes which are defensible in respect of
the facts and law" (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).
6 The
applicant asserts that the IAD erred in finding that Armin was not a dependent.
The applicant claims that although Armin may be of adult age, he meets the
definition of dependent under the Act. Moreover, the IAD acknowledged that the
Abedin family was "close knit", but ignored that Armin had been in
Canada since 2009, taking courses, living with his mother and waiting for his
father to return to start up a business here in Canada. In the applicant's
opinion, the IAD ignored that Armin has been completely dependent on his
family. Furthermore, the IAD failed to consider that in removing Armin to Iran,
he will be subject to government control, as was the applicant, and that the
government will use Armin to force the applicant to carry out other
governmental projects in Iran.
7 The
applicant emphasizes that Armin was allowed to return to Canada as a returning
resident and has been in Canada since 2010. Moreover, Armin meets the
definition of "dependent child" under section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations") which reads:
· 2. The definitions in this section apply in
these Regulations.
· "dependent child", in respect of a parent, means a child
who
· (a) has one of the
following relationships with the parent, namely,
is the biological
child of the parent, if the child has not been adopted by a person other than
the spouse or common-law partner of the parent, or
is the adopted child
of the parent; and
· (b) is in one of the
following situations of dependency, namely,
is less than 22 years
of age and not a spouse or common-law partner,
has depended
substantially on the financial support of the parent since before the age of 22
- or if the child became a spouse or common-law partner before the age of 22,
since becoming a spouse or common-law partner - and, since before the age of 22
or since becoming a spouse or common-law partner, as the case may be, has been
a student
continuously enrolled
in and attending a post-secondary institution that is accredited by the
relevant government authority, and
actively pursuing a
course of academic, professional or vocational training on a full-time basis,
or
is 22 years of age or
older and has depended substantially on the financial support of the parent
since before the age of 22 and is unable to be financially self-supporting due
to a physical or mental condition.
* * *
· 2. Les définitions qui suivent s'appliquent
au présent règlement.
· "enfant à charge" L'enfant qui :
· a) d'une part, par rapport à l'un ou l'autre
de ses parents :
soit en est l'enfant
biologique et n'a pas été adopté par une personne autre que son époux ou
conjoint de fait,
soit en est l'enfant
adoptif;
· b) d'autre part, remplit l'une des conditions
suivantes :
il est âgé de moins de
vingt-deux ans et n'est pas un époux ou conjoint de fait,
il est un étudiant âgé
qui n'a pas cessé de dépendre, pour l'essentiel, du soutien financier de l'un
ou l'autre de ses parents à compter du moment où il a atteint l'âge de
vingt-deux ans ou est devenu, avant cet âge, un époux ou conjoint de fait et
qui, à la fois :
n'a pas cessé d'être
inscrit à un établissement d'enseignement postsecondaire accrédité par les
autorités gouvernementales compétentes et de fréquenter celui-ci,
y suit activement à temps
plein des cours de formation générale, théorique ou professionnelle,
il est âgé de
vingt-deux ans ou plus, n'a pas cessé de dépendre, pour l'essentiel, du soutien
financier de l'un ou l'autre de ses parents à compter du moment où il a atteint
l'âge de vingt-deux ans et ne peut subvenir à ses besoins du fait de son état
physique ou mental.
8 In
addition, the applicant asserts that even if Armin was not a dependent child,
it was an error to dismiss his appeal as he is the only member of his family
who was thereby denied legal status in Canada, in violation of the principle of
family reunification contained in paragraph 3(1)(d) of the Act.
9 The
respondent asserts that the IAD's decision is reasonable. It is accepted that
Armin did not meet the residency requirements of the Act, having only been
physically present in Canada for 265 days. There was no reason for his absence:
he could have remained in Canada, attended school, sought work, as his other
brothers did. The respondent claims a review of the IAD's decision indicates
that it considered all of the evidence before it. While the applicant may be
dissatisfied with the IAD's weighing of the humanitarian and compassionate
factors, his dissatisfaction does not warrant this Court's intervention.
10 With
regards to the definition of dependent under the Regulations, the respondent
argues it is not clear what Armin's educational history is based on the
evidence.
11 In
response to the respondent's allegation of confusion in the IAD's decision as
to Armin's educational history and return to Canada, the applicant asserts that
the IAD erred in fact by failing to properly consider and understand the
evidence before it.
12 Firstly,
it is irrelevant that Armin was allowed to enter Canada as a permanent
resident; permanent residents have the obligation to comply with their
residency requirements under the Act and the present application for judicial
review arises out of Armin's failure to comply with these residency
requirements. It is accepted that Armin was only physically present in Canada
for 265 days; this finding by the visa officer was accepted by the IAD and is
not challenged by the applicant. Thus, it is irrelevant whether Armin remained
in Canada as of 2009 or 2010. Lastly, although the Act promotes family
reunification, this reason alone is insufficient to allow an application based
on humanitarian and compassionate grounds. The IAD explicitly considered that
Armin would be the only member of his immediate family in Iran if removed. It
was up to the IAD to weigh the humanitarian and compassionate grounds raised by
the applicant and his family, which it did - no one ever argued before the IAD
that if removed to Iran, they would be subject to government control. The real
issue raised by the applicant is the IAD's finding that Armin is not a
dependent.
13 Armin
is an adult and there is no evidence of him being handicapped or incapable in any
way. He provided no evidence for himself during the hearing, or in the present
application for judicial review, never testifying, nor filing an affidavit.
However, the IAD did consider the evidence before it. Simply stating that the
applicant and his spouse have cared for Armin all his life does not make him a
dependent: he is fully capable of caring for himself. The issue is whether it
was reasonable for the IAD to conclude that Armin is not a dependent, being 25
years old at the time.
14 "Dependent
child" is defined in the Regulations. Armin clearly satisfies the first
prong of the definition, being the applicant's biological child. However, he is
over 22 years of age and there is no evidence that he is unable to support
himself. Thus, to be a dependent pursuant to the Regulations, it must have been
established that he "depended substantially on the financial support of
the parent since before the age of 22", has been a student continuously
enrolled in a post-secondary institution and has actively been pursing a course
on a full-time basis.
15 The
evidence is unclear as to Armin's education. Various institutions and courses
are mentioned. It is unclear whether Armin was continuously enrolled in a post-secondary institution on a full-time basis.
16 While
both York University and George Brown College were listed as Canadian
institutions Armin attended, there was no documentation on record from these
schools. It is also unclear what Armin intended to study. The applicant testified
that his son came to Canada in 2009 and took courses. However, according to his
wife's evidence, their son has been in Canada since 2010. It is also unclear
why Armin did not testify at the hearing if he was in Canada. Thus, by failing
to provide clear evidence, Armin failed to establish the requisite humanitarian
and compassionate grounds.
17 The
burden of proof was on the applicant and his family. Considering the evidence
before the IAD, it was not unreasonable for the IAD to conclude that Armin was
not a dependent. While he most likely did financially depend on his parents
since before the age of 22, it is not clear that he has continuously been a
student in a post-secondary institution on a full-time basis. The IAD's finding
of a lack of dependency falls within the "range of possible, acceptable
outcomes which are defensible in respect of the facts and law" (Dunsmuir, above at para 47). The IAD's
decision as a whole is reasonable, its conclusions being made based on the
evidence before it. Thus, this Court's intervention is unwarranted. As this
conclusion is determinative of the present application for judicial review, it
will not be necessary to deal with the issue concerning the standing of the
applicant, which was raised by the respondent.
18 For
these reasons, the application for judicial review is dismissed.
19 I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial review of the
decision of a member of the Immigration Appeal Division of the Immigration and
Refugee Board of Canada, refusing part of the applicant's appeal of the visa
officer's determination that the applicant and his family failed to comply with
the residency requirements under the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
PINARD J.
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