I am appearing before the Federal Court tomorrow morning on two matters. Madam Justice Snider will be presiding. I believe the last time I appeared before Justice Snider was on the Nguyen-Tran matter.
The first involves a judicial review of a residency appeal by the Immigration Appeal Division.
The Member who made the decision, Ms. Kashi Mattu, made her determination back in February 2012.
Ms. Mattu, in rendering her decision, found that there were insufficient humanitarian and compassionate reasons to grant relief in the circumstances. The facts revealed that the appellant was an elderly widow from Pakistan that suffered from ostereoporosis and was unable to travel after the expiry of her permanent residence card. In the five year period preceding the determination that she failed to meet her residency requirement, she accumulated 578 days in Canada, some 152 days short of the 730 day requirement.
There are two prongs to my argument.
One is that Member Mattu made a error in her reasoning surrounding the reason why the appellant was unable to return to Canada.
Member Mattu found:
Based on the evidence before me, although there may have been good reasons for the appellant to remain outside Canada for some periods of time...they are not sufficient to justify the extent of time she has remained outside Canada over the years. There was documentary evidence provided that the appellant was suffering from osteoporosis of the neck and spine from February 2003. She was able to travel on at least two occasions after that diagnosis to Pakistan...
The problem with Member Mattu's reasoning is that she makes an inference that is not supported. In essence she implies that because there was a diagnosis in 2003 and subsequent travel (and returned to Canada), that the appellant could have returned during the validity period of her permanent resident card (or travelled when the travel document was issued). This ignores the possibility that the appellants (degenerative) condition worsened after 2003 (which is what the documentation indicated) and precluded travel after 2008.
The second prong to my argument is that the Member found "limited evidence of any undue hardship that the appellant would face from losing her status in Canada at this time":
...In addition, the appellant has other options if she wishes to visit Canada or re-acquire permanent resident status in Canada. For example, it is open for her to apply for the new visitor's visa and visit for an extended period of time and, once the current moratorium is lifted, one of her children could re-sponsor her to Canada.
I think this argument will carry the day tomorrow. In essence, there was no evidence that a visitor visa would be granted to the appellant to mitigate the hardship. In fact, the only evidence before her was the appellant's uncontradicted testimony that she applied for a visitor visa to attend upon the birth of her grandchild in Canada and that application was refused. Further, the Member engages in pure speculation that the moratorium or suspension would be lifted. The evidence before the Member indicated that even ignoring the fact that there was a moratorium, a new family class sponsorship would require somewhere in the order of 90 months. Further, the fact that the appellant suffered from osteoporosis would raise the possibilty that she would be in fact medically inadmissible to Canada, precluding any new application for a visitor visa or permanent residence.
Here the Board Member steps outside of her jurisdiction. She has no power to take notice of facts not before them. The transcript discloses that she asks questions of the Minister's counsel as to the operation of the new so-called "super visa". The responses from the Minister's counsel do not constitute evidence.
The Board Member had (to paraphrase the Federal Court in Lello v. Canada (MCI)  FCJ No. 136) the completely wrong mind-set.
Member Mattu considered sponsorship and the possibility of obtaining a visitor visa as a near certainty that would mitigate hardship. She's clearly made a reviewable error.
I can advise that we have obtained leave with respect to another residency appeal where Member Mattu engaged in the same erroneous reasoning. That judicial review will be heard in April of this year.
Update: Madam Justice Snider's decision can be downloaded here: Download 2013_03_04_11_44_03.
Raj Sharma JD LLM