Zazai v. Canada (Citizenship and Immigration), 2012 FC 162 (CanLII)
Judge: Justice O’Keefe; Date heard: January 16, 2012; Date decided: February 7, 2012; Counsel for Zazai: Krassina Kostadinov; Counsel for Minister: Martin Anderson; Place of Hearing: Toronto, Ontario.
The applicant was an Afghan citizen whose application for permanent residence on humanitarian and compassionate grounds (H&C) had been denied.
At the time of the court hearing, he had been married to a Canadian citizen since 2002, had three Canadian children, and was expecting a fourth (para. 3).
The applicant had arrived in Canada in November 1993 as a stowaway, aged 25. In a refugee claim, he had claimed he had been a member of KHAD (para. 4).
Because KHAD had committed crimes against humanity, his refugee claim was denied on the basis of exclusion, and leave was denied at the Federal Court in 1996 (paras. 5-6). An application as a post-determination refugee claimant in Canada was also denied for inadmissibility in 2001 (para. 6).
A deportation order was issued in January 2002. The applicant sought leave, which was granted in May 2003, but reversed on appeal in March 2004. The case went back to the Federal Court and then back to the Court of Appeal in Zazai v Canada (Minister of Citizenship and Immigration),2005 FCA 303 (para. 7).
A July 2003 H&C was denied in April 2004 (para. 8). In a new H&C in May 2006, the applicant claimed that his statements about membership in KHAD were false, and he had in fact been a student (para. 9). In updated submissions in March 2009, the applicant explained that his children could not live in Afghanistan because of the danger there, and his wife, who was originally from Afghanistan, because she had fled a forced marriage to a powerful warlord (para. 10).
The applicant was granted a TRP in February 2010, and began reporting at CBSA’s request in May 2011. There was also a PRRA from June 2006, on which no decision had ever been made (paras. 11-13).
The H&C was denied in May 2011. The officer found that he was would by the previous decisions on inadmissibility (paras. 14-16).
The officer considered a number of factors going to establishment and family separation in Canada (para. 17). The officer then went on to consider that “the risks to the applicant should he be removed were not currently relevant due to his valid TRP. Further, should his TRP be removed in the future, the applicant would be offered a restricted PRRA prior to his removal.” (paras. 17-18)
Balancing establishment and the best interests of the children against the applicant’s membership in KHAD (a limited a brutal purpose organization), the officer found there was not sufficient reason to grant an exemption (paras. 19-21).
Justice O’Keefe reviewed the jurisprudence on best interests of the child (BIC):
…It is not sufficient to merely state that the interests have been taken into account or to simply refer to the children’s interests or to the relationships with the children involved (see Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475 (CanLII), 2002 FCA 475,  2 FC 555 at paragraph 32). The children’s interests must be well identified and must be defined and examined with a great deal of attention (see Hawthorne above, at paragraph 32; and Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 (CanLII), 2002 FCA 125,  FCJ No 457 at paragraphs 12 and 31).
The best interest analysis requires officers to demonstrate that they are alert, alive and sensitive to the best interests of the children. In Kolosovs v Canada (Minister of Citizenship and Immigration), 2008 FC 165 (CanLII), 2008 FC 165,  FCJ No 211, Mr. Justice Douglas Campbell described the meaning of being alert as demonstrating “an awareness of the child’s best interests by noting the ways in which those interests are implicated” (at paragraph 9). Being “alive” to a child's best interests means demonstrating that the officer understands the perspective of each of the participants in a given fact scenario, including the child if this can reasonably be determined (see Kolosovs above, at paragraph 11). Finally, being “sensitive” means clearly articulating the child’s suffering that would result from a negative decision and whether, together with a consideration of other factors, that suffering warrants H&C relief (see Kolosovs above, at paragraph 12). (paras. 51-52)
Justice O’Keefe also notes that BIC does not automatically “prevail over other considerations” and the weight given to BIC is up to the officer (para. 53).
In this case, Justice O’Keefe found that while the officer had acknowledged that the applicant’s TRP could be lifted, he found that this was countered by the fact that the applicant would be offered a PRRA before removal. Referring to Hinzman v Canada (Minister of Citizenship and Immigration), 2010 FCA 177, Justice O’Keefe noted that PRRAs were significantly different from H&Cs (para. 59). Therefore, the officer’s reliance on the prospect of a future PRRA was faulty, since that process would not take BIC into consideration, and further since the applicant’s TRP could be cancelled at any time (para. 60).