AHMAD RASHID SIDIQI Applicant v. THE MINISTER OF CITIZENSHIP, 2022 FC 156

Date: 20220208 Docket: IMM-2409-21 Citation: 2022 FC 156 St. John’s, Newfoundland and Labrador, February 8, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:AHMAD RASHID SIDIQIApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent REASONS AND JUDGMENT [1] Mr. Ahmad Rashid Sidiqi (the "“Applicant”") seeks judicial review of the decision of a Senior Immigration Officer (the "“Officer”"),refusing his application for permanent residence in Canada on Humanitarian and Compassionate ("“H&C”") grounds pursuant tosubsection 25(1) of the Immigration and Refugee Protection Act, S.

C. 2001, c. 27 (the "“Act”"). [2] The Officer determined that the Applicant had failed to show that his establishment in Canada and the best interests of his childrenwere such that positive discretion should be exercised to allow him to apply for permanent residence from within Canada. [3] The Applicant is a citizen of Afghanistan. He entered Canada in July 2015 and made a claim for refugee protection. His claim wasdenied by the Immigration and Refugee Board, by both the Refugee Protection Division and the Refugee Appeal Division.

Thesenegative decisions were made in November 2015 and January 2016. [4] On April 18, 2019, the Applicant submitted his H&C application. He cited his establishment in Canada, as well as ties with membersof his extended family who live in Canada.

He cited the best interests of his five children who are presently living in India with his wife,their mother, where they have made claims to the United Nations High Commissioner for Refugees for refugee protection. [5] The Applicant continues to live and work in Canada since removals to Afghanistan are subject to a Temporary Stay of Removal("“TSR”"). [6] The Applicant now argues, among other things, that the Officer unreasonably assessed his establishment in Canada and the bestinterests of his children. [7] The Minister of Citizenship and Immigration (the "“Respondent”") submits that the Officer considered all the evidence provided andreasonably concluded that Applicant’s circumstances did not merit the positive exercise of discretion to allow him to apply forpermanent residence from within Canada, on H&C grounds. [8] The Officer’s decision is reviewable on the standard of reasonableness; see the decision in Canada (Minister of Citizenship andImmigration) v.

Vavilov (2019), 2019 SCC 65 , 441 D.L.R. (4th) 1 (S.C.C.). [9] In considering reasonableness, the Court is to ask if the decision under review "“bears the hallmarks of reasonableness – justification,transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on thatdecision”"; see Vavilov, supra at paragraph 99. [10] In my opinion, the Officer’s assessment of the Applicant’s establishment in Canada does not meet this test. [11] The Officer minimized the Applicant’s work history and his family relationships, as well as the length of his stay in Canada.

Due tothe TSR, the Applicant will remain in Canada for reasons beyond his control. [12] It is not necessary for me to address the other arguments raised by the Applicant. [13] In the result, the within application for judicial review is allowed, the decision of the Officer is set aside and the matter is remittedto a different officer for redetermination. There is no question for certification proposed. JUDGMENT in IMM-2409-21 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Officer is set aside and thematter is remitted to a different officer for redetermination.

There is no question for certification proposed. “E. Heneghan” Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2409-21 STYLE OF CAUSE: AHMAD RASHID SIDIQI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE BETWEEN TORONTO, ONTARIO AND ST. JOHN’S, NEWFOUNDLAND AND LABRADOR DATE OF HEARING: FEBRUARY 3, 2022 REASONS AND JUDGMENT: HENEGHAN J. DATED: FEBRUARY 8, 2022 APPEARANCES : Lina Anani FOR THE APPLICANT David Knapp FOR THE RESPONDENT SOLICITORS OF RECORD : Lina Anani Barrister and Solicitor Toronto, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT