STEFAN TISER, MARIA ZIGOVA, STEVEN LEE TISER, CHRISTOPHER TISER Applicants v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2018 FC 261

921Date: 20180307 Docket: IMM-2552-17 Citation: 2018 FC 261 Toronto, Ontario, March 7, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:STEFAN TISER, MARIA ZIGOVA, STEVEN LEE TISER, CHRISTOPHER TISERApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Stefan Tiser (the “Principal Applicant”), Ms.

Marika Zigova, his common law spouse and their minor Tiser children Steven LeeTiser and Christopher Tiser (collectively the “Applicants”) seek judicial review of the decision of an Officer who dismissed theirapplication for permanent residence in Canada on humanitarian and compassionate (“H & C“) grounds, pursuant to subsection 25(1) ofthe Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). [2] The Applicants are citizens of the Czech Republic. Following their entry into Canada in June 2015, they submitted a claim forrefugee protection.

The Principal Applicant was found to be excluded from refugee status on the basis of

Article 1F (

b) of the UnitedNations Convention Relating to the Status of Refugees (United Nations, Treaty Series, vol. 189, p. 137) as the result of his conviction inEngland for a serious non-political offence. [3] In refusing their application, the Officer noted that, as citizens of the Czech Republic, the Applicants are also "“citizens of theEuropean Union”" and could return to the United Kingdom where they had lived for some years. [4] The Officer noted, as well, that the Refugee Protection Division had made negative credibility findings against the PrincipalApplicant and his common law spouse.

The Officer acknowledged that credibility is not a "“determinative factor”" in the H & Capplication. The Officer concluded that there were insufficient grounds to permit "“waiver”" of the Principal Applicant’s criminalinadmissibility and dismissed the application. [5] The Officer’s decision is reviewable on the standard of reasonableness; see the decision in Kanthasamy v Canada (Minster ofCitizenship and Immigration), [2015] 2 S.C.R. 909. [6] According to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S. C.

R.190 at paragraph 47, that standard of review requires that a decision is transparent, intelligible and justifiable, and falls within a range ofpossible, acceptable outcomes that is defensible upon the facts and the law. [7] In my opinion, the Officer’s decision here does not meet that test. [8] The whole point of an H & C application pursuant so subsection 25(1) of the Act is to overcome factors that would otherwise make aperson inadmissible to Canada. That much is apparent from the language of the provision. "25

(1) Subject to subsection (1.2), theMinister must, on request of a foreignnational in Canada who applies for permanentresident status and who is inadmissible —other than under

section 34, 35 or 37 — orwho does not meet the requirements of thisAct, and may, on request of a foreign nationaloutside Canada — other than a foreignnational who is inadmissible under section34, 35 or 37 — who applies for a permanentresident visa, examine the circumstancesconcerning the foreign national and maygrant the foreign national permanent residentstatus or an exemption from any applicablecriteria or obligations of this Act if theMinister is of the opinion that it is justified byhumanitarian and compassionateconsiderations relating to the foreign national,taking into account the best interests of achild directly affected. " "25 (1)""

Sous réserve du paragraphe (1.2),le ministre doit, sur demande d’un étranger setrouvant au Canada qui demande le statut derésident permanent et qui soit est interdit deterritoire — sauf si c’est en raison d’un casvisé aux articles 34, 35 ou 37 —, soit ne seconforme pas à la présente loi, et peut, surdemande d’un étranger se trouvant hors duCanada — sauf s’il est interdit de territoire autitre des articles 34, 35 ou 37 — qui demandeun visa de résident permanent, étudier le casde cet étranger; il peut lui octroyer le statutde résident permanent ou lever tout ou partiedes critères et obligations applicables, s’ilestime que des considérations d’ordrehumanitaire relatives à l’étranger le justifient,compte tenu de l’intérêt supérieur de l’enfantdirectement touché.

" [9] In my opinion, the Officer did not reasonably consider the Applicants’ situation in Canada, in assessing whether discretion should beexercised in their favour.

[ 10 ] Consideration of the Applicants’ status in the United Kingdom was irrelevant. The Applicants were not asking the Officer to assess their ability to relocate to the United Kingdom. The relevance of that factor is not apparent, in light of the focus in subsection 25(1) of the Act upon " “humanitarian and compassionate” " grounds including establishment in Canada. [ 11 ] In the result, the application for judicial review is allowed, the decision is set aside and the matter remitted to a different officer for redetermination, no question for certification arising.

JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside, and the matter is remitted to a different officer for re-determination. There is no question for certification arising. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-2552-17 STYLE OF CAUSE: STEFAN TISER, MARIA ZIGOVA, STEVEN LEE TISER, CHRISTOPHER TISER v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: January 23, 2018 JUDGEMENT AND REASONS: HENEGHAN J.

DATED: March 7, 2018 APPEARANCES : Ron Poulton For The Applicants Ada Mok For The Respondent SOLICITORS OF RECORD : Poulton Law Barristers & Solicitors Toronto, Ontario For The Applicants Attorney General of Canada For The Respondent