Last Updated on February 15, 2021 by Steven Meurrens

It is generally regarded as difficult for people who are from countries with bad home country conditions to apply for permits.  Hamad v. Canada (Citizenship and Immigration), 2012 FC 336 is an example of how to put together an application that can overcome these issues.

Background

When he applied, Mr. Hamad lived in Benghazi, Libya, with Ms. Mahmoud and their four children who were all under the age of ten.  They were all Libyan citizens.  In 2011, Mr. Hamad applied to study in Canada at George Brown College in a business administration-accounting program.

Mr. Hamad had two brothers living in Libya.  His third brother was a Canadian citizen who lived in Toronto and who testified that he was committed to supporting and financially assisting his brother’s family during their stay in Canada.  Mr. Hamad had previously traveled to Egypt, and in his application stated that he had visited his brother in Canada in 1991, on a visitor’s visa valid from January 24, 1991 to July 23, 1991, and that he left Canada before the expiry date.

The family had no debts, had a home, an orchard and a well in Libya.  Mr. Hamad also owned a transport truck and an interest in a building supply store.  He was the Head of Teaching Staff Human Resources, Faculty of Agriculture, Garyounis University in Benghazi, and his wife was a teacher.  Both of them arranged for leaves of absence from their jobs while in Canada.

Refusal

IRCC refused the application.  The refusal was because the officer was not satisfied that the family would return to Libya after their visit.  In reaching this view, the officer examined their travel history; their purpose for the visit; family ties in Egypt, Libya and Canada; employment prospects in Libya; and incentives to return.

The relevant portion of the decision stated:

…letter from representative stating Libya “is a country experienceing [sic] sever [sic] instability. The normal patterns of life for its poulation [sic] have been disrupted and it is not possible to discoun [sic] the risk of harm. By coming to Canada for several years to study Mr. Hamad can ensure that his children are safe adn [sic] settled.” and “It is not possible, of course, to predict the outcome of the conflict in Libya…”, “Should the conditions in the country worsen rather than improve in the next several years, then Mr. Hamad would take legal and appropriate steps to retain his status in Canada until it is resolved…” Evidence of funds:- stat dec from brother, employment letter, Notice of assessment showing funds of $1,360,147 in 2011 – company docs for building materials company, vehicle, real estate docs I am not satisfied that the applicants meet the requirements for a temporary resident visa based on the applicants’ travel history (only limited travel to Egypt in ppts, no documentation given of other travel, purpose for visit (reps letter states his decision to pursue studies in CDA was based on the unstable situation in Libya), family ties in Egypt/Libya and Canada (while family is travelling to CDA), limited employment prospects in Libya (although PA and spouse state they are employed, current situation in Libya is very unstable and future employment is not certain) and weak incentives to return (rep. letter states PA and family will seek to stay in CDA as long as the situation in Libya remains unstable). Applicants lack strong ties which would ensure return after visit as per R179(b).

The Decision

The Officer set aside the refusal.

First, Justice Zinn determined that the officer noted only Mr. Hamad’s limited travel to Egypt but completely disregarded or ignored his travel to Canada in 1991 and the fact that he returned to Libya before the expiry of his Canadian visa.

Second, Justice zinn the officer’s conclusion that the applicants’ ties to Libya were weak was unreasonable and not supported by the record.

Third, the officer’s finding of limited future employment in Libya resulting from the current instability was speculative, and an unreasonable conclusion not supported by the record.

Fourth, and most importantly, Justice Zinn held that:

the officer’s statement that “the family will seek to stay in [Canada] as long as situation in Libya remains unstable” mischaracterized the statements made in the application.  What the letter from the applicants’ counsel states is that the applicants, although expecting the situation to improve, would take all legal steps to remain in Canada if the conditions in Libya worsened but that they would not remain in Canada without status.  It reads as follows:

He has every expectation that the country will stabilize, as it cannot continue as it is at present.  He wants to return when he completes his course and contribute to the development of the country.  Should the conditions in the country worsen rather than improve in the next several years, then Mr. Hamad would take legal and appropriate steps to retain his status in Canada until it is resolved. Please be assured that he has no intention, with a wife and four children, of attempting to remain without status in Canada.

It is also of note that the visa was requested for a three year period ending in 2014.  The officer made his decision at a time the citizens of Libya were attempting, with the support of the international community, to oust Muammar Gaddafi.  The danger of the officer’s speculation as to the country conditions some three years in the future is shown by the fact that since then, Muammar Gaddafi has been ousted and killed, and although the current administration has issues, the stability in Libya has significantly improved.

Justice Zinn’s statement should be useful in both future temporary resident visa applications and judicial reviews.