Date: 20040917
Docket: IMM-5534-03
Citation: 2004 FC 1275
Ottawa, Ontario, this 17th day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
LYUBOMYR PASHULYA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of an Immigration Officer ("Officer") dated July 4, 2003 ("Decision") which refused the application of Lyubomyr Pashulya for consideration on humanitarian and compassionate ("H & C") grounds.
BACKGROUND
[2] The Applicant's original H & C application was submitted on December 27, 2001.
[3] Due to a delay in processing because of a backlog, the Officer did not review and consider the application until July, 2003.
[4] The Applicant is of the view that under the former IP5 guidelines for H & C applications that were in effect until November, 2002, once it was determined that a marriage was genuine, an applicant was entitled to positive processing.
[5] Although the Immigration and Refugee Protection Act, S.C. 2001, c. 27("IRPA") came into effect in June, 2002, and although a transitional guideline was issued at that time indicating that new guidelines would apply, no new guidelines were actually implemented with respect to inland processing until November, 2002.
[6] As the Applicant's case was not decided until July 2003, despite the fact that it had been pending since December 2001, the Officer applied the new IRPA guidelines. Under the new guidelines, a genuine marriage is not sufficient. In addition, an applicant has to show hardship.
[7] The Applicant made further submissions to the officer in March, 2003, in which he indicated that he and his wife were very much in love, that his wife was dependent on him, that they had bought a house and were paying a mortgage, and that she wouldn't be able to pay the mortgage if he were asked to leave Canada.
[8] On May 15, 2003, the Applicant made further submissions to the Etobicoke office in which he indicated that the marriage was bona fides and that the Officer should apply the old guidelines. In addition, he submitted that there were other compelling H & C grounds. He indicated that he had bought a house in September 2002, at a cost of $265,000 with a down payment of $60,000 and the mortgage payments were $900, that his wife is a Canadian citizen, that her work had been severely curtailed due to SARS (she works in the hospitality industry), and that she alone could not maintain the mortgage. He indicated that he is a construction worker, had established his own business, had three employees working for him, had a net income of $40,000, and, if he were to be removed, the business would have to close.
[9] The reasons for allowing processing within Canada were the financial implications for the wife if the husband is removed, and also the fact that the house would be put at risk, he had established a successful business, and there would be a lengthy separation.
DECISION UNDER REVIEW
[10] The Officer summed up the Applicant's position as follows:
...He states that he is not in a position to submit his application to the visa office outside Canada because he is married to a Canadian citizen and he made a refugee claimant [sic]. His sponsor, Elena Goudz, does not want them to be separated for a year which is usually required to process family class applications at the Canadian Consulate in Kiev. Lyubomyr explains the [sic] Elena would not survive the long absence and would suffer because of it. Elena has been working in the hospitality industry and has been forced to change jobs several times because of the downturn in tourism mainly because of SARS. As a result of this she would not be able to maintain a mortgage.
Application record p. 8
[11] The Officer went on to note that the Applicant and his wife had bought a house for $265,000, that they have a mortgage of $900/month, that the Applicant is self-employed, that he employs three Canadians and has been in Canada for five years.
[12] The Officer accepted the genuineness of the marriage but went on to consider hardship:
...I have considered that the separation of spouses may be difficult and may sometimes cause strain in a relationship, however, on weighing the information provided I am not satisfied that separation could not have been anticipated. There is insufficient evidence that Elena would not survive Lyubomyr's long absence and suffer any more than anyone else in the same situation. On weighing the client's marriage and the anticipated separation of spouses, I am not satisfied that the separation is sufficient grounds to grant exemption.
In looking at Lyubomyr's establishment, I have considered that Lyubomyr Pashulya has a business that his counsel states would he (sic) jeopardized. Lyubomyr decidedly opened a business knowing that he did not have Permanent Residence in Canada and that there was a possibility that he would have to leave. I am not satisfied that there is sufficient unusual, undeserved or disproportionate hardship in Lyubomyr being allowed to stay in Canada to operate his business.
I have considered the three Canadian employees that are working for Lyubomyr. There is insufficient evidence that the three Canadian citizens are working for Lyubomyr, that they are Canadian citizens or that there is insufficient evidence that there would be an impact on his business if he were to leave it.
Lyubomyr and Elena bought a house together and maintain that Elena would not be able to carry the house on her unstable salary. Buying a home and having a mortgage beyond their means was a situation they chose to get involved in knowing that there was a possibility that Lyubomyr may have to apply in the normal manner from outside of Canada and that his salary should not be considered in maintaining the home.
...On weighing all the information provided I am not satisfied that there exists sufficient humanitarian and compassionate grounds to warrant and exemption.
Application record p. 8
RELEVANT LEGISLATION
[13] Section 11(1) of IRPA requires all foreign nationals who wish to live permanently in Canada to apply from abroad and obtain a visa before coming to Canada.
[14] Section 25 of IRPA, however, affords the Minister discretion to grant permanent residence to a foreign national, or exempt that person from any applicable requirements under the Act, if the Minister is of the opinion that it is justified by H & C considerations or public policy.
ISSUES
[15] The Applicant raises the following issues:
Did the Officer err in law in applying the old guidelines as opposed to the new guidelines to this case?
Did the Officer err in law because he improperly inferred that the Applicant and his wife ought to have known when they bought the house that there would be a separation, and hence discounted this factor?
Did the Officer err in law because he failed to properly consider the other H & C factors, (in particular, establishment,) and only considered one factor, i.e. that the Applicant ought to have known the consequences?
Did the Officer err in law by doubting without any valid reason the Applicant's evidence with respect to the existence of the employees and the fact that they would lose their jobs?
ARGUMENTS
Applicant
New Versus Old Guidelines
[16] The Applicant filed his application for consideration well before the new IRPA guidelines came into effect. The IP5 guidelines in effect at the time of the application indicated that a person in a genuine marriage should generally speaking, if there were no adverse factors such as criminality, be accepted if the spouse was willing to sponsor. The Applicant says that the practice at the Ministry up and until the change in the guidelines after IRPA was introduced was that if there was a genuine marriage and the H & C was assessed prior to removal, unless there were special unusual circumstances, an application would be approved. This was stated in the IP5 guidelines which indicated that genuine marriages were in and of themselves usually sufficient grounds to warrant an exemption.
[17] Given that in this case the marriage was genuine and there were no unusual circumstances under the old guidelines, the Applicant says he ought to have been accepted. Indeed, the Applicant says this fact was acknowledged by the Officer at the interview.
[18] The new guidelines that came into effect and were published in the fall of 2002 changed the policy. The new guidelines suggest that, in cases of persons who marry after losing their status, the spouse should anticipate that a separation may well result. The new guidelines suggest that there have to be other special H & C factors to approve an application of an out-of-status spouse for an exemption.
[19] The Applicant says the Officer ought to have applied the old guidelines. In transitional cases, there is generally a presumption that a person who applies under the old rules will have the benefit of the old rules unless there is an explicit indication to the contrary. While it is acknowledged that the transitional provisions of IRPA clearly indicate that, with respect to applications submitted prior to IRPA coming into effect but decided under IRPA, the new Act and Regulations apply. The Regulations are silent as to the transitional provisions concerning guidelines. The guidelines themselves do not provide any guidance. Moreover, the new guidelines were not promulgated until after the Act and Regulations were in effect. Hence, it would have been impossible to apply the new guidelines to new cases as of June 28, 2002. If the new guidelines were to be applied only to cases after they were promulgated then the effect would be that the old guidelines would apply to some cases pending when IRPA was promulgated, whereas others would be decided under the new guidelines. The Applicant says this is grossly unfair and arbitrary.
[20] The Applicant submits that because the guidelines are not part of the Act or Regulations (there being no clear indication or any transitional provision either in the guidelines or in the transitional rules as to which guidelines should be applied) and as the new IP5 guidelines did not come into effect until well after IRPA was promulgated, his application should have been decided under the old guidelines. This is especially true since one of the main reasons relied upon by the Officer was that the Applicant ought to have known of his likely removal from Canada and that an overseas sponsorship would be required. In this regard, the Applicant relies on the general presumption against retroactivity (See Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue - M.N.R.), [1977] 1 S.C.R. 271; Medovarski v. Canada (Minister of Citizenship and Immigration) 2003 FCT 634).
[21] The Applicant notes that, contrary to what is implied by the Officer, at the time the Applicant married, the stated policy of the Immigration Commission was to allow applications to be processed from within Canada in circumstances where there was as genuine marriage such as that which prevailed between the Applicant and his wife. The Officer erred in law and made an unreasonable finding when he said the Applicant ought to have known that his separation was likely because he was under a removal order when, in fact, the policy of the government was to the contrary.
[22] The Applicant argues that the Officer erred in law, first, because he improperly applied the wrong guidelines and, secondly, because he made an improper assumption with respect to the fact that the Applicant ought to have anticipated his separation, and relied upon this assumption in the Decision. Thus, even if the Court disagrees with the Applicant with respect to the applicability of the former guidelines, the Applicant submits that the Court ought to find an error because there was no basis for any conclusion that the Applicant ought to have known when he married that there would be a separation.
Separation
[23] The Officer indicated that separation was inherent in the process and should be expected. However, the Applicant made specific submissions, which the Officer did not dispute, that there would be a two year separation in this case. This is based on the processing time and the fact that the Applicant would require Ministerial consent to return, as well as the difficulties inherent in such an application. Although the Officer might have disputed this fact, the Officer did not. Having accepted the fact that there was likely to be a two year separation, as submitted by counsel for the Applicant, and because no evidence to the contrary was submitted, the Officer then went on to note that separation was an inherent part of the process. While separation may well be part of the process, the Applicant submits that a two year separation would cause severe hardship to any young couple. Any reasonable person reviewing the application and realizing that a two year separation was involved, would have concluded that this was a sufficient hardship.
[24] In effect, the Applicant says that, when considering separation, the Officer considered one factor to the exclusion of all others, i.e. that the Applicant ought to have known and anticipated the result.
[25] The focus on anticipation to the exclusion of other factors is a reviewable error. When the Applicant submitted his application, the guidelines clearly indicated that a genuine marriage was in and of itself sufficient. Therefore, there was no reason for the Applicant to anticipate anything. The guidelines did not change until November 2002, when the new guidelines expressly altered the old policy that had been in existence for years. The Officer erred in law in suggesting that the Applicant ought to have known that once he was married he would be separated, or that the business would be jeopardized by his removal, when in fact the policy for a year after the Applicant made his application was to the contrary. The Applicant could not have anticipated a change in policy when he married or when he purchased a house or when he established the business.
Establishment
[26] The Applicant also says that the Officer also erred when he failed to consider the fact that the Applicant was extremely well established and had a job and a business for five years that he would lose if he left Canada. It was incumbent on the Officer under the guidelines to consider issues of establishment, which he specifically failed to do. By failing to consider establishment properly, the Officer erred in law.
[27] The Officer said there was no evidence with respect to establishment, but there was the evidence of Applicant's counsel on this issue which the Officer had no reason to doubt.
[28] The Applicant was self-sufficient, self-employed and had employees. He compares his situation to Raudales where Dawson J. noted as follows:
18. In my opinion, on all of the evidence before him, the officer made a patently unreasonable finding of fact in determining that Mr. Figueroa Raudales had not established himself in Canada more than would any other high school student. In circumstances where the community is donating funds and directly providing the wherewithal to over Mr. Figueroa Raudales' living and education expenses, where the city council wrote to the Minister of Immigration to support the application, and where the principal and superintendent of schools wrote to support the H & C application, it cannot be said that Mr. Figueroa Raudales' establishment in the community is not significant and is no different than that of any other student. The finding is contrary to the overwhelming weight of the evidence.
19. Establishment is, pursuant to the Minister's guidelines as found in Chapter 5 of the Inland Processing Manual, a relevant factor to consider when assessing an H & C application. Absent a proper assessment of establishment, in my view, a proper determination could not be made in this case as to whether requiring Mr. Figueroa Raudales to apply for permanent residence from abroad would constitute hardship that is unusual and undeserved or disproportionate.
See Raudales v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 532 (T.D.).
[29] Also, in Jamrich v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1076 (T.D.), a case where the Applicant says the facts were virtually identical to those in the case at bar, Blais J. made the following relevant remarks concerning establishment:
28. The case at bar is similar than that of Raudales, supra. The IC does have very broad discretion in assessing the Applicants application. That assessment must however be in accordance with the evidence before her.
29. In my view, the IC made an unreasonable finding of facts: the IC's conclusions that "their establishment is no more than is expected of any refugee who is given similar opportunities in Canada" and that she is "not satisfied that in their case, their establishment can be considered so different and significant that it differs from what is expected from any other person who resides in Canada while undergoing the refugee determination process" are patently unreasonable in the circumstances of this case.
[30] Given this jurisprudence, the Applicant submits that the Officer erred in his one line assessment of establishment where he noted that establishment in this case would not result in hardship. No explanation is given for this conclusion. Indeed, the assessment in this case was far more superficial than that in either Raudales or Jamrich. In his assessment the Officer failed to properly exercise his jurisdiction to determine whether, given the degree of establishment, a case for H & C consideration had been made out. As in Raudales and Jamrich, the Officer asked himself the wrong question and in so doing erred in law.
Failure to Consider the Totality of the Evidence
[31] The Applicant also argues that the Officer failed to consider the totality of the evidence. One factor in and of itself might not have shown sufficient hardship, but the totality of the evidence did. The Officer looked at each fact individually, but failed to consider them cumulatively. The hardship factors in this case were:
a. the two year separation of a newlywed couple;
b. the separation of the Applicant from his wife and the loss of their home;
c. the fact that the Applicant was established, had a job and business and was earning a very comfortable income.
[32] The Applicant says that, cumulatively, these facts amounted to sufficient hardship to warrant a positive determination.
H & C Factors
[33] The Applicant says the Officer failed to consider the impact of a two-year separation. The Officer misstated the argument by saying that the couple was concerned about "a one-year" separation. This was incorrect because the Applicant argues in his submissions that it would be two years. The Officer did not cite any evidence to contradict this and misconstrued the evidence before him.
[34] In any event, the separation was only one factor. The Applicant also brought it to the attention of the Officer that the couple would lose their house and that the Applicant would lose his business and his employees would be out of work.
[35] The Applicant says these were important factors that went beyond the normal consequences of deportation. The Officer failed to properly assess these factors in a sympathetic fashion and dismissed them by stating that the Applicant ought to have anticipated them.
Canadian Employees
[36] The Applicant indicated in his submission that he had three employees and that they would lose their jobs. The Officer did not request verification of this fact. The evidence therefore was uncontradicted. The Officer erred in law in doubting this evidence without a valid reason. There is clearly an assumption that the Applicant is telling the truth and there was nothing in the record before the Officer that would warrant and justify an adverse finding with respect to this evidence. Simply put, the Officer had to have valid reasons for doubting the truth of the Applicant's assertion and did not provide any.
Respondent
Generally
[37] Recently, the Federal Court has issued its decision in the Osadolor case (Osadolor v. Canada (Minister of Citizenship and Immigration), 2004 FC 737 (T.D.)) , which dealt with the effect of the new guidelines (of November 2002) and Operations Memorandum IP 02-09 (issued June 26, 2002) on outstanding H & C applications for spouses. Osadolor establishes that there is no vested right to assessment under the old guidelines, because both s. 190 of IRPA and IP 02-09 make it clear that outstanding H & C applications should be assessed under the IRPA regime and the new guidelines. This jurisprudence is determinative of the Applicant's first argument. The Applicant's submissions regarding the Officer's establishment and hardship findings also raise no reviewable error because the Officer's findings are wholly reasonable on the facts of this case. The case at bar is distinguishable from the cases cited by the Applicant. In this case, the Applicant did not discharge the onus on him of demonstrating unusual, undeserved or disproportionate hardship, and the Officer adequately explained this in his reasons. This Respondent concludes that the application should be dismissed on this basis.
Osadolor Shows H & C Application Properly Decided under New Guidelines
[38] Although the Applicant argues strenuously that the Officer erred in not considering his H & C application under the former IP-5 guidelines (because these guidelines were in effect when he submitted his application), this Court's recent Osadolor decision has made it clear that it is fair and correct for Immigration Officers to consider H & C applications submitted before June 26, 2002 under the new guidelines and the IRPA regime.
[39] On the issue of the transition between the old and new H & C Guidelines, Mr. Justice Kelen made the following findings of note in Osadolor:
(a) Section 190 of IRPA authorizes the retrospective application of the new Act and Regulations: following the Court's holding in Dragan, s. 190 of IRPA clearly expresses the legislative intent to rebut the presumption against retrospective application of the law.
Osadolor,supra, at paras. 12-13; Dragon v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.))
(b) IP O2-09 acts in a retrospective manner: Operations Memorandum IP 02-09 states that "For applications pending on June 28, it should be noted that all such applications should be treated as H & C applications based on IRPA and there are no provisions to convert H & C applications into Family Class applications." The new guidelines do not have the force of law, but reflect how the Respondent applies (the relevant immigration legislation.
Osadolor, supra at para. 13
(c) Both s. 190 of IRPA and IP 02-09 make it clear that outstanding H & C applications should be assessed under the IRPA regime.
Osadolor,supra, at para. 14
(d) Import of Old Guidelines after June 27, 2002: the H & C Guidelines issued under the formerImmigration Act had no force after IRPA came into effect, as they reflected the old, repealed law.
Osadolor,supra, at para. 15
(e) Effect of gap between IP 02-09 and New Guidelines: as the old H & C Guidelines were no longer in effect after IRPA came into force, the five month gap between the issuance of IP 02-09 and the issuance of the new H & C Guidelines does not detract from the clear and express statement of the Minister that pending H & C applications would be processed differently, i.e. under the IRPA regime. The gap between the issuance of IP 02-09 and the Issuance of the New H & C Guidelines does not signify that the New Guidelines are of no force or effect.
Osadolor,supra, at paras. 15 and 17
(f) When gap not an issue: the gap between the issuance of IP 02-09 and the issuance of the New H & C Guidelines is not an issue when the H & C application is determined after the new H & C Guidelines come into effect.
Osadolor,supra , at para. 17
(g) How situation for spouses without status has changed: the introduction of the Spouses or Common-law Partners in Canada Class changes the situation for spouses without status in Canada from the marriage being a positive factor in the H & C decision (under the old Immigration Act regime) to marriage now not automatically entitling a person without status to permanent residence in Canada (under the new IRPA regime).
Osadolor,supra, at para. 17
(h) No vested right to assessment under old guidelines: as per Gustavson Drilling and Say, an H & C Applicant does not have a vested right to be assessed according to the criteria for assessment as they stood at the time that the application was submitted. (Instead, an Applicant may expect the criteria in force at the time of assessment to apply.)
Osadolor,supra, at paras. 18-19; Gustavson Drilling, supra; Say v. M.C.I. (1997), 139 F.T. R. 165 at para. 4 (T.D.)
(i) As IRPA has a retrospective effect, it was also intended to change the law and policy applicable to H & C applications when IRPA came into force.
Osadolor,supra, at para. 20
(j) The H & C Officer correctly applied the New Guidelines to an H & C application that was submitted under the former Immigration Act regime.
Osadolor,supra, at para. 20
[40] The Respondent submits that the holding in Osadolor is applicable to the case at bar. This case also involves an H & C application that was initially submitted under the former Immigration Act regime but was decided in 2003 under IRPA and the new IP-5 criteria and after Operations Memorandum IP 02-09 was issued on June 28, 2002. For this reason, the Applicant has not established any reviewable error in the Officer's application of the new IP-5 guidelines.
Background: Statutory Framework
[41] Consistent with s. 6 of IRPA, the Minister delegated the authority to make H & C determinations to Immigration Officers, with the exception of exemptions from inadmissibility provisions of IRPA relating to health, criminality, human rights violations, organized crime and security.
[42] The Decision of the Officer not to grant an H & C exemption does not involve a determination of the Applicant's legal rights and in no way removes his right to apply for landing from outside of Canada (Gautam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 124 at paras. 9-10).
[43] An applicant has a high threshold to meet when requesting an exemption from the application of s. 11(1) of IRPA. This Court has repeatedly held that the H & C process is designed not to eliminate the hardship inherent in being asked to leave after one has been in place for a period of time, but to provide relief from "unusual, undeserved and disproportionate hardship" caused if an applicant is required to leave Canada and apply from abroad in the normal fashion. That the Applicant must sell a house or car or leave a job or family is not necessarily undue or disproportionate hardship; rather it is a consequence of the risk the Applicant took by staying in Canada without landing (Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. LR. (3d) 206 at paras. 12, 17, 26 (F.C.T.D.); Mayburov v. Canada (Minister of Citizenship and Immigration) (2000), 183 F.T.R. 280 at para. 7; Lee v. Canada (Minister of Citizenship and Immigration), 2001 FCT 7 at para. 14).
[44] Given the fact specific nature of the H & C inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language, considerable deference should be accorded to Immigration Officers exercising the powers conferred pursuant to IRPA and its Regulations (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 62).
Reasonable Consideration of the Evidence
(a) Case Distinguishable from Raudales and Jamrich: Reasonable Consideration of Establishment in the Case at Bar
[45] The Applicant relies on the Raudales and Jamrich decisions to suggest that the Officer's establishment findings were unreasonable. But the facts of this case are distinguishable from those of both of the cases cited by the Applicant. A review of the Officer's Decision confirms that he did consider the Applicant's establishment in Canada, i.e., the time he had been in Canada, the business he had set up, the fact that he had employees, and his purchase of a house and the securing of a mortgage with his wife.
[46] Contrary to the Applicant's assertions, the Officer's reasons disclose several reasons for finding that his degree of establishment did not entail unusual, undeserved or disproportionate hardship. And in any event, as the Court noted recently in Klais and Irimie, the degree of establishment is not on its own determinative of an H & C application; instead, it is but one factor to be considered in determining whether hardship is unusual or disproportionate. The Applicant has not shown that the Officer's overall determination was unreasonable or otherwise not open to him (Klais v. Canada (Minister of Citizenship and Immigration), 2004 FC 785 at para. 11 (T.D.); Irimie, supra, at para. 20).
(b) No Unusual, Undeserved or Disproportionate Hardship vis à vis Business
[47] The Officer concluded that the Applicant had not demonstrated unusual, undeserved or disproportionate hardship in not being allowed to stay in Canada to operate his business. This finding is reasonable based on the facts of the case. Although the Applicant stresses that he would "lose his business and his employees would be out of work" if he were to apply for permanent residence from abroad, this assertion is speculative and remains unsupported by any evidence beyond the Applicant's word.
[48] Contrary to the Applicant's submission, the Officer also explicitly considered his claim to employ "three Canadians," but found insufficient evidence to support this. This finding is reasonable when it is considered that the onus is on the Applicant to make his case that an H & C exemption is warranted. The Applicant could have easily provided evidence to support this claim (Baker, supra, at para. 66).
[49] The Respondent argues that it does not make sense that the Applicant would be obliged to close his business if he had to leave the country to apply for permanent residence. He has not explained why he could not assign one of his employees (or someone else) to act as a manager during his absence. By analogy, the jurisprudence with respect to stays also establishes that there is no irreparable harm inherent when the closure of a business is speculative. The Respondent submits that the same principle applies with respect to the degree of hardship inherent in applying through normal channels when loss of a business or employees is speculative (see Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931 at para. 9 (T.D.), citingSiljanovski v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 923 at paras. 6-7 (T.D.); Startchev v. Canada (Minister of Citizenship and Immigration), 2002 FCT 690 at para. 8; Sanchez v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1647 at para. 7 (T.D.); Qayyum v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 192 at para. 2 (T.D.)).
[50] Furthermore, the Respondent argues that it was reasonable for the Officer to take into consideration the fact that the Applicant decided to open his business knowing that he did not have permanent residence in Canada and that there was a possibility he would have to leave. As the Federal Court of Appeal stated in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) at para. 19, an H & C officer is entitled to examine whether the factors adduced for the H & C application are of the Applicant's own making. Those who come to Canada with the intention of settling must be of good faith and comply with the requirements set out in the legislation.
Conclusion
[51] The Respondent says the Officer made no error in applying the new H & C guidelines to this case. In finding the Applicant not to have established that applying from abroad would cause him unusual, undeserved or disproportionate hardship, the Officer adequately considered the evidence in this case. The Officer recognized that the Applicant had some degree of establishment, but found it was not to the point where leaving Canada would cause such a degree of hardship that H & C consideration was merited.
[52] Contrary to the Applicant's submission, the Officer also considered the period of separation. Although the Officer noted that the separation of spouses may be difficult and could cause strain in a relationship, he was still not satisfied that separation could not have been anticipated or that it would cause disproportionate suffering in this case. The Officer also took into account the Applicant's purchase of a house with his spouse and the difficulties she might encounter in carrying the house on her own. But the Officer also found the Applicant and his spouse to have chosen voluntarily to enter into this situation, knowing he might have to apply for permanent residence in the normal manner from outside Canada.
[53] While the Court might have found differently based on the facts of this case, the Court has emphasized repeatedly that it is not its function to substitute its own opinion. The Officer was entitled to weigh the evidence before him, and his Decision with respect to establishment was reasonably open to him. Given the deferential standard of review afforded to decisions of H & C officers, intervention is not warranted in this case (Saliaj v. Canada (Minister of Citizenship and Immigration) 2004 FC 499 at para. 6 (T.D.); Singh v. Canada (Minister of Citizenship and Immigration) 2004 FC 187 at para. 27 (T.D.)).
ANALYSIS
Anticipation
[54] The Applicant raises a range of issues for review but they are heavily focussed on the view that the Officer was pre-occupied with "anticipation" and did not adequately address other factors. The Applicant actually says that "the officer considered one factor to the conclusion (sic) of all others, i.e. that the Applicant ought to have known and anticipated the result ... ." The Applicant says that the Officer's comments about anticipation are in error because the application was made under the old guidelines and, given the genuineness of the marriage, the Applicant could not have anticipated any difficulties concerning hardship.
[55] It is true that the Officer mentions "anticipation" at several points in the Decision, but not to the exclusion of all else. And my reading of the Decision is that when anticipation is mentioned, the Officer is merely saying that if the Applicant chose to marry, buy a house and start a business before obtaining permanent resident status, he must have realized there was some inherent risk that he might have to leave Canada and that his life, and the lives of his wife and employees, would be disrupted.
[56] The guidelines issue is mentioned at the end of the Decision in a separate paragraph and Mr. Waldman's letter of May 15, 2003 asserting that the old guidelines should apply does not ask the Officer to address the H & C grounds from the perspective of someone who was relying upon the old procedure. The issues raised by Mr. Waldman are acknowledged in the final paragraph of the Decision.
[57] My reading of the Officer's Decision is that, in referring to anticipation, the Officer is merely noting the inherent risk that anyone runs who takes steps to establish themselves in Canada before obtaining permanent residence status, and this risk is certainly not relied upon by the Officer to the exclusion of other factors, such as the sufficiency of evidence.
[58] With this in mind, the other points raised by the Applicant can be dealt with in turn.
Should the Old Guidelines Apply?
[59] Since the Applicant first raised this ground, Mr. Justice Kelen has had occasion to consider the matter in Osaldolar v. Canada (Minister of Citizenship and Immigration) 2004 FC 737 (T.D.). He concluded that an applicant does not have a vested right to be assessed according to the criteria for assessment as they stood at the time the application was submitted and may expect that the criteria in force at the time of assessment to apply (see paras. 18-19). I see no reason to disagree with the position taken by Mr. Justice Kelen on this issue. Consequently, the Applicant has not established a reviewable error on this ground.
Separation
[60] In his submissions, Mr. Waldman indicated to the Officer that the "time of separation will be extremely lengthy":
In cases involving applicants who are under removal the normal processing times do not apply and there is a very high likelihood based on our experience of a two-year separation or more.
[61] The Applicant now says that the Officer did not dispute the position of his lawyer and must be taken to have accepted the fact of a two-year separation, which the Officer should have regarded as sufficient hardship to allow the application.
[62] The separation time is referred to in the Decision in the context of the Applicants sponsor, his wife Elena, who "does not want them to be separated for a year which is usually required to process family class applications at the Canadian Consulate in Kiev." It was the Applicant himself who, in his application, had written "She doesn't want us to be separated for a year ... ."
[63] In the reasons, there is no indication by the Officer of the specific number of years that might be anticipated, but it is clear that the Officer took a lengthy absence into account because he says "there is insufficient evidence that Elena would not survive Lyubomyr's long absence and suffer any more than anyone else in the same situation."
[64] In other words, the specific number of years is not mentioned in the reasons and there is no evidence that the Officer failed to take into account Mr. Waldman's concerns about lengthy delays. He obviously read the letter because, at the end of the Decision, he refers to "what counsel has stated with regards to pre and post IRPA guidelines." It is recognized by the Officer that the absence will be long, but the problem is that there is no evidence that a lengthy separation is going to cause inordinate hardship to Elena.
[65] This is not a ground that would justify the Court's interference with the Decision.
Establishment
[66] The Applicant also says "it was incumbent on the [O]fficer pursuant to the guidelines to consider issues of establishment and this he specifically failed to do."
[67] It is not clear in this context which guidelines the Applicant is referring to, but 12.1 of IP-5, under "General factors to consider" says that "All H & C applications should be assessed using the same criteria of undue, undeserved or disproportionate hardship" and that one of the factors to be considered is "the degree of establishment in Canada (see Assessing the applicant's degree of establishment in Canada, s. 11.2)."
[68] Section 11.2 reads as follows:
11.2 The applicant's degree of establishment in Canada may be a factor to consider in certain situations, particularly when evaluating some case types such as:
- parents/grandparents not sponsored;
- separation of parents and children (outside the family class);
- de facto family members;
- prolonged inability to leave Canada has led to establishment;
- family violence;
- former Canadian citizens; and
- other cases.
The degree of the applicant's establishment in Canada may include such questions as:
Does the applicant have a history of stable employment?
Is there a pattern of sound financial management?
Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
Has the applicant undertaken any professional, linguistic or other study that show integration into Canadian society?
Do the applicant and family members have a good civil record in Canada (e.g., no interventions by policy or other authorities for child or spouse abuse, criminal charges)?
Notes
1. Officers should not assess the applicant's potential for establishment as this falls within the scope of admissibility criteria.
2. Establishment of the applicant up to the time of the H & C decision may be considered.
3. For Quebec cases, see Section 10.
[69] In the Decision the Officer specifically says what he has considered "[i]n looking at Lyubomyr's establishment ..." and also specifically mentions that he is not satisfied "that there is sufficient unusual, undeserved or disproportionate hardship ..."
[70] As usual, it is possible to disagree with the Officer's assessment of establishment, but I cannot say that he did not consider it in accordance with the guidelines.
Canadian Employees
[71] The Applicant's lawyer had asserted that there were three employees who would lose their jobs. The Applicant now says that this evidence was uncontradicted and that the Officer erred in law in doubting it.
[72] In the Decision, the Officer says:
I have considered the three Canadian employees that are working for Lyubomyr. There is insufficient evidence that the (sic) three Canadian citizens are working for Lyubomyr, that they are Canadian citizens or that there is insufficient (sic) evidence that there would be an impact on his business if he were to leave it.
[73] Against the bald assertions of the Applicant's lawyer concerning employees, the Applicant submitted a package of documentation, some of which is tax and other information related to his business. Counsel for the Applicant specifically drew the Court's attention to a table of sales and expense figures as evidence of how well the business was doing and how established it was.
[74] There is no mention in the expense figures of any sum paid to employees. In fact, there is a specific entry of $62,975.00 as having been paid to "subcontractors." The same figure appears again on the Applicant's T2124 - Business Activities form. The figure is entered against "subcontracts." No figure is entered against "Salaries, wages, and benefits (including employer's contributions."
[75] This can hardly be regarded as any kind of evidence that the Applicant has Canadian employees. In fact, if anything, it tends to contradict such an assertion because no expense is entered for "employees" while there is an entry for "subcontractors."
[76] On the basis of this, the Court does not regard the bald assertions of the Applicant's lawyer concerning employees as adequate evidence, or that, as the Applicant asserts, the "officer erred in law in doubting this evidence without a valid reason." The Officer gave a reason: "there is insufficient evidence that the three Canadian citizens are working for Lyubomyr ... or that .... there would be an impact upon the business if he were to leave it."
[77] I cannot say that this conclusion was unreasonable, given the materials before the officer.
Failure to consider the Totality of the Evidence
[78] Finally, the Applicant says that, even if the Officer looked at each factor separately, he failed to consider the totality of the evidence. In particular, the Applicant says the Officer failed to consider the cumulative impact of the following:
(a) the two year separation of a newlywed couple;
(b) the separation of the Applicant from his wife and the loss of the home;
(c) the fact that the Applicant was established, had a job and business and was earning a very comfortable income.
[79] In sum, the Applicant says that these matters, if they had been considered cumulatively might have added up to sufficient hardship to warrant a positive determination.
[80] There is no evidence before the Court that the Officer failed to consider the cumulative impact of the various factors. The Decision necessarily deals with the different matters referred to in the guidelines as applied to the specific facts on the application. And the Officer does say "On weighing all the information provided I am not satisfied that there exists sufficient humanitarian and compassionate grounds to warrant an exemption." These are formulaic words, but in the context of the Decision as a whole there is no reason to doubt, in this case, that the Officer did not look at the whole picture. I am not convinced that any error was committed in this regard.
ORDER
1. The Application is dismissed.
2. There is no question for certification.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5534-03
STYLE OF CAUSE: LYUBOMYR PASHULYA
And
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: 20-JUL-2004
REASONS FOR ORDER : The Honourable Mr. Justice Russell
AND ORDER
APPEARANCES: MS.KRASSINA KOSTADINOV
FOR APPLICANT
MR.JOHN PROVART
FOR RESPONDENT
SOLICITORS OF RECORD:
LORNE WALDMAN
& ASSOCIATES
BARRISTERS & SOLICITORS
TORONTO, ONTARIO
FOR APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
DEPARTMENT OF JUSTICE
ONTARIO REGIONAL OFFICE
130 KING STREET, BOX 36
TORONTO, ONTARIO M5X LK6
FOR RESPONDENT