Date : 20050127
Docket : IMM-1436-04
Citation : 2005 FC 125
BETWEEN :
MUHAMMAD SHAHID NAZIM
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review of a decision by an Immigration Officer ("the Officer") refusing the request of Muhammad Shahid Nazim ("the Applicant") for exemption on humanitarian and compassionate grounds under section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
[2] The applicant is a citizen of Pakistan. He left Pakistan in 1993, and remained in Germany on a student visa until 1997 at which time he had to leave because German authorities refused to renew his student visa. He came to Canada on August 15, 1997, where he immediately filed a refugee claim. He did not apply for political asylum while he was in Germany, although he stated in his PIF that this was a "mistake" and he "should have."
[3] The refugee claim was denied on September 6, 2002. The claim revolved around the applicant's alleged membership in the Muttahida Quami Movement ("MQM"), a political party representing the Mohajir population of Sindh province in Pakistan. The applicant claims that he has been an MQM member since 1989, and that he fled Pakistan in 1993 owing to a violent crackdown against members of the MQM by the Pakistani government, which resulted in his father's arrest.
[4] On June 21, 2001, before the Refugee Protection Division rendered its decision on the Convention refugee application, the applicant submitted an application for consideration on humanitarian and compassionate grounds. He maintains that he has now been in Canada seven years, and that he is established here to such an extent that it would cause him undue hardship to have to leave. He is currently working as a computer program co-ordinator and instructor at Humewood House, a community organization in Toronto that helps young single mothers improve their job market skills. He has learned English, taken other courses to upgrade his professional skills, acquired $10,000 in savings and an RRSP, and has done volunteer work for a variety of organizations.
[5] The H & C application was refused on February 2, 2004, on the grounds that the applicant was not at risk of suffering undue, undeserved or disproportionate hardship by having to return to Pakistan to apply for permanent residence in Canada. In her decision, the Officer noted that the Refugee Protection Division, which had by now rendered its negative decision in the Convention refugee application, had already found the applicant's evidence on risk to be not credible. The decision further states as follows:
I have noted his job history as outlined on his IMM5001. I note that he is currently employed as a computer program co-ordinator & instructor at Humewood House in Toronto, earning approximately $35,000 per year. I note that he has some savings, has been involved in volunteer work and has reached a certain level of establishment in Canada during his presence here over the past 6½ years. I am not satisfied that he is so established in Canada that to require him to leave to make his application for permanent residence would constitute unusual and undeserved or disproportionate hardship. I am not satisfied that the agencies and individuals he helps would suffer to a degree that warrants a waiver of the normal legislative requirements. Although the reference letters on file are positive, there is no indication that the applicant is irreplaceable. The purpose of the applicant coming to Canada was to have a refugee claim heard. He has had that opportunity.
I note that the applicant does not have any family members living in Canada. He has his parents and 2 siblings residing in Pakistan and another sibling residing in the USA. He is an educated man, as evidenced by his post secondary education outlined on his IMM5001. He speaks both English and Urdu. I am not satisfied that he would be unable to return to Pakistan, where he has extended family, find suitable accommodation and employment and make his application for permanent residence. Insufficient evidence has been presented to satisfy me otherwise.
Insufficient humanitarian and compassionate grounds exist to warrant an exemption from the normal legislative requirements.
[6] The applicant now seeks to have the decision set aside on the grounds that the Officer erred in law when she failed to apply the establishment guidelines; erred in law because her reasons fail to disclose the basis for her conclusion that the applicant was not successfully established; and, there was a breach of procedural fairness because the Officer considered extrinsic evidence which was not disclosed to the applicant.
[7] I am dismissing the judicial review application for the following reasons. First, it is true that the Officer is required by law to disclose the entire Record to the applicant and to provide him with an opportunity to respond. The Federal Court of Appeal decision in Haghihi v. Canada (Minister of Citizenship and Immigration)[1] is part of a longer line of jurisprudence which applies Rule 18 of the Refugee Protection Division Rules requiring disclosure of any specialized knowledge relied upon by the decision-maker.
[8] Although the e-mail from the Embassy in Berlin is briefly noted at page 5 of the impugned decision, the decision is nevertheless not based on any of the information provided in the e-mail, since the applicant's failure to claim refugee status in Germany is, quite properly, not discussed in the decision. While the e-mail may fit the definition of extrinsic evidence, it does not appear that there is anything in it for the applicant to respond to, other than a set of facts of which all the parties were already aware. Applying the test from Haghihi, the e-mail is not a "report" prepared by a third party, but merely an external verification of those facts, and the applicant had a meaningful opportunity to respond on that score.
[9] Second, I do not accept the applicant's argument that his degree of establishment in Canada is exceptional and significantly different from the average, and that the Officer's contrary finding, without supporting reasons, is patently unreasonable. In this regard, the applicant submits that the correct standard is whether the applicant's departure would cause hardship for others in Canada, and that the Officer improperly fettered her discretion by applying too high a standard.
[10] Chapter 5 of the Inland Processing Manual, "Immigrant Applications in Canada Made on Humanitarian and Compassionate Grounds" ("IP5"), lists several criteria to demonstrate establishment at s. 11.2:
11.2 Assessing the applicant's degree of establishment in Canada
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 police 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.
[11] These are the "establishment guidelines" referred to in the applicant's submissions. The submissions are based on the premise that the applicant belongs in the category of "prolonged inability to leave Canada", hence the establishment criteria are relevant. The Officer acknowledged that the applicant does meet all of the employment, financial, community involvement, linguistic and good record criteria listed in s. 11.2. The Officer also acknowledged that the applicant is not responsible for some of the major delays that took place with both his refugee claim and his H & C application.
[12] The Applicant submits that his situation was not typical, since delays on the part of the Minister caused his inability to leave Canada, and his involvement with and commitment to the community has been exceptional. It is argued that this triggers the strain of jurisprudence associated with Raudales v. Canada (Minister of Citizenship and Immigration)[2] and Jamrich v. Canada (Minister of Citizenship and Immigration)[3].
[13] In Raudales, the Minister was found to have made a patently unreasonable error of fact in finding that a teenager who had become exceptionally involved with his community in Canada had not established himself sufficiently that departure would be a hardship. Dawson J. stated that this finding was "contrary to the overwhelming weight of the evidence"[4], and described how the IP5 should be applied under these circumstances:
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.[5]
[14] In Jamrich, Blais J. stated that the Minister's broad discretion in handling an H & C application must be in accordance with the evidence submitted. In this case, the Minister's finding that the applicant's degree of establishment was not exceptional and not significantly different from the average was found to be patently unreasonable.
[15] The humanitarian and compassionate process is designed to provide relief from unusual, undeserved or disproportionate hardship. The test is not whether the applicant would be, or is, a welcome addition to the Canadian community. In determining whether humanitarian and compassionate circumstances exist, immigration officers must examine whether there exists a special situation in the person's home country and whether undue hardship would likely result from removal. The onus is on the applicant to satisfy the officer about a particular situation that exists in their country and that their personal circumstances in relation to that situation make them worthy of positive discretion.
[16] In the present case, I am satisfied that the Officer considered all the evidence in front of her, including that of establishment, made explicit reference to it in her decision, and weighed the appropriate factors accordingly. Establishment is but one factor among others to consider in coming to a decision; it is not a determinative factor in and of itself. Furthermore, the Officer did not set a standard of proof by noting that the applicant was not irreplaceable. She was merely responding to the applicant's assertion that the agencies and individuals he helps would suffer from his departure. The Officer's comment that the applicant would not be irreplaceable is taken simply to mean that the agencies and individuals would not suffer unduly, should the applicant be required to apply for permanent residence from overseas, as is required of all applicants, barring limited sets of circumstances.
[17] The Officer's general findings on establishment were open to her based on the evidence that was before her. While the applicant has certainly made a substantial contribution to Canadian society during his time here, for which he is to be commended, the Officer is in a better position than the Court to determine whether this contribution exceeds the average to the extent that a humanitarian and compassionate application should be granted. She weighed the establishment factors and decided it was not.
[18] The applicant has failed to demonstrate that the Officer ignored evidence, proceeded on the basis of a wrong or improper principle, or breached any principle of natural justice or fairness. Accordingly, there is nothing which would warrant interference this Court's interference with the Officer's decision.
[19] For all of these reasons, the juridical review application is dismissed.
JUDGE
OTTAWA, Ontario
January 27, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1436-04
STYLE OF CAUSE: MUHAMMAD SHAHID NAZIM
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 12, 2005
REASONS FOR ORDER: ROULEAU J.
DATED: January 27, 2005
APPEARANCES:
Lorne Waldman For the Applicant
Bari Crackower For the Respondent
SOLICITORS OF RECORD:
Waldman & Associates
Barristers & Solicitors
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General
of Canada For the Respondent
[1] [2000] 4 F.C. 407
[2] [2003] F.C.J. No. 532
[3] [2003] F.C.J. No. 1076
[4] Raudales, supra at para 18
[5] Raudales, supra at para 19