Docket No.: IMM-5799-00
Neutral Citation: 2002 FCT 734
Ottawa, Ontario, this day of 2nd day of July, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
SAMSU MIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of Ms. Hedda O'Neil, an immigration officer, (the "Officer") dated October 25, 2000. The decision denied the applicant's application for landing from within Canada on "humanitarian and compassionate" (H & C) grounds, pursuant to subsection 114(2) of the Immigration Act, R.S.C., c. I-2, (the "Act").
Facts
[2] The applicant is a citizen of Bangladesh. He entered Canada on March 20, 1995, as a domestic servant with the Deputy High Commission of Bangladesh, Mr. Anwar Ul Alam.
[3] The applicant had worked for M. Anwar Ul Alam personally at his residence in Bangladesh as a domestic servant, beginning in 1991 until 1995.
[4] The applicant was employed with the High Commission for a period of approximately three years and claims that, during the course of his employment, he was abused verbally and physically, was denied decent living and working conditions as well as the bulk of the wages owed him. The applicant claims that when he demanded the monies owed him he was threatened by his employer and struck in the face.
[5] The applicant left the employ of Mr. Ul Alam after being threatened and made a refugee claim. His claim was rejected on the basis that the persecution he feared was the result of a personal vendetta and not a Convention ground. On judicial review, the application was ultimately dismissed on October 23, 2001.
[6] The applicant attests that the publicity surrounding his actions affected Mr. Ul Alam's reputation as Deputy High Commissioner with the Bengali community in Canada. As a result, the applicant's family still living in Bangladesh and the applicant were threatened by Mr. Ul Alam and his associates.
[7] The applicant further attests that Mr. Ul Alam is a powerful person in the Bangali community, a former officer in the Bangladesh Armed Forces, with contacts with the Prime Minister of Bangladesh. According to the applicant, Mr. Ul Alam could seek retribution without fear of being held to account.
[8] In May of 2000, the applicant made an application for exemption pursuant to ss. 114(2) of the Act for landing in Canada on humanitarian and compassionate grounds. The application included written submissions and documentary evidence that touched on the abuse that the applicant faced in Canada, the danger he faces in Bangladesh, his degree of establishment in Canada, his permanent employment status in Canada, and the support that he has from community members, his employer, and a group called "Child Haven International".
[9] The Officer's negative decision was sent to the applicant in a letter dated October 25, 2000. In her FOSS notes, also dated October 25, 2000, at section 6 - "Decision and Reasons", the Officer wrote:
[R]eviewed H & C submission as well as all documents [sic] received [sic] on file to date. I have [sic] carefully considered all documentation on file, and I have [sic] not found sufficient proof to warrant an exemption from the normal requirement of having to apply and obtain an immigrant visa from abroad, before coming to Canada _[sic].
The applicant seeks judicial review of this decision.
Issues
[10] Did the Officer err by not considering all of the evidence or by drawing unreasonable conclusions from the evidence before her?
Analysis
[11] The applicant seeks an exemption from the requirement in ss. 9(1) of the Act which provides that all immigrants and visitors seeking admission to Canada must apply from abroad. Subsection 114(2) of the Act provides an exemption from this requirement for humanitarian and compassionate reasons.
[12] The jurisprudence of this Court has established that the decision of an H & C review is discretionary and that the applicant has no right to any particular outcome. To be successful an applicant must show that the decision maker acted in bad faith, erred in law, or proceeded on an incorrect principle. [Tartchinska v. Canada (M.C.I.), (2000), 185 F.T.R. 161.]
[13] Paragraph 6.1 of the Ministerial Guidelines [(IP) inland processing, published in 1993 by the Minister, containing Chapter IP 5: Immigrant Applications in Canada Made on Humanitarian or Compassionate (H & C) Grounds, which was updated in October of 2001] provides in part that:
...
Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. Applicants may present whatever facts they feel are relevant.
The Supreme Court of Canada in Baker v. Canada (M.C.I.) [1999] 2 S.C.R. 817, qualified these guidelines as being "of great assistance" to the Court.
[14] In Baker, supra, at paragraph 62, Madam Justice L'Heureux-Dubé addressed the standard of review to be applied by a court reviewing a challenge to a humanitarian and compassionate decision. She concluded that considerable deference should be accorded to immigration officers in the exercise of their discretion and concluded that the appropriate standard is reasonableness simpliciter. Consequently, if the impugned decision is based on reasons that can withstand a somewhat probing examination, this Court will not intervene.
[15] The applicant contends that the following factors should have been dealt with in the decision and were not:
(1) The applicant's length of time and degree of establishment in Canada including his high degree of motivation, adaptability and resourcefulness.
(2) The applicant's original application for refugee status was turned down primarily on the basis that his fear was a result of a personal vendetta and therefore the harm feared by the applicant is still harm which should be considered in an H & C application.
(3) The basis for the "leave to appeal" of the PCDO decision: in order to determine if there was some evidence of potential harm.
(4) Substantial documentary evidence that dealt with the country conditions in Bangladesh.
[16] In essence, the applicant argues that the Officer's failure to deal specifically with the above issues amounts to a failure to consider all of the evidence before it. The basis for this argument is that the Officer did not refer to all of this evidence in her reasons.
[17] The applicant further contends that the Officer fettered her discretion by accepting the Post Claims Determination Officer's (the "PCDO") decision and failing to come to her own decision respecting harm if returned to Bangladesh.
[18] Mr. Justice Evans dealt with sufficiency of reasons in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.). At paragraphs 16 and 17 of his reasons, the learned judge wrote:
[16] ... A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its finding of fact.
[17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[19] A review of the Officer's notes reveals that the following factors were noted:
(1) No immediate family in Canada;
(2) Support of friends made in Canada;
(3) The risk assessment of the PCDO was reviewed;
(4) Applicant's full time employment as a specialty cook; and
(5) Financial support by Child Haven International.
[20] From the officer's notes, I conclude that the applicant's length of time and degree of establishment in Canada were considered by the officer. I am also of the view that by considering all of the documents before her, the officer did consider the alleged harm feared by the applicant, which harm was raised at the CRDD hearing, the judicial review of the negative CRDD decision, and the "Leave to appeal" of the PCDO decision. There is no evidence before me to suggest that the officer did not consider these factors which formed the basis of the applicant's refugee claim.
[21] There is also no indication that the Officer fettered her discretion or did not come to her own decision on the issue of risk. This Court has held that an officer is entitled to rely on a risk assessment conducted by a Post Claims Determination Officer. [Gomes v. Canada (M.C.I.)(1999), 174 F.T.R. 308; Sidhu v. Canada (M.C.I.) [2000] F.C.J. No. 741 (T.D.) online: QL.]
[22] The Officer's notes also reveal that the Officer considered all of the documentation on file. There is no evidence adduced by the applicant to suggest otherwise.
[23] The documentary evidence on country conditions was omitted from discussion in the reasons. The applicant contends that these documents reveal that domestics are often abused and that the rich and powerful often resort to violence and bribery of the police in order to resolve petty disputes. These documents further show, according to the applicant, that the police are corrupt and that police protection or fairness in the courts is totally illusory.
[24] The applicant argues that this evidence on country conditions was not taken into account by the Officer. Nor did the Officer consider the abuse suffered by the applicant while in the employ of Mr. Ul Alam.
[25] I cannot agree with the applicant's contention that the Officer's failure to deal specifically with all of the above issues amounts to a failure to consider the evidence before it. In my view, the omitted evidence does not squarely "contradict" the Officer's findings. The Officer found that there was insufficient evidence to satisfy her of undue harm or hardship that would warrant an exemption under ss. 9(1) of the Act. The documentary evidence on country conditions deals in general terms with the problems faced by domestic servants in Bangladesh: "...some domestic servants, including many children work in conditions that resemble servitude and may suffer physical abuse, sometimes resulting in death." [U.S. Department of State Country Report on Human Rights Practices for 1998, Bangladesh: February 26, 1999.] The country documentation also deals in general terms with corruption in the judiciary, loss of public confidence in the police and points to widespread corruption that permeates all aspects of public life in Bangladesh. There is also mentioned in the documentary evidence that the rich, powerful and politically connected benefit most from the current system.
[26] In my view, the documentary evidence on country conditions does not necessarily corroborate the applicant's story. This evidence is of general application and not specific to the applicant. I am of the view that omitting to mention this evidence in the officer's reasons is insufficient, on its own, to warrant this Court drawing an inference that the officer made an erroneous finding of fact "without regard to the evidence."
[27] It is not the role of this Court on judicial review to reconsider the merits of the case and substitute its decision for that of the Officer but rather to determine whether the Officer has made an error upon considering the decision on the appropriate standard of review. I am satisfied that the immigration officer's decision withstands a somewhat probing examination and is reasonable in light of all of the circumstances discussed above.
[28] I am of the view that the applicant has failed to discharge his onus of establishing that the Officer has committed an error. I therefore conclude that the Officer's decision that there was insufficient humanitarian and compassionate grounds to grant the applicant's request for an exemption pursuant to ss. 114(2) of the Act was reasonably open to her.
[29] For the above reasons the application for judicial review will be dismissed.
[30] The parties, having had the opportunity to raise a serious question of general importance as contemplated by section 83 of the Immigration Act, have not done so. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5799-00
STYLE OF CAUSE: Samsu Mia v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 27, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: July 2, 2002
APPEARANCES:
David Morris FOR APPLICANT
Catherine A. Lawrence FOR RESPONDENT
SOLICITORS OF RECORD:
Bell, Unger, Morris FOR APPLICANT
114 Argyle Avenue
Ottawa, Ontario K2P 1B4
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Room 2242, East Memorial Bldg
284 Wellington Street
Ottawa, Ontario, K1A 0H8