Ottawa, Ontario, February 20, 2006
PRESENT: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application for judicial review of a decision by an immigration officer, dated March 21, 2005, which refused to grant the applicant an exemption on humanitarian and compassionate (H & C) grounds to permit inland processing of his permanent residence application.
[2] The applicant seeks an order quashing the immigration officer's decision and remitting the matter for redetermination by a different immigration officer.
Background
[3] Gurmukh Singh Bansal (the applicant), a citizen of India, has been living in Canada since January 1998. In February 1998, a removal order was issued for the applicant. The applicant subsequently made a refugee claim and a permanent residence application, both of which were unsuccessful, and he also received a negative risk assessment from a post-claim determination officer.
[4] In January 2001, the applicant filed an H & C application based on his establishment in Canada and the risk of persecution and risk to life if returned to India. On March 21, 2005, an immigration officer denied the H & C application. This is the judicial review of that decision.
Reasons for the Immigration Officer's Decision
[5] The immigration officer stated that she had reviewed the applicant's submissions on establishment in Canada, including proof of his savings and house and business ownership, and letters of recommendation from friends and community leaders indicating that the applicant attends temple and volunteers in community events. The evidence showed that the applicant, an electrician by trade, is a director of and has a 25 percent share in one of three related companies which manufacture tube line assemblies for the heating, venting and air conditioning industry. The applicant also works as an employee overseeing the maintenance of machines in all three companies.
[6] The immigration officer noted that the applicant had purchased a house, was part owner of a business and had acquired some savings. However, she also noted that the applicant purchased the house and made business arrangements while he had no status in Canada. The immigration officer stated that permanent residence applications based solely on business are an important part of the immigration program and as such, have their own assessment criteria.
[7] In addition, the immigration officer noted that the applicant had resided for at least eight years in India before coming to Canada, and that he provided support for his wife and two children who are all residing in India. The immigration officer was not satisfied that the two children would not benefit from the applicant's presence and personal care and guidance if he were to return to India. She stated that the applicant's savings could be used to support himself and his family during the transition period upon his return to India. He would further be assisted by the training and experience he gained during his stay in Canada. The immigration officer stated that it was natural for the applicant to make friends, form attachments and be gainfully employed during the seven years that he was living in Canada. The immigration officer concluded, "The applicant has not satisfied me that his ties to Canada are any more or less important than his ties to his country of origin."
[8] The immigration officer noted the applicant's argument that his prolonged inability to leave Canada has led to his establishment. However, the immigration officer found that the applicant had not demonstrated that he was unable to leave Canada after his refugee claim and permanent residence application were refused. The immigration officer therefore found that the applicant's prolonged stay in Canada was not due to circumstances beyond his control.
[9] Further, the immigration officer found that the applicant's stated fear of persecution in his country of origin was an insufficient reason to approve the application. The immigration officer stated that she had read the risk opinion and was satisfied that the opinion was reasonable.
[10] As a result, the immigration officer concluded that the applicant would not face undue, undeserved or disproportionate hardship if he were to apply for a permanent resident visa in the normal manner from outside Canada.
Issues
[11] The parties submitted the following issues:
1. Did the immigration officer err in failing to carefully consider the factors of establishment in accordance with the immigration policy guidelines?
2. Did the immigration officer err in ignoring or misinterpreting the evidence?
Applicant's Submissions
[12] The applicant submitted that the immigration officer failed to give a meaningful consideration of the applicant's evidence of establishment in accordance with the immigration policy guidelines. The applicant relied on Raudales v. Canada(Minister of Citizenship and Immigration), 2003 FCT 385 and Jamrich v. Canada(Minister of Citizenship and Immigration), 2003 FCT 804. In both of these decisions, the Federal Court allowed the applications for judicial review of the negative H & C determinations because the immigration officers' conclusion that the applicants had not established themselves any more than as would be expected of individuals in similar circumstances was a patently unreasonable finding of fact in light of the evidence of the applicants' significant degree of establishment.
[13] The applicant submitted that the immigration officer's conclusion that the applicant could have left Canada was made without regard for the evidence. The applicant submitted that he had co-operated with immigration officials and was unable to leave Canada as he lacked the necessary travel documents.
[14] The applicant submitted that the fact that the applicant had no legal status in Canada was an irrelevant consideration given that all H & C applications are made by those who have no legal status in Canada.
[15] The applicant submitted that the immigration officer ignored the evidence of the vital role that the applicant played in his business. The applicant relied on Pramauntanyath v. Canada(Minister of Citizenship and Immigration), 2005 FC 604. In that case, the applicant had come to Canada on a student visa, overstayed his visa, and opened a restaurant of which he was the main chef and one-third owner. Justice Phelan allowed the application for judicial review of the applicant's negative H & C determination because the immigration officer's decision did not give real reasons to address the critical plank of the applicant's argument, which was that his presence in Canada was critical to the ongoing success of the restaurant and his removal would adversely affect himself, his business and his partners and employees. In the case at bar, the applicant submitted that similar facts have been established. There was no analysis in the immigration officer's reasons of the impact of the removal of the applicant on his business, partners and employees despite the applicant's evidence that his removal would be a major setback for the business as it would have difficulties finding a replacement for the applicant.
[16] The applicant thus submitted that the immigration officer's decision was unreasonable and should be set aside.
Respondent's Submissions
[17] The respondent submitted that any failure by the immigration officer to follow policy guidelines is not a reviewable error (see Vidal v. Canada(Minister of Employment and Immigration) (1991), 41 F.T.R. 118 (T.D.)).
[18] The respondent submitted that the immigration officer's reasons demonstrated that she considered the degree of establishment advanced by the applicant. The respondent submitted that the applicant cannot rely on the Raudales and Jamrich decisions because the level of establishment alleged by the applicant is the normal establishment that could be foreseen in a person who has resided in Canada for seven years.
[19] The respondent submitted that there is no evidence that the applicant could not have left Canada after his refugee application and permanent residence application were refused. The respondent submitted that it was therefore open to the immigration officer to find that the applicant's prolonged stay in Canada was not due to circumstances beyond his control.
[20] The respondent submitted that the applicant made a business investment knowing that it may be lost because of his lack of status. Thus, it was submitted that the immigration officer did not err in relying on the applicant's lack of status when assessing whether the potential loss of his investment qualified as undue hardship.
[21] The respondent submitted that unlike the situation in Pramauntanyath, the immigration officer did assess the central thesis of the applicant's H & C application in respect of the business interests. However, the immigration officer did not find this to be a persuasive factor. The respondent submitted that the immigration officer provided a cogent explanation for her decision in this regard.
[22] The respondent submitted that the applicant has not shown that the immigration officer ignored evidence in making her decision.
Relevant Statutory Provisions
[23] An H & C application is permitted under section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which provides:
| 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province's selection criteria applicable to that foreign national. |
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25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
(2) Le statut ne peut toutefois être octroyé à l'étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables. |
Analysis and Decision
[24] The appropriate standard of review for a decision of an immigration officer on an H & C application is reasonableness simpliciter (see Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 857 to 858).
[25] Issue 1
Did the immigration officer err in failing to carefully consider the factors of establishment in accordance with the immigration policy guidelines?
The officer's decision stated in part:
. . . The applicant indicates he would also like his application to be considered based on "a prolonged inability to leave Canada has led to establishment". I note that although the applicant has, indeed been in Canada for a prolonged period of time, his stay has not been due to a situation beyond his control. As previously indicated, the applicant indicates his refugee claim was not approved and his first application for permanent residence was also denied. The applicant has not satisfied me that he was unable to leave Canada since those two (2) applications were refused. The applicant has, therefore, not satisfied me that his case falls within the situations cited as an acceptable reason to approve this application.
[26] The applicant's submissions in a letter dated May 7, 2001 contain the following:
Mr. Bansal is clearly successfully established in Canada. He meets the establishment guidelines. He has been successfully employed, has accumulated almost 14,000.00 in savings has a good civil record and has taken upgrading and training courses. He is unable to leave Canada despite the negative finding of his refugee claim because he does not have a passport and therefore is unable to effect his departure. He is cooperating with Removals in arranging his departure but has been unable to obtain a passport.
In light of this, he qualifies for consideration under the establishment guidelines and IP5, section 6.2, pursuant to section 8.7 of the guidelines. According to the guidelines when considering whether or not Mr. Bansal is successfully established in Canada one must look at the following . . .
As noted above he is unable to leave the country at this time due to his inability to obtain a passport. As such he falls under the 8.7, i.e. "prolonged inability to leave" category and also under the 8.12 other cases.
[27] References to the applicant's inability to obtain a passport are also made in later letters to the respondent. The record does not contain any evidence to the contrary.
[28] The current IP5 (Immigration Applications in Canada made on Humanitarian or Compassionate Grounds) contains the following provisions:
5.21 Prolonged stay in Canadahas led to establishment
Positive consideration may be warranted when the applicant has been in Canada for a significant period of time due to circumstances beyond the applicant's control.
The following table may assist in clarifying circumstances beyond the applicant's control:
| Circumstances beyond the applicant's control
If general country conditions are considered unsafe due to war, civil unrest, etc., CIC may temporarily suspend removals to that country; when the conditions improve, removals can resume. However, situations may arise where suspension or removals continues for a number of years and there is no other viable destination option for the applicant. If it is unlikely that conditions will improve soon and the situation of no alternative destination continues, this could reasonably be considered a hardship due to circumstances beyond the applicant's control. |
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Circumstances not beyond the applicant's control
An applicant in Canada for a number of years is unwilling to sign a passport application or provide particulars for a passport application. In such a case, inability to leave Canada is not considered beyond the control of the applicant and could reasonably be viewed as a very strong negative factor. |
When the period of inability to leave due to circumstances beyond the applicant's control is of significant duration and where there is evidence of a significant degree of establishment in Canada, these factors may combine to warrant a favourable H & C decision.
13.9 Prolonged inability to leave Canadahas led to establishment
There is no hard and fast rule relating to the period of time in Canada but it is expected that a significant degree of establishment would take several years to achieve.
These applicants may or may not be the subject of a removal order, or may or may not have had a negative refugee determination and/or a post-claim review.
Officers should consider the following factors:
Are the circumstances that led to the applicant remaining in Canada of significant duration and beyond their control?
Is there a significant degree of establishment in Canada? (See Section 11.2, Assessing the applicant's degree of establishment in Canada).
Is the applicant in Canada because of a temporary suspension of removals to their country and is there another viable destination option? (Contact the local removals unit for assistance with this information).
To what degree has the applicant cooperated with the Department, particularly with regard to travel documents?
Did the applicant willfully lose or destroy travel documents? (When no valid travel or identity document has been provided, contact the local removals unit to determine whether this is due to an applicant's unwillingness to complete a passport application).
Any other factors relevant to the H & C decision.
[29] These previous factors make it obvious that a "prolonged inability to leave Canada" is a relevant factor in determining establishment of an applicant.
[30] The immigration officer in this case found that the applicant's stay in Canada has not been due to a situation beyond his control. The only evidence is contrary to this finding. The applicant could not get a passport. He also cooperated with the authorities. I am of the view that the immigration officer misapprehended the evidence. Since this evidence was relevant to the establishment of the applicant in Canada which in turn could effect the outcome of his H & C application, the officer made a reviewable error.
[31] Because of my finding on Issue 1, I need not deal with Issue 2.
[32] The application for judicial review is therefore allowed and the matter is remitted for redetermination by a different immigration officer.
[33] Neither party wished to have a serious question of general importance certified.
JUDGMENT
[34] IT IS ORDERED that the application for judicial review is allowed, the immigration officer's decision is set aside and the matter is remitted for redetermination by a different immigration officer.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2106-05
STYLE OF CAUSE: GURMUKH SINGH BANSAL
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 31, 2006
APPEARANCES:
| Lorne Waldman |
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| Martin Anderson |
SOLICITORS OF RECORD:
| Waldman and Associates Toronto, Ontario |
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| John H. Sims, Q.C. Deputy Attorney General of Canada |
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