Ottawa, (Ontario), le 8 juin 2006
EN PRÉSENCE DE MONSIEUR LE JUGE LEMIEUX
ENTRE:
HETSHAM HUSSAIN, SHREEN HUSSAIN
HALLA HUSSAIN, AROOG HUSSAIN, USAMA HUSSAIN
demandeurs
et
LE MINISTRE DE LA CITOYENNETÉ ET DE L'IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Although argued in the French language, counsel for the applicants requested I deliver these Reasons for Order and Order in English.
[2] The Court is seized with an application for judicial review by the Hussain family (the applicants), all citizens of Pakistan, challenging the October 23, 2005 decision of Immigration Officer, Linda Parker (The I.O.) who dismissed their in-Canada application for the issuance of permanent residence visas on compassionate and humanitarian grounds as provided for in section 25 of the Immigration and Refugee Protection Act (the Act).
[3] The Hussain family consists of Aftab Hussain, his wife Ishrat and their five children born in Pakistan aged 15, 14, 13, 9 and 8 respectively to which must be added Almas, a child born in Canada on April 19, 2004.
[4] The Hussain family arrived in Canada from the United States on December 15, 2000, making a refugee claim at Lacolle, Québec. Their claim was dismissed on April 8, 2003, leave to appeal denied by a judge of this Court on August 8, 2003.
[5] The applicants then sought a pre-removal risk assessment (PRAA) which was dismissed on August 25, 2005 by Linda Parker acting as a PRAA Officer. No leave authorization was sought from this decision.
[6] The applicants then filed their application invoking humanitarian and compassionate grounds for permanent residence visas, the refusal decision which is the subject-matter of their challenge before this Court.
[7] The main arguments raised by counsel for the applicants were:
1. The Tribunal, in its analysis of the evidence relating to the applicant children and to Almas did not assess the superior interests of the children in a manner mandated by the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 in that: in the exercise of an Immigration Officer's discretion to issue an in-Canada permanent resident visa the best interests of the children are an important factor to be given substantial weight and be alert, alive and sensitive to them.
2. Linked to the first argument, counsel for the applicants argued the Tribunal ignored the evidence concerning the lack of educational opportunities in rural Pakistan and the paucity of health services available to children in that country. Tied to this argument, was the finding of the Tribunal the principal applicant, the sole provider for the family, would find work in Pakistan. Applicants say this finding was simply a bold statement reached without evidentiary foundation and he referred me to portions of the cross-examination of the decision-maker on her affidavit.
3. During the hearing argument, counsel for the applicants abandoned a third argument related to what would happen to Almas upon deportation of her parents to the United States and their possible incarceration. Counsel conceded he did not have any evidence on the record detailing what would be the circumstances compelling U.S. authorities to imprison failed refugees from Canada who may be returned by them to third countries.
[8] The focus of the applicants' criticisms of the I.O.'s decision is with respect to the following paragraphs of her decision:
"The applicant stated in his application that he will face economic hardship as he will have no employment and that he and his family will experience psychological harm should they be returned to Pakistan. However, I find that the evidence submitted and the information in the applicant's file does not satisfy that the applicant has established links with Canada that if severed would cause the applicant and his family to face unusual, undeserved or disproportion a hardship to apply for permanent residency outside of Canada. There is no reason to believe that the applicant and his family would face such hardship should they leave Canada. Although there will be a period of adjustment for re-integration and finding employment, there is no evidence to support that the applicant will be unable to re-establish himself and find work in Pakistan. The applicant and his family arrived in Canada without any legal status, and have known since their arrival that their status in Canada was uncertain. Although they may have created certain links with Québec/Canadian society, they are not sufficient to warrant exemption from applying for permanent residency outside of Canada."
[9] In its consideration of the best interests of the child the I.O. wrote:
"The five children born in Pakistan are between the ages of 8 to 15. The applicant according to his application speaks, reads and writes English and his mother tongue is Punjabi. The mother tongue of his children is also Punjabi. These languages are both spoken in Pakistan, therefore the children will be able to return to Pakistan and function in these languages. The children are all of school age and have developed bonds in Canada which one would normally expect of children who attend school in Canada. Pakistan also has a school system and upon return to Pakistan they can continue their schooling there. With regards to the Canadian born child, the child is very young of seventeen months, and at that age she has not made significant links with Canada. Her links are with her family and the family unit will remain intact.
Although the children will go through a period of adjustment, the children have shown an ability to adapt. They adapted to living in Canada and integrated into the Québec French Public School Educational System. There is no evidence to support that the children will suffer unusual, undeserved or disproportionate hardship in returning to Pakistan and adapting back to living and attending school in Pakistan. I am of the opinion that the best interests of the children would not be compromised if they return to Pakistan. They will not face a personalized risk as analysed above, they know the languages used in Pakistan, and an educational and health system exists. In addition, the children also have family in Pakistan and will benefit from these family ties."
[10] It is clear the applicants have the onus of establishing the facts on which their H & C claim rests. As pointed out by Justice Evans, on behalf of the Federal Court of Appeal in Owusu v. Canada(Minister of Citizenship and Immigration) [2004] FCA 158, "they omit pertinent information from their written submissions at their peril." Justice Evans stated that an immigration officer in considering H & C applications must be "alert, alive and sensitive" to and must not "minimize" the best interests of children who may be adversely affected by a parent's deportation." He added, "however, this duty only arises when it is sufficiently clear from the material submitted to the decision-maker that an applicant relies on this factor, at least in part. Moreover, an applicant has the burden of proof of any claim on which the H & C application relies. Hence, if an application provides no evidence to support the claim, the officer may conclude that it is baseless."
[11] Justice Evans concluded in Owusu, supra, as follows:
"The half-sentence on page four of the seven-page letter, quoted above in [6], said only that Mr. Owusu would be unable to support his family financially if he was deported was too oblique, cursory and obscure to impose a positive obligation on the officer to inquire further about the best interests of the children. The letter did not say that Mr. Owusu had been supporting his children from the money he earned while in Canada, and that they were financially dependent upon him and would be deprived of that support if he was deported. Nor was there any proof before the officer of any of these facts."
"Counsel argued that the officer should have inferred from what the letter did say that Mr. Owusu's children would be deprived of the financial support on which they depended if their father was deported. In the circumstances, the officer is not to be faulted for failing to draw this inference. Hence, the immigration officer did not err in rejecting the H & C application without analysing the likely impact of her decision on Mr. Owusu's children."
[12] It is also a well-recognized principle that it is insufficient simply to refer to country conditions in general without linking such conditions to the personalized situations of an applicant (see for example, Dreta v. Canada (The Minister of Citizenship and Immigration) 2005 FC 1239 and Nazaire v. Canada(Minister of Citizenship and Immigration)[2006] F.C. 416).
[13] It must also be recalled the standard of review of an I.O.'s decision refusing an application for permanent residence on H & C considerations is reasonableness (see Baker, supra).
[14] It is useful to recall the Federal Court of Appeal's decision in Legault v. Canada (Minister of Citizenship and Immigration) [2002] 4 F.C. 358 on the issue of the meaning of H & C considerations and the taking into account of the best interests of the children. The following points were made on the effect of Baker, supra:
1. The weighing of relevant factors is the responsibility of an I.O.;
2. The interests of the children are one factor that the I.O. must examine with a great deal of attention and once an I.O. has well identified and defined this factor, it is up to her to determine what weight should be given to it in the circumstances;
3. The presence of children does not call for a particular result.
[15] In my view, this judicial review application must be dismissed for the following reasons: First, counsel for the applicants argued with respect to the eight-month old Canadian born child, at the time of the H & C application, the I.O. erred by taking into account an irrelevant factor namely, she had not made significant links with Canada. Counsel argues a Canadian citizen does not have to establish any links to Canada - this criteria is only applicable to non-citizens.
[16] In my view, counsel for the applicant misplaces the context in which this statement was written. The I.O. was considering the best interests of the Canadian born child. The I.O.'s assessment on this point was reasonable. At the age of young Almas, her links were with her family, particularly considering the Hussain family had no close relatives in Canada with all of the family links being in Pakistan (see Baker, supra at paragraph 68 and 72 on the importance of family links).
[17] Second, as noted, counsel for the applicant argues the I.O. ignored the evidence on the lack of schooling, health care and employment opportunities in Pakistan for the Hussain family. He points to country conditions in Pakistan. He also points to certain passages of the I.O.'s cross-examination. I find no merit in this argument. The applicants made no such allegation in their submissions. In the circumstances, as indicated by Owusu,supra, the information provided to the I.O. was too oblique, cursory and obscure to impose a positive obligation on the I.O. to inquire further on the best interest of the Pakistani born children.
[18] Third, they have not advanced facts the country conditions they referred to would apply to them personally. The evidence is to the contrary. The older Hussain children did attend school in Pakistan before the family came to Canada and no instance of lack of health care was shown to the I.O.
[19] Fourth, counsel for the applicant argues the I.O. ignored the children's letters in support of their application for permanent residence. There is no basis for this argument. Specifically at page 47 of the Tribunal record, the I.O. states that "the children have indicated in their letters written in English that they would like to stay in Canada with their Canadian born sister and that they have made many friends and that they want to stay with them and continue their education in Canada."
[20] Fifth, Mr. Hussain's employment record in Pakistan was fulsome. There was evidence before the I.O. to support her conclusion Mr. Hussain would be able to re-establish himself in Pakistan. On cross-examination the I.O. pointed to the factors she drew upon to arrive at this conclusion.
[21] Finally, I should mention the applicants raised an issue of partiality or apprehension of bias in that the same I.O. decided the PRAA application and the H & C application. Counsel did not press this argument in his argument before the Court, and, in any event, the applicant's provided no evidence of structural bias.
[22] In conclusion, I find the I.O.'s decision supported by the evidence well-reasoned and supported by the evidence and sustainable on the evidence and the reasons provided stand up to a somewhat probing examination (see, Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247).
ORDER
THIS COURT ORDERS that this judicial review application is dismissed. No certified question was proposed.
COUNSEL SHEET
FILE: IMM-6636-05
STYLE OF CAUSE: AFTAB HUSSAIN ET AL c. MCI
APPEARANCES :
Me Lucrèce M. Joseph FOR THE APPLICANTS
Me Thi My Dung Tran FOR THE RESPONDENTS
SOLICITORS OF RECORD :
Me Lucrèce M. Joseph FOR THE APPLICANTS
Montréal, Québec
Me John H. Sims, Q.C. FOR THE RESPONDENTS
Deputy Attorney General of Canada