OTTAWA, Ontario, September 29, 2006
Present: The Honourable Mr. Justice Paul U.C. Rouleau
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the negative finding by an immigration officer on the applicant’s visa exemption application based on humanitarian and compassionate considerations (HC application) dated December 8, 2005.
[2] The applicant is a 26-year-old citizen of Russia. He left Russia on August 24, 1999, and went to study in the United States until December 9, 2001.
[3] He arrived in Canada on December 29, 2001, and filed a refugee claim. The Refugee Protection Division denied this claim on July 8, 2002. The pre-removal risk assessment filed by the applicant on December 12, 2003, was refused on April 15, 2004.
[4] On May 12, 2003, the applicant filed an application based on humanitarian and compassionate considerations (HC application) on the grounds that his father was sick and that he had to take care of him, that his father and his wife were in Canada and that he owned a construction company that employed several Canadians.
[5] On December 8, 2005, the applicant’s HC application was refused.
[6] The officer determined that the information filed in support of the HC application did not establish that the applicant would encounter unusual, undeserved or disproportionate hardship by filing his permanent residence application in the usual fashion, i.e. from outside Canada.
[7] The respondent raised a preliminary question regarding the evidence submitted by the applicant in support of his application for judicial review. It is well settled in the case law that the judicial review of a decision must be based only on the evidence before the decision-maker: Gallardo v. Canada (Minister of Citizenship and Immigration), 2003 FCT 45, [2003] F.C.J. No. 52 at paragraph 7; Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (F.C.T.D.). Yet, exhibits D-1, D-2, D-3, D-6, D-7 and D-8 submitted in support of the applicant’s affidavit are dated after the officer’s decision on the HC application. This Court cannot consider this new evidence that was not before the officer.
[8] The applicant is seeking to have this decision set aside on two grounds: first, the officer’s decision was based on an erroneous finding of fact, made in a perverse or capricious manner or without regard for the material before him, in finding that his departure from Canada would not cause him or his family undue hardship and, second, the officer did not respect the procedural fairness requirements in refusing the applicant’s exemption application, when the officer admitted that he did not have enough evidence before him to determine the state of his father’s health or the size of his construction business.
[9] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada determined that the standard of review for HC decisions is that of reasonableness simpliciter. An unreasonable decision is “one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination”: Canada v. Southam Inc., [1997] 1 S.C.R. 748 at page 776.
[10] With regard to the second issue, the Supreme Court of Canada stated that when it is a question of procedural fairness, the standard of review does not apply: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at paragraphs 100 to 103.
[11] The applicant submitted that the officer’s decision is not reasonable because:
· the officer should have inferred from the very nature of the ties existing between an individual and his father or his wife that hardship would be caused by such a separation;
· the fact of being separated from his dying father and his wife is a humanitarian and compassionate consideration which justifies granting a visa exemption application;
· the officer was satisfied that his father was sick and that he was well integrated in Canadian society, he ought to have found that there were humanitarian and compassionate considerations.
[12] I agree with the respondent that the applicant’s arguments are no more than an expression of his disagreement with the assessment of various pieces of evidence the officer had before him in making his decision. It is not the role of this Court to substitute a new assessment of this evidence for the officer’s decision.
[13] The officer expressed the opinion that the evidence filed by the applicant did not establish how it would cause him unusual, undeserved or disproportionate hardship if he were to file his permanent residence application from outside Canada. With respect to the submissions made by the applicant regarding his sick father, the officer wrote the following:
Representations indicate that the father is sick and needs care and that the applicant came to Canada to aid his sick father. The applicant indicates that his father will face certain death if returned to the Russian Federation because the father would not be able to find adequate treatment. The particular current health condition and specific care that the father needs is not clear – insufficient details. The possibility that the father may be removed from Canada and may not be able to find adequate health treatment in Russia is beyond the scope of the current H and C request of the applicant.
(Officer’s file notes, page 5)
[14] Although the applicant is now alleging that his father is dying, there is no evidence in the record establishing that he submitted supporting evidence in his HC application confirming and substantiating this allegation. In this case, I agree with the respondent that the applicant cannot validly allege that the officer did not consider his father’s illness as an unusual, undeserved or disproportionate hardship when he failed to submit evidence in support of his claim.
[15] With respect to the applicant’s establishment in Canada, the officer determined:
Indications cited for showing his establishment are that he owns his own construction business that he says employs many Canadians and that he works full-time. There are few details about who precisely the applicant employs in his company to show the economic benefit of his company.
The applicant has been in Canada for nearly four years. The applicant has advanced greatly in adapting to Canadian society, working and becoming economically self-sufficient. However, his departure from Canada would not appear to create a disproportionate hardship for him or anyone else. Although the applicant has close family in Canada it is uncertain what long-term Immigration status they might obtain to remain permanently in Canada. The applicant has not adequately shown the nature and substance of his relationship with his wife or his father in such a way that a separation between himself and his wife or between the applicant and his father would cause an excessive or undue hardship if the applicant were required to depart Canada.
The information presented has not sufficiently shown that the applicant’s absence from Canada would cause an unusual, undeserved or disproportionate hardship for him, his family or persons in Canada.
(Officer’s file notes, page 6)
[16] Unfortunately for the applicant, even though the officer determined that he had made considerable progress adapting to Canadian society and that he was working and had become financially self-sufficient, those factors alone were not enough for the officer to determine that there were humanitarian and compassionate grounds.
[17] In Tartchinska v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 373 (T.D.), this Court stated that “. . . although the Guidelines with respect to Humanitarian and Compassionate Grounds are not binding, they nevertheless clearly indicate that self-sufficiency does not, in itself, guarantee or lead to a positive outcome in a humanitarian and compassionate grounds application . . .”(at paragraph 20). There must be other factors supporting such a finding, the pivotal factor being whether “. . . unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada . . .” Self-sufficiency is a factor which must be considered, but it is not the overriding factor.
[18] In Nazim v. Canada (Minister of Citizenship and Immigration), 2005 FC 125, [2005] F.C.J. No. 159 (QL), I found that the test for determining whether there are humanitarian and compassionate grounds is whether there exists a special situation in the person's home country and whether undue hardship would likely result from removal (at paragraph 15). “Establishment is but one factor among others to consider in coming to a decision; it is not a determinative factor in and of itself” (at paragraph 16).
[19] The same can be said of the applicant’s separation from both his father and his wife. In Chau v. Canada (Minister of Citizenship and Immigration), 2002 FCT 107, [2002] F.C.J. No. 119 (QL), I determined that mere separation from family members is not in itself a humanitarian and compassionate consideration justifying an exemption when there is no evidence establishing that this separation would cause unusual, undeserved or disproportionate hardship. At paragraph 19, I wrote:
As Pelletier J. stated in Irimie, (IMM-427-00) at para. 12, the fact that one would be leaving behind friends, perhaps family, employment or a residence, as well as the cost or inconvenience of having to return home to apply in the normal manner would not generally be enough to constitute hardship and thus warrant a positive H & C determination. The weight to be assigned to particular factors or indicators of attachment is discretionary.
[20] In the absence of evidence before him that the applicant’s separation from his father and his wife would cause unusual, undeserved or disproportionate hardship, it was reasonable for the officer to determine as he did.
[21] In conclusion, it is important to repeat that it was only the officer, and not the Court, who had to decide the weight to be assigned to the different evidence submitted, in light of the evidence before him. In this case, the officer exercised his discretionary power reasonably. He fully examined all of the evidence submitted by the applicant in support of his HC application.
[22] The Supreme Court in Baker, supra, determined that the duty of procedural fairness applies to decisions involving humanitarian and compassionate grounds, including HC applications.
[23] The applicant noted that in his decision, the officer wrote the following:
· “The particular current health condition and specific care that the father needs is not clear – insufficient details.”
· “There are few details about who precisely the applicant employs in his company to show the economic benefit of his company.”
[24] The applicant submitted that the officer, in making his decision, did not respect the principles of procedural fairness and that he should have given the applicant the opportunity to provide additional information. The applicant argued moreover that if the officer was of the opinion that the evidence submitted in support of his claims was not sufficiently detailed, the officer had the duty to contact the applicant and ask him for additional information.
[25] The applicant also noted that the Immigration Manual: (IP) Immigration Applications in Canada made on Humanitarian and Compassionate Grounds, chapter IP 05, states at paragraph 5.26, “Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds”, that immigration officers, in assessing humanitarian and compassionate considerations, must attempt to clarify possible humanitarian and compassionate grounds or public interest grounds, even if they were not well articulated and at paragraph 11.1, “procedural fairness”, that it is recommended that officers “request any additional information needed”. The applicant submitted that if the officer thought that he did not have enough details, he ought to have gotten them from the applicant and his failure to do so resulted in a breach of procedural fairness.
[26] The applicant referred to two decisions by Mr. Justice John O’Keefe where the facts were similar. In Babilly v. Canada (Minister of Citizenship and Immigration), 2004 FC 1469, [2004] F.C.J. No. 1771 (F.C.) (QL), he was of the opinion that there was a breach of procedural fairness when the HC decision-maker failed to ask the applicant for particulars of the personalized risk he was alleging (at paragraph 27). In Reis v. Canada (Minister of Citizenship and Immigration), 2002 FCT 317, [2002] F.C.J. No. 431 (F.C.T.D.) (QL), he determined that since once the decision-maker decided that there was insufficient evidence to grant a landing requirement exemption and insufficient evidence to confirm whether the applicant would be able to receive and enforce support payments in Canada, he should have explored this matter further and therefore the failure to do so constituted a reviewable error (at paragraph 27).
[27] However, the respondent argued that it is clear that the burden was on the applicant to file all of the relevant information in support of his HC application. At paragraph 5.1 of chapter IP 05, it states that applicants bear the onus of establishing humanitarian and compassionate grounds. Paragraph 5.26 states that the onus is on the applicants to put forth any humanitarian and compassionate factors that they feel exist in their case.
[28] The respondent also contended that the facts in Babilly and Reis, supra, relied on by the applicant, are different from the facts of this case. Unlike Babilly, supra, personalized risk is not at issue in the case at bar. In that matter, the Court determined that there was a breach of the duty of procedural fairness because the officer had failed to obtain particulars from the applicant regarding the personalized risk, while the IP5 Guidelines expressly provide that a decision-maker is bound to request particulars when the applicant has not provided details regarding the alleged risk. Moreover, the officer had not deferred the matter to another PRRA officer for risk assessment when he should have done so. In Reis, supra, it was a matter of the interest of a Canadian child, and the Court determined that the Court should have carried out a more in-depth assessment regarding the aspect of the child support.
[29] In Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 (F.C.A.) (QL), the Federal Court of Appeal reiterated that the applicant has the burden of establishing that there are sufficient humanitarian and compassionate considerations to justify an exemption from the normal immigration procedure (at paragraphs 18 and 23).
[30] In Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R.. 635 (F.C.A.), the Federal Court of Appeal reiterated that the applicant has the burden of submitting all of the facts in support of the HC application. At paragraph 8, the Court wrote:
H & C applicants have no right or legitimate expectation that they will be interviewed. And, since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril. In our view, Mr. Owusu's H & C application did not adequately raise the impact of his potential deportation on the best interests of his children so as to require the officer to consider them.
[Emphasis added.]
[31] In Nguyen v. Canada (Minister of Citizenship and Immigration), 2005 FC 236, [2005] F.C.J. No. 281 (F.C.) (QL), Madam Justice Mactavish relied on Owusu, supra, in dismissing the applicant’s argument that, as in this case, the officer had the obligation to contact him to obtain all of the information necessary to make an appropriate decision. At paragraphs 7, 8 and 13, she wrote:
[7] While acknowledging that the immigration officer was provided with very limited submissions in support of his H & C application, Mr. Nguyen says that the officer nevertheless had an obligation to contact him in order to obtain enough information for the officer to make a proper decision.
[8] In my view, this submission is squarely addressed by Owusu: the onus is on the applicant to put whatever facts that they wish to have considered before the immigration officer. It is not up to the immigration officer to seek out additional information from an applicant.
. . .
[13] For the same reasons articulated earlier in these reasons, I do not accept Mr. Nguyen's submission that there was any duty on the part of the immigration officer to seek out additional information with respect to the nature and extent of the relationship between Mr. Nguyen and his wife's child. It was up to Mr. Nguyen to put whatever information he wanted to have considered before the officer.
[32] In Irias v. Canada (Minister of Citizenship and Immigration), 2003 FC 1321, [2003] F.C.J. No. 1717 (F.C.) (QL), I pointed out that when an applicant’s argument is insufficient, as it was in this case, this does not shift the onus to the officer to obtain additional information. Paragraphs 20 to 25 read as follows:
[20] I now turn to the final issue in this case, that is the applicant's allegation that the Immigration Officer's decision was not fair and breached natural justice, as she based her decision on a lack of information that she did not request from the applicant.
[21] As mentioned, the Immigration Officer requested the applicant provide updated information, and specifically asked for a written explanation of who the applicant was living with prior to arriving in Canada. In reply, the applicant submits that the Immigration Officer clearly had questions about other matters, to which she did not request clarification from the applicant. Specifically, regarding whether both the applicant's son and wife were currently employed, and what the applicant's age had to do with the hardship she claimed she would face if she returned to Nicaragua.
[22] The respondent submits that the onus is on the applicant to provide the decision maker with all of the pertinent information in an application. The fact that the applicant did not explain what her age had to do with her application, and that her daughter-in-law's employment status was unclear, did not place a burden on the Immigration Officer to contact the applicant in order to obtain this information.
[23] I cannot agree with the position of the applicant. As was stated by Heald D.J. in Patel v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 54 (F.C.C.):
The applicant submits that he is entitled to have all relevant evidence considered on a humanitarian and compassionate application. I agree with that submission. However, the onus in this respect lies with the applicant. It is his responsibility to bring to the visa officer's attention any evidence relevant to humanitarian and compassionate considerations.
[24] The onus of providing all relevant evidence considered on an H & C application clearly lies with the applicant, in accordance with section 5.25 of the Manual and the statement by Heald D.J. in the Patel case. I agree with the respondent's suggestion that an insufficient submission on the part of an applicant does not result in an onus on an immigration officer to elicit further information.
[25] In this case, the applicant was given the opportunity to provide information about her situation in support of her application, and the Immigration Officer even asked the applicant to provide further information. Thus, I cannot conclude that the Immigration Officer erred in not making a second request for additional information from the applicant
[33] In light of the above-mentioned case law, it is my opinion that it was unequivocal that the officer had no obligation to contact the applicant so that he could complete his evidence. The applicant had ample opportunity to submit all of the evidence that he deemed necessary to support of his application right up until the time that the application on humanitarian and compassionate considerations was decided. The immigration officer’s file notes indicate that the applicant filed submissions on May 12, 2003, as well as on June 3, 2005. He therefore had the opportunity to file all of the evidence necessary that he deemed relevant and useful in order to establish the existence of humanitarian and compassionate considerations in his case.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-223-06
STYLE OF CAUSE: Konstantin Samsonov v. M.C.I.
PLACE OF HEARING: Montr l, Quebec
DATE OF HEARING: August 30, 2006
REASONS FOR JUDGMENT: ROULEAU D.J.
DATE OF REASONS: September 29, 2006
APPEARANCES:
|
Marie-H e Giroux
|
FOR THE APPLICANT |
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Caroline Doyon
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Monterosse Giroux s.e.n.c. Montr l, Quebec
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FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |