Ottawa, Ontario, October 25, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of a Pre-Removal Risk Assessment Officer (the “officer”), to dismiss an application for permanent residence from within Canada on humanitarian and compassionate (“H & C”) grounds.
BACKGROUND
[2] The applicant is a citizen of India of Sikh faith, who claims to have been the victim of unlawful arrest and torture at the hands of the Indian Army, for allegedly providing assistance to Sikh militants. In September of 1990, the applicant fled India, leaving behind his wife and two children.
[3] On October 6, 1990, the applicant arrived in the United Kingdom on a visitor’s visa, subsequently claimed refugee status and was denied. After exhausting his avenues of appeal in the UK, he arrived in Canada on June 27, 1997 and immediately claimed refugee status. His claim was rejected by the Immigration and Refugee Board on November 15, 1999.
[4] The applicant then submitted his application for a visa exemption on H & C grounds on February 24th, 2000. The basis for his application was twofold: 1) risk upon return to India (this was before pre-removal risk assessments were introduced in the legislation), and 2) establishment in Canada.
[5] On December 22, 2005, close to six years after the filing of the H & C grounds application, the officer asked for an update that was provided with a lot of documentation on January 6, 2006.
[6] The documents were stamped “received” on January 11, 2006 by Citizenship and Immigration Canada (Montreal). The decision was rendered by Charlaine Lapointe on January 17, 2006, denying the application and a departure order was issued against him the same day.
ISSUE FOR CONSIDERATION
[7] The central issue for consideration in this case is whether the officer made a reviewable error by failing to properly assess the evidence before her. As such, the Court will consider the following question:
Did the officer take into consideration all relevant factors in her assessment of humanitarian and compassionate considerations?
STANDARD OF REVIEW
[8] The decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, remains the leading case for the standard of review of decisions made on H & C grounds. In Baker, Justice Claire L’Heureux-Dubé engaged in a detailed pragmatic and functional analysis before deciding on reasonableness simpliciter as the proper standard.
[9] More recently, Justice Caroline Layden-Stevensen in Agot v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 607, provided a useful summary of the principles established in H & C applications at paragraph 8:
[…] The decision of the ministerial delegate with respect to an H&C application is a discretionary one: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). The standard of review applicable to such decisions is that of reasonableness simpliciter: Baker. The onus, on an application for an H&C exemption, is on the applicant: Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 94, [2003] F.C.J. No. 139 per Gibson J. citing Prasad v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm.L.R. (2d) 91 (F.C.T.D.) and Patel v. Canada (Minister of Citizenship and Immigration) (1997), 36 Imm.L.R. (2d) 175 (F.C.T.D.). The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh); Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (Legault). The ministerial guidelines are not law and the Minister and her agents are not bound by them, but they are accessible to the public and the Supreme Court has qualified them as being of great assistance to the court: Legault. An H&C decision must be supported by reasons: Baker. It is inappropriate to require administrative officers to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.).
[10] Therefore, the standard of review applicable in this case is reasonableness.
ANALYSIS
[11] As the applicant has not raised any argument with respect to the officer’s determination that there were no security issues justifying an exemption, this Court will only consider the reasons provided denying the H & C application on the ground of establishment.
[12] The test for determining whether an exception should be made under humanitarian and compassionate grounds was articulated in Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906, at paragraph 26, where Justice Denis Pelletier wrote that the humanitarian and compassionate exemption process “is not designed to eliminate hardship; it is designed to provide relief from unusual, undeserved or disproportionate hardship”. This is why he also noted at paragraph 12:
[…] It would seem to follow that the hardship which would trigger the exercise of discretion on humanitarian and compassionate grounds should be something other than that which is inherent in being asked to leave after one has been in place for a period of time. Thus, the fact that one would be leaving behind friends, perhaps family, employment or a residence would not necessarily be enough to justify the exercise of discretion.
[13] This was acknowledged by the officer in her reasons, where she identified the correct standard to be met as being whether the applicant in this case would suffer “unusual, underserved” or “disproportionate” hardship if he were required to apply for permanent residence from outside Canada.
[14] In reading the reasons provided by the officer, it becomes clear that most of her time was spent on the risk analysis, which is not at stake here.
[15] In examining whether prolonged inability to leave has led to establishment, the officer considered, in two short paragraphs, that the applicant has continuously been employed since he has been authorized to work in Canada and that he has been financially supporting his family. She also acknowledged that the applicant operated a business employing Canadian citizens and purchased a house, all elements reflecting positively on his degree of establishment.
[16] In the third and last paragraph of this short analysis, before the “Conclusion”, the officer found at page 4 of her decision:
All this considered, it must be said that he risked starting a business and purchasing a house before obtaining a legal status in Canada. Although it would certainly cause him grief to leave Canada to make his application from abroad, I do not come to the conclusion that he would suffer exceptional hardship to do so.
Conclusion
Put together, these facts do not establish that he would suffer “unusual, undeserved” or “disproportionate” hardship if he applied for permanent residence from outside Canada. I cannot conclude that the applicant has demonstrated that he is at a sufficient level of risk, or that he would suffer hardship sufficient to justify a visa exemption under L25 of IRPA. The visa exemption is therefore denied.
[17] In my view, this decision is unreasonable in light of the evidence provided.
[18] The applicant filed an application for H & C on February 24, 2000. Five years later, without being asked, the applicant sent an update to his file on February 10, 2005. The applicant then received a letter, dated December 22, 2005, requiring updated information which he provided in the form of a series of documents received on January 11, 2006.
[19] Overall, the officer received over 700 pages of documents regarding the applicant’s file. Yet, as noted on page 1 of her decision, the file review started on January 17, 2006 and was concluded by a decision rendered the same day. Furthermore, only three short paragraphs were dedicated to the issue of establishment.
[20] In looking at all this material, I find myself asking: how can a person go through all this documentation in one day? Even if I were ready to accept that the officer looked through all the documents submitted, there is no question in my mind that the analysis of this material was deficient, failing to disclose a proper evaluation of the evidence.
[21] The applicant waited almost six years before having his H & C application processed. He did what anybody else should have done: he worked hard to establish a business, bought a house and took care of his family. After recognizing those facts, the officer nonetheless concluded that the applicant risked starting a business and purchasing a house before obtaining a legal status in Canada.
[22] As such, this Court finds that the decision of the officer was unreasonable. After waiting six years for an answer, the applicant was entitled to a fair assessment of his situation based on humanitarian and compassionate grounds, disclosing a thorough assessment of the evidence, something which he was not given.
[23] Therefore, this application for judicial review is granted.
JUDGMENT
- This application is granted;
- The immigration officer’s decision is set aside and the matter is returned for redetermination by a different immigration officer;
- No question for certification.
“Pierre Blais”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-625-06
STYLE OF CAUSE: BHUPINDER SINGH KHUN KHUN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 10, 2006
REASONS FOR JUDGMENT AND JUDGMENT: BLAIS J.
APPEARANCES:
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LORNE WALDMAN
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KRISTINA DRAGAITIS
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SOLICITORS OF RECORD:
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WALDMAN & ASSOCIATES, TORONTO
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JOHN H. SIMS, Q.C., DEPUTY ATTORNEY GENERAL OF CANADA
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