Kawtharani v. Canada (Minister of Citizenship and Immigration), 2006 FC 162

Date: 20060214

Docket: IMM-2414-05

Citation: 2006 FC 162

Ottawa, Ontario, February 14, 2006

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

JAWAD KAWTHARANI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                Reasons for a decision are adequate when they are clear, precise and intelligible. Their inherent logic points at a grasp of the issues raised by the evidence.

JUDICIAL PROCEDURE

[2]                This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of the decision of an Immigration Officer (the H & C Officer) dated April 4, 2005, refusing the Applicant's application for an exemption on humanitarian and compassionate grounds to allow him to apply for permanent residence from within Canada (H & C application).

BACKGROUND

[3]                The Applicant, Mr. Jawad Kawtharani, is a 38 year old native of Lebanon. He left Lebanon in September 1997 and came to Canada in September 1998. At that time, he made a refugee claim which was refused on June 17, 1999.

[4]                Mr. Kawtharani then made an H & C application in May 2002 which was refused in September 2003. He subsequently made a second H & C application in December 2003 which was refused on April 4, 2005. This is the decision under review before this Court.   

[5]                Although his refugee claim was unsuccessful, Mr. Kawtharani has remained in Canada since 1998 and has become established.

DECISION UNDER REVIEW

[6]                The H & C Officer found that, while Mr. Kawtharani demonstrated some establishment in Canada, he had not shown that he would experience hardship if required to apply for permanent residence from outside Canada. The H & C Officer was not satisfied that there were sufficient humanitarian and compassionate grounds to exempt Mr. Kawtharani from the statutory visa requirement.

[7]                Mr. Kawtharani is a 38 year old male from Lebanon who came to Canada in September 1998. He made refugee claims in a number of countries, all of which were refused. He was given an opportunity to advance a refugee claim in Canada which was also refused. Mr. Kawtharani's previous humanitarian and compassionate application filed in May 2002 was refused in September 2003. In addition, as per the decision under review, Mr. Kawtharani has provided insufficient evidence of a personalized risk to warrant a request for a risk opinion.

[8]                Mr. Kawtharani has a large number of family members residing in Lebanon. His family resides in the South Tefahta area, which is the same area he resided in prior to coming to Canada. He is a citizen of Lebanon, he lived, worked and studied there as an adult. Mr. Kawtharani speaks Arabic and is familiar with the local customs and procedures. The decision under review specifies that Mr. Kawtharani's family members are able to provide him with emotional support if not financial support.

[9]                According to Mr. Kawtharani's file, he has made some friendships in Canada and has also obtained work experience. It is important to note that Mr. Kawtharani has remained in Canada for five years although his refugee claim was refused. The conclusion of the decision under review was that Mr. Kawtharani would not experience hardship which would be unusual, underserved or disproportionate if asked to leave Canada and apply for an immigrant visa from outside in the normal manner. The request for a waiver of subsection 11(1) of IRPA is refused.

ISSUES

[10]            The issues in the present case are as follows:

1.       Did the H & C Officer fail to observe procedural fairness by not providing sufficient reasons to support his or her decision that Mr. Kawtharani was not sufficiently established in Canada?

2.       Did the H & C Officer fail to evaluate the element of risk from the viewpoint of hardship?

3.       Did the H & C Officer ignore or misunderstand evidence regarding the degree of hardship Mr. Kawtharani will face if returned to Lebanon?

ANALYSIS

Standard of review

[11]            The general standard of review for decisions of immigration officers in relation to H & C applications is reasonableness simpliciter.(Baker; Adu)[1]

[12]            However, a question as to the sufficiency of reasons raises an issue of procedural fairness. For issues of procedural fairness, the proper standard of review is correctness.(Adu, above, at para. 9) (Fetherson)[2]

Statutory scheme

[13]            According to subsection 11(1) of IRPA, a person must apply for permanent residence from outside Canada.

[14]            However, pursuant to section 25 of IRPA, the Minister is given the discretion to facilitate an individual's admission to Canada or exempt that person from any applicable criteria or obligation under IRPA where the Minister is satisfied that such exemption or facilitation should occur because of the existence of humanitarian or compassionate considerations.

[15]            The H & C decision-making process is a highly discretionary one that considers whether a special grant of an exemption is warranted. Consequently, a refusal of H & C application takes no right away from the individual.(Jasim)[3]

[16]            It is up to Mr. Kawtharani to demonstrate that the hardship he would suffer, if required to apply for permanent residence in the normal manner, would be unusual, undeserved or disproportionate. Hardship that is inherent in having to leave Canada is not enough.(Irimie)[4]

[17]            There are many factors that an Immigration Officer can take into account when making an H & C decision. This Court has said that the Immigration Officer is entitled to consider, among other factors, the manner in which the individual entered and remained in Canada and whether the individual has employment or relatives in their country of origin. No one factor can be determinative of the result in a specific application.[5]

[18]            Where an individual has no legal right to remain in Canada and has done so absent circumstances beyond his or her control, the Court has held that he or she should not be rewarded for accumulating time in Canada.(Chau)[6]

Adequacy of reasons

[19]            Reasons for a decision are adequate when they are clear, precise and intelligible and when they state why the decision was reached. Adequate reasons must show a grasp of the issues raised by the evidence. They should not be read microscopically.(Mehterian; Medina)[7]

[20]            The H & C decision-making process is one that requires the consideration of many different factors (as determined by the evidence before the H & C Officer) and a weighing of these combined factors. Given that no one factor is determinative, adequate reasons with respect to a single factor cannot be expected to state a final decision on the application. For example, the assessment of establishment in the reasons, cannot by itself, explain the outcome of the application. This final decision can only be reached when the H & C Officer has assessed all of the relevant factors and weighed them.

[21]            In the reasons, the H & C Officer clearly states that Mr. Kawtharani shows some establishment in Canada. However, establishment is not assessed on a pass/fail basis nor is it the only factor to be assessed. Consequently, the H & C Officer's reasons correctly reflect an assessment of all of the relevant factors combined. More specifically, the H & C Officer notes that Mr. Kawtharani's ability to establish himself was not such that he was precluded from seeking permanent resident status in the usual manner. The H & C Officer noted that, while Mr. Kawtharani's submissions included letters of reference attesting to his work ethic and upstanding character, the evidence provided in support of his establishment did not show he would be unable to find employment and accommodation outside of Canada.

[22]            The reasons for this decision are distinguishable from those in Adu, above, acase cited by Mr. Kawtharani's counsel. In that case, only positive factors were specified with no explanation for the ultimate negative decision. Here, the H & C Officer noted several factors (including his decision to stay in Canada for five years after the refusal of his refugee claim, his family in Lebanon, his familiarity with Lebanon and the insufficient evidence that he would be unable to find employment and accommodation) that supported a finding that Mr. Kawtharani would not suffer unusual, undeserved or disproportionate hardship if not granted an H & C exemption.

[23]            Contrary to Mr. Kawtharani's submissions, the reasons make a number of references to his personal circumstances and clearly pertain to his application. No reviewable error has been shown with respect to the adequacy of the H & C Officer's reasons.

Evaluation of risk

[24]            Mr. Kawtharani argues that the H & C Officer should have assessed the risk he faces in returning to Lebanon in the context of hardship. By omitting this assessment, Mr. Kawtharani argues the H & C Officer erred.

[25]            The H & C Officer does not have to consider risk as part of the H & C application. It is not one of the factors that must be assessed. The H & C application is not a PRRA and therefore is not an evaluation of the risk faced by the applicant.

[26]            In Sherzady v. Canada (Minister of Citizenship and Immigration),[8] it was stated that although a PRRA Officer can consider H & C factors in some cases, he does not have to consider these factors in the context of a PRRA. There are two separate processes for which applicants can apply: the PRRA application and the H & C application. Each process has its own criteria and specific factors which the officers are to take into account. Similarly, it was held in Zolotareva v. Canada (Minister of Citizenship and Immigration)[9], that a PRRA Officer can have jurisdiction to conduct an H & C assessment under subsection 25(1) of IRPA if it was properly delegated by the Minister.

[27]            The Citizenship and Immigration Guideline for Inland Processing 5, IP-5 Immigrant Applicants in Canada made on Humanitarian or Compassionate Grounds, at section 13.3, states that the H & C Officer must assess only non-risk factors in the context of the H & C application. After this assessment, if there are insufficient grounds to allow the application and the applicant did specifically discuss the issue of risk, a possibility of a subsequent PRRA assessment does, in fact, exist, baring in mind the jurisprudence, and its caveats therein, as described below.

[28]            In Babilly v. Canada(Minister of Citizenship and Immigration),[10]Justice John A. O'Keefe looks at the IP-5 Guideline to determine the role of the H & C Officer. He states that once the H & C Officer has determined that there are no sufficient humanitarian and compassionate grounds to allow the application, he or she must send an application to a PRRA Officer for an assessment of risk. If the H & C Officer fails to send the application for a risk assessment, it constitutes a breach of his or her duty of procedural fairness.

The applicant submitted that the H & C Officer breached the duty of procedural fairness owed to him by failing to send his application to a PRRA Officer for an assessment of risk and by failing to write to him and request further information about his personal risk which he stated in his H & C application.

The IP5 Guidelines state that if, after an assessment of the purely non-risk factors, the H & C Officer does not find sufficient grounds to allow the H & C application, it is transferred to a PRRA officer for the assessment of risk (section 13.4). The application was not referred to a PRRA officer in this case.

...

Based on the facts of this case, I am of the opinion that there was a breach of the duty of procedural fairness. The H & C Officer failed to ask the applicant for particulars of his claim of a personalized risk, and did not refer the matter to a PRRA officer for a risk assessment. The proper risk assessment could only be made after a request for particulars of the personalized risk, as outlined in the IP5 Guidelines.

[29]            The H & C Officer assessed the evidence and determined that there were insufficient humanitarian and compassionate grounds to allow Mr. Kawtharani's application. After this determination, the H & C Officer did not refer Mr. Kawtharani's application to a PRRA Officer for an assessment of risk; however, it was not necessary for him to do so as Mr. Kawtharani did not argue that he faced a risk to life or a risk of torture or cruel and unusual treatment, but rather that he would encounter hardship. Therefore, the H & C Officer did not err by failing to refer the application to a PRRA Officer for an assessment of risk. There was no breach of procedural fairness.

Assessment of hardship

[30]            It is beyond dispute that the H & C Officer does not have the obligation to list each and every piece of evidence brought before him or her. (Sidhu; Rodriguez) [11]

[31]            In his reasons, the H & C Officer listed the submissions made by Mr. Kawtharani. In response to those submissions, the H & C Officer made findings regarding Mr. Kawtharani's situation in Lebanon should he return. Based on these findings, it was reasonably open to the H & C Officer to find that Mr. Kawtharani would not experience unusual, undeserved or disproportionate hardship if required to apply for permanent residence from outside of Canada.

[32]            The degree of establishment of an applicant is not determinative of an H & C application (Klais)[12]. It is only one of the factors that must be considered. The H & C Officer does acknowledge that Mr. Kawtharani is somewhat established in Canada; nevertheless, this does not mean that there are automatically sufficient humanitarian and compassionate grounds to allow Mr. Kawtharani's application. A complete assessment of all of the relevant factors must be undertaken before a decision can be made.

[33]            In Dhillon v. Canada (Minister of Citizenship and Immigration),[13] this Court considered the Minister's guidelines for H & C decisions:

Officers are assisted in making decisions under subsection 25(1) of the Act by guidelines issued by the Minister. Those guidelines provide in part as follows:

Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain a permanent resident visa from outside of Canada would be:

(i)                    unusual and undeserved or

(ii)                  disproportionate.

Applicants may present whatever facts they believe are relevant:

...

A positive H & C decision is an exceptional response to a particular set of circumstances. An H & C decision is more complex and more subjective than most other immigration decisions because officers use their discretion to assess the applicant's personal circumstances.

...

Unusual and undeserved hardship is:

-               the hardship [of having to apply for a permanent resident visa from outside of Canada] that the applicant would face should he, in most cases, unusual, in other words, a hardship not anticipated by the Act or Regulations; and

-                the hardship [of having to apply for a permanent resident visa from outside of Canada] that the applicant would face should be, in most cases, the result of circumstances beyond the person's control.

...

Humanitarian and compassionate grounds may exist in cases that would not meet the "unusual and undeserved" criteria but where the hardship (of having to apply for a permanent resident visa from outside of Canada) would have a disproportionate impact on the applicant due to their personal circumstances.

[34]            The H & C Officer's assessment of hardship is consistent with these guidelines. He or she considered all of the evidence presented before making a decision. The evidence did not convince him or her that Mr. Kawtharani would suffer unusual, undeserved or disproportionate hardship if he had to apply for permanent residence outside of Canada. That a person might become established in Canada and suffer hardship in having to apply for permanent residence from outside Canada is not unusual or unexpected. Mr. Kawtharani stayed for five years after his refugee claim was denied. Now that he has become established, he cannot expect that this alone will lead him to be exempt from the normal requirements.

[35]            Furthermore, most of the evidence on which Mr. Kawtharani relied in support of his submission that he would not find employment in Lebanon and would be condemned to a life of poverty was not up-to-date. While perhaps illustrative of the period just prior to Mr. Kawtharani's departure from Lebanon in September 1997, this evidence is of questionable value in assessing the current situation should he return to Lebanon.

CONCLUSION

[36]            The H & C Officer did not breach his duty of procedural fairness by providing inadequate reasons as to why Mr. Kawtharani was not sufficiently established in Canada. Sufficient reasons were provided to allow Mr. Kawtharani to understand the decision of the H & C Officer.

[37]            There was no breach of procedural fairness on the part of the H & C Officer in that he did not refer the matter to a PRRA Officer for an assessment of risk. This was not warranted as Mr. Kawtharani had not argued that he faced a risk to his life or a risk of torture or cruel and unusual punishment.

[38]            Furthermore, the decision that Mr. Kawtharani would not suffer unusual, undeserved or disproportionate hardship if he had to apply for permanent residence from outside Canada was not unreasonable. The H & C Officer considered all of the relevant evidence before him and the decision was properly supported by the evidence.

[39]            Therefore, this application for judicial review should be dismissed as there is no reason to interfere with the decision of the H & C Officer.

ORDER

THIS COURT ORDERS that

1.         The judicial review be dismissed;

2.          No question be certified

"Michel M.J. Shore"