Date: 20060504
Docket: IMM-4575-05
Citation: 2006 FC 561
OTTAWA, ONTARIO, MAY 4, 2006
PRESENT: The Honourable Mr. Justice Strayer
BETWEEN:
DANNY KASSAP TSHIDIND
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of an Immigration Officer of July 14, 2005 in which the Officer declined to permit the applicant to seek permanent residence from within Canada for humanitarian and compassionate grounds as permitted under subsection 25(1) of the Immigration and Refugee Protection Act.
[2] The applicant is a citizen of the Democratic Republic of Congo. He is a talented athlete, an accomplished long-distance runner. He was chosen by Congo as a member of its athletic team sent to the Francophonie Games in Ottawa in the summer of 2001. He did not return to Congo with his team but sought admission to Canada instead. He claimed refugee status but his claim was rejected by the Refugee Division on February 10, 2003 and an Application for Leave to seek judicial review of that decision was dismissed by the Federal Court in June, 2003.
[3] Citizen and Immigration Canada in 1997 suspended removals to the Democratic Republic of Congo because of the civil strife there. Therefore the applicant cannot be removed to Congo at present. In this application and in a subsequent written submission made on June 7, 2005, after the Immigration Officer had interviewed the applicant and his lawyer and at the suggestion of the Immigration Officer, information was provided to the effect that the applicant was employed in Canada (with a letter of commendation from his employer) and that he had been active in a track club and long distance running competitions with very considerable success. He was earning some money from these activities. He had become proficient in English. His application for favourable treatment under subsection 25(1) was based in part on hardship he would undergo if he had to return to Congo and leave his successful life in Canada. The application for humanitarian and compassionate treatment was also based in part on a passage from Manual IP 5, 5.21 as it then was, which stated that:
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.
. .
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.
[4] The Immigration Officer rejected the application under subsection 25(1) on the grounds that humanitarian treatment should not be granted according to sports ability, and that the evidence was not persuasive that the applicant would suffer undue hardship if returned to Congo
[5] More important, however, was her decision with respect to the applicant's claim for favourable treatment under IP 5, para. 5.21 based on a prolonged stay in Canada beyond the control of the applicant who has as a result achieved a "significant degree of establishment". The Officer stated the following:
De plus, j'ai examine la situation présente du requérant selon l'alinéa IP 5 5.21 : séjour prolongé au Canada aboutissant à l'établissement. Je ne suis pas convaincue que les quatre ans passés par le requérant au Canada constituent une période d'incapacité comme le défini l'alinéa susmentionné. De plus le requérant n'a pas su démontrer qu'il avait établi pendant ses quatre ans un degré d'établissement au Canada pour justifier une décision favorable.
Depuis mars, 2003 le requérant travaille au Len Duckworths Fish and Chips. L'employeur a soumis une lettre confirmant que le demandeur travaille en effet pour lui. De plus, l'employeur déclare que le requérant est un bon employé. En sus de son travail, le demandeur s'entraîne pour les marathons. Selon l'avocat, le requérant a suivi des cours d'anglais et il est maintenant bilingue. Selon, le formulaire IMM 5001 que le requérant a rempli en français, il a indiqué qu'il pouvait parler, lire et écrire en anglais. Il est à noter que lors de l'entrevue que j'ai menée, avec le requérant le 2 juin, 2005, j'ai commencé à parler en Anglais avec l'avocat, le requérant m'a alors demandé de traduire en français ce que j'avais dit en anglais à l'avocat. Suite à la demande du requérant de traduire mes propos, je ne suis pas satisfaite de la preuve de son bilinguisme.
Analysis
[6] Counsel agree that the standard of review of such a discretionary decision under subsection 25(1) of the Immigration and Refugee Protection Act is reasonableness. The nature of these decisions has been analysed on several occasions leading to the conclusion that the proper standard is reasonableness and I adopt that reasoning.
[7] The applicant has raised a number of complaints against the Officer's decision. I think it unnecessary to deal with all of these as many involve conclusions which are not of much consequence to the result or could not be said to be unreasonable.
[8] I believe the critical matter for consideration is whether the Officer unreasonably applied paragraph 5.21 of the Manual and, if so, would that be fatal to the decision.
[9] I will deal with the second issue first. It is well established that guidelines which do not take the form of delegated legislation cannot fetter the discretion of the person exercising a discretionary power such as that in subsection 25(1): see for example Yhap v. Canada(Minister of Employment and Immigration) (1990), 1 F.C.R. 722; Vidal v. Canada [1991] FCJ No. 63; Klais v. Canada [2004] F.C.J. No. 965 at para. 9; and Thamotharem v. Minister of Citizenship and Immigration et al [2006] F.C. 16 at paras. 107-11. Thus even if the decision here could be characterized as an unreasonable application of the language of paragraph 5.21 of the Guidelines, that would not invalidate the decision provided that it can be seen as a reasonable application of the more general language of subsection 25(1) of the Act which is the ultimate source of the legal power to make such decisions.
[10] As to whether the decision was or was not a reasonable application of the terms of the Guidelines, the applicant raises some good points to demonstrate that a decision favourable to the applicant could have been made in the application of paragraph 5.21 on the basis of the facts before the Officer. The applicant had been in Canada four years under circumstances where he could not be removed to Congo because of a Canadian government policy, a policy which predated his arrival in Canada having been adopted in 1997. The Officer did not consider that four years was of "significant duration" as called for by paragraph 5.21. While that conclusion was by no means inevitable given the language of the paragraph, I am unable to say that it was on its face unreasonable. Further the Officer concluded that there was not evidence of a "significant degree of establishment in Canada". There was evidence before her that the applicant was earning his living in Canada, that his employer was satisfied with his work, that he was successfully participating in track teams in significant competitions (and further that his opportunities for competition internationally for Canada and his opportunities for making money from sponsorships would be greatly enhanced if he had the possibility of permanent residence and potentially of Canadian citizenship). I would agree that an Officer could very well have found a significant degree of establishment from these facts as well as a hardship imposed on the applicant because of the state of limbo in which he finds himself. Nevertheless I am unable to say that the Officer's negative conclusion on "significant degree of establishment" was unreasonable.
[11] One other factor should be specifically mentioned. In his submissions to the Officer the applicant had indicated that he had acquired a knowledge of English since coming to Canada. Yet in her decision the Officer (quoted above) said that at an interview she conducted with the applicant on June 2, 2005 she had spoken to "l'avocat" with him in English and that the applicant had asked her to translate into French what she was saying to "l'avocat". She therefore concluded that he was not in fact fluent in English. In the present proceeding the applicant's counsel filed two affidavits to show that this incident never occurred. One was from the person apparently referred to as "l'avocat" by the Officer who was actually present at the interview with the applicant as a friend, and not as a lawyer (although in fact he is a lawyer.) Both he and the applicant firmly denied in their affidavits that this exchange ever took place and I take note of this evidence as I would other post-hearing affidavits to demonstrate how the hearing was conducted, if that is germane. Counsel for the applicant considers this an error of memory of the Officer, which it appears to be, important in affecting how she would assess the "degree of establishment" of the applicant in Canada. There is not much in the decision to indicate that the Officer thought this a weighty factor in proving establishment nor do I think it should be assumed to be: in a country which is officially bilingual where the majority of native born Canadians speak only one of the two official languages, the fact that a newcomer who speaks one of those languages and may or may not have acquired fluency in the other should not be a major factor in his "establishment". If indeed there was an error of fact on this issue I do not think it was in any way determinative of the outcome.
Conclusion
[12] Although there was certainly enough evidence before the Officer that she could have found that the applicant met the requirements of paragraph 5.21 of the Guidelines with respect to "significant duration" and "significant degree of establishment", I am unable to say that the Officer's decision was unreasonable in terms of paragraph 5.21 or in terms of the general discretion given by subsection 25(1) of the Act. I will therefore dismiss the application for judicial review.
JUDGMENT
It is hereby adjudged that the application for judicial review of the decision of July 14, 2005 be dismissed.
(s) "B.L. Strayer"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4575-05
STYLE OF CAUSE: DANNY KASSAP TSHIDIND v. MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: April 25, 2006
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT
AND JUDGMENT BY: Strayer D.J.
DATED: May 4, 2006
APPEARANCES BY:
Mr. Micheal Crane
Toronto, Ontario FOR THE APPLICANT
Ms. Vanita Goela
Toronto, Ontario FOR THE RESPONDENT
SOLICITORS OF RECORD
Mr. Micheal Crane
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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