Date: 20060929
Docket: IMM-223-06
Citation: 2006 FC
1158
OTTAWA, Ontario,
September 29, 2006
Present:
The Honourable Mr. Justice Paul U.C. Rouleau
BETWEEN:
KONSTANTIN
SAMSONOV
and
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
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.
Email this Content