Date: 20060919
Docket: IMM-6280-05
Citation: 2006 FC 1108
Ottawa, Ontario, September 19, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
PERPARIM HAMZAI
FATIME GURI
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
…Counsel for the respondent
acknowledged that the visa officer had been insistent in her questioning and
perhaps had grown somewhat frustrated with the replies she was receiving but
did not acknowledge use of the terminology reflected in the notes quoted above.
I find no ground on which to conclude that the applicants had a reasonable
apprehension of bias arising out of the tone and substance of the interview
that took place on January 5, 1995. If the visa officer in fact used the
terminology alleged, it was unfortunate. However, even assuming the terminology
alleged was used, I am not satisfied that it would provide a basis for a
reasonable apprehension of bias.
(Khakoo v.
Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No.
1533 (QL).)
JUDICIAL PROCEDURE
[2]
This
is an application for judicial review under subsection 72 (1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of
an Immigration Officer (H&C officer) dated September 30, 2005, refusing the
Applicants’ application for an exemption on humanitarian and compassionate
grounds to allow them to apply for permanent residence from within Canada
(H&C application).
BACKGROUND
[3]
The
Applicant, Mr. Perparim Hamzai, is a 38 year old native of Albania. He left
Albania and came to Canada on June 17, 2001 through Windsor,
Ontario.
At that time, he made a refugee claim which was refused on March 18, 2003. Mr.
Hamzai also received a negative Pre-Removal Risk Assessment (PRRA) decision on
April 8, 2004.
[4]
The
Applicant, Ms. Fatime Guri, is a 32 year old native of Albania. She left Albania and entered
Canada on June 21, 2001 through Windsor, Ontario. At that
time, she submitted a refugee claim which was refused on February 25, 2003. Ms.
Guri also received a negative PRRA decision on
September 27, 2004.
[5]
Mr.
Hamzai and Ms. Guri met in Canada and have a Canadian born child, Martin
Hamzai, born on March 30, 2003. They were married in Toronto, Ontario on August
17, 2003.
[6]
The
Applicants filed their H&C application in the fall of 2003. In January,
2005, they received a request from Citizenship and Immigration Canada for
further particulars. Before the deadline for those submissions, their
application was rejected.
[7]
At
about the same time, the Applicants were scheduled for removal to the USA in March of 2005.
[8]
The
Respondent consented to settling the Application for Leave and set the decision
aside, and sent the matter for redetermination in regard to the permanent
residence application by a different H&C officer.
[9]
Consequently,
the Application was discontinued in the Federal Court.
[10]
In
April 2005, the Mr. Hamzai and Ms. Guri filed further submissions, highlighting
the best interests of the Canadian born child, and the establishment of the family
in Canada.
[11]
In early
July 2005, Mr. Hamzai and Ms. Guri were advised that an interview had been
scheduled for July 26, 2005. A notice form had been attached to a letter
requesting additional information. They were to bring the additional
information to the actual interview, which interview was for the purpose of
redetermination.
[12]
On
September 30, 2005, the H&C applications of both Mr. Hamzai and Ms. Guri
were refused. This is the decision under review before this Court.
DECISION UNDER REVIEW
[13]
In
a letter dated September 30, 2005, the H&C officer found that Mr. Hamzai
and Ms. Guri failed to demonstrate, on the basis of the record, that there were
sufficient H&C grounds to warrant an exemption from the normal legislative
immigration requirements.
ISSUES
[14]
The
issues in the present case are as follows:
1. Did the
H&C officer fail to properly assess the totality of the evidence?
2. Did the
H&C officer conduct an inadequate assessment of the H&C factors,
specifically Mr. Hamzai and Ms. Guri’s establishment in Canada and the best
interests of their Canadian-born child?
3. Did the
H&C officer raise a reasonable apprehension of bias?
STANDARD OF REVIEW
[15]
A
pragmatic and functional analysis is not required when the Court assesses
allegations of the denial of natural justice or procedural fairness. (Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour),
[2003] 1. S.C.R. 539, [2003] S.C.J. No. 28 (QL).) In matters of issues of
procedural fairness, the proper standard of review is correctness. The Court
must look at the circumstances of the particular case and determine whether the
tribunal observed the duty of fairness. If it is found that the tribunal
breached natural justice or procedural fairness, no deference is owed and the
Court will set aside the decision of the tribunal. (Ren v. Canada (Minister of Citizenship
and Immigration), 2006 FC 766, [2006] F.C.J. No. 994 (QL), at paragraph 8.)
[16]
The
standard of review for decisions of H&C officers in relation to the actual
H&C applications has been the subject of a pragmatic and functional
analysis in a number of decisions. The appropriate standard is reasonableness
simpliciter. (Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, [1999] F.C.J. No. 39 (QL), at paragraphs
57-62.)
General Principles of
the H&C Scheme
[17]
Section
11(1) of IRPA requires that all foreign nationals who wish to reside
permanently in Canada apply from abroad and
obtain a visa before coming to Canada.
[18]
However,
a person may be exempt from this requirement where the Minister is satisfied
that such an exemption should occur owing to the existence of H&C or public
policy considerations. (IRPA, at s. 25 (1).)
[19]
A
decision made on H&C grounds is an exceptional measure and, moreover, a
discretionary one. The existence of an H&C review offers an individual
special and additional consideration for an exemption from Canadian immigration
laws that are otherwise universally applied. (Legault v. Canada (Minister
of Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457
(QL), at paragraph 15.)
[20]
The
onus is thus on an Applicant to satisfy the officer that there are sufficient
humanitarian and compassionate grounds to warrant a favourable decision. The
decision of an immigration official not to recommend an exemption under s. 25
(1) of IRPA takes no right away from an individual, and does not impede that
person’s ability to apply for permanent residence in Canada from abroad.
[21]
The
existence of H&C circumstances will be determined to exist if an applicant
shows that his or her personal circumstances are such that “unusual or
undeserved or disproportionate hardship” would be caused to the applicant
seeking consideration if he or she were required to leave Canada to apply for a visa in
a normal fashion. (Irimie v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1906 (QL); Uddin v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 937, [2002] F.C.J. No. 1222
(QL).)
[22]
This
Court has repeatedly held that the hardship suffered by the applicant must be
more than mere inconvenience or the predictable costs associated with leaving Canada, such as selling a
house or a car, leaving a job or family or friends. (Irimie, above, at
paragraphs 12 and 17; Mayburov v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 953 (QL), at paragraph 7; Lee v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 7, [2001] F.C.J. No. 139 (QL), at
paragraph 14.)
[23]
The
standard of review applicable to H&C decisions is that of reasonableness
simpliciter. The Supreme Court concluded that for H&C decisions, this
standard involves a high level of deference :
…considerable deference should be
accorded to immigration officers exercising the powers conferred by the
legislation, given the fact-specific nature of the inquiry, its role within the
statutory scheme as an exception, the fact that the decision-maker is the
Minister, and the considerable discretion evidenced by the statutory language.
(Baker, above.)
[24]
This
Court is not to lightly interfere with the discretion given to an H&C officer.
The H&C decision is not a simple application of legal principles but rather
a fact-specific weighing of many factors. As long as the H&C officer
considers the relevant, appropriate factors from an H&C perspective, the
Court cannot interfere with the weight the H&C officer gives to the
different factors, even if it would have weighed the factors differently :
…It is up to
the immigration officer to determine the appropriate weight to be accorded to
this factor in the circumstances of the case. It is not the role of the courts
to reexamine the weight given to the different factors by the officers.
(Legault,
above, at paragraph 11; Baker, above, at paragraph 53; Suresh v.
Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3,
[2002] S.C.J. No. 3 (QL); Chau v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 107, [2002] F.C.J. No. 119 (QL), at paragraph 19.)
[25]
With
these principles in mind, the specific allegations of Mr. Hamzai and Ms. Guri
are considered.
ANALYSIS
1. Did the
H&C officer fail to properly assess the totality of the evidence?
[26]
In
their H&C application, Mr. Hamzai and Ms. Guri presented the H&C
officer with submissions regarding the general situation in Albania and their
establishment in Canada. The officer properly considered all their
submissions in reaching her determination that Mr. Hamzai and Ms. Guri would
not suffer unusual or undue hardship should they be required to apply to Canada through the
normal immigration avenues. Specifically, the officer noted the following
factors:
a) Mr. Hamzai
and Ms. Guri’s financial information showing an actual income of $12 000 for
the years 2003 and 2004. The officer found this to be insufficient economic
establishment to indicate that leaving this work would constitute undue
hardship. She also noted that Mr. Hamzai was self employed in Albania prior to
coming to Canada.
b) The
evidence that Ms. Guri worked in her husband’s business was taken into account
by the H&C officer in his assessment.
c) Mr. Hamzai
and Ms. Guri attended ESL classes. They did not take any other skill upgrading
classes since arriving in Canada.
d) Mr. Hamzai
and Ms. Guri had prior negative refugee claims and negative PRRA decisions.
There was general information about the political and economic situation in Albania, but no
specific evidence that they would suffer undue hardship there.
e) The
officer considered the best interests of Mr. Hamzai and Ms. Guri’s two-year old
child and determined that it would be in his best interests to remain with both
his parents. The child is still very young and the officer did not find that
he would be subjected to excessive hardship if he returned to Albania with his
parents.
f) Ms. Guri
told the officer that she was pregnant which, with or without substantiation,
was, nevertheless, taken into account by the H&C officer.
g) Ms. Guri
provided a psychological report describing her symptoms of depression. The
officer noted that despite this depression, Ms. Guri was able to continue
caring for her child and assisting her husband. This report did not satisfy the
officer that removing the family to Albania would create unusual or
undue hardship on Mr. Hamzai and Ms. Guri.
[27]
The
officer’s determination that these facts together fail to demonstrate the
exceptional circumstances of undue hardship was reasonable. The law is well
established that granting an H&C is a rare exemption, granted only when applicants
have demonstrated an unusual or excessive hardship:
The applicant has the onus of proving that the requirement to apply for
a visa from outside of Canada would amount to unusual, undue or
disproportionate hardship. The applicant assumed the risk of establishing
himself in Canada while his immigration status was uncertain and knowing that
he could be required to leave. Now that he may be required to leave and apply
for landing from outside of Canada, given that he did assume this risk, the
applicant cannot now contend, on the facts of this case, that the hardship is
unusual, undeserved or disproportionate. The words of Mr. Justice Pelletier in Irimie
[sic] v. M.C.I. (2000), 10 Imm. L.R. (3d) 206 (F.C.T.D.), are
applicable to this case:
I return to my observation that
the evidence suggests that the applicants would be a welcome addition to the
Canadian community. Unfortunately, that is not the test. To make it the test is
to make the H & C process an ex post facto screening device which supplants
the screening process contained in the Immigration Act and Regulations. This
would encourage gambling on refugee claims in the belief that if someone can
stay in Canada long enough to demonstrate that they are the kind of persons
Canada wants, they will be allowed to stay. The H & C process is not
designed to eliminate hardship; it is designed to provide relief from unusual,
undeserved or disproportionate hardship. There is no doubt that the refusal of
the applicants' H & C application will cause hardship but, given the
circumstances of the applicants' presence in Canada and the state of the
record, it is not unusual, undeserved or disproportionate hardship... .
(Uddin, above, at
paragraph 22.)
[28]
The
officer’s decision was reasonable in light of the evidence before her.
2. Did the
H&C officer conduct an inadequate assessment of the H&C factors,
specifically Mr. Hamzai and Ms. Guri’s establishment in Canada and the best
interests of their Canadian-born child?
[29]
The
officer’s assessment of the best interests of Mr. Hamzai and Ms. Guri’s child,
whether agreed with or not, was nevertheless inherently clear. The officer
considered that while it would be in the child’s best interests to enjoy the
benefit of living in Canada, this interest was outweighed by the child’s need
to remain with both his parents in Albania:
…I note that both subject and his spouse
are from the same country and have most of their immediate family members
residing there. I am therefore satisfied that if they elect to take their child
with them to their home country, the child would be surrounded by family
members and loved ones The child is also very young and if he has to return to
Albania with his parents, I am not satisfied that he would experience excessive
hardship, as he has not yet integrated into Canadian society.
(Decision, Applicant’s Record, p. 9).
[30]
In
light of the child’s young age, and the fact that the majority of his family
resides in Albania, this determination is
reasonable. The officer in the case at bar, thus weighed the child’s interests and
determined that his interests would be well served if he was to return to Albania with his parents. (Gallardo
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 45, [2003] F.C.J. No. 52 (QL).)
[31]
Indeed,
this Court has found that a proper analysis of the best interests of the
children must go beyond the mere risk to the child but also look to the child’s
ability to adapt to the area to which he will be removed. This is precisely the
analysis the officer has done in the present case. The child’s young age, and
the opportunity to be with both his parents, as well as his extended family
suggest that the child will be able to adapt to Albania. (Gurunathan v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 1155, [2001] F.C.J. No. 1587 (QL), at paragraph
7.)
[32]
Finally,
the argument that the officer erred by failing to consider the interests of the
unborn child is without merit. The officer may, or may not have, had evidence
that Ms. Guri was, in fact, pregnant. More significantly, the officer did not
have any particular evidence that the unborn child would be unsafe or would
face problems in Albania.
[33]
In
this case, there was no specific information given as to the hardship that
would be faced specifically by the unborn child. The officer has no duty to
consider those specific interests. In any event, the clear and reasonable best
interests of the child analysis above apply equally to any unborn child. There
are no distinguishing factors that would make the case of an unborn or newborn
child any different.
3. Did the
H&C officer raise a reasonable apprehension of bias?
[34]
As
reiterated in their affidavit, Mr. Hamzai and Ms. Guri had a previous negative
H&C decision, set aside on consent of both parties, because they were not
afforded an opportunity to present updated documents in their application. The
basis for the consent was this specific procedural error. Mr. Hamzai and Ms.
Guri’s allegation that the officer was biased because she referred to a
previous decision is unsubstantiated by either the evidence of this case or the
law. Mr. Hamzai and Ms. Guri have not disputed the validity of any of the
evidence that was before the first officer, but argue she was biased for
considering the summarized evidence in the previous decision because it was a
negative decision. The officer considered the reasons outlined in the negative
decision, then considered the new evidence that was put forth for
consideration, including granting them an interview to allow them to address
concerns and present their perspective.
[35]
The
case law is clear that an officer is entitled to consider a previous decision,
provided that she conducts her own assessment of the evidence, as in the
present case:
The duty of
the officer reconsidering the decision was to consider all of the information
in the record and the additional information. He was entitled to take into account
the previous decision, provided he kept an open mind and considered all the
evidence afresh.
(Maire v.
Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No.
1185 (QL), at paragraph 3.)
and also:
…I can find no
legal error. The immigration official appears to have considered the
information provided by the applicants. Applicants' counsel says that the
humanitarian and compassionate review should have been entirely fresh, without
regard to any prior humanitarian and compassionate proceedings or decisions. But
indeed, the applicants in their humanitarian and compassionate request dated
February 22, 1993 stated that one reason for the humanitarian and compassionate
request was because of "circumstantial changes". While I do not think
an immigration official errs by considering prior proceedings and decisions in
any event, it is certainly necessary to do so when an applicant alleges
"circumstantial changes"
(Aligour v.
Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No.
1597 (QL), at paragraph 9.)
[36]
Similarly,
in the case at bar, the reconsideration was agreed to by all parties in order
to allow Mr. Hamzai and Ms. Guri an opportunity to provide updated information.
The officer was made aware of the new developments that might strengthen their
case and did, in fact, take into consideration the key aspects in their regard
as is witnessed in her assessment.
[37]
Finally,
the officer’s alleged statements at the interview do not reflect bias, but
rather, reflect the assessment that neither the new nor the old evidence put
before her indicated undue, unusual or disproportionate hardship. The
statements that Mr. Hamzai and Ms. Guri have a low income, did not upgrade
their skills with additional courses other than an ESL class, that $22,000 in
savings was not a high income, that four years was a relatively short time in
Canada, and that it is easy to obtain a business license, show a reasonable
analysis of the material facts before her. At the conclusion of this interview,
Mr. Hamzai and Ms. Guri were then given a further opportunity to provide
documents to support their case, not a second interview.
[38]
The
fact that Mr. Hamzai and Ms. Guri do not agree with the officer’s assessment
does not indicate that the officer was biased against them. Not only did the
officer not predetermine her decision based on the previous decision, she gave
Mr. Hamzai and Ms. Guri two separate opportunities to present documents and an
opportunity to appear in person to update their information and demonstrate undue
hardship.
[39]
The
officer’s comments and conduct must be looked at as a whole to determine if a
reasonable apprehension of bias exists. It is not enough to point to one factor
to demonstrate a reasonable apprehension of bias. For example, the Court has
held that the mere fact that a tribunal member sits on a re-hearing of a matter
that he previously heard and decided does not mean that the member will be
biased on the second hearing than he was on the first. It must also be true
then that the mere fact that in considering an H&C application, a new
officer has regard to a decision previously made, cannot, in and of itself,
give rise to a reasonable apprehension of bias. (Mohamed v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 322, [2002] F.C.J. No. 438 (QL), at
paragraphs 29-30.)
[40]
There
is no reviewable error in this decision.
CONCLUSION
[41]
The
Court answers all three questions in the negative and the application for
judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified. The parties did not propose any question
for certification and the Court does not submit any in this regard.
“Michel M.J. Shore”
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