Date: 20061122
Docket: IMM-7148-05
Citation: 2006 FC 1415
Ottawa, Ontario,
November 22, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
MOHAMMED HAMID WAZID,
HEMWATTIE WAJID,
ARON WAJID,
CHRISTOPHER WAJID
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Mohammed
Hamid Wazid and his sons Aron and Christopher arrived in Canada from Guyana in December 2001. Mr. Wazid’s wife,
Hemwattie arrived two weeks later. The Indo-Guyanese family applied for refugee
status based on their fear of racial persecution from the black population of Guyana. Their claims were turned
down in January 2003 and removal orders were issued. In December 2004, they applied
for an exemption based on Humanitarian and Compassionate grounds (H&C
application) in order to apply for permanent residence status from within Canada.
[2]
The
applicants seek judicial review of the decision refusing their H&C
application.
[3]
They argue
that the immigration officer failed to consider the hardship that they would
face if they had to apply for permanent residence from Guyana. More particularly, they say that the
immigration officer misinterpreted the hardship test in such a way as to impart
to it a requirement that H&C claimants must be facing death or torture
before they can obtain an exemption under Section 25(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c-27, (IRPA).
[4]
The
applicants further submit that the officer misconstrued or disregarded relevant
evidence and failed to provide adequate reasons for her decision as she does
not discuss at all the voluminous documentary evidence they had filed in
support of their H&C application.
[5]
Finally,
they claim that the officer failed to give proper consideration to their level
of establishment in Canada.
[6]
For the
following reasons, the Court has come to the conclusion that the decision
contains no reviewable error.
STANDARD OF REVIEW
[7]
In Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999]
S.C.J. No. 39 (QL), the Supreme Court of Canada determined that the decisions
of immigration officers concerning H&C applications should be reviewed on a
standard of reasonableness simpliciter.
[8]
This is
important for it means that the reviewing Court cannot weigh the evidence and
substitute its own assessment for that of the officer. Reasonableness is not
about whether the officer came to the right result. Rather: “[if] any reasons that
are sufficient to support the conclusion are tenable in the sense that they can
stand up to a somewhat probing examination, then the decision will not be
unreasonable and a reviewing Court must not interfere”. (Law Society of New
Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55)
[9]
As to the
question of whether or not the officer applied the right test, this is a
question of law to which the Court will apply the standard of correctness.
Finally, in respect of whether or not the officer’s reasons are appropriate, there
is no need to proceed to a functional and pragmatic analysis to determine the
standard of review: Ha v. Canada (Minister of Citizenship and Immigration),
2004 FCA 49, [2004] 3 F.C.R. 195; Canada (Attorney General) v. Sketchley,
2005 FCA 404, [2005] F.C.J. No. 2056 (QL). The Court will normally interfere if
there has been a breach of procedural fairness.
ANALYSIS
a. The test
[10]
The
Federal Court of Appeal in Legault v. Canada (The Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), [Legault], made it clear
that immigration officers are to exercise their discretion in favour of an
applicant where the hardship that he would face if he had to apply from outside
Canada is unusual and undeserved or disproportionate.
[11]
The
applicants’ argument implies that the officer has mistakenly conflated the
level of hardship required under section 25(1) of the IRPA with that required
for a claim under section 97(1) of the IRPA. If the officer had done so, there
is no doubt this would be a reviewable error (Ranganathan v. Canada
(Minister of Citizenship and Immigration) (C.A.), [2001] 2 F.C. 164, [2000] F.C.J. No.
2118 (QL)).
[12]
However,
there is no indication that the officer made such an error in the present case.
In her reasons, the officer does not refer at all to the absence of probable
death or torture as a justification for her decision. Having carefully reviewed
the decision, the Court is simply not satisfied that the decision maker has
applied the wrong test.
b. Level of establishment
in Canada
[13]
With
respect to the level of establishment of the applicants, the officer clearly
explains her reasons for stating that a temporary exit to file their
application in accordance with the normal rules would not cause undue hardship.
She notes that when living in Guyana, the applicants were duly
employed and that they have $16,000 in a bank account there as well as family.
She also finds that their degree of establishment in Canada is not exceptional and that they bought
their house and set up their home with the knowledge that they were under a
removal order and had no status in Canada.
[14]
While
establishment in Canada is acknowledged as a relevant factor in assessing an
H&C application, this Court has on numerous occasions stated that it is to
be evaluated through the lens of “unusual, undeserved or disproportionate
hardship” (see Legault, above). The practical implications of this are
described as follows by Justice Michel Shore in Hanzai v. Canada (Minister of Employment and
Immigration),
2006 FC 1108 at paragraph 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.)
[15]
The word
“exceptional” used by the officer must be read in context. Section 25(1) of the
IRPA deals with an exception to the general rule and it is clear that it should
not be used to encourage misuse of Canada’s
immigration system.
[16]
Although
the applicants have acted as good citizens since their arrival in Canada and
would likely continue to do so, their situation must be assessed keeping in
mind what Justice Denis Pelletier said in Irimie v. Canada (Minister of Employment and
Immigration) (2000)
10 Imm. L.R. (3d) 206, [2000] F.C.J. No. 1906 (QL), at paragraph 26:
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.
[17]
The Court
is satisfied that the decision of the officer with regard to level of
establishment in Canada withstands a somewhat probing
examination.
c. Adequate reasons
and the risks in Guyana
[18]
The Court cannot
agree with the applicants that the officer failed to provide adequate reasons
in respect of the risk they would face in Guyana as a result of failing to analyze the
documentary evidence submitted by their consultant.
[19]
In Jeffrey
v. Canada (Minister of Citizenship and Immigration), 206 FC 605, [2006]
F.C.J. No. 789 (QL), Justice Richard Mosley reviews the recent case law on the
duty of immigration officers to provide reasons in the context of H&C
applications. He mentions that such officers are not required to provide
reasons as detailed as those furnished by adjudicative tribunals. I agree with
his conclusion that the duty of the officer is not to explain why an
applicant’s removal will not cause them unusual, undeserved or
disproportionate hardship. Rather, the officer must point to the inadequacies
of the application that motivated his or her decision. In fact, reasons will be
adequate if an applicant and the Court, under judicial review, know why the
H&C application has been denied.
[20]
In each
case, the decision must be read in the context of the particular circumstances
of the H&C application under review including the written submissions made
on behalf of an applicant. Here, the immigration consultant gave absolutely no
details as what had happened to the applicants in Guyana before they left for Canada. Their H&C application
contained no affidavit or statement by the applicant in that respect. The
consultant only vaguely referred to the decision of the Refugee Protection Division
(RPD) without providing a copy of the said decision to the officer. There is
only one paragraph on the last page of the written submissions dealing with
this issue. It simply states that if the applicants were forced to return to Guyana they will again be
exposed to severe racial and political hardships. None of the nineteen items
attached to these submissions deal with the said risk. It is evident that the
emphasis was on the level of establishment and the hardship arising from having
to leave their new life in Canada.
[21]
In the
updated submissions of December 28, 2004, the consultant refers to the same
risks again in a paragraph dealing with “other hardships”. There, he mentions
that “Mr. and Mrs. Wazid allege that before leaving Guyana, they were a member of the PPP and as such
suffered political violence and persecution, at the hands of the PNC and
their supporters. Also, being Indo-Guyanese, the whole family suffered
from racial hatred and violence”.
[22]
He
concludes that the Wazid family is afraid that their lives would be at risk if
they were to return to Guyana. Attached to the consultant’s
letter are forty-seven items; only two (number 32 and 33) are documents en
liasse on general country conditions in Guyana. The consultant does not explain how
this documentation relates to the personal situation of the applicants. He only
refers to a passage which indicates that the vice-chairman of a major political
party justifies violence against Indians and that the Minister of Home Affairs
had his Canadian visa revoked by the Canadian Government because of his
involvement in “antiradical killing”.
[23]
In his
application record, Mr. Wazid included an affidavit detailing what had happened
to the family before it left Guyana for Canada. However, the Court cannot consider this
evidence which was not before the decision maker.
[24]
It is
important to keep in mind that the applicants were seeking a privilege by
applying for an exemption under section 25(1) of the IRPA. They had the burden
of putting their best foot forward and ensuring that their personal situation
and the risks they faced were clearly explained to the officer reviewing their
application. Although the Court has much sympathy for the applicants’ plight,
judicial review should not be used as a mean of getting a second chance at
meeting that burden.
[25]
In the particular
circumstances of this case, it was open to the officer to conclude that the
applicants had not provided sufficient evidence to support their statements
regarding the risks in returning to Guyana.
It is clear from the decision that the risk referred to encompass the risk of
personal, political and racial hardship alleged by the applicant and that the
decision maker did consider the extract of the country conditions referred to
in the written submissions.
[26]
It may
well be that the reasons could have been better drafted or that the officer
could have given more details about the documentary evidence. However, considering
the submissions before her, the Court is satisfied that the officer did not
breach her duty to explain her decision.
[27]
The
applicants will have the opportunity to present their situation in a more
detailed fashion if and when they apply for a pre-removal risk assessment.
[28]
No question
of general importance was proposed for certification. The Court is satisfied that
this case turns on it own facts.
ORDER
THIS COURT ORDERS that the application for judicial
review is dismissed.
“Johanne Gauthier”
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