Date: 20061109
Docket: IMM-1975-06
Citation: 2006 FC 1356
Ottawa, Ontario, November 9,
2006
PRESENT: The Honourable
Mr. Justice de Montigny
BETWEEN:
BALJIT
KAUR PANNU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
Ms.
Pannu has lived in Canada since 1988, when she moved here from India. After a
series of events I will recount below, both of Ms. Pannu’s previous two
sponsors were declared inadmissible and deported. She has lived here without
status since December 1998, when her work permit expired. In December 2004, Ms.
Pannu made her third humanitarian and compassionate application (H&C),
hoping to have her application for permanent residence processed in Canada. The
immigration officer, Courtnay Petschulat, refused her application in a decision
dated November 29, 2005. This is a judicial review of that decision.
FACTS
[2]
Ms.
Pannu was born in India on February 20, 1965. She married her first
husband, a Canadian permanent resident, in India by arranged
marriage on March 16, 1986. Her husband, Iqbal Saroya, sponsored her for
permanent residence. She was originally declared medically inadmissible,
because she suffered from heart disease. However, she was granted a Minister’s
Permit under section 114 of the former Immigration Act on August 15,
1988.
[3]
However,
by the time she arrived in Vancouver in 1988, Mr. Saroya was serving a prison
sentence in Toronto for
attempted murder. Ms. Pannu moved in with Mr. Saroya’s relatives while he
served his sentence. He was paroled in 1991, and thereafter spent his days with
his family and his nights in a halfway house as mandated by his parole. Then,
he was convicted of three other crimes in 1992 while on parole: aggravated
assault, possession of a weapon and assault causing bodily harm. Ms. Pannu
continued to live with Mr. Saroya’s family while he served his second sentence.
[4]
In
1991, Ms. Pannu had heart surgery in Canada. Mr. Saroya was
deported to India in 1995. The
couple’s divorce was effective May 16, 1996. Mr. Saroya’s mother apparently
convinced him not to contest Ms. Pannu’s divorce application.
[5]
From
here, Ms. Pannu made several claims to the immigration authorities:
1.
H&C
Application #1: Ms. Pannu applied for landing on humanitarian and
compassionate grounds in 1995. It was denied, and she was instructed to leave Canada by January
13, 1996, when her Minister’s Permit was set to expire.
2.
Refugee
Claim:
She then claimed Convention refugee status in August 1996, arguing Mr. Saroya
would find and kill her if she returned to India. She also
argued she could not rely on police protection in India, as she
risked being raped by them because she was a single woman. The IRB’s Convention
and Refugee Determination Division (CRDD) rejected her refugee claim, in a
decision dated May 6, 1998. The CRDD panel found there was no nexus between Ms.
Pannu’s circumstances and either the Convention refugee definition or the
Gender Guidelines. It also found her claims about Mr. Saroya’s threats were
contrived for the purpose of her refugee claim.
3.
Post-Refugee
Claim Review (PDRCC Review): Ms. Pannu argued Mr. Saroya would kill her if
she returned to India, and the police would be helpless to protect
her as a single woman. This was rejected in September 1999.
[6]
Before
the PDRCC Review was released, however, Ms. Pannu had met and married her
second husband. In October, 1998, she moved from Toronto to British
Columbia.
On June 27, 1999, she married Guriqbal Singh Pannu, a landed immigrant. He
applied to sponsor her for permanent residence on July 17, 1999. Ms. Pannu was
granted inland sponsorship the following August. On October 20, 2000, the
couple’s daughter Gurneet Kaur Pannu was born.
[7]
But
Mr. Pannu was subsequently found inadmissible to Canada. He had lied
on his application to immigrate, claiming he was the dependent son of a woman
who was not his mother. His mother had died in 1987. Mr. Pannu was ordered
deported from Canada on September
12, 2001. Ms. Pannu was included in the removal order, and thereafter made
another series of claims:
4.
Appeal to the Immigration Appeal Division – with Mr. Pannu: The
couple appealed the removal order under paragraph 70(1)(b) of the old Immigration
Act. That paragraph gave the Board’s Immigration Appeal Division the
authority to quash or stay a removal order under its equitable jurisdiction. The
Board could consider foreign hardship a permanent resident might face if
removed from Canada. Their
appeal was dismissed, in a decision dated April 26, 2002.
5.
H&C Application and PRRA – with Mr. Pannu: The couple made an
H&C application in June, 2002, and applied for a PRRA in June, 2003. Both
were refused in January 2004. The couple signed a separation agreement on
December 22, 2004.
6.
Judicial Review of Negative PRRA Decision – with Mr. Pannu: The
couple’s application for judicial review was rejected on November 26, 2004.
7.
Refugee Claim #2 – Ms. Pannu only: Ms. Pannu claimed Convention
refugee status again on November 12, 2003. Her claim was refused on October 21,
2004, for credibility reasons.
8.
H&C Application #3 – Ms. Pannu only: Ms. Pannu made a third
H&C application under subsection 25(1) of the IRPA on December 24, 2004. It
was refused on November 29, 2005. That is the decision under review in this
hearing.
THE IMPUGNED DECISION
[8]
While
the officer accepted that Ms. Pannu had established herself in Canada to a certain
extent, she found “it [was] of a level that is naturally expected of her”
(Applicant’s Record, page 9). She also noted that Ms. Pannu’s parents and
siblings lived in India, she was not currently employed, and was not
self-supporting in Canada. Therefore, she concluded severing ties would
not have a harsh enough impact to justify invoking the H&C exemption.
[9]
The
officer then looked at the Applicant’s various allegations. With respect to risk/hardship, the officer
referred to the negative PRRA decision against Ms. Pannu and her second husband
(rejected in 2004). The PRRA officer had found the couple had an internal
flight alternative available in New Delhi. However, Ms.
Pannu claimed that option only existed for the couple. Now that they had
separated, Ms. Pannu argued New
Delhi was no longer an
alternative.
[10]
The
officer decided Mr. Saroya’s criminal record on its own was not sufficient
evidence that he would harm Ms. Pannu if she returned to India. The officer
found that none of Mr. Saroya’s convictions involved any harm to Ms. Pannu, and
there was no evidence of domestic abuse aside from her own statements and
letters from her relatives. The officer found no independent, persuasive
evidence that Mr. Saroya had tried to contact Ms. Pannu since their divorce in
1996.
[11]
The
officer agreed the status of women in India was “not ideal” (Applicant’s
Record, page 10). However, evidence about battered women in India was not
helpful, as the officer had concluded Ms. Pannu was not a battered woman. The officer
disagreed that it was reasonable to infer that Mr. Saroya would locate and harm
Ms. Pannu, solely because of his violent history.
[12]
The
officer also referred to a letter submitted by Ms. Pannu’s father, and found it
was not supported by the evidence. In the letter Ms. Pannu’s father informed
her that Mr. Saroya had been to his house asking when she might return to India. He wrote
her life would be in danger if she returned, and also said she and her daughter
would not be able to rely on him for shelter or support in India (Certified Tribunal
Record, pages 39-40). The officer assigned little weight to that letter,
because it did not come from a disinterested party. The officer also concluded
this letter was inconsistent with evidence in her H&C application –
specifically, that she had lived with her father before coming to Canada in
1988, and was still in contact with her parents in India.
[13]
Overall,
the officer was not convinced the alleged hardship would amount to unusual and
undeserved or disproportionate hardship.
[14]
Regarding
the best interests of the child, the officer stated this was an important – but
not determinative – factor in the decision. The officer concluded there was no
evidence Gurneet’s basic amenities could not be met in India. At her age
(she turned six October 20, 2006), she had the ability to adapt. She had
attended pre-school at the Khalsa School in Surrey, spoke
Punjabi and attended the Canadian Singh Sabha Gurdwara Society with her mother.
Finally, the officer noted Gurneet’s extensive family in India, and
concluded (Applicant’s Record, page 11):
I have reviewed the country
conditions in India and I find that the applicant
has failed to establish that a personal and direct serious harm exists to her
and her daughter. I also find that the applicant has not established that the
general hardships o[f] relocating and resettling to another country would have
a significant negative impact to her daughter that would amount to unusual or undeserved
or disproportionate hardship.
APPLICANT’S SUBMISSIONS
[15]
Ms.
Pannu argues the officer did not give any weight to her establishment in Canada. She also
claims the officer ignored relevant evidence when concluding she would not face
risk if returned to India. Specifically, she disputes the officer’s
conclusion that she will be able to rely on her parents for support in India. She claims
that despite living with them before coming to Canada, and despite
maintaining contact with them, her parents will treat her differently now that
she is a divorced woman. In that respect, she claims the officer ignored the
evidence that was submitted relating to the treatment of divorced women in India.
[16]
Ms.
Pannu claims the officer ignored the psychologist’s report, and provided
insufficient reasons for dismissing her father’s letter. She also claims the officer
applied the wrong test in evaluating the H&C application. She argues the officer
used the test appropriate in a PRRA application, that is, whether the claimant
faces a risk to life or cruel and unusual punishment, rather than the
appropriate test of whether the claimant faces unusual and undeserved or
disproportionate hardship.
[17]
She
also argues the officer incorporated the wrong test when assessing the best interests
of her daughter. She cites Arulraj v. Canada (Minister of Citizenship
and Immigration), 2006 FC 529 for the principle that it was an error to
incorporate the H&C test of “unusual, undeserved or disproportionate”
hardship when assessing Gurneet’s best interests. In Hawthorne v.
Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, Mr. Justice Robert Décary
wrote at paragraph 9: “…that the concept of ‘undeserved hardship’ is ill-suited
when assessing the hardship on innocent children. Children will rarely, if
ever, be deserving of any hardship.”
[18]
Finally,
Ms. Pannu submits the officer ought to have considered her potential medical
inadmissibility when assessing both her H&C submissions and her daughter’s
best interests.
RESPONDENT’S SUBMISSIONS
[19]
The
Minister argues that interfering with the officer’s decision would require
re-assessing the weight she gave various pieces of evidence in Ms. Pannu’s
H&C application. He counters Ms. Pannu’s argument that the officer ignored
any evidence provided. Rather, he argues, she simply determined sufficient
H&C grounds did not exist for Ms. Pannu’s claim to succeed.
[20]
Regarding
Ms. Pannu’s level of establishment, the Minister argues the officer explicitly
considered factors in Ms. Pannu’s favour – but concluded they were not strong
enough to create hardship. That was a discretionary decision she was entitled
to make.
[21]
Regarding
the alleged risk or hardship in India, the Minister submits
the officer considered both Ms. Pannu’s status as a divorced woman, and her
allegations of abuse by Mr. Saroya. She was entitled to conclude there was
insufficient evidence to make any finding of abuse, or future risk.
Specifically, there was no evidence Mr. Saroya had made any attempts to contact
her directly since their divorce.
[22]
With
respect to the psychological report, the Minister submits it merely contains a
recitation of what Ms. Pannu told the psychologist. As the burden to refer to a
particular piece of evidence depends on its relevance, the officer made no
error by ignoring it.
[23]
The
Minister claims Ms. Pannu is making the same arguments that failed in all her
previous applications. He writes: “Her allegation of risk has not improved with
time and this was demonstrated by the lack of objective corroborative evidence.
The PRRA Officer’s reasoning was not unreasonable” (Respondent’s Record, page
11).
[24]
The
Minister argues Ms. Pannu is placing form over substance by claiming the
officer applied the wrong test when considering the best interests of her
daughter. Overall, he submits the officer acted reasonably by being alert,
alive and sensitive to the likely degree of hardship Gurneet would face in India.
[25]
Finally,
regarding her arguments about medical inadmissibility, the Minister submits Ms.
Pannu provided no evidence about her medical condition in her H&C
application. Accordingly, the officer had no foundation on which to base any
conclusion.
ISSUES
This application for judicial review
essentially raises two issues:
1. What is
the appropriate standard of review?
2. Did the
officer adequately consider all of the relevant factors in the H&C decision?
ANALYSIS
[26]
Subsection
11(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the IRPA) requires foreign nationals to apply for visas before
they arrive in Canada. By submitting an H&C application, Ms.
Pannu asked for an exemption from subsection 11(1). Under subsection 25(1) of
the IRPA, applicants can apply for visas within Canada, provided
they can establish sufficient humanitarian and compassionate or public policy
grounds to justify using the exemption. It is widely understood that invoking
25(1) is an exceptional measure, and not simply an alternate means of applying
for permanent resident status to Canada.
[27]
There
is no disagreement between the parties that the appropriate standard of review
is reasonableness, pursuant to Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817. Accordingly, this
Court will not interfere with the H&C decision unless it discloses no line
of analysis which could reasonably lead the officer from the evidence to the
conclusion she reached (Law Society of New Brunswick v. Ryan,
2003 SCC 20, [2003] 1 S.C.R. 247 at paragraphs 48-49; Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748
at paragraph 56).
[28]
In
Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, Justice La Forest most
accurately described the respective roles of the legislature, the executive and
the judiciary in the context of immigration. He wrote (at paragraph 38):
This standard appropriately
reflects the different obligations of Parliament, the Minister and the
reviewing court. Parliament’s task is to establish the criteria and procedures
governing deportation, within the limits of the Constitution. The Minister’s
task is to make a decision that conforms to Parliament’s criteria and
procedures as well as the Constitution. The court’s task, if called upon to
review the Minister’s decision, is to determine whether the Minister has exercised
her decision-making power within the constraints imposed by Parliament’s
legislation and the Constitution. If the Minister has considered the
appropriate factors in conformity with these constraints, the court must uphold
his decision. It cannot set it aside even if it would have weighed the factors
differently and arrived at a different conclusion.
[29]
Before
turning to the substance of the Applicant’s claims, it bears repeating that the
relief under section 25 of the IRPA is an exceptional remedy dependent on the
Minister’s discretion. An applicant is not entitled to a particular outcome,
even if there are compelling humanitarian and compassionate considerations at
play. The Minister can balance humanitarian and compassionate considerations
against public interest reasons that might exist for refusing to grant an
exceptional remedy. The person making an H&C application has the onus to
bring any relevant evidence to the officer’s attention and to satisfy the
officer that, in his or her personal circumstances, the requirement to obtain a
visa from outside Canada in the normal manner would cause unusual and
undeserved or disproportionate hardship. The fact that Canada is a more
desirable place to live than the country of removal is not determinative of an
H&C application (Legault v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 125, [2002] 4 F.C. 358 at paragraphs 14-20; Serda
v. Canada (Minister of Citizenship and Immigration), 2006 FC 356 at
paragraphs 20-23; Owusu v. Canada (Minister of Citizenship
and Immigration), 2004 FCA 38).
[30]
Regarding
her establishment in Canada, Ms. Pannu argues that the officer’s
assessment was unreasonable because she did not give adequate credit for the
length of Ms. Pannu’s time in Canada, previous employment, ties to the Sikh
community and significant ties to Canada as a result of her
child being born here. But having carefully reviewed the officer’s reasons, I
am of the view that she did take all of these factors into consideration. Her
assessment was that Ms. Pannu had established herself to a certain extent in Canada, but not
beyond what would normally be expected of a person having resided in the
country for eighteen years. She noted that she does not appear to have close
family members in Canada as her parents and sibling reside in India, and that
she is currently unemployed. Though that is not her fault (she has had no work
permit since 1999), and despite the fact that she cannot be blamed for the
breakdown of her two marriages, the officer found that severing her community
and employment ties in Canada would not have a significant negative impact that
would justify an exemption under humanitarian and compassionate considerations.
This is a conclusion that she could legitimately draw from the evidence submitted
to her, and I am unable to find it was unreasonable to so conclude. In any
event, it must be remembered that the degree of establishment is only one of
the factors to be taken into consideration to determine if an applicant would
suffer undue, undeserved or disproportionate hardship if returned to his or her
country of origin.
[31]
Ms.
Pannu argues the officer erred by ignoring a psychologist’s report documenting
threats and abuse by her first husband, Mr. Saroya. She also claims the officer
did not provide sufficient reasons to explain why she discounted a letter from
Ms. Pannu’s father. But having reviewed the reasons of the officer, I am of the
view that these claims are ill founded. First of all, the psychologist’s report
was simply a recitation of Ms. Pannu’s submission. It could not be considered
probative evidence of spousal abuse, as it was essentially hearsay. Therefore,
the officer did not have a duty to refer to it explicitly. As the Federal Court
of Appeal stated in Ozdemir v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 331, at paragraph 9, “Decision-makers
are not bound to explain why they did not accept every item of evidence before
them. Much depends on the significance of that evidence when it is considered
in light of the other material on which the decision was based.”
[32]
As
for the letter from Ms. Pannu’s father, the officer did refer to it but found
that it was self-serving. The officer found the letter was inconsistent with
the fact that Mr. Saroya had made no attempts in the last 15 years to contact
Ms. Pannu directly, and that there is no indication the relationship included
any history of domestic violence. This conclusion does not strike me as being
unreasonable.
[33]
Ms.
Pannu has alleged the same risk of return to India at the hands
of Mr. Saroya since 1996 when she made her refugee claim which was refused. This
allegation was also made in her 2002 H&C and PRRA applications and it was
an allegation made before the Board in her second husband’s appeal of the
removal order. In that appeal, the Board found that Ms. Pannu’s evidence -
specifically, regarding her alleged past abuse - was not credible and not
consistent with her own evidence and that of the other witnesses. As the
Minister has argued, her allegation of risk has not improved with time and this
was demonstrated by the lack of objective corroborative evidence.
[34]
Ms.
Pannu also submits that the officer did not turn her eyes to her newfound
status as a divorced woman, and to the evidence of the treatment of divorced
women in India. But a
careful reading of the decision shows that the officer did take that factor
into consideration. Indeed, she wrote (Applicant’s Record, page 10): “The Applicant
has provided a separation agreement and a Writ of Summons and Statement of Claim
in respect to a divorce from her marriage to Ms. Pannu. I will therefore
consider the hardships that she may face if she returns to India alone with
her daughter.”
[35]
While
it is true that the bulk of the officer’s reasons were dedicated to Ms. Pannu’s
abuse allegations, this should come as no surprise. Most of Ms. Pannu’s
submissions were also dedicated to supporting her claims of abuse. The officer
also found that Ms. Pannu’s allegation that her father will not offer any
support to her daughter and grand-daughter upon their return to India was not
borne out by the facts or the evidence. She noted, in particular, that
according to her H&C application, the Applicant resided in her father’s
home prior to her arrival in Canada and appears to be in contact with her
parents. Again, this was not an unreasonable conclusion to come to.
[36]
Ms.
Pannu’s counsel also contended that the officer applied the wrong test when it
assessed whether the Applicant had provided sufficient humanitarian and
compassionate grounds. He focused his argument on the last paragraph of her
reasons, where she wrote:
I have considered all
information regarding this application as a whole. Having reviewed and
considered the grounds the applicant has forwarded, I am not satisfied that
sufficient humanitarian and compassionate grounds exist to approve this
exemption request. A request for humanitarian and compassionate consideration
is not in place to serve as an alternative stream for immigration to Canada. I am satisfied that the
applicant would be able to apply to immigrate to Canada through the standard
overseas procedures without requiring an exemption from the usual requirements
without putting her at risk to life or risk to her personal security.
[37]
I
do not think that the reference in the last sentence to the risk to life of
personal security is proof that the officer applied the wrong test. First of
all, the officer could certainly adopt the factual conclusions in her PRRA
decision to the analysis she was making in the H&C application (Liyanage
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1045 at paragraph 41). Second, it
is clear from a contextual reading of this paragraph that she was coming to the
conclusion that the Applicant would not suffer unusual and undeserving, or disproportionate
hardship since there was no objective evidence of personal risk. Not only did
the officer correctly set out the H&C test at the very beginning of her
reasons, but she also concluded her discussion of the Applicant ’s allegations
of risk and hardship in the following way:
With the evidence before me, I
find that the applicant has not provided sufficient persuasive evidence to
establish that she faces a personalized risk to her life or a risk to the
security of the person from her ex-husband if returned to India. Similarly, I find that the applicant
has not provided sufficient probative evidence to establish the hardships
associated with returning to India amounts to unusual and
undeserved or disproportionate hardship.
[38]
As
a result, I am convinced that the officer applied the correct test in assessing
the Applicant’s H&C application. The same conclusion applies with respect
to her comments about the best interests of the child. Ms. Pannu argues the
immigration officer wrongly applied the concept of “undeserved hardship” in
this case, and she relies for that purpose of the following excerpt of the
officer’s decision:
I also find that the applicant
has not established that the general hardships of relocating and resettling to
another country would have a significant negative impact to her daughter that
would amount to unusual and undeserved or disproportionate hardship. [Emphasis
added]
[39]
It
is well established that the immigration officer was required to assess the
potential hardship to Ms. Pannu and her child if she or they had to return to
India to apply for permanent residence to Canada (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817). In making this assessment, the officer was required to be “alert,
alive and sensitive” to the best interests of the child. However, the officer
was not required to treat the best interests of the children as an overriding
or determinative factor in the analysis of whether an exemption from the normal
statutory requirements was justified in the circumstances. As Mr. Justice
Décary mentioned in Legault, above, at paragraph 12:
In short, the immigration
officer must be “alert, alive and sensitive” (Baker, para. 75) to the interests
of the children, but once she has well identified and defined this factor, it
is up to her to determine what weight, in her view, it must be given in the
circumstances. The presence of children, contrary to the conclusion of Justice
Nadon, does not call for a certain result. It is not because the interests of the
children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by
Justice Nadon, will generally be the case), that the Minister must exercise his
discretion in favour of said parent. Parliament has not decided, as of yet,
that the presence of children in Canada constitutes in itself an impediment to
any “refoulement” of a parent illegally residing in Canada…
[40]
I
agree with the Minister that the Applicant’s argument places form over
substance. It is true that the officer did not identify and enumerate the best
interests of Gurneet separately from determining the degree of hardship Gurneet
would face if she went to India with her mother. But as Mr. Justice Décary said in Hawthorne, above, at
paragraph 4, these are really two aspects of a single analysis:
The “best interests of the
child” are determined by considering the benefit to the child of the parent’s
non-removal from Canada as well as the hardship the
child would suffer from either her parent’s removal from Canada or her own voluntary
departure should she wish to accompany her parent abroad. Such benefits and
hardship are two sides of the same coin, the coin being the best interests of
the child.
[41]
In
essence, what really matters are not the words the officer used, but whether
the officer was actually alert, alive and sensitive to Gurneet’s best interests.
While noting that Ms. Pannu would have a choice as to whether she would return
to India with Gurneet, she chose to focus on the most probable scenario - that
of Ms. Pannu leaving with her child. She then determined that if Gurneet were
to return to India, she would adapt to India given that
she speaks Punjabi and has been attending pre-school at the Khalsa School in Surrey
and has been exposed to Punjabi culture through the Sikh community in Surrey. This
was not an unreasonable finding.
[42]
Finally,
Ms. Pannu has argued the officer erred by failing to consider that Ms. Pannu
may be deemed medically inadmissible if forced to apply for permanent residence
from India. I agree with the Minister that it is unfair to critique the officer
for failing to decide an issue for which the claimant provided no evidence in
her application. Even if the officer had wanted to assess Ms. Pannu’s medical
condition, she would have had nothing to guide her decision.
[43]
I
am therefore of the view, for all the above reasons, that this application for
judicial review should be dismissed. No question was suggested for
certification, and none will therefore be certified.
JUDGMENT
THIS COURT
ORDERS THAT this application for judicial review should be dismissed. No
question was suggested for certification, and none will therefore be certified.
"Yves
de Montigny"
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