Date: 20050930
Docket: IMM-9174-04
Citation: 2005 FC 1321
BETWEEN:
RAKHILIA OSHUROVA
RUSLAN TORGOEV
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review based on subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by a pre-removal risk assessment officer dated September 28, 2004, dismissing the permanent residence application on humanitarian and compassionate grounds filed by the applicants from Canada pursuant to subsection 25(1) of the Act.
[2] The PRRA officer was not persuaded that the applicants would suffer undue, disproportionate or undeserved hardship if they were required to apply for permanent residence from outside Canada, determining that they would not be subject to a personal objectively identifiable risk.
[3] This application raises the following issues:
1. Does a PRRA officer have jurisdiction under the Act to represent the Minister and then act on an application under subsection 25(1) of the Act, when he is employed by the Canadian Border Services Agency (CBSA), which is responsible to the Solicitor General of Canada?
2. Is there an appearance of bias because the same officer decided the application for a visa exemption on humanitarian and compassionate grounds as well as the PRRA application?
3. Did the PRRA officer err in his assessment of the evidence (1) in determining that the applicant's presence would not be essential to her sister's reestablishment, and (2) by improperly basing his decision on extrinsic evidence?
[4] The first question is answered in the affirmative based on Krotov v. Canada (M.C.I.), 2005 FC 438, [2005] F.C.J. No. 541 (F.C.) (QL), where Blais J. states the following:
[14] The fact that for some time, this PRRA Officer was attached to another branch of government, namely the CBSA, in my opinion is in no way a bar to the exercise of the Minister's discretion.
.
. . .
[16] . . . On the legal basis of whether the Minister of Citizenship and Immigration had the authority to delegate responsibility to an officer who might ultimately have been responsible to the CBSA, the Minister's authority to delegate is clear and was exercised in an entirely legal manner in the case at bar.
[5] The second question is answered in the negative based on Say et al. v. The Solicitor General of Canada (May 27, 2005), IMM-2228-04, 2005 FC 739, where Gibson J. states the following at paragraph 41 :
. . . The fact that the Government within ten (10) months of transferring the PRRA Program from the Department of Citizenship and Immigration to the CBSA, determined to transfer it back because, following consultations, it concluded the function was more in the nature of a protection function than an enforcement function does not, I conclude, lead to a presumption that while the program was with CBSA, it was subject to institutional bias or lack of impartiality and independence. Rather, I am satisfied that it reflects the fact that the Government concluded that, in the minds of those concerned with protection of persons subject to removal from Canada, as a matter of first impression, the situation of the Program in CBSA raised apprehensions.
[Emphasis added.]
[6] Finally, with regard to the third question, the applicants first submit that the PRRA officer's assessment does not take into account the psychologist's letter dated August 12, 2002. They submit that the officer is not an expert in psychology and could not determine whether or not the applicant's presence was essential to her sister's reestablishment. The psychologist's letter indicates that Ms. Oshurova's presence would be a very significant factor in the process of her reestablishment. The letter did not establish that her presence was essential. Under the circumstances, it was not unreasonable for the officer to determine as he did. It was the applicants' responsibility to persuade the officer that humanitarian grounds justified a favourable recommendation. It is not appropriate for the Court to intervene in the reasonable exercise of the officer's discretion based only on the weight that he assigned to the facts and circumstances raised before him (see Dilmohamed v. Minister of Citizenship and Immigration, 2002 FCT 9).
[7] With respect to the applicants' argument alleging that the decision-maker unduly relied on extrinsic evidence in his decision, I find it is unfounded. On that point, I agree, generally speaking, with the written arguments contained in paragraphs 41 to 59, inclusively, of the respondent's memorandum and affidavit, document No. 5, filed on January 17, 2005.
[8] For all of these reasons, the application for judicial review is dismissed.
[9] The following question is certified:
Is there an appearance of bias in this case because the same officer decided the application for visa exemption on humanitarian and compassionate grounds as well as the PRRA application?
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 30, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9174-04
STYLE OF CAUSE: RAKHILIA OSHUROVA, RUSLAN TORGOEV v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING Montréal, Quebec
DATE OF HEARING: August 23, 2005
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 30, 2005
APPEARANCES:
Lucrèce M. Joseph FOR THE APPLICANTS
Evan Liosis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lucrèce M. Joseph FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Email this Content