Date: 20050615
Docket: IMM-4752-04
Citation: 2005 FC 858
BETWEEN:
LIOUBOV DOUDKINA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Lioubov Doudkina is a nice lady who came to Canada from Kazakstan 10 years ago. She has learned both English and French, is gainfully employed, pays her taxes, is active in her church and in the community at large, and has never run afoul of the law. She would like nothing better than to remain in Canada.
[2] However, her claim for refugee status was denied. She married a Canadian some years ago, but his sponsorship of her unravelled along with their marriage. She was in a terrible automobile accident for which she required treatment in Canada for three years. She asked for an assessment of the risks she would be subjected to should she return to Kazakstan. The report was negative.
[3] More recently, she asked the Minister to examine her circumstances and to grant her permanent resident status on humanitarian and compassionate grounds. That decision was also against her. This is the judicial review thereof.
[4] The standard of review in these matters is one of reasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Singh v. Canada (Minister of Citizenship and Immigration), 2004 FC 187).
[5] An unreasonable decision is one that cannot stand up to a somewhat probing examination. This means that a court will often be forced to accept that a decision is reasonable even if it unlikely that it would have come to the same conclusion (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 46).
[6] The Immigration Officer held that the essence of the humane and compassionate exemption is hardship which must be unusual, undeserved or have a disproportionate impact on a person due to her own personal circumstances. She was not satisfied that if Ms. Doudkina were to return to Kazakstan she would suffer undue hardship. She had stronger family ties at home, had savings, language skills and experiences which would aid her in re-settling back in Kazakstan, while she submitted a permanent residency application through normal channels. In terms of family ties, she has no children, and only a distant relative in Canada.
[7] I consider it significant that before making her decision the Immigration Officer sought an updated risk opinion as to whether Ms. Doudkina was justified in fearing a risk of serious danger should she return to Kazakstan. She reiterated discrimination which had been reflected in her testimony in her refugee claim. That discrimination is based on her Russian ethnicity, her religion and her gender. She was also concerned that she would be returning to Kazikstan with some money. The Pre-removal Risk Assessment Officer offered a reasoned opinion in which he considered that she would not be subjected personally to a risk to her life or a risk to her security if she returned to Kazakstan. She was given 22 days to comment on a draft thereof. She failed to do so.
[8] During argument, it was alleged that her parents are no longer in Kazakstan, but in Russia. She also had the opportunity to update her situation, and failed to do so. This opportunity to comment distinguishes this case from Singh, supra.
[9] There has been an enforceable removal order against her since 1997. Failure on the part of the Minister to act earlier does not constitute an estoppel. Section 48 of the Immigration and Refugee Protection Act requires the foreign national to leave immediately of her own accord. She did not do so.
[10] Although I may have come to a different conclusion, the Federal Court is not a court of final appeal. It is a court of judicial review, meaning it must consider whether the rules of natural justice have been respected and whether the decision in question satisfies the appropriate standard. I cannot find that the decision was unreasonable, and so must dismiss the application. There is no question of general importance to certify.
"Sean Harrington"
Judge
Toronto, Ontario
June 15, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4752-04
STYLE OF CAUSE: LIOUBOV DOUDKINA
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 14, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: JUNE 15, 2005
APPEARANCES:
Elena Chinkarenko-Levy FOR APPLICANT
John Provart FOR RESPONDENT
SOLICITORS OF RECORD:
Elena Chinkarenko-Levy FOR APPLICANT
Toronto, ON
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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