Date: 20050629
Docket: IMM-6256-04
Citation: 2005 FC 914
Toronto, Ontario, the 29th day of June, 2005
Present: The Honourable Mr. Justice Blais
BETWEEN:
JEAN-CLAUDE LUSAKWENO MATHEWA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 72 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") of a decision of an Immigration Officer (the "Officer"), dated June 25, 2004, which refused Mr. Jean-Claude Lusakweno Mathewa's (the "applicant") application for an exemption from visa requirements on humanitarian and compassionate ("H & C") grounds.
FACTS
[2] The applicant is a citizen of the Democratic Republic of Congo ("Congo") and arrived in Canada on September 1, 2000. He applied for refugee status upon arrival, but his application was refused on August 22, 2002. A removal order was entered shortly thereafter but never enforced as a moratorium on removals to Congo was and remains in effect. In January 2003, the applicant applied for an exemption from the visa requirements on H & C grounds.
[3] The applicant claimed that he was afraid to return to Congo and that he had become established in Canada and did not want to lose the benefits of this establishment. He claimed that he had found a job with Purolator, that he volunteered with Meals on Wheels and that he was also taking classes to improve his English.
[4] However, on June 25, 2004, the Officer determined that there were insufficient grounds to grant an exemption from the requirement to obtain a visa from outside of Canada.
ISSUES
1. Did the Officer breach the principles of natural justice by failing to ask the applicant to submit more evidence pertaining to the personalized nature of his fear?
2. Did the Officer commit an error by applying an improper test to determine whether the applicant had become sufficiently established in Canada?
ANALYSIS
1. Did the Officer breach the principles of natural justice by failing to ask the applicant to submit more evidence pertaining to the personalized nature of his fear?
[5] The applicant has presented an application for an exemption from having to obtain a visa outside of Canada, based on H & C grounds as per section 25 of the Act:
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25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
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25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- ou l'intérêt public le justifient.
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[6] Upon judicial review of an H & C decision, the standard which I must apply is that laid out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 61 and 62:
The fourth factor outlined in Pushpanathan, [1998] 1 S.C.R. 982, considers the nature of the problem in question, especially whether it relates to the determination of law or facts. The decision about whether to grant an H & C exemption involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.
These factors must be balanced to arrive at the appropriate standard of review. I conclude that 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. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[7] In determining whether an exemption from the regular procedure for obtaining a visa was warranted, the Officer relied on section 5.20 of the IP5 Immigration Manual which reads as follows:
When the period of inability to leave due to circumstances beyond the applicant's control is of significant duration and where there is evidence of a significant degree of establishment in
Canada, these factors may combine to warrant a favourable H & C decision.
[my emphasis]
[8] The test applied is therefore two-fold. As for the first criterion, the Officer found that the applicant's case did meet the test, in that the moratorium on removals to Congo was beyond the applicant's control and could ultimately be of a lengthy duration. It is the second part of the test which the Officer did not believe was met by the applicant.
[9] I would firstly point out that a moratorium on removals to Congo does not in and of itself prevent the H & C application from being denied. The H & C decision by the Officer and the enforcement of the removal order presently against the applicant are two distinct steps, as was stated in Argueles v. Canada (Minister of Citizenship and Immigration), 2004 FC 1477, [2004] F.C.J. No. 1777 at paragraph 23:
In the case at bar, it is worth noting here that the Act does not make the validity of the removal order subject to its enforcement or enforceability. The Act clearly separates the two proceedings (Kalombo v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 615 (F.C.T.D.) (QL); Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.), at pages 708-9). When the panel has made a removal order, the question of when and where the person concerned will be removed is entirely a matter for the Minister (Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at paragraph 74). At this stage, therefore, it cannot be assumed that the deportation order will be carried out by the Minister.
[10] As for the argument that the Officer erred in imposing a legal requirement that the applicant demonstrate a particular risk in order to show an unusual or undeserved hardship, I find it to be unfounded in the facts before me. The Officer simply stated in the earlier part of her decision that the applicant had not convinced her of a personalized risk. During the second part of her decision, she then goes on to analyse the hardship which would be experienced by the applicant if he were to be denied his H & C application. There is no error on behalf of the Officer. As has been stated previously, H & C grounds may exist in cases that would not meet the "unusual and undeserved" criterion but where the hardship of having to apply for an immigrant visa from outside of Canada would have a disproportionate impact on the applicant due to his or her personal circumstances. (Irmie v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906, at paragraph 10)
[11] In addition, as to the applicant's claim that he should have been further probed in order to establish the nature of his fear, I refer to the Court of Appeal case of Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635 at paragraph 8:
H & C applicants have no right or legitimate expectation that they will be interviewed. And, since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril.
2. Did the Officer commit an error by applying an improper test to determine whether the applicant had become sufficiently established in Canada?
[12] The applicant submits that the Officer applied an improper test in finding that the applicant could find similar work in his home country. I respectfully submit that counsel for the applicant is misreading what the Officer stated. The relevant paragraph of her decision reads as follows:
M. Lusakweno Mathewa travaille à Purolator comme trieur depuis juin 2002. Il indique que cet emploi lui permet d'économiser pour sa formation à l'avenir. Je ne suis pas satisfaite que M. Lusakweno Mathewa ne pourrait pas trouver un emploi semblable s'il devait présenter sa demande de résidence permanente hors du Canada. Quant à la preuve d'épargnes, elle est insuffisante parce qu'il n'a pas soumis une confirmation quelconque d'une institution financière. (Page 2 of the decision of the Officer dated June 25, 2004)
[13] As I read it, the Officer is indicating that the applicant is not sufficiently integrated in a type of employment which would prevent him from finding a similar one if he were to return to Canada. The Officer even mentions that the applicant wanted to find a job in the field of Information Technology (IT), but that he was working as a mail sorter until he could save up enough money to receive training in the IT field.
[14] I find it perfectly reasonable for the Officer to have determined that the applicant was not working in his desired field, and that his present employment was not sufficient to prove a significant degree of establishment.
[15] Furthermore, I find the comment by the Officer that the applicant could find volunteer opportunities in other countries which were similar to the ones in which he was participating to be reasonable, as the Officer continues by stating that it would therefore not be an excessive hardship to have to leave those organizations. The test applied was not whether the applicant could find similar opportunities abroad, but whether leaving them behind in Canada would cause him excessive hardship; that was the appropriate test.
[16] In my view, the Officer supported her decision in finding that the applicant's level of establishment in Canada was simply not high enough to justify that the H & C application be granted. For example, she stated that:
· The applicant had no family members in Canada. His parents and four sisters were all still in Congo. The applicant did mention that his "extended family" consisted of members of the liberal party. However, the applicant provided no proof of his involvement with any of their activities.
· The claim that the applicant was saving money in order to find a job in the IT field could not be verified, as the applicant submitted no documents from his financial institution to support it. Furthermore, no proof was submitted to convince the Officer that the applicant really was trying to enter the field of IT.
· Although the applicant stated that he was enrolled in school, no proof was provided to support his claim that he was attempting to improve his English.
[17] All of the above are findings of fact, which are entirely within the expertise of the Officer. As was stated in the case of Agot v. Canada (Minister of Citizenship and Immigration), 2003 FCT 436, [2003] F.C.J. No. 607 at paragraph 8:
The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.).
[18] In light of the applicable standard of reasonableness simpliciter, I do not believe that the decision of the Officer contains errors which would justify the intervention of this Court. For that reason, this application for judicial review should be dismissed.
[19] Counsel for the defendant suggested a question for certification:
Does the definition of unusual and undeserved hardship in the context of an humanitarian and compassionate application require an applicant to demonstrate that he or she faces a personalized risk akin to that set out in s. 96 and s. 97 of the Act?
[20] In my view, this question has been addressed many times by this Court, and is not a question of general importance, therefore, it will not be certified.
ORDER
THIS COURT ORDERS that
The application for judicial review be dismissed.
"Pierre Blais"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6256-04
STYLE OF CAUSE: JEAN-CLAUDE LUSAKWENO MATHEWA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 28, 2005
REASONS FOR ORDER
AND ORDER BY: BLAIS J.
DATED: JUNE 29, 2005
APPEARANCES:
Hilary Evans Cameron FOR THE APPLICANT
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Hilary Evans Cameron
VANDERVENNEN LEHRER
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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