Joseph v. Canada (Minister of Citizenship and Immigration), 2004 FC 344

Date: 20040308

Dockets: IMM-2754-03

IMM-4503-03

Citation: 2004 FC 344

BETWEEN:

                                                    SAMUEL JEYAKUMAR JOSEPH

ANGELINE RANJIT JOSEPH

SHARON CHRISTINA JOSEPH

                                                                                                                                                      Applicants

                                                                              - and -

                                                                THE MINISTER OF

                                                CITIZENSHIP AND IMMIGRATION                      

                                                                                                                                                   Respondent

                                                           REASONS FOR ORDERS

KELEN J.:

[1]                 Court file no. IMM-2754-03 is an application for judicial review of a decision of immigration officer J. Knight ("officer"), dated April 9, 2003, which rejected the applicants' application for permanent residence from within Canada based on Humanitarian and Compassionate ("H & C") grounds. It was heard in combination with Court file no: IMM-4503-03, which is an application for judicial review of a decision by Pre-Removal Risk Assessment ("PRRA") Officer Charline Bourque, dated February 21, 2003, which determined that the applicants would not be subject to risk if returned to Sri-Lanka. Both applications involve the same parties and are based on the same underlying facts.

FACTS

[2]                 The applicants are citizens of Sri Lanka. The principal applicant, Samuel Jeyakumaran Joseph, was born in Inuvil, Jaffna, Sri Lanka on February 17, 1957. His wife Angeline Ranjit Joseph was born in Manipay, Jaffna, Sri Lanka on February, 8, 1960. Their daughter Sharon was born on September 7, 1994.

[3]                 This application has a lengthy history, as summarized below:

-           The applicants arrived in Canada on February 13, 1999 and made refugee claims, based on their profile as Tamils from the North of Sri Lanka who are subject to persecution by the Liberation Tigers of Tamil Eelam ("LTTE") and the Sri Lankan government;

-           By decision dated January 11, 2000, the CRDD rejected their claims. Their application for judicial review was dismissed by this Court;

-           The applicants subsequently applied for permanent residence on H & C grounds, and for Pre-Removal Risk Assessment ("PRRA") in July 2000;

-           By decision dated March 20, 2003, their PRRA application was rejected;

-           By decision dated April 9, 2003, their H & C application was rejected;

-           In August 2003, the applicants were directed to report for removal from Canada;

-            Their motion before this Court to stay the deportation was denied on August 12, 2003;

-           The applicants sought refugee in their church, and did not attend for removal or comply with the Court's Order; and,

-           The applicants obtained leave for judicial review with respect to both refusals, and these applications are now being heard in combination.

H & C APPLICATION

[4]                 By filing an H & C application the applicants sought an exemption from the usual legal requirement applicable to all persons seeking permanent residence in Canada, which is that they must apply from outside Canada. They applied for exemption based on the following allegations:

            (i)          that they would suffer hardship if removed to Sri Lanka due to the political climate;

(ii)         that the principal applicant would lose the job he had held for three years, if removed; and,

(iii)        that they would be isolated from family members and community, if removed.

They produced the following to support their application:

-           88 pages of country conditions documents indicating that subjected to persecution and human rights abuses in Sri Lanka;

-           various letters of support, including a letter from the principal applicant's employer, Laurentian Bank, academic upgrading certificates for the adult applicants, certificates of achievement for the minor applicant, letters of support from the applicants' church, and letters of support from family members and friends in Canada;

-           evidence of assets including household furniture, RRSP savings, and a family car;

-           they also provided letters of support from family members in Canada and evidence that they had performed volunteer work in the church and elsewhere.

H & C DECISION

[5]                 The officer found that there were insufficient grounds to warrant processing the application from within Canada in accordance with subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IPRA"), which provides:

Humanitarian and compassionate considerations

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. [emphasis added]

Séjour pour motif d'ordre humanitaire

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.

[6]                 The officer stated the following specific reasons, at page 6:

The subjects have been in Canada since February 1999, 4 years which I do not consider to be long term.

The subjects have not provided any documentary evidence of academic upgrading for themselves or their child.

The subjects have not provided any documentary evidence of assets or savings in Canada.

The subjects did provide evidence that they had been volunteering but it does not appear to have been of a long term.

[...]

I carefully reviewed the negative risk opinion and found it reasonable.

[...]

I am not satisfied that the subjects would experience undue hardship or disproportionate hardship if they were to file an application for permanent residence through a visa officer as required by the act and regulations.

PRRA DECISION

[7]                 The officer found that the applicants were not persons described under sections 96 and 97 of IRPA, because there was not more than a mere possibility that they would face persecution in Sri Lanka, and there were no substantial grounds to believe they would face danger of torture, risk to life, or cruel and unusual punishment, in Sri Lanka. Section 96 or IRPA provides in part:

Sections 97(1)(a) and 97(1)(b) of IRPA state:

[8]                 The officer's conclusion was based on the following specific reasons at page 10:

Sri-Lanka's situation has changed since 2002 with the agreement of a cease-fire between the government and the LTTE. Documentary evidence mentions that "in February 2002, the Sri-Lankan government and the LTTE signed the first formal bilateral cease-fire between the two sides in seven years. Since then, the situation has continued to improve. "Two rounds of talks held earlier in Thailand resulted in unexpected success, with the rebels saying that they are willing to work with the government toward a political settlement of the civil war. [...]

[...]                          

I also acknowledge that the applicants allege that the human rights situation was better before the cease-fire for Tamils and that the goal of maintaining the cease-fire is more important than ensuring that the democracy, pluralism and law and order in the North-East. I acknowledge hat Sri Lanka is still encountering human rights abuses although, Amnesty International said that "the cease-fire agreement has made a significant impact in reducing human rights abuses in Sri Lanka. However, human rights must be established as an integral part of the agenda

Due to the improvement of the situation in Sri Lanka and to the cease-fire that seems stable for almost a year, I am not satisfied that the applicants would be at risk or persecution if they were returned to Sri Lanka. [emphasis added]

[9]                 And at pages 11 and 12 the decision states:

I am not satisfied that the applicants will be at risk of a danger of torture or a risk to their life or a risk of cruel and unusual treatment or punishment as "th ban on the Liberation tigers of Tamil Eelam imposed in Sri Lanka has been lifted with effect from Wednesday midnight [September 4, 2002]. [...]

[...]

I acknowledge that there is still some human rights abuses in Sri Lanka however, "in the past few years, th Government has taken some steps to address human rights concerns. In 2000 the Government named a new chairman and five new commissioners for the National Human Rights Commission (HRC). The Committee to Inquire into Undue Arrest and Harassment (CIUAH) continued to assist those alleging abuse at the hands of the military and police. [...] At the same time, the Government established the Prosecution of Torture Perpetrators Unit, under th direct supervision of the Attorney General. The investigation into the mass graves in Chemmani, begun in 2000, continues."

ISSUES

[10]            With respect to the H & C decision, the applicant raises the following issues:

(i)          whether the officer ignored or misconstrued the evidence;

(ii)        whether the officer ignored the best interests of the minor applicant;

(iii)       whether the officer erred in the assessment of the applicants' risk in Sri Lanka; and,

(iv)       whether the officer considered matters irrelevant to the application

[11]            With respect to the PRRA decision, the applicant raises the following issues:

(i)          whether the officer misapply the test for changed country conditions; and,

(ii)         whether the officer ignored or misconstrued evidence

STANDARD OF REVIEW

[12]            The appropriate standard when reviewing the decision of an immigration officer on an application based on H & C grounds was set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, to be reasonableness simpliciter. With respect to the PRRA decision, the Federal Court of Appeal in Yusuf v. Canada (MEI) (1995), 179 N.R. 11 determined that "changed circumstances" is an issue for factual determination, at paragraph 2 per Hugessen J.:

We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s.2 of the Act: does the claimant now have a well founded fear of persecution?

Therefore, the appropriate standard for the H & C decision is reasonableness simpliciter, and that for the PRRA decision is patent unreasonableness.

Applicant's Position

H & C

[13]            The applicants submit that the officer, in rendering this decision, either made mistakes of fact or completely disregarded the evidence on record. In particular, the applicants argue that the officer disregarded the evidence of academic upgrading, and of assets or savings in Canada. The applicants also argue that the officer disregarded their reasonable explanations as to why even further academic upgrading and accumulation of assets had not been achieved. And the applicants argue that the officer misconstrued the extent of their community involvement. The applicants further submit that the officer failed to take the best interest of the minor applicant into account, as mandated by subsection 25(1) of IRPA. The applicants submit that the officer erred by taking into account irrelevant factors such as their failed refugee claim, and the fact they were not engaged in demand occupations. The applicants argue that there is no requirement in either IRPA or the relevant guidelines that applicants demonstrate involvement in a demand occupation, and moreover, there is no doubt of the principal applicant's ability to work, to be financially self-sufficient, and to support his family.

PRRA

[14]            The applicant submits that the correct test tor assessing changed country conditions is that it must be "fundamental and durable enough ti eliminate any doubt of a possible risk of persecution". The applicant relies on Youssef v. Canada (MCI), [1999] F.C.J. No. 413 (T.D.)(QL); Ahmed v. Canada (MEI) (1993), 156 N.R. 221 (F.C.A.); and, Cuadra v. Canada (Solicitor General) (1993), 157 N.R. 390 (F.C.A.).

Respondent's Position

H & C

[15]            The respondent submits that the officer's decision should not be disturbed because it is supported by cogent reasons, and because it complies with IRPA and the relevant guidelines provided to officers in determining H & C applications. The respondent submits that the purpose of H & C discretion is to allow flexibility to approve deserving cases not anticipated in the legislation. The respondent argues that it cannot be "a back door when the front door has, after all legal remedies have been exhausted, been denied in accordance with Canadian law". The respondent submits that the Court cannot interfere with the weight the officer gives to different factors, even if it would have weighed the factors differently. The respondent submits that the officer considered all relevant evidence, and that even if the officer failed to take certain information into account, the omission would not have affected the outcome of the application.

PRRA

[16]            The respondent submits that the decision of the PRRA officer should be accorded high deference, and that there is no indication that the officer ignored or misconstrued any evidence. The respondent argues that by bringing this application, the applicant is merely inviting this Court to engage in a re-weighing of the evidence.

ANALYSIS

The H & C Decision

[17]            It is true that a Court ought not to lightly interfere with a discretionary decision such as this. However, after a careful review of the decision in question and the evidence on record, I find that there are two reasons why this officer's decision cannot stand. First, I agree that the officer either ignored the evidence or made mistakes of fact.

[18]            The record shows that the following evidence of academic upgrading, for all three applicants, was provided:

1.         A.C.C.E.S. Certificate of Achievement MS Office 97, awarded to Angeline Joseph;

2.          A.C.C.E.S. Certificate of Achievement MS Office 97, awarded to Samuel Joseph;

3.         Career Step Program Certificate for 12-week full-time program offered by Catholic Cross-Cultural Services, awarded to Samuel Joseph;

4.         Document from the Australian Computer Society indicating Samuel Joseph has passed 2 examinations in Fundamentals of Information Technology;

5.        Kindergarten Progress Report from the Toronto district Board for Sharon Joseph

6.         Provincial Report Cards from the Toronto District School Board for Grade 1 for Sharon Joseph;

7.         Provincial Report Cards from the Toronto District School Board for Grade 2 for Sharon Joseph; and,

8.        4 Certificates of Achievement / Awards from Wexford Public School to Sharon Joseph.

[19]            There was also evidence on record that the applicants owned a family car, household furniture, and RRSP deposits for 2001 and 2002, in the amounts of $1106.45 and $1294.09 respectively. The fact that the assets listed might be modest does not make them non-existent. It might have been a different matter if the officer reviewed the above evidence of academic upgrading and assets and then indicated why it was unacceptable, but on the contrary, the H & C decision simply states that:

The subjects have not provided any documentary evidence of academic upgrading for themselves or their child. [emphasis added]

The subjects have not provided any documentary evidence of assets or savings in Canada. [emphasis added]

In light of the evidence on record, it was patently unreasonable for the officer to have made the above conclusions.

[20]            Even if the officer had correctly assessed and weighed the factors of academic upgrading and assets, there is a further reason why this H & C decision cannot stand. Subsection 25(1) of IRPA stipulates that H & C considerations must take into account the best interests of a child directly affected. There is no indication at all in the reasons provided that the officer followed this direction. The decision mentions nothing at all with respect to the best interest of the child; it simply states that:

Nothing was submitted regarding their child's ties to Canada.

I note that the above statement is also an error of fact since the record shows evidence of family ties, and that the child was well established at school, through four years of schooling.

[21]            The actual H & C decision is only one half page. Aside from containing patently unreasonable errors of fact, the decision does not contain a careful or proper analysis of the relevant criteria. The decision is poorly executed and leads the Court to the conclusion that it does not withstand a probing examination so that it must be set aside as unreasonable, and remitted to another H & C officer.

The PRRA Decision

[22]            The PRRA decision carefully and thoroughly reviewed the changed country conditions in Sri Lanka, and concluded that the applicants can return to Colombo without being persons in need of protection as defined in subsection 97(1) of IRPA. The PRRA decision does not contain any patently unreasonable findings of fact, which is the applicable standard of review.

[23]            The Federal Court of Appeal in Owusu v. Minister of Citizenship and Immigration, 2004 FCA 38 dated January 26, 2004 per Evans J.A. at paragraph 4 held that if the applicants do not raise the impact of potential deportation on the best interest of the child, the H & C officer is not obliged to specifically address this subject. In the case at bar, the child is a girl of 8 years old, and the applicants did not raise the child's situation. Accordingly, the H & C officer did not err by failing to address the best interest of the child. In any event, I was not referred to any documentary evidence that showed a child of this age was a person in need of protection either in the north or in Colombo. For this reason, the PRRA decision did not err in this respect.

DISPOSITION

[24]            For these reasons, application IMM-2754-03 with respect to the H & C decision will be allowed, and IMM-4503-03 with respect to the PRRA decision will be dismissed.

[25]            Neither party considers that this case raises a question which warrants certification. The Court agrees that no question should be certified.

                                                  "Michael A. Kelen"                                                                                                                 _______________________________

        JUDGE       

OTTAWA, Ontario

March 8, 2004

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKETS:                                             IMM-2754-03 and IMM-4503-03

STYLE OF CAUSE:                               SAMUEL JEYAKUMARAN ET AL v. MCI

DATE OF HEARINGS:                         March 3, 2004

PLACE OF HEARINGS:                      Toronto, Ontario

REASONS FOR ORDERS

BY:                                                           THE HONOURABLE MR. JUSTICE KELEN

DATED:                                                   March 8, 2004

APPEARANCES BY:                          Mr. Matthew Jeffery                                                                                                                                                                    

For the Applicants

Ms. Catherine Vasilaros

For the Respondent

SOLICITORS OF RECORD:          

Mr. Matthew Jeffery

Toronto, Ontario

For the Applicants

Mr. Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

For the Respondent

                          FEDERAL COURT

Date: 20040308

Dockets: IMM-2754-03

IMM-4503-03

BETWEEN:

SAMUEL JEYAKUMAR JOSEPH

ANGELINE RANJIT JOSEPH

SHARON CHRISTINA JOSEPH

                                                                        Applicants

- and -

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION       

                                                                     Respondent

REASONS FOR ORDERS