Chau v. Canada (Minister of Citizenship and Immigration), 2002 FCT 107

Date: 20020129

Docket: IMM-3360-01

Neutral citation: 2002 FCT 107

BETWEEN:

                                                                    LAI YUNG CHAU

                                                                                                                                                    Applicant

AND:

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an application for judicial review under subsection 82.1(2) of the Immigration Act ("the Act") of a decision of Immigration Counsellor Brenda Heal ("the Immigration Officer"), dated June 22, 2001, denying the applicant's application pursuant to ss. 114(2) of the Act for an exemption from the requirement of subsection 9(1) of the Act on the grounds that sufficient humanitarian and compassionate grounds did not exist to warrant special relief on her behalf.

[2]                 The applicant is a 45 year-old citizen of the People's Republic of China. She fled China and arrived in Canada on November 3, 1992 and has lived here ever since. Prior to her arrival, she owned a small grocery store in China. Since her arrival in Canada, she has worked most of the time as an embroidery and sewing worker in the garment industry. She has been employed and self-sufficient for most of yer stay in Canada.

[3]                 She purchased a condo in July 1997 for $77, 500 with a mortgage of $ 54, 250 and has made contributions to a RRSP. Her outstanding mortgage balance as of March 30, 2001 was for an amount of $ 14, 436.25. All her assets are in Canada. Since her arrival, she has not learned either of the official languages of Canada, although she had registered in April 2001 for a conversational English course. She has no community involvement.

[4]                 She has no children in China nor in Canada. Her parents and two syblings still reside in China, as well as her former husband. She has no residence in China, is not registered in the household registration system and divorced from her husband in China on June 20, 2000.

[5]                 She made a claim for refugee status but it was denied in July 1993 as was her application for membership in the Post-Determination Refugee Claimants in Canada (PDRCC) Class.

[6]                 In July 1996, the applicant made an application for permanent residence in Canada under the Deferred Removal Orders Class ("DROC") category. While initial approval of that application was granted on October 18, 1996, she requested concurrent processing for her husband. The application was finally refused by letter dated August 19, 1999 for the reason that the applicant's then husband was determined to be inadmissible under ss. 19(1)(d)(ii) of the Act. The applicant's counsel made representations to Citizenship and Immigration Canada ("CIC") regarding the DROC application and provided certificates of no criminal conviction for her then husband. CIC still refused her application. The applicant received no further written communication from CIC in connection with her DROC application.

[7]                 On September 13, 2000, the Applicant submitted an application pursuant to ss. 114(2) of the Act, based on humanitarian and compassionate grounds ("the H & C Application"). On September 18, 2000, she had an interview with a CIC officer and advised him that she had no continuous contact with anyone in China, that she only sometimes had contact with her parents; that her parents did not have accommodation for her to live with them should she return to China.

[8]                 On May 9, 2001, the applicant submitted further documents to CIC in support of her H & C Application. CIC did not convene the applicant for a personal interview in connection with her application.

[9]                 The applicant's H & C Application was refused by letter dated June 22, 2001. This is the subject matter of the present application for leave and judicial review.

[10]            The Immigration Officer deciding the application prepared a report to file entitled "H & C Application - Note to File" which included her "Decision and Reasons" in connection with the case at bar. In her "Decision and Reasons", she made the usual assertion that she weighed all the factors put before her and determined that the applicant had not established sufficient humanitarian and compassionate grounds to warrant landing from within Canada. The reasons for her decision read as follows :

"I HAVE TAKEN INTO CONSIDERATION THE DEGREE TO WHICH MS. CHAU HAS BECOME ESTABLISHED IN CANADA. IT CAN ONLY BE EXPECTED THAT SOME ESTABLISHMENT WILL TAKE PLACE FOR PERSONS MAKING REFUGEE CLAIMS IN CANADA AS THE PROCESS TAKES SEVERAL YEARS TO CONCLUDE. DURING THIS TIME, REFUGEE CLAIMANTS ARE ELIGIBLE TO APPLY FOR EMPLOYMENT AND STUDENT AUTHORIZATIONS TO ALLOW THEM TO WORK OR STUDY IN CANADA. I NOTE FROM HER APPLICATION THAT MS CHAU HAS WORKED FOR SEVERAL YEARS AS AN EMBROIDERY AND SEWING WORKER IN THE GARMENT INDUSTRY. IT IS COMMENDABLE THAT SHE HAS BEEN EMPLOYED AND SELF SUFFICIENT FOR MOST OF HER STAY IN CANADA. SHE HAS ALSO DEMONSTRATED SOUND FINANCIAL MANAGEMENT IN ACQUIRING ASSETS SINCE HER ARRIVAL IN CANADA ON 03 NOVEMBER 1992. SHE PURCHASED A CONDO IN JULY 1997 FOR $ 77,500 AND BY MARCH 2001 HAS BEEN ABLE TO RETIRE HER INITIAL MORTGAGE OF $ 54,250 BY $39, 813.25. MS CHAU HAS ALSO MADE CONTRIBUTIONS TO A RRSP. THERE IS NO INDICATION ON HER APPLICATION THAT SHE SPEAKS EITHER OF THE OFFICIAL LANGUAGES OF CANADA OR HAS BECOME INVOLVED WITH THE COMMUNITY AT LARGE THROUGH VOLUNTEER WORK. I NOTE SHE REGISTERED IN APRIL 2001 FOR A CONVERSATIONAL ENGLISH COURSE. THE APPLICANT'S ESTABLISHMENT IN CANADA IS NOT DUE TO A PROLONGED INABILITY TO LEAVE. MS CHAU HAS HAD A VALID PRC PASSPORT SINCE 1997. MS CHAU HAS NO FAMILY IN CANADA. I HAVE TAKEN ALL THESE FACTORS INTO CONSIDERATION AND I AM NOT SATISFIED THAT THE APPLICANT'S LEVEL OF ESTABLISHMENT IN CANADA IS TO SUCH A DEGREE THAT REFUSING TO WAIVE A9(1) WOULD CAUSE DISPROPORTIONATE, UNDUE OR UNDESERVED HARDSHIP.

IN 1997, MS CHAU APPLIED FOR AND OBTAINED A NEW PRC PASSPORT #2689339. SHE IS ASSESSED AS MI FOR HER IMMIGRATION MEDICAL IN OCTOBER 2000. I NOTE THAT MS. CHAU HAS SEVERAL FAMILY MEMBERS AND AN EX HUSBAND IN CHINA. PREVIOUS TO FILING FOR DIVORCE FROM HER HUSBAND IN SEPTEMBER 2000 MS. CHAU MAINTAINED CONTACT WITH HER HUSBAND DURING THEIR EIGHT-YEAR SEPARATION AND INCLUDED HIM IN HER DROC APPLICATION FOR PERMANENT RESIDENCE IN CANADA UNTIL IT WAS REFUSED IN 1999. I AM SATISFIED THAT THESE FAMILY MEMBERS INCLUDING HER EX HUSBAND WILL OFFER HER ASSISTANCE ON HER RETURN TO CHINA. MS. CHAU EXPRESSED HER CONCERN THAT SHE WOULD HAVE BEEN A LANDED IMMIGRANT IN CANADA NOW BECAUSE SHE QUALIFIED FOR THE DROC PROGRAM BUT WAS REFUSED IN 1999 DUE TO HER HUSBAND' INADMISSIBILITY TO CANADA. I SYMPATHIZE WITH HER FRUSTRATION HOWEVER HER REFUSAL UNDER THE DROC PROGRAM IS INSUFFICIENT REASONS TO WAIVER A9(1). I HAVE TAKEN INTO CONSIDERATION MS. CHAU'S CONCERNS THAT SHE IS NOT REGISTERED IN THE HOUSEHOLD REGISTERED SYSTEM OR BE ABLE TO FIND WORK IN CHINA. THESE STATEMENTS ARE NOT SUPPORTED BY INFORMATION RECEIVED FROM THE CANADIAN EMBASSY IN CHINA AND THE INFORMATION IN ARTICLE 7 & 8 IN THE REGULATIONS OF THE PRC CONCERNING RESIDENT IDENTITY CARDS. MS. CHAU HAS PREVIOUSLY OPERATED A BUSINESS IN CHINA, SHE HAS DEVELOPED SKILLS AND ACQUIRED ASSETS IN CANADA ALL THESE WILL ASSIST HER ON HER RETURN TO CHINA.

I HAVE CONSIDERED ALL FACTORS IN THE APPLICANT'S CASE, THOSE THAT SUPPORT A FINDING OF HARDSHIP AND THOSE THAT DO NOT, AND HAVE WEIGHED THEM ACCORDINGLY. I HAVE DECIDED THAT INSUFFICIENT HUMANITARIAN AND COMPASSIONATE GROUNDS EXIST IN THE APPLICANT'S CASE TO WARRANT AN EXEMPTION FROM THE REQUIREMENT OF SUBSECTION 9(1) OF THE IMMIGRATION ACT."

[11]            The central issue in this application is whether the Immigration Officer's assessment that insufficient humanitarian and compassionate grounds existed to warrant special relief on behalf of the applicant was unreasonable, based on the evidence before her, and it was submitted that :

1) The Immigration Officer based her decision on a erroneous finding of fact that she made in a perverse or capricious manner when she determined that the Applicant's family and ex-husband would offer her assistance is she returned to China;

2) The Immigration Officer failed to properly consider the fact and circumstances of the refusal of the Applicant's DROC application;

3) The Immigration Officer based her decision on irrelevant, incomplete and confusing information purportedly sent from the Canadian Embassy in China.

[12]            Having carefully reviewed the written submissions of the parties and the Immigration Officer's report to file as well as her "Decision and Reasons" which were appended, I am of the view that the decision in this case does withstand a probing examination and that this application for judicial review should be dismissed.

[13]            The applicant alleges that she was well established in Canada and that the Immigration Officer should have accepted the establishment factors as sufficient to approve her request. The real thrust of the applicant's argument is that it would be unfair to require her to leave the country now and return to a place where she has no real connections; she has established herself in Canada and worked for several years and has acquired assets and a house. The Ministerial Guidelines are useful aids in determining how the discretion granted by the Act to the Minister and, consequently, to H & C officers is to be exercised. The wording of the Guidelines relating to establishment, particularly in s. 6.2, suggests that consideration of an applicant's degree of establishment, while permitted, is not mandatory:

The applicant's degree of establishment in Canada may be a factor to consider in certain situations, particularly when evaluating some case types described in Section 8 : [...] Prolonged inability to leave Canada has led to establishment [...]. Establishment of the applicant up to the time of the H & C decision can be considered. However, it is inappropriate to assess the potential establishment of the applicant as this falls within the scope of admissibility criteria.

[14]            The IP5 Guidelines provide in s. 6.2 the following factors to look at when assessing establishment :

1) Does the applicant have a history of stable employment?

2) Is there a pattern of sound financial management?

3) Has the applicant integrated into the community through involvement in community organizations, volunteer, other activities?

4) Has the applicant undertaken any professional, linguistic or other study that would show integration in Canadian society?

5) Do the applicant and family members have a good civil record in Canada? (e.g. no interventions by police or other authorities for child or spouse abuse, criminal charges)

[15]            Section 8.7 of the Guidelines deals with the prolonged inability to leave Canada and that has led to establishment. It notes :

Positive consideration may be warranted when the applicant has been in Canada for a significant period of time due to circumstances beyond his or her control. [The guidelines deal with situations where the conditions are considered unsafe due to a civil war, uncivil unrest or where the department suspends removal to that country] When the period of inability to leave due to circumstances beyond the applicant's control is of significant duration ans where there is evidence of a significant degree of establishment in Canada, these factors may combine to warrant a favourable H & C decision. There is no hard and fast rule relating to the period of time in Canada but it is expected that a significant degree of establishment would take several years to achieve. These applicants may or may not be the subject of a removal order, may or may not have had a negative refugee determination and/or post-claim review.

[16]            The Guidelines suggest that establishment should only be considered a relevant factor if the applicant has not been removed from Canada due to circumstances beyond his or her control. However, the Guidelines cannot be considered to be exhaustive and that it is clear that there are circumstances over and above those contemplated by the Guidelines that would warrant positive determination. Thus, if a person has remained illegally in Canada for several years, has established him or herself economically, has cut off ties with his or her home country, and has set down roots in Canada, this combination of factors could warrant positive consideration. There is a heavier onus on the applicant to satisfy the officer that he or she should be granted exceptional relief. Each case must be considered on its own particular merits.

[17]            Here, the Immigration Officer turned her mind to the degree of establishment as a relevant factor for the applicant's H & C application. She found that while the Applicant's self-sufficiency was commendable, her level of establishment in Canada was not out of the ordinary. Furthermore, she noted she had no relatives or children in Canada, that there was no indication that the applicant has learned either of the official languages nor that she had integrated into her community. After weighing all the factors before her, the Immigration Officer determined that the applicant had not established sufficient humanitarian and compassionate grounds to warrant landing from within Canada. I cannot agree with the applicant that the Immigration Officer was required to give more weight to her degree of establishment in Canada.

[18]            Furthermore, as Nadon J. stated in Tartchinska v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 373 (QL) at para. 20 (F.C.T.D.), self-sufficiency does not, in itself, guarantee or lead to a positive outcome in an H & C application without other factors; such, that refusal of the request would cause unusual or disproportionate hardship. The applicant, notwithstanding the fact that she worked honestly for several years in Canada, knowingly attempted to circumvent the system when she chose to remain in Canada after her refugee and DROC claims were refused and remained. The Immigration Officer rightly noted that the applicant's establishment in Canada was not due to a prolonged inability to leave.

[19]            As Pelletier J. stated in Irimie, (IMM-427-00) at para. 12, the fact that one would be leaving behind friends, perhaps family, employment or a residence, as well as the cost or inconvenience of having to return home to apply in the normal manner would not generally be enough to constitute hardship and thus warrant a positive H & C determination. The weight to be assigned to particular factors or indicators of attachment is discretionary.

[20]            The Immigration Officer also looked as a separate issue at the hardship a return to China would cause to the Applicant and noted that there would be none.

[21]            In determining whether the decision of the immigration officer was unreasonable in Baker, Madam Justice L'Heureux-Dubé referred to reasons rendered by Mr. Justice Iacobucci in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, where he stated at 776-777 :

[...]An unreasonable decision is one that, in the main, is not supported by any reasons that can stand to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises of an invalid inference. (emphasis added)

[22]            Dealing with undue hardship, there may have been some misunderstanding, however, I believe this error is not fatal as the Immigration Officer's decision does not hinge upon it. In order for an alleged error of fact to be reviewable, the finding of fact must be erroneous, the finding must be made capriciously or without regard to the evidence, and the decision must be "based" on the erroneous finding.

[23]            In her "Decision and Reasons", the Immigration Officer noted the Applicant's frustration at having her application for membership in the DROC Class refused due to her then husband's criminal inadmissibility, but concluded that this was an insufficient reason to warrant an exemption under subsection 9(1) of the Act.

[24]            I find no merit to the applicant's argument with respect to this determination. The Immigration Officer did not make an independent assessment of the refusal of the applicant's application for membership in the DROC Class, and she was not required to do so. Nor was she required to conduct an independent risk assessment in the absence of either additional evidence or a submission that on her return the applicant would be subjected to unduly harsh sanction. She directed her mind to the DROC decision and reviewed the underlying information contained in the form entitled "Supplementary Information - Humanitarian and Compassionate Cases" which was put before her. She did grasp the applicant's evidence on this point. She simply decided not to give much weight to this consideration and concluded that this was an insufficient factor to warrant an exemption under subsection 9(1) of the Act. This conclusion was reasonably open to her and this Court should not interfere with the weight assigned by her to this particular evidence.

[25]            The appropriate remedy was for her to have sought leave and judicial review of that decision.

[26]            In my view, the Immigration Officer's reliance on the hearing evidence was entirely reasonable. The Applicant argues that this information does not consider local realities nor does it address her unique circumstances, such as the fact that she would be returning to China as a failed refugee claimant and thus would not be able to work legally, and the fact that once she returns to China, the government there would not allow her to leave the country. The applicant adduced no evidence in support of these contentions. The onus was on the Applicant to put forth any H & C factors that she felt existed in her case and any relevant evidence.

[27]            The applicant in the present case raised a number of arguments which, when considered together, amount to several inconveniences by leaving Canada and submit an application abroad which is the normal rule laid down by Parliament. As Lemieux J. rightly stated in Mayburov v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 953 (QL) at para. 39, inconvenience is not the criteria of undue hardship as laid out in the guidelines. The material filed in support of her application leads one to believe that the Applicant could well be a model immigrant and a welcome addition to the Canadian community; she has shown herself to be law-abiding, hard-working, enterprising and thrifty since her illegal entry into Canada. However, that is not the test as to whether or not there are sufficient humanitarian and compassionate grounds to warrant exceptional relief. As Pelletier J. stated in Irimie, supra at para. 26 :

[...] To make it the test is to make the H & C process an ex post facto screening device which supplants the screening process contained in the Immigration Act and Regulations. This would encourage gambling on refugee claims in the belief that if someone can stay in Canada long enough to demonstrate that they are the kind of persons Canada wants, they will be allowed to stay. The H & C process is not designated to eliminate hardship; it is designated to provide relief from unusual, undeserved or disproportionate hardship.

[28]            The burden which the applicant had to discharge was whether the Immigration Officer's decision not to grant her an exemption for the inland processing of her permanent residence application was unreasonable. When deciding this issue, the reviewing court cannot overstep its role. In the absence of an error in the legal sense, the Court could not and should not substitute its opinion for that of the Immigration Officer. The perspective of the reviewing judge is to examine the evidence before the Immigration Officer and determine whether there was absence of evidence supporting her conclusion or whether her decision was made contrary to the overwhelming weight of the evidence. I cannot reach that conclusion.

[29]            Accordingly, for the above reasons, I hereby dismiss this application for judicial review. Neither party suggested the certification of a serious question.

     JUDGE

OTTAWA, Ontario

January 29, 2002