Date: 20100106
Docket: IMM-493-09
Citation: 2010 FC 10
Ottawa, Ontario, January 6, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
AIM SHAZZADUL MUJIB
NAHIDA AKHTAR MUJIB
AIMAN ISHAQUE BIN MUJIB
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, as amended, and subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a
December 18, 2008 decision made by a pre-removal risk assessment officer (the
officer). In that decision, the officer rejected the application of the
applicants for permanent residence based on humanitarian and compassionate
(H&C) grounds.
[2]
The
applicants request that the decision be set aside and the matter referred back
to a new officer for redetermination.
Background
[3]
Mr.
Aim Shazzadul Mujib and his wife, Nahida Mujib are citizens of Bangladesh. Their son,
Aiman Ishaque bin Mujib is five years old and was born in the United
States of America. Their second son, Ahnaf Ishaque bin Mujib, was born in Toronto and is three
years old. Both children hold Bangladeshi citizenship, having been born abroad
to Bangladeshi parents. Ahnaf is also a Canadian citizen.
[4]
Mr.
Mujib fled Bangladesh as a result
of his involvement with the Bin Protik Ishaque Foundation, an NGO that spoke
out against Islamic Fundamentalists, and due to Mrs. Mujib’s father’s activism
with the Bangladesh Awami League (AL). Mr. Mujib stated that he was repeatedly
attacked by members of the Bangladesh National Party (BNP) and was at one point
hospitalized as a result. At one point, the BNP announced its intention to kill
him, and so he fled to the United States in September 1998.
[5]
Mrs.
Mujib stated that her father was targeted by individuals within the government
for his role in helping to organize political events leading to the October
2001 elections. These individuals threatened Mrs. Mujib’s family if her father
did not surrender. Her father was taken by these individuals and while her
uncle went to the police, he was told they could not assist. After her father
was returned, the family was continually threatened. Mrs. Mujib and her family
fled to the United
States
in February 2002.
[6]
Mr.
and Mrs. Mujib were married in the United States in October 2003.
[7]
The
applicants entered Canada on February 13, 2005. Their claim for refugee
protection was denied on February 22, 2007. Leave for judicial review in
respect of this decision was denied by this Court in June 2007. The applicants then
submitted a pre-removal risk assessment (PRRA) application, which was denied on
November 8, 2007. While this Court granted leave to judicially review that
decision, ultimately their application was dismissed on September 12, 2008. On
March 12, 2008, the applicants submitted an application for permanent residence
on humanitarian and compassionate (H&C) grounds, which was refused on
December 18, 2008 by the officer. It is this refusal which is the subject of
this judicial review.
[8]
Mrs.
Mujib’s parents, her two sisters and brother were previously found to be
Convention refugees and are now permanent residents of Canada, residing in
Toronto. Mr. Mujib’s
parents and four of his six brothers remain in Bangladesh, while his two other
brothers are permanent residents of Australia.
Impugned Decision
[9]
The
officer considered the risk to the family if returned to Bangladesh, their
establishment in Canada, the best interests of the children and Mr. and Mrs.
Mujib’s reestablishment in Bangladesh.
[10]
With
regards to the risk of return, the officer found that significant changes had
taken place in Bangladesh and that while political violence continued and
high profile politicians and activists were targeted, the applicants had not
provided objective evidence establishing that they would be targeted by the BNP
or others.
[11]
On
the issue of establishment, the officer found that the applicants have a good
civil record in Canada and that their community had expressed
significant support for them. In addition, the officer found that Mrs. Mujib’s
parents provided substantial support to the family. Regardless, the officer
concluded that the evidence failed to demonstrate that their establishment was
so great that their removal would cause unusual and undeserved or
disproportionate hardship.
[12]
The
officer also found that the applicants had not established that relocating the
two children would have a negative impact such as to amount to unusual and
undeserved or disproportionate hardship. There was a lack of evidence
indicating that the two boys’ needs would not be met in Bangladesh and a lack
of evidence that the children, both Bangladeshi citizens, could not reside
there. Mr. Mujib’s family is also present in Bangladesh, which the
officer found would facilitate their adjustment.
[13]
Finally,
the officer concluded that there was a lack of evidence supporting the
contention that Mr. and Mrs. Mujib would be unable to reestablish themselves in
Bangladesh or that
doing so would amount to unusual and undeserved or disproportionate hardship.
Issues
[14]
The
issues are as follows:
1. What is the standard
of review?
2. Did the officer err
in failing to consider evidence of similarly situated individuals that were
granted protection?
3. Did the officer err
in failing to consider that the applicants’ separation from Mrs. Mujib’s family
would be permanent?
Applicants’ Written Submissions
Ignoring Evidence
[15]
The
applicants submit that the officer concluded the risk analysis by stating that
the documentary evidence did not support the applicants’ submissions of risk.
However, there was evidence before the officer that Mrs. Mujib’s parents,
brother and sister, who had faced the same problems advanced by the applicants,
had been found to be Convention refugees. Therefore, contrary to the officer’s
finding, there was indeed evidence that the applicants would be of interest to
the BNP and Jamat-e-Islami. It is a reviewable error for an H&C officer to
ignore relevant evidence (see Bagwandeen v. Canada (Minister of
Citizenship and Immigration), 2001 FC 661).
Establishment
[16]
The
applicants argue that the officer failed to consider that their separation from
Mrs. Mujib’s family would be more or less permanent since the applicants are
under a deportation order and Mrs. Mujib’s family are Convention refugees and
cannot return to Bangladesh.
[17]
The
applicants submit that IRPA and the Immigration and Refugee Protection
Regulations are designed to avoid this result. Rule 49(1) of the Refugee
Protection Division Rules states that claims of family members must be
joined. This would presumably prevent inconsistent results such as that which
occurred in this case. Further, paragraph 3(1)(d) of IRPA states that one
objective of the Act is to see that families are reunited in Canada. Therefore,
the applicants’ desire to be reunited is a hardship that IRPA seeks to address.
Respondent’s Written Submissions
Ignoring Evidence
[18]
The
respondent submits that despite the applicants’ contention, the officer
considered all of the evidence concerning Mrs. Mujib’s family. The presumption
is that the officer has taken into account all evidence before her. Provided
she considers all relevant facts in reaching a decision, there is no need to
refer to every piece of evidence (see Sidhu v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 741 at paragraph 15).
Further, the officer specifically stated that she had considered all evidence
related to the application. This would include documents related to Mrs.
Mujib’s family.
[19]
While
the applicants state that the arguments advanced by Mrs. Mujib’s father were
sufficient to grant the family refugee protection, in the present case, the
officer had no way of knowing what other evidence the IRB relied upon in
reaching a positive decision in Mrs. Mujib’s father’s claim or what portion of
the evidence was accepted. Mrs. Mujib’s father’s PIF simply provided the basis
for his claim, not the reasons for a positive outcome. This does not
necessarily establish that the applicants are at risk or in need of protection.
This is similarly the case for the other extrinsic evidence submitted.
[20]
The
applicants’ argument amounts to a disagreement with the weight given to the
evidence by the officer. It is well established that the weighing of relevant
factors is a matter within the officer’s authority (see Legault v. Canada (Minister of
Citizenship and Immigration) (2002), 212 D.L.R. (4th) 139 (F.C.A.) at
paragraph 11 and Hamzai v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1108 at paragraph 24).
Establishment
[21]
The
respondent submits that the hardship triggering the exercise of discretion on
H&C grounds must be something more than that which is inherent in being
removed after establishing a life in Canada (see Irimie v. Canada (Minister
of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206 at paragraph
12). The fact that the applicants may leave behind family and that it might be
difficult to visit them is not necessarily sufficient to justify the exercise
of discretion.
[22]
The
respondent argues that in addition, regard must be given to the submissions
placed before the officer (see Ahmad v. Canada (Minister of
Citizenship and Immigration), 2008 FC 646 at paragraph 37). The
applicants’ submissions did not refer to any potential difficulties they may
experience visiting Mrs. Mujib’s family. The officer’s reasons properly
identified the factors referred to by the applicants.
Applicants’ Reply
Ignoring Evidence
[23]
In
addition to the documentary evidence previously mentioned that was submitted in
support of their contention that their profile was similar to those at risk in Bangladesh, the
applicants also referenced documentary evidence that family members of
individuals wanted by the government are at risk.
[24]
The
applicants also argue that most of the country condition evidence referred to
by the officer relates to events in January 2007, which pre-dates the granting
of protection to Mrs. Mujib’s family and therefore cannot be characterized as
changes in country conditions. Further, one event referred to by the officer
occurred on December 17, 2008, one day before the decision was made. Fairness
would dictate that the applicants be given the opportunity to respond to this
evidence.
Establishment
[25]
The
applicants argue that an officer should understand that the separation of the
applicants from Mrs. Mujib’s family is not an everyday separation, but one
which would cause unique problems given Mrs. Mujib’s family’s refugee status.
Respondent’s Further
Submissions
Ignoring Evidence
[26]
The
applicants’ argument that the officer failed to consider similarly situated
persons is rooted in the erroneous proposition that when one member of a family
is granted protection, all others should be considered at risk also. This does
not accord with the jurisprudence, as it is established that persecution
against one family member does not automatically entitle all others to
Convention refugee status (see Rahmatizadeh v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No, 578 at paragraph 8).
[27]
The
respondent states that regardless of the arguments concerning extrinsic
evidence, the officer reasonably concluded that the applicants were not at risk
given the passage of time and the fact that they did not demonstrate that they
fit the profile of those at risk.
Establishment
[28]
The
respondent states that the IP5 policy manual and the jurisprudence of this
Court each recognize that family separation in and of itself does not
necessarily amount to undue and underserved or disproportionate hardship (see Irimie
above, at paragraph 2 and Inland Processing Manual, Chapter 5,
section 11.2). Further, while one of the stated objectives of IRPA is family
reunification, this is but one of many objectives and neither trumps all others
nor is determinative.
Analysis and Decision
[29]
Issue
1
What
is the standard of review?
Issue two is a question
of fact, reviewable on the standard of reasonableness (see Ebonka v. Canada (Minister
of Citizenship and Immigration, 2009 FC 80 at paragraph 17).
Whether an officer has erred in her assessment of establishment is also a
question of fact, reviewable upon the standard of reasonableness (see Buio
v. Canada (Minister of Citizenship and Immigration) (2007), 60
Imm. L.R. (3d) 212 at paragraph 17).
[30] Issue 2
Did the
officer err in failing to consider evidence of similarly situated individuals
that were granted protection?
The officer
mentioned the applicants’ submissions concerning the threats to Mrs. Mujib’s
family but a review of the documentary evidence cited by the officer in
relation to changed conditions shows that most of the evidence pre-dated the
decision that found her family members to be Convention refugees.
[31]
In
coming to a decision on the applicants’ PRRA application, the PRRA officer did
not accept the documents relating to Mrs. Mujib’s father’s refugee claim (his
PIF and other documents relating to his political activities) as they were not
new evidence for the purpose of the PRRA claim.
[32]
These
documents, however, can be considered in an H&C application.
[33]
In
my view, the officer in the present case failed to properly analyze the
evidence about Mrs. Mujib’s family who appear to be similarly situated
individuals and who were granted protection. This evidence was put forward by
the applicants.
[34]
As
a result, the application for judicial review must be allowed because of this
reviewable error and the matter is to be referred to a different officer for
redetermination.
[35]
Because
of my finding on Issue 2, I need not consider the remaining issue.
[36]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[37]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for redetermination.
“John
A. O’Keefe”
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