Date: 20100412
Docket: IMM-5422-08
Citation: 2010 FC 386
Ottawa, Ontario, April 12, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
OLEKSANDR
ANTONOVIVH MIKHNO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
the decision of an immigration officer (the officer), dated October 29, 2008,
which refused the applicant’s application under subsection 25(1) of the Act to
have his application for permanent residence processed from within Canada on humanitarian
and compassionate (H&C) grounds.
[2] The applicant requests:
1. An
order quashing the decision refusing the applicant’s application brought
pursuant to subsection 25(1) of the Act for exemption from section 11 of the
Act to have an application for permanent residence processed from within Canada
on H&C grounds or in the alternative;
2. A
declaration that the applicant meets the requirements of subsection 25(1) of
the Act for exemption from section 11 of the Act and that the applicant’s
application for permanent residence be processed from within Canada on H&C
grounds or in the alternative;
3. To
refer the matter back to Citizenship and Immigration and/or any other
appropriate authority with a direction that the same panel or in the
alternative, any other panel of Citizenship and Immigration and/or any other
appropriate authority should declare that the applicant meets the requirements
of subsection 25(1) of the Act for exemption from section 11 of the Act and
that the applicant’s application for permanent residence be process from within
Canada on H&C grounds; or
4. An
order referring the matter to the appropriate authority for redetermination by
a different officer in accordance with the law.
Background
[3] The
applicant is a citizen of the Ukraine. He came to Canada in 2000 and
subsequently claimed asylum based on his status as a Jewish person. His ex-wife
and daughter remain in the Ukraine. In December 2002, his
refugee claim was rejected. The Refugee Board found the applicant not credible
and not to be Jewish or perceived to be Jewish. The applicant did not challenge
this decision.
[4] The
applicant has not left but has settled into life in Canada. Indeed, in
support of his H&C claim, the applicant says he has now adapted well to the
Canadian way of life and would face significant hardship if forced to go back
to the Ukraine.
[5] The
H&C application was submitted in June of 2003, but was updated as recently
as 2008.
[6] In 2006, the applicant requested a pre-removal risk assessment
(PRRA) which was also based on risks to Jewish persons in the Ukraine. In December of 2008, the applicant received the decisions
denying the H&C application and the PRRA application. The applicant has
sought judicial review of both decisions.
[7] The
applicant alleges that he began working as an auto mechanic within one month of
his arrival in Canada and worked for two different employers in that field
until 2005 when he started his own business as a construction contractor. He
did not submit any documents regarding his business, but reported income of
$29,991 in 2007. He also alleges to have done volunteer work for the Jewish
Russian Community Center.
[8] The
applicant married a permanent resident in October 2007 and submitted his
tenancy agreement as evidence of their co-habitation.
[9] The
officer’s decision rejecting his application considered both his degree of
establishment in Canada and potential hardship if returned to the Ukraine.
[10] Regarding
his establishment, the officer largely accepted his evidence of his gainful
employment and integration into the Canadian workforce, but noted that his work
experience in Canada and his previous experience would help him to get
re-established in the Ukraine where he would not be
deprived of cultural and linguistic references. The officer also noted that his
lack of a work permit in Canada since 2006 indicated disregard for
Canadian laws.
[11] The
officer felt that the applicant still had significant family ties in the Ukraine. The officer
noted his marriage and his stated desire to have a child, but noted the lack of
evidence regarding the nature of his relationship. There was no sponsorship or
even letter of support from his new wife. The officer also noted that he got
married while aware of his immigration status and of the possibility of
separation. In total, the officer felt that the elements of establishment did
not justify granting the special H&C exemption.
[12] Regarding
the risks of returning to the Ukraine as a Jewish person, the
officer found that the applicant had not demonstrated the possibility that he
would face a personal risk that would amount to unusual, undeserved or
disproportionate hardship. The officer noted that while the applicant had
submitted evidence of the general situation in the Ukraine, he had not
explained how the general documentary evidence related to his personal
situation. The officer finally considered the strength of the applicant’s other
evidence and the Board’s determinations regarding his testimony and
credibility. Finally, the officer reviewed additional evidence under the heading,
country conditions, which indicated incidents of racism and the government’s
reactive measures.
[13] The
officer finally concluded that on the whole, the evidence did not suggest that
there were sufficient H&C grounds to grant an exemption from the
requirements of subsection 11(1) of the Act.
Issues
[14] The issues are as follows:
1. What is the standard of
review?
2. Did the officer commit a
reviewable error?
Applicant’s Written Submissions
[15] An
application for an H&C exemption entitles the applicant to a determination
on a fair and objective basis and one that is in line with the objectives of
the Act. The reviewing officer has a duty to consider all possible sources of
hardship the applicant may face.
[16] In
reviewing the hardship the applicant may face in the Ukraine, the officer
erred by focusing on issues raised at the Board, instead of the issues raised
by the applicant in his PRRA application. In particular, the officer
misconstrued or misapplied the affidavits and letters from the applicant’s
friends and relatives and the country reports that spoke of human rights
abuses. The officer also favoured the Board’s finding that the applicant was
not Jewish over the evidence of a childhood friend who deposed that he was. The
officer also improperly challenged the authenticity of another letter in
assigning it little probative value. This was an indirect challenge to the
applicant’s credibility and should have warranted an oral hearing.
[17] The
officer also made errors in assessing the applicant’s establishment in Canada. The officer
did not properly consider the effect that his leaving would have on the
applicant’s wife. The officer may be an expert in the area of risk assessment,
but is not an expert in assessing emotional hardship.
Respondent’s Written Submissions
[18] An
H&C decision is unreasonable only if there is no reasonable line of analysis
that could lead to the officer’s conclusion or if the officer’s decision does
not fall within the range of possible, acceptable outcomes. H&C decisions
involve a fact specific weighing of many factors. Courts ought not interfere in
the weight given to the different factors.
[19] The
respondent submits that hardship based on alleged risk was reasonably assessed
by the officer. The applicant raised the same allegations as were handled by
the Board, but did not adduce sufficient evidence to address its findings. For
example, the Board found the applicant less than credible. Yet the applicant
did not submit evidence refuting that allegation. The officer also determined
that the applicant’s evidence did not adequately address the issue of his
Jewish nationality. The officer also correctly noted that the general
documentary evidence did not address the applicant’s personal circumstances,
nor did the applicant provide any explanation. There was no issue with
credibility that would require an oral hearing.
[20] The
officer’s assessment of the applicant’s establishment was also reasonable. The
officer considered all of the applicant’s ties to and establishment in Canada and it was
open for the officer to conclude that on the whole, it did not dictate a
positive decision.
Analysis and Decision
[21] Issue 1
What is the
standard of review?
The standard of review for H&C
decisions is reasonableness (see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th)
193, [1999] S.C.J. No. 39 (QL)).
[22] Findings
of fact made within an H&C decision, if challenged, are subject to the standard
of review imposed by paragraph18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7.
[23] The
Supreme Court in Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] S.C.J. No. 12 (QL), recently referred to the impact of these
legislative instructions.
46 More generally, it is clear from
s. 18.1(4)(d) that Parliament intended administrative fact finding to command a
high degree of deference. This is quite consistent with Dunsmuir. It
provides legislative precision to the reasonableness standard of review of factual
issues in cases falling under the Federal Courts Act.
As such, a factual conclusion by the
officer will only be interfered with if the applicant establishes that it was
made in error and made in a perverse or capricious manner or without regard for
the material.
[24] Issue 2
Did the
officer commit a reviewable error?
An H&C review under section
25 of the Act offers an individual special and additional consideration for an
exemption from Canadian immigration laws that are otherwise universally applied.
The purpose of the high degree of discretion conferred by the legislation is to
allow flexibility to approve deserving cases not anticipated by the Act.
[25] The
denial of an H&C application does not involve the determination of an
applicant’s legal rights. H&C applicants seek a discretionary benefit in
the form of a special exemption from the normal requirement that all persons
seeking admission to Canada must make their application before
entering Canada. Applicants
thus have a heavy burden to discharge in order to satisfy the Court that a rejection of a claim
under section 25 was unlawful (see Gautam v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 686 at paragraphs 9 and
10, 167 F.T.R. 124, per Evans J.).
[26] The
reasonableness of the ultimate denial of an H&C application will only be
overturned by reviewing courts in two situations:
1. Where there exists no
reasonable line of analysis that could have lead to the officer’s conclusion;
or
2. Where the conclusion
does not fall within the range of possible, acceptable outcomes.
(see Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9 (QL) at paragraph 47, Thandal
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 489, [2008] F.C.J. No. 623 (QL)
at paragraph 7, Zambrano v. Canada (Minister of
Citizenship and Immigration), 2008 FC 481, [2008] F.C.J. No. 601 (QL)
at paragraph 32).
[27] In
attempting to establish that one of the above tests has been met, an applicant
may, as a first step, point to a perceived error or misconstruction in the
written reasons provided by the officer. Yet, reviewing courts will understand
that the written reasons of immigration officers are not required to be perfect
and need not withstand microscopic legal scrutiny (see Boulis v. Canada
(Minister of Manpower and Immigration), [1974] S.C.R. 875).
[28] The
Supreme Court in Baker above, also expressed the non-judicial nature of
H&C decisions and the importance of substance over formality in the
conveyance of reasons for the decision to the applicant (paragraphs 43 and 44).
[29] Proving
the existence of a real error, omission or misconstruction by itself will not
discharge the burden before the applicant. In other words, an error simpliciter
cannot be a reviewable error when reviewed on the reasonableness standard. The
applicant must ultimately establish that one of the above tests is met before
the reviewing court will interfere.
[30] After
thorough review of the decision and the material, I have concluded that the
applicant has failed to meet either of the tests above and the applicant has
not shown any error in the decision.
[31] The
first error in the decision alleged by the applicant is the officer’s reference
to the Board’s decision. This was not an error. The officer would have been
derelict in her duties had she not considered the very reasons why the Board
had determined that the applicant did not face persecution in the Ukraine.
[32] It
was prudent and reasonable to consider the applicant’s evidence in light of the
Board’s conclusions to see if any of their concerns had been addressed or if
the applicant’s situation had changed.
[33] A
prime concern for the Board was the applicant’s credibility. In particular, the
Board did not accept his claim to be a Jewish person. It was open for the
officer to view the matter before her as a matter of evidence rather that
credibility. Yet, the applicant did not submit any objective evidence of his
background to address this. The officer did consider the letter from Liliana
Tomovic, a childhood friend of the applicant, which simply repeated the
applicant’s assertion that he was of Jewish decent. However, it was open to the
officer to give the evidence little weight, in light of the fact it did not come
from an uninterested source and because the letter otherwise did not provide
any new information and seemed to merely repeat the applicant’s allegations. In
my opinion, the applicant has not given the Court any reason to even suspect
that it was an error for the officer to favour the Board’s finding.
[34] The
second error in the decision alleged by the applicant is that the officer
misconstrued the corroborative evidence. There was no misconstruction. Clearly,
the officer understood what the letters were saying and how they assisted the
applicant’s case. Indeed, the applicant does not suggest such an error, but
challenges the amount of probative weight afforded to the letters by the
officer.
[35] The
amount of weight the officer gives to a piece of factual evidence is entirely
within the purview of the officer. It is a determination of fact and will not
be set aside unless found to be perverse or capricious.
[36] As
noted above, the officer had valid reasons for affording little probative value
to the letter of Liliana Tomovic. There is simply no basis for finding the
result perverse or capricious. The letter from the applicant’s ex-wife in the Ukraine was
similarly afforded little probative value. Again,
the officer stated her reasons for this determination as follows: the author
was an interested party, the letter discussed an incident of persecution but
did not identify the aggressors, nor the reasons for the harassment. The
officer also noted that she was only presented with a translation and no
evidence to show that it was sent from the Ukraine.
[37] While
another decision maker may have chosen to grant more weight to the letters, the
applicant has not given the Court any basis to find this officer’s determination
perverse or capricious so that this Court would interfere.
[38] The
third error the applicant points to is the assessment of the hardship that
would be faced by the applicant’s wife if he were to leave. However, an officer
conducting an H&C application need not consider hardship faced by anyone
but the applicant and any children affected. Nonetheless, it appears as though
the officer spent significant time assessing the applicant’s relationship with
his wife. The officer made the observation that although the applicant had
provided documentary evidence of their marriage and co-habitation, there was no
evidence of any hardship faced by his wife if he were to leave. The wife had
not provided any evidence and had not sponsored the applicant’s immigration. It
was not an error on the officer’s part to notice such things.
[39] On
the whole, the officer accepted that the applicant had established himself in Canada as one would
expect a person to after eight years, but did not conclude that such
establishment warranted a special exemption from the rules. Overall, the conclusion
was reasonable.
[40] Finally,
the applicant challenged the officer’s overall assessment of the country
conditions in the Ukraine on the basis that her overall conclusion was
unreasonable. I find no basis for this challenge. As with other aspects of this
decision, the officer’s conclusions on the country conditions were a
determination of fact. The officer adequately referenced documentary evidence
which suggested that there had been an increase in acts of violence against
persons based on their religious views, but also adequately explained her
conclusion that the applicant had not demonstrated the possibility that he
would face a personal risk in the Ukraine that would amount to
unusual and undeserved or disproportionate hardship. It is not enough for the
applicant to point to the contrary evidence and assert that the decision maker
should have ruled in his favour.
[41] Though
not specifically argued as a separate issue, the applicant made the argument
that it was wrong not to have afforded him an oral hearing. In my view,
however, credibility was not a central issue in this hearing that would warrant
an oral hearing.
[42] Credibility
of evidence is always and will always be an issue in the assessment of H&C
applications. Not all issues of credibility warrant oral hearings. An officer
can reasonably find that an applicant has simply not provided enough evidence
to corroborate an assertion without conducting an oral hearing. This will
especially be the case when the matter could be resolved easily with supporting
written or documentary evidence.
[43] As
noted in Baker above:
34 I agree that an oral hearing is
not a general requirement for H & C decisions. An interview is not
essential for the information relevant to an H & C application to be put
before an immigration officer, so that the humanitarian and compassionate
considerations presented may be considered in their entirety and in a fair
manner. In this case, the appellant had the opportunity to put forward, in
written form through her lawyer, information about her situation, her children
and their emotional dependence on her, and documentation in support of her
application from a social worker at the Children's Aid Society and from her
psychiatrist. These documents were before the decision-makers, and they
contained the information relevant to making this decision. Taking all the
factors relevant to determining the content of the duty of fairness into
account, the lack of an oral hearing or notice of such a hearing did not, in my
opinion, constitute a violation of the requirements of procedural fairness to
which Ms. Baker was entitled in the circumstances, particularly given the fact
that several of the factors point toward a more relaxed standard. The
opportunity, which was accorded, for the appellant or her children to produce
full and complete written documentation in relation to all aspects of her
application satisfied the requirements of the participatory rights required by
the duty of fairness in this case.
[44] Thus,
H&C applications will usually not require an oral hearing unless the issue
of credibility is central and cannot easily be resolved any other way, but
through an in person assessment.
[45] While
the officer did question the authenticity of the letter from the Ukraine, it is
unclear how an oral hearing would have resolved the matter. If evidence proving
the letter’s authenticity existed, the applicant could have submitted it.
Likewise, if there was evidence further substantiating any hardship faced by
the applicant’s wife, he could have and should have submitted it.
[46] For
the reasons above, I would dismiss this application for judicial review.
[47] Neither party wished to submit a proposed serious question of
general importance for my consideration for certification.
JUDGMENT
[48] IT IS ORDERED that the application for judicial review is
dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
|
11.(1) A
foreign national must, before entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document may be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
. . .
25.(1) The Minister shall, upon request of
a foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, 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.
. . .
113.
Consideration of an application for protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
|
11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
. .
.
25.(1)
Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, 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.
. .
.
113.
Il est disposé de la demande comme il suit :
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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The Federal
Courts Act, R.S.C. 1985, c. F-7
|
18.1(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
. . .
(d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
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18.1(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas :
. . .
d)
a rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
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