Docket: IMM-6746-10
Citation: 2012 FC 31
Ottawa, Ontario, January 10,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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DEVON JERMAINE GARNETT
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
is an application pursuant to section 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial
review of an immigration Officer's decision dated November 5, 2010,
refusing to exempt Mr. Devon Jermaine Garnett (the Applicant) from filing for
his immigration visa from outside Canada on humanitarian
and compassionate grounds [H & C].
[2]
For
the reasons that follow, this application for judicial review is dismissed.
II. Facts
[3]
The
Applicant is a 32 years old citizen of Guyana who arrived in Canada on April 22,
2005, using improperly obtained documents.
[4]
He
subsequently filed a claim for protection on January 30, 2006. That claim was rejected
by the Immigration and Refugee Board on June 2, 2006.
[5]
The
Applicant is presently asking the Court to review the Immigration Officer’s
decision denying his visa exemption based on H & C grounds.
[6]
The
Applicant is rightfully employed in Canada as a barber since March
2006. He also worked as a barber in Georgetown, Guyana, prior to his arrival
in Canada.
[7]
Several
letters corroborating his involvement in the community were submitted by the
Applicant. All of the signatories support the Applicant’s H & C
application.
[8]
The
Applicant listed no family members in Canada and his spouse and
daughter are still living in Guyana.
[9]
He
has always maintained a good civil record since his arrival in Canada.
[10]
In
his original H & C application the Applicant stated that he feared returning
to Guyana. Two written
requests for updates, related to that allegation were sent by the immigration Officer,
J. Trottier, on July 9, 2010, and then on August 18, 2010. They were left
unanswered by the Applicant.
[11]
The
Officer concluded there was insufficient information to explain how his
particular circumstances would place him at risk if he were to apply for a
permanent visa from Guyana.
[12]
The
Officer also concluded that he was not satisfied that the hardship associated
with an overseas application, as required under the IRPA, would be
disproportionate considering the circumstances of the present case.
III. Legislation
[13]
Section
25(1) of the IRPA provides as follows:
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Humanitarian and compassionate considerations — request of foreign
national
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Séjour pour motif d’ordre humanitaire à la demande de l’étranger
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25. (1) The Minister must, on
request of a foreign national in Canada who is inadmissible or who does not
meet the requirements of this Act, and may, 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 obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
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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, sur demande d’un étranger
se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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IV. Issues and
standard of review
A. Issues
1.
Did the Officer breach his duty
of procedural fairness?
2.
Did the Officer fail to
consider the evidence or did he base his decision on extrinsic evidence?
B.
Standard
of review
[14]
Questions
of procedural fairness are reviewable on a standard of correctness (see Ahmad
v Canada (minister of
Citizenship and Immigration), 2008 FC 646 at para 14 [Ahmad]).
[15]
As
for the other issue, the Officer’s decision is reviewable on a standard of
reasonableness. In Paz v Canada (Minister of
Citizenship and Immigration), 2009 FC 412, [2009] ACF no 497 at paras
22-25 [Paz], Justice Noël clearly explains that:
[22] In Dunsmuir v. New Brunswick, 2008 SCC 9, 372
N.R.1, the Supreme Court of Canada held at paragraph 62 that the first step in
conducting a standard of review analysis is to "ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
[deference] to be accorded with regard to a particular category of question."
[23] In Baker v Canada (Minister of Citizenship and
Immigration),
[1999]
2 S.C.R. 817,
the Supreme Court of Canada established that reasonableness is the appropriate
standard of review for H&C application decisions. The Court stated at
paragraph 62:
para. 62 ... 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, [1995]
F.C.J. No. 1411,
and the Federal Court of Appeal, [1996]
F.C.J. No. 1726,
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.
[24] The standard of review of
reasonableness has been recently confirmed by this Court. (Barzegaran v.
Canada (Minister of Citizenship and Immigration), 2008
FC 681,
at paragraphs 15-20; Zambrano v. Canada (Minister of Citizenship and
Immigration), 2008
FC 481,
at paragraph 31).
[25] In reviewing the officer's decision
using a standard of reasonableness, the Court will consider "the existence
of justification, transparency and intelligibility within the decision-making
process" and "whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law."
(Dunsmuir at paragraph 47).
V. Parties’
submissions
A. Applicant’s
submissions
[16]
The
Applicant raises a first issue related to procedural fairness claiming the Officer
failed
to seek further clarification on the evidence adduced before him. The Applicant
argues that the Officer should have afforded him the opportunity to respond to
his concerns instead of relying on assumptions.
[17]
Relying
on Ogunfowora v Canada (Minister of
Citizenship and Immigration), 2007 FC 471, the Applicant submits that
it was impossible to know on which factors the Officer rejected his H & C
application.
[18]
The
Applicant also claims that the Officer relied on irrational assumptions and
extrinsic evidence in coming to his conclusions.
[19]
The
Officer falsely assumed that the Applicant had a social network in Guyana in addition
to his family. This, according to the Applicant, constitutes a fatal assumption
since it is not supported by any evidence.
[20]
The
Officer would have also erred in concluding that the Applicant’s wife and
daughter were his support system in Guyana. Where an
administrative tribunal applies the wrong test in assessing the evidence, his
decision should be reviewed immediately, according to the Applicant.
B. Respondent’s
submissions
[21]
The
Respondent alleges, relying on the jurisprudence of this Court, that Applicant bears
the burden of demonstrating that he would suffer unusual, undeserved or
disproportionate hardship should he be compelled to return to his country of
origin to file his application (see Paul v Canada (Minister of
Citizenship and Immigration), 2009 FC 1300 at para 5; Paz at paras
15-18; Jakhu v Canada (Minister of Citizenship and
Immigration), 2009 FC 159 at para 20).
[22]
The
Respondent also notes that the difficulties inherent in having to leave Canada
are not per se sufficient (Xie v Canada (Minister of
Citizenship and Immigration), 2010 FC 580 at para 41; Paz at
para 21; Singh v Canada (Minister of
Citizenship and Immigration), 2009 FC 11 at para 20; Ahmad at
para 49).
[23]
Moreover,
the Respondent submits that the immigration Officer had no obligation to inform
the Applicant of his concerns about the insufficiency of evidence adduced. The
Federal Court of Appeal, in Owusu v Canada (Minister of
Citizenship and Immigration), [2004] FCJ No 158 at para 5 [Owusu],
states that the onus is on the Applicant to provide evidence to support his
allegations. The Respondent alleges that in the case at bar the Applicant
failed to establish any unusual, undeserved or disproportionate hardship having
provided evidence to that effect.
[24]
The
Respondent also underlined before the Court, paragraph 24 of the Wazid
decision, where Justice Gauthier wrote: “it is important to keep in mind that
the Applicants were seeking a privilege by applying for an exemption under
section 25(1) of the IRPA. They had the burden of putting their best case
forward thereby ensuring that their personal situation and the risks they faced
were clearly understood by the officer reviewing their application” (see Wazid
v Canada (Minister of
Citizenship and Immigration), [2006] FCJ No 1769 at para 24 [Wazid]).
[25]
The
immigration Officer did request for updates from the Applicant. The Respondent
submits that, at no time, did he adduce any pertinent evidence that would
permit the Officer to allow this H & C application.
[26]
The
Respondent claims that an Applicant “[…] has the burden of establishing [his]
case. Generally, an applicant is to do that once, rather than on the basis of
some sort of rolling story of reply, sur-reply and so forth […]” (see Thandal
v Canada (Minister of Citizenship and Immigration), 2008 FC 489
at para 9).
[27]
The
Respondent also alleges that it was open to the Officer to draw conclusions
from the lack of evidence provided in this instance compared to what can
reasonably be expected in an H & C application.
[28]
In
the case at hand, the Respondent underlines it was reasonable for the Officer
to conclude that his family would be there for him upon his return to Guyana and that
their support was not solely financial.
VI. Analysis
1. Did
the Officer breach his duty of procedural fairness?
[29]
The
Officer did not breach his duty of procedural fairness.
[30]
An
immigration Officer is under no obligation to inform the Applicant of his
concerns about the lack of evidence. The jurisprudence of this Court clearly
establishes that an Applicant bears the onus of demonstrating that he would
face a disproportionate hardship if forced to return to his country of origin
to file his application (see Owusu at para 5 and Wazid at para
24).
[31]
The
leading cases on the use of extrinsic evidence, in administrative decisions
related to immigration, are Muliadi v Canada (Minister of Employment
and Immigration), [1986] 2 FC 205 (C.A.) and Haghighi
v Canada (Minister of Citizenship and Immigration),
[2000] 4 FC 407 (C.A). “[…] Both of these cases found a breach of procedural fairness where meaningful
facts essential or potentially crucial to the decision had been used to support
an administrative decision without providing an opportunity to the affected
party to respond to or comment upon these facts […]” (see Adams v
Canada (Minister of Citizenship and Immigration), 2009 FC 1193 at para
22).
[32]
There
clearly was no need for the Officer to conduct an inquiry since all of the evidence
brought forward by the Applicant was before him and duly considered. The Officer
decided on the basis of all the evidence adduced by the Applicant. That evidence
was found insufficient on crucial aspects of the application. This finding was
fatal to the Applicant’s claim. This Court cannot find any deficiencies in the Officer’s
treatment of the evidence.
2. Did
the Officer fail to consider the evidence or did he base his decision on
extrinsic evidence?
[33]
The
Officer did not fail to consider the evidence or base his decision on extrinsic
evidence.
[34]
It
is important to note that “the H&C decision-making process is
highly discretionary it considers whether a special grant of an exemption is
warranted
(Quiroa v Canada (Minister of
Citizenship and Immigration), 2007 FC 495 at para 19). “Hardship that
is inherent in having to leave Canada is not enough [to constitute
disproportionate hardship]” (see Doumbouya v Canada (Minister of
Citizenship and Immigration), 2007 FC 1186 at para 10).
[35]
It
is also clear from the applicable jurisprudence that “… the legislator has
chosen not to prescribe a particular test to be applied by the decision-maker
when determining whether an applicant should be granted [H & C] relief.
This was confirmed by the Supreme Court of Canada in Suresh v Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3 at para 36… The lack of official
test or strict parameters is not justification for a judicial review of the
decision of a Minister's delegate; it is simply the nature of a discretionary
decision” (see also Paz at para 28).
[36]
The
Officer did not base his decision on extrinsic facts. It was open to the
immigration Officer to conclude that the Applicant would still find a job as a
barber in Guyana since that
was his livelihood there prior to his arrival in Canada.
[37]
Furthermore,
no evidence was adduced by the Applicant to establish that he supports his wife
and daughter in Guyana. The Officer writes: “One of the support letter
provided made mention of PA using his Canadian income to financially support
his wife and daughter back in Guyana. Insufficient evidence was submitted
however to support this statement such as money transfer receipts for instance”
(see page 4 of the Tribunal Record). Furthermore, the Applicant failed to
provide any evidence that he cannot support his family if forced to return to Guyana to file his
application.
[38]
The
Officer reasonably concluded that the Applicant has a social network in Guyana. His family,
even if they do not provide any financial support can nonetheless provide other
forms of support in Guyana.
[39]
Finally
the Court notes that Applicant was afforded opportunities by the Officer to
substantiate his claim that he would suffer hardship if his application had to
be filed from Guyana. He chose
not to respond, he must therefore accept the consequences.
[40]
The
Officer’s decision is reasonable considering the evidence adduced and “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
VII. Conclusion
[41]
The
Officer’s decision refusing to exempt the applicant pursuant to section 25(1)
of the IRPA is reasonable. The Officer correctly assessed all of the
evidence filed by the Applicant. This application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
this
application for judicial review is dismissed; and
2.
there is no question of
general interest to certify.
"André
F.J. Scott"
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