Docket: IMM-3364-11
Citation: 2012 FC 304
Ottawa, Ontario, March 13,
2012
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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NARINDER PAL GILL
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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]
The
Applicant asks for judicial review of a Pre-Removal Risk Assessment Officer’s
decision denying permanent residence because of the absence of sufficient humanitarian
and compassionate (H&C) grounds to justify an exemption from the
requirement to apply from abroad.
II. BACKGROUND
[2]
The
Applicant is a citizen of India currently living in Canada. His wife
and three children live in India.
[3]
The
Applicant came to Canada in October 1996 and filed a refugee claim. That
claim, based on being a target of Sikh military organizations and persecution
by Indian police for alleged Terrorist ties, was denied as was leave for
judicial review in 2003.
[4]
In
2000 the Applicant filed his first application for permanent residence on
H&C grounds. This application was denied as was his leave for judicial
review.
[5]
In
June 2004 the Applicant filed a second application for permanent residence on H&C
grounds. This application was also denied. It is this second decision which is
the subject matter of this judicial review.
[6]
The
Pre-Removal Risk Assessment Officer (Officer) noted that the H&C factors
pleaded were his establishment in Canada and his fear of return to India. On the
issue of “establishment”, the Officer noted that while the Applicant had
relatives in Canada, his wife
and children (of whose whereabouts the Applicant claims no knowledge) are in India. The
Applicant’s trucking business was built up while his immigration status was in
doubt. The Officer also found that the Applicant had a place to live in India and could
adjust to the return to his native country.
[7]
As
to the issue of “fear of return”, the Officer noted the RPD’s denial of his
claim and that in the Applicant’s updated 2001 submission, there was a claim
for fear of returning. The Officer dismissed the fear of returning argument
noting that the Applicant had a police clearance certificate and a 2004
passport – a document unlikely to be issued to one suspected of terrorist ties.
Therefore, the Officer denied the H&C application, giving little weight to
the alleged fear of returning to India.
[8]
Before
this Court, the Applicant argued that the H&C decision was unfair and
unreasonable because it was deficient in taking into account the Applicant’s
establishment in Canada (where he had interests in two trucking companies), his
lack of a home in India, his severed family ties and the police
brutality in India.
III. ANALYSIS
[9]
It
is well established that the assessment of an H&C decision is reviewable on
a standard of reasonableness (Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189). A decision to grant an
exemption from the usual process for permanent residence status is highly
discretionary and attracts a significant level of deference.
[10]
The
real challenge to the Officer’s decision is the weight she gave to various
factors. The Court ought not and will not engage in a re-weighing of the
evidence.
[11]
It
was open to the Officer to consider that the police clearance certificate and
2004 passport contradict the Applicant’s claim that police suspected him of
having terrorist ties. While the Applicant claimed that between 1996 and 2004
he did not have an Indian passport, there is no evidence that he could not
obtain one.
[12]
The
passport issue is relevant to the issue of fear of return as there was no
evidence that Indian authorities suspected him of anything. It is also relevant
to showing that the Applicant could have left Canada but chose to
remain and build up his business.
[13]
It
was open to the Officer to conclude that the Applicant’s establishment in Canada was a matter
of personal choice and not a matter beyond his control. This was not a
situation where the Applicant was unable to leave Canada and
therefore had to build up his “establishment” to survive.
IV. CONCLUSION
[14]
The
Court concludes that the Officer considered all the relevant facts and factors
and reached a decision which was reasonably open to her.
[15]
Therefore,
this judicial review will be denied. There is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is denied.
“Michael
L. Phelan”
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