Docket: IMM-7184-10
Citation: 2012 FC 469
Ottawa, Ontario, April 23, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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RAHELA HAQUE
SHAHIDUL HAQUE
RAFIA HAQUE
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Applicants
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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. Overview
[1]
Ms.
Rahela Haque and her husband, Shahidul, are citizens of Bangladesh. Their
daughter, Rafia, was born in the United States. The family arrived in Canada in 2005 and
applied for refugee protection, but a panel of the Immigration and Refugee
Board denied their claim. They then applied for a pre-removal risk assessment [PRRA]
but an immigration officer dismissed their application. They then sought
humanitarian and compassionate [H&C] relief, but the same officer found
insufficient grounds to conclude that the applicants would experience unusual,
undeserved or disproportionate hardship if they had to return to Bangladesh and apply
for permanent residence from there.
[2]
The
applicants submit that the same officer should not have dealt both with their
PRRA and H&C applications. They say that this was unfair. The applicants
also argue that the officer’s conclusion was unreasonable and contrary to
positive decisions rendered in respect of their other family members. They ask
me to quash the officer’s decision.
[3]
I
can find no basis for overturning the officer’s decision. The officer did not
treat the applicants unfairly. Further, the officer considered the various
grounds advanced in the applicants’ submissions – the risk to the family in Bangladesh, the best
interests of the children, and the degree to which they have become established
in Canada – and concluded that they would not suffer serious hardship if they
returned to Bangladesh to apply for
permanent residence in the usual manner. I see no basis for finding the
officer’s decision to be unreasonable. I must, therefore, dismiss this
application for judicial review.
[4]
There
are two issues:
1. Did the officer
treat the applicants unfairly?
2. Was the officer’s
conclusion unreasonable?
II. Factual Background
[5]
The
applicants claim that they are at risk of mistreatment in Bangladesh because of
the political activities of Ms. Haque’s father, Mr. Golam Faruque. He was a
senior member of the Awami League and was persecuted by the ruling Bangladesh
National Party after the 2001 elections. The family, including Rahela, fled to
the United
States
in 2002. The following year, Rahela returned to Bangladesh to marry
Shahidul. After the wedding, they travelled to the United States where, in
2004, Rafia was born. The family travelled to Canada in 2005 and
claimed refugee protection. A second daughter, Rahema, was born in Canada later that
year.
[6]
Mr.
Faruque, his wife and two other children travelled to Canada and applied
for refugee protection. They were found to be Convention refugees in 2007.
Another of their children, Nahida Majib, also applied for refugee protection
for herself and her family, but was turned down. She then made an H&C
application. An immigration officer denied the application but the Federal
Court granted her application for judicial review. On reconsideration, another
officer granted the H&C.
III. The Officer’s Decision
[7]
The
officer first considered the risk that the applicants might face in Bangladesh. He noted
that Rahela had returned to Bangladesh in 2003 to marry, which
suggested that neither she nor her father believed she faced a serious risk.
The officer also observed that the applicants did not seek asylum in the United
States.
[8]
As
for the ongoing risk of political persecution in Bangladesh, the officer
reviewed the documentary evidence. He found that the applicants had not shown
that their political profile would attract any interest.
[9]
The
officer was aware of the fact that some of the applicants’ relatives achieved
refugee status, and others were successful on their H&C. However, the
officer felt he should decide each application on its merits.
[10]
The
officer considered the impact that return to Bangladesh would have on
Rafia and Rahema. He found that both had Bangladeshi citizenship, as well as US
and Canadian citizenship respectively. He reviewed the situation of children in
Bangladesh, including
the educational situation there. He noted that the children’s first language
was Bengali and that they had an extended family in Bangladesh, where the
family still owns properties.
[11]
As
for their establishment in Canada, the officer noted that Mr. Haque had a
business in Canada, but there was no evidence of the impact on any employees or
others if he returned to Bangladesh. As mentioned, the
applicants have other family members in Canada. However,
the officer found that severing those ties would not cause the applicants
serious hardship.
[12]
The
officer conceded the applicants have suffered psychological strain. However,
there was no evidence they could not receive support or treatment in Bangladesh if they
required it. Overall, the officer found that the applicants could reintegrate
in Bangladesh without
significant hardship. Therefore, he dismissed their application.
IV. Issue One – Did the officer
treat the applicants unfairly?
[13]
The
applicants argue that the same officer who dismissed their PRRA should not have
decided their H&C, all the more so because the same officer also decided
Nahida’s H&C that was later overturned by this Court.
[14]
There
is no reason why an officer cannot decide both a PRRA and an H&C. Nor is
there any reason why an officer cannot decide an issue relating to two branches
of the same family. As the officer pointed out, “each case is based on the
merits and details specific to each individual application”. There is nothing
inherently unfair in this. The real question is whether the officer’s decision
was unreasonable.
V. Issue Two – Was the officer’s
conclusion unreasonable?
[15]
Ms.
Haque’s father and other family members received refugee protection in Canada. Her
sister’s family succeeded on their H&C. In the circumstances, the
applicants argue that the officer’s decision denying their H&C is
inconsistent with the treatment of their family members and Canada’s policy of
family integration.
[16]
More
particularly, the applicants contend that the officer was bound to accept their
application given that this Court overturned his decision on Nahida Mujib’s
H&C, and her application was subsequently granted.
[17]
Further,
the applicants maintain that the officer failed to give adequate attention to
the best interests of the children, one of whom is a Canadian citizen. In
particular, they suggest that the officer should have analyzed in greater depth
the limited educational opportunities available in Bangladesh. The
applicants also contend that the officer should have given more weight to the
fact that, if their application was denied, their Canadian-born child would
either have to leave Canada, where she has a legal right to remain, or
be separated from her extended family in Canada. The
officer’s observation, that this choice was up to the child’s parents, they
say, was unreasonable.
[18]
In
my view, there were differences between the applicants’ circumstances and those
of their relatives. Those differences justified the officer’s decision.
[19]
To
begin with, the applicants’ circumstances were found by this Court to be
different than those of Mr. Faruque. Therefore, the fact that Mr. Faruque and
other family members were recognized as refugees did not mean that the
applicants faced a similar risk in Bangladesh: Haque v Canada (Minister of
Citizenship and Immigration), 2010 FC 702.
[20]
In
addition, Ms. Nahida Mujib’s successful application for judicial review of her
H&C was based on the officer’s failure to consider documentary evidence
relating to the family’s risk in Bangladesh. Here, the officer
considered the relevant evidence. He was aware that Ms. Mujib was approved at
the first stage for her H&C, but did not have before him the documentation
supporting that application; therefore, he cannot be faulted for failing to
consider the grounds on which her application ultimately succeeded.
[21]
Further,
the officer clearly considered the best interests of the children affected by
the decision. He considered and weighed the relevant evidence on that issue,
and specifically noted the presence of other family members in Canada, as well as
an extended family in Bangladesh. The officer considered
the documentary evidence relating to children’s welfare and education in
Bangladesh and found that Bangladesh is generally responsive
to children’s needs. As for the principle of family reunification, the officer
took account of the applicant’s family both here and in Bangladesh.
VI. Conclusion and Disposition
[22]
In
my view, the officer treated the applicants fairly in arriving at a reasonable
decision based on the evidence before him. I must, therefore, dismiss this
application for judicial review. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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