Docket: IMM-6784-11
Citation: 2012 FC 612
Ottawa, Ontario, May 18,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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BALBIR SINGH
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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
[1]
The
Applicant, Balbir Singh, seeks judicial review of an Officer’s negative
decision regarding his application for permanent residence on humanitarian and
compassionate (H&C) grounds under subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27.
I. Facts
[2]
A
citizen of India, the
Applicant came to Canada on September 6, 2001. He made an unsuccessful
refugee claim based on a fear of persecution by Indian authorities suspecting
he collaborated with Sikh militants. He subsequently applied for permanent
residence on H&C grounds in 2007, with further submissions provided by new
counsel in 2010.
II. Decision Under Review
[3]
The
Officer found that the Applicant had not demonstrated his personal
circumstances were such that rejecting his application would result in unusual
and undeserved or disproportionate hardship. He would not accord probative
value to the 3 affidavits and letter submitted by the Applicant. Despite addressing
documentary evidence of the risks facing the Applicant, various factors
regarding his establishment in Canada, and the best interests of the child; the
Officer still found that there would be an insufficient level of hardship if the
Applicant returned to India.
III. Issue
[4]
The
sole issue raised by the Applicant is whether the Board erred in its
consideration of his establishment in Canada.
IV. Standard
of Review
[5]
Determinations
on H&C grounds are to be afforded deference and reviewed on a standard of
reasonableness (see Ahmad v Canada (Minister of Citizenship
and Immigration), 2008 FC 646, 2008 CarswellNat 1565 at para 11; Inneh v Canada (Minister of
Citizenship and Immigration), 2009 FC 108, 2009 CarswellNat 239 at para
13).
[6]
As
a consequence, this Court will only intervene in the absence of justification,
transparency or intelligibility and an acceptable outcome defensible in respect
of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 at para 47).
V. Analysis
[7]
In
considering the Applicant’s establishment in Canada, the Officer
referred to several positive factors; including his employment as a chef at a
restaurant, paying taxes, and community involvement. The Officer nonetheless
found this was insufficient to demonstrate the required degree of hardship. The
Applicant initially failed to pursue an Indian passport and remained in Canada for reasons
that were not beyond his control. Commenting on a letter from the Applicant’s
employer that he was important for business at the restaurant and would
represent a loss, the Officer would not accord this weight. The Applicant had
taken the risk of establishing himself despite his uncertain immigration status
as had his employer in giving him responsibilities knowing it was possible he
would eventually have to leave Canada.
[8]
The
Applicant asserts that the Officer’s assessment in this regard was
unreasonable, since it minimized his accomplishments and focused on the risk he
took to establish himself in Canada. In support of this position, he relies
on the decisions of this Court in Raudales v Canada (Minister of Citizenship
and Immigration), 2003 FCT 385, [2003] FCJ no 532 at para 18; Jamrich v
Canada (Minister of Citizenship and Immigration), 2003 FCT 804, [2003] FCJ
no 1076 at para 29; and Amer v Canada (Minister of Citizenship and
Immigration), 2009 FC 713, [2009] FCJ no 878 at paras 11-13.
[9]
Having
considered these cases, I do not find them directly analogous to the case at
bar. While the officers were faulted for failing to conduct a proper
assessment of establishment in those instances by suggesting that the
applicants were not in a different position than others in Canada for a period
of years; that is not what occurred here.
[10]
The
Officer provided a rather detailed consideration of the positive factors
relevant to establishment but nonetheless found this was not sufficient to
constitute unusual or undeserved and disproportionate hardship. Contrary to
the Applicant’s submissions, this cannot be dismissed as a mere listing or failure
to consider personal circumstances. The reference to the risk the Applicant
took in establishing himself despite his uncertain status was in addition to
this initial assessment.
[11]
I
must agree with the Respondent that the determination regarding the Applicant
in this instance more closely resembles that of Mann v Canada (Minister of
Citizenship and Immigration), 2009 FC 126, [2009] FCJ no 151 at para 15
where the officer gave extensive consideration to an applicant’s particular
circumstances and noted the lengthy time period remaining in Canada was due to
his own voluntary actions. The approach was considered reasonable.
[12]
I
should also stress consistent recognition by this Court that for the purposes
of discretionary decisions on H&C grounds there “should be something other
than that which is inherent in being asked to leave after one has been in place
for a period of time...the fact that one would be leaving behind friends,
perhaps family, employment or a residence would not necessarily be enough to
justify the exercise of discretion” (see Irimie v Canada (Minister of
Citizenship and Immigration), [2000] FCJ no 1906 at para 12; Buio v
Canada (Minister of Citizenship and Immigration), 2007 FC 157,
[2007] FCJ no 205 at para 36). The Officer is justified in weighing all of
these aspects before determining if the Applicant will face the requisite
degree of hardship on return.
[13]
The
Applicant further contests the suggestion that the decision to remain in Canada was not
beyond his control. The delay was not in failing to secure a passport as the
Officer implied, but in waiting to be issued a Pre-Removal Risk Assessment
(PRRA). He applied for and received valid work permits. He refers to Lin v
Canada (Minister of Citizenship and Immigration), 2011 FC 316, [2011] FCJ
no 395 wherein a seven year delay in resolving an applicant’s status in Canada was
considered a “shared responsibility between the Applicant and the Respondent.”
[14]
As
the Respondent argues, and I agree, this principle has since been
distinguished. Considering the holding in Lin, above, Justice Richard
Mosley in Singh v Canada (Minister of
Citizenship and Immigration), 2011 FC 813, [2011] FCJ no 1014 at para
11 stressed that the timeframe was exceedingly long in that instance and the
applicant had become firmly established over that period. He further remarked
that there was no mention in Lin, above, of the evidence that supported
this firm degree of establishment.
[15]
Moreover,
this Court maintains that while applicants are entitled to use all legal remedies
at their disposal, choosing to do so would not constitute circumstances beyond
their control (Gonzalez v Canada (Minister of Citizenship and
Immigration), 2009 FC 81, [2009] FCJ no 123 at para 29; Luzati
v Canada (Minister of Citizenship and Immigration), 2011 FC 1179, [2011]
FCJ no 1450 at para 21; Gill v Canada (Minister of Citizenship and
Immigration), 2011 FC 863, [2011] FCJ no 1072 at para 30; Serda v
Canada (Minister of Citizenship and Immigration), 2006 FC 356, [2006]
FCJ no 425 at para 23).
[16]
Along
similar lines, I cannot accept that the Officer erred in his treatment of the
letter from the Applicant’s employer that his leaving would be detrimental to
the business. While the Applicant would have expected that greater weight be
given to this evidence, it is not unreasonable when the Officer provides some
degree of justification, transparency and intelligibility for his or her
approach (for a similar holding see Olaopa v Canada (Minister of
Citizenship and Immigration), 2011 FC 1292, [2011] FCJ no 1574 at para
25).
[17]
In
general, the Applicant’s submissions assume if his establishment in Canada were
addressed differently by the Officer, his application would be granted. I must
note, however, that in the discretionary weighing of H&C grounds attachment
“is a factor to be considered, but it is not, nor can it be, the determining
factor, outweighing all others” (Irimie, above at para 20).
VI. Conclusion
[18]
For
these reasons, the Applicant has not demonstrated a reviewable error by the
Officer in considering his level of establishment in Canada. His
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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