Date:
20120720
Docket:
IMM-8474-11
Citation:
2012 FC 918
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 20, 2012
PRESENT:
The Honourable Mr. Justice Scott
BETWEEN:
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KULWINDER KAUR
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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 for judicial review filed under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA)
from a decision of the immigration officer (the officer), refusing to grant Ms.
Kulwinder Kaur (Ms. Kaur) an exemption from the requirement of applying for
permanent residence from outside Canada under subsection 25(1) of the IRPA.
[2]
For the following reasons, this application for judicial review is
dismissed.
II. Facts
[3]
Ms.
Kaur is a citizen of the Republic of India and is married to Surjit Singh
Kandola, who is still living in India. They are the parents of two girls, one
of whom is a Canadian citizen.
[4]
Ms.
Kaur arrived in Canada on December 3, 1996.
[5]
She
immediately claimed refugee protection; however, her claim was rejected on
February 16, 1998.
[6]
On
November 15, 2010, Ms. Kaur filed an application for a Pre-Removal Risk Assessment
(PRRA). Her PRRA application was denied on October 4, 2011.
[7]
She
then submitted an application for permanent residence on humanitarian and
compassionate (H&C) grounds. On October 4, 2011, the officer refused the
H&C application.
[8]
That
decision is the subject of the present application for judicial review.
III. Legislation
[9]
Subsection
25(1) of the IRPA states:
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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. Issue
and standard of review
A. Issue
·
Was
the officer’s decision refusing to grant Ms. Kaur an exemption under subsection
25(1) of the IRPA reasonable in this instance?
B. Standard
of review
[10]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paragraph 62 (Dunsmuir), the Supreme Court of Canada found that in an
analysis with regard to the applicable standard of review, the first step 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”.
[11]
It
is well established in the jurisprudence that the decision of an officer is
reviewable on a standard of reasonableness (see Paz v Canada (Minister of Citizenship and Immigration), 2009 FC 412 at paragraphs 22 to 25).
The Court must 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, supra, at paragraph 47).
V. Positions
of the parties
A. Ms.
Kaur’s position
[12]
Ms.
Kaur claims that she has been working since she arrived in Canada and that this has enabled her to amass a considerable amount of savings. In
addition, she relies upon the officer’s decision, in which it is acknowledged
that she has made efforts to integrate into Canadian society.
[13]
Ms.
Kaur further asserts that the officer failed to consider the disproportionate
hardship she would face in India. She noted that she had been detained
illegally and had been subjected to mistreatment by the Indian police on the
basis of her husband’s political affiliations. Ms. Kaur maintains that she
would be exposed to the same risks if she were to return to India.
B. Respondent’s
position
[14]
The
respondent argues that the officer correctly found that Ms. Kaur has not
demonstrated a significant degree of integration into Canadian society.
Therefore, applying for permanent residence from outside Canada would not cause her unusual, undeserved or disproportionate hardship. The respondent
pointed out that the length of the applicant’s stay in Canada and her level of
integration, in and of themselves, are insufficient to warrant an exemption
under subsection 25(1) of the IRPA (see Klais v Canada (Minister of
Citizenship and Immigration), 2004 FC 785 at paragraph 11; and Lee v
Canada (Minister of Citizenship and Immigration), 2005 FC 413 at paragraph
9).
[15]
The
respondent further notes the principle that the assessment of the degree of
establishment is a finding of fact, which is entirely within the expertise of
the officer. A reviewing court must show deference (see Mathewa v Canada (Minister of Citizenship and Immigration), 2005 FC 914 at paragraph 17 (Mathewa)),
according to the respondent.
[16]
In
addition, the respondent asserts that Ms. Kaur invoked the same risks she had
claimed before the IRB. She must show that she would face a personalized risk
if she were to return to India (Mathewa, above). The Court noted, in Jakhu
v Canada (Minister of Citizenship and Immigration), 2009 FC 159 at paragraph
27, that “it is insufficient for the applicant to base himself on the objective
documentary evidence regarding the situation in a country in general in
attempting to establish a risk for himself … [t]he applicant [bears] the onus
of establishing a correlation between the particular facts of his case and the
objective documentary evidence”. In the absence of evidence supporting Ms. Kaur’s
position, the respondent submits that the officer could reasonably conclude that
she would not suffer unusual, underserved or disproportionate hardship if she
were to return to India.
VI. Analysis
·
Was
the officer’s decision refusing to grant Ms. Kaur an exemption under subsection
25(1) of the IRPA reasonable in this instance?
[17]
The
IP 5 Manual applicable to the processing of Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds states as follows with respect to
subsection 25(1) of the IRPA:
The criterion of "unusual, undeserved or
disproportionate hardship" has been adopted by the Federal Court in its decisions
on Subsection 25(1) de la IRPA,
which means that these terms are more than simple guidelines. See Singh v Canada (Minister of Citizenship and Immigration); 2009 Carswell Nat 452; 2009 FC 11.
[18]
It
was open to the officer to find the evidence submitted by Ms. Kaur to be
insufficient and to conclude that she would not suffer unusual, undeserved or
disproportionate hardship if she was required to apply for permanent residence
from outside Canada. The Court notes that the onus is on Ms. Kaur to
demonstrate that she meets the criteria of the IRPA (Owusu v Canada (Minister of Citizenship and Immigration), [2003] 3 FC 172) in order to be
receive the exemption she is seeking.
[19]
Ms.
Kaur submits that the evidence in the record shows a significant degree of
integration. The officer acknowledged that Ms. Kaur’s efforts [translation] “show a desire to put down
roots” in Canada (see Tribunal Record at page 8), however, “it is settled law
that the degree of establishment in and of itself is not determinative of an
H&C application” (see Ahmed v Canada (Minister of Citizenship and Immigration),
2009 FC 1303 at paragraph 32; and Singh v Canada (Minister of Citizenship
and Immigration), 2009 FC 11).
[20]
Ms.
Kaur claims she would be at risk of persecution if she were to return to India. The officer noted that [translation]
“in this application for a visa exemption, she repeated the same risk
allegations … she provided no evidence from an independent source or explanations
corroborating that she would face unusual, underserved or disproportionate
hardship on the basis of political opinions attributed to her, membership in a
particular social group, or on any other ground, if she were to leave Canada” (see
Tribunal Record at page 7).
[21]
The
Court recognizes that “[t]he weight to be attached or assigned to particular
factors or indicators of attachment is discretionary. On a standard of
reasonableness, a reviewing court must examine the evidence to determine
whether any reasons support the impugned decision. Therefore, it is not our
role to re-examine the weight given to the different H&C factors by the Immigration
Officer” (see Williams v Canada (Minister of Citizenship and Immigration),
2006 FC 1474 at paragraph 7).
[22]
It
should also be noted that the decision of the officer “for H&C applications is exceptional and discretionary
and serves only to determine whether the granting of an exemption is justified”
(see Gomez v Canada (Minister of Citizenship and Immigration), 2010 FC
1301 at paragraph 27) and, furthermore, “the purpose of the H&C application
is not to re-argue the facts which were originally
before the Refugee Board, or to do indirectly what cannot be done directly,
i.e., contest the findings of the Refugee Board” (see Hussain v Canada
(Minister of Citizenship and Immigration), [2000] FCJ No 751 at paragraph
12).
[23]
Ms.
Kaur presented no evidence with regard to the best interests of her children
and any harm they might suffer in the event that her application was refused.
The Court does note, however, that Ms. Kaur’s daughter, Sandeep Kaur, is
married and well-established in Canada. She is also a Canadian citizen. As for
her other daughter, Navjot Kaur, she is an adult now and is pursuing her
university studies in India, where she lives with her father.
[24]
Finally,
the officer mentioned that Ms. Kaur provided no information about her nephews
living in the city of Toronto. It was therefore impossible, according to the
officer, to determine whether the best interests of these children could be
invoked. The officer noted the following in his decision:
[translation]
“With regard to her nephews in Toronto, she provided
neither their names, ages nor how many she had, or any specific information
with respect to their health, specific needs or vital interest that would lead
one to conclude that their best interests would be adversely affected if she
were to return to India. Conversely, her husband and daughter are in India and it is there that she herself used to live. With regard to the evidence adduced, I
cannot therefore find that she would face unusual, undeserved or
disproportionate hardship by having to apply for a permanent resident visa from
India” (see Tribunal Record at page 8).
[25]
The
officer’s decision in this case is reasonable and “falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above, at paragraph 47). The officer reasonably
determined that Ms. Kaur would not suffer unusual, undeserved or
disproportionate hardship if she had return to India to file an application in
accordance with the Act.
VII. Conclusion
[26]
The
officer reasonably found that Ms. Kaur would not suffer unusual, undeserved or disproportionate
hardship if she were to return to India. The decision “falls within a range of
possible, acceptable outcomes which are defensible with respect to the facts
and law” (Dunsmuir, above, at paragraph 47).
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that:
1.
the
application for judicial review is dismissed; and
2.
there
is no question of general importance to certify.
“André
F.J. Scott”
Certified
true translation
Sebastian
Desbarats, Translator
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