Date: 20120629
Docket:
IMM-8382-11
Citation:
2012 FC 835
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, June 29, 2012
PRESENT: The Honourable Justice Scott
BETWEEN:
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JUJHAR SINGH 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]
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) rendered September 21, 2011, refusing to
grant permanent resident status to Jujhar Singh Gill (Mr. Gill) or an exemption
from any applicable criteria or obligation for an application on humanitarian
and compassionate considerations [H&C] under subsection 25(1) of the IRPA.
[2]
For the following reasons, this application for judicial review is
dismissed.
II. Facts
[3]
Mr.
Gill is a citizen of the Republic of India. He is married to Kulwinder Gill who
lives in India with their children Jagjot Gill and Prabjot Gill. His parents
and brother live in Canada.
[4]
He
is a shareholder in a printing company and is the owner and driver of a
transportation company.
[5]
On
August 9, 1997, Mr. Gill arrived in Canada. He filed a refugee claim based on
his fear of persecution by the Indian police force because of his affiliation
with the Akali Dal Mann party.
[6]
On
May 4, 1999, the IRB rejected Mr. Gill's refugee claim based on his lack of
credibility.
[7]
On
August 10, 1999, the Federal Court dismissed his application for leave and
judicial review of the IRB decision.
[8]
On
April 14, 2010, Mr. Gill filed an application for a pre-removal risk assessment
[PRRA]. His PRRA application was denied on September 12, 2011.
[9]
On
January 19, 2004, Mr. Gill filed an application for permanent residence under
humanitarian considerations [H&C]. His application was denied on September
21, 2011. That decision is the subject of the present judicial review.
III. Legislation
[10]
Subsection 25(1) of the IRPA states:
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
·
Did the officer err by
finding that Mr. Gill would not experience any unusual, underserved or disproportionate
hardship if he were to file his application for permanent residence abroad?
B. Standard
of review
[11]
In
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at para 62, the Supreme Court stated that the appropriate standard of
review for decisions on H&C applications is reasonableness (see also Paz v Canada (Minister of Citizenship and Immigration),
2009 FC 412 at paras 22-25).
[12]
Therefore,
the Court must consider "the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision 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
at para 47).
V. Position
of the parties
A. Position
of Mr. Gill
[13]
Mr.
Gill submits that the time that passed since his refugee claim has allowed him
to settle and integrate in Canada. He cites the officer's decision that states
he showed a willingness to integrate into Canadian society, through both his
business success and his community involvement.
[14]
Mr.
Gill also claims that the officer did not sufficiently consider the hardships
he would face should he return to India, after 13 years away from the country.
Mr. Gill also notes that he would have trouble finding a job in India.
[15]
Additionally,
Mr. Gill restates that he was detained arbitrarily and tortured by the Indian
police force because of his political affiliations. He states that these same
risks will exist should he return.
B. Position
of the respondent
[16]
The
respondent supports the officer's finding that Mr. Gill did not establish that
the problems he would face by submitting his application for permanent
residence outside Canada would be unusual and unjustified or excessive.
[17]
Moreover,
the respondent notes that the degree of establishment in Canada is only one
factor among many to consider when assessing an H&C application. The
respondent cites Lynch v Canada (Minister of Citizenship and Immigration),
2009 FC 615 at para 20, that states that "[t]he test to be applied by an
immigration officer when reaching a decision under section 25 of the IRPA is to
determine whether the person who requests an exception would suffer unusual,
undeserved or disproportionate hardship if he were to follow the normal
requirements of the Act."
[18]
The
respondent adds that it is not enough to act as a good Canadian citizen and
"simply being employed in Canada and acting as a responsible citizen is
not sufficient... [O]ther factors must be present justifying humanitarian and
compassionate grounds" (see Adams v Canada (Minister of Citizenship and
Immigration), 2009 FC 1193 at para 34).
[19]
Additionally,
the respondent states that the separation of family members does not justify an
exemption under section 25 of the IRPA. Mr. Gill does not present any evidence
showing that this separation would lead to unusual and undeserved or excessive
hardship.
[20]
According
to the respondent, Mr. Gill should not be rewarded for having accumulated time
in Canada (see Perez v Canada (Minister of Citizenship and Immigration),
2011 FC 757 at para 7).
[21]
Moreover,
according to the respondent, the case law is clear. The immigration officer
does not sit in appeal of an IRB decision. He is not to review the findings of
the Board (see Akinosho v Canada (Minister of Citizenship and Immigration),
2011 FC 1194 at para 10).
VI. Analysis
·
Did the officer err by
finding that Mr. Gill would not experience any unusual, undeserved or
disproportionate hardship if he were to file his application for permanent
residence abroad?
[22]
The
officer did not err by finding that Mr. Gill would not experience any unusual,
undeserved or disproportionate hardship if he were to file is application for
permanent residence abroad.
[23]
"The H&C decision-making process is a highly
discretionary one that considers whether a special grant of an exemption is
warranted" (see Doumbouya v Canada (Minister of Citizenship and Immigration),
2007 FC 1186 at para 7; Kawtharani v Canada (Minister of Citizenship and Immigration)
[Kawtharani], 2006 FC 162 at para 15). It is therefore Mr. Gill's
responsibility to prove that the hardships he should face, if he were to submit
his application for permanent residence abroad, would be unusual, undeserved or
disproportionate (see Legault v Canada (Minister of Citizenship and
Immigration), 2002 FCA 125 at para 23).
[24]
The
Immigration Applications in Canada made for Humanitarian or Compassionate
Grounds guide clarifies the meaning of "unusual, undeserved or
disproportionate" as follows:
5.10 The assessment of hardship
The assessment of hardship in an H&C application
is a means by which CIC decision-makers determine whether there are sufficient
H&C grounds to justify granting the requested exemption(s).
The criterion of "unusual, undeserved or
disproportionate hardship" has been adopted by the Federal Court in its
decisions on subsection 25(1), which means that these terms are more than mere
guidelines.
See Singh v Canada (Minister of Citizenship and
Immigration); 2009 Carswell Nat 452; 2009 CF 11.
...
Individual H&C factors put forward by the
applicant should not be considered in isolation in a determination of the
hardship that an applicant would face; rather, hardship is determined as a
result of a global assessment of H&C considerations put forth by the
applicant. In other words, hardship is assessed by weighing together all of the
H&C considerations submitted by the applicant. Hardship must be unusual and
undeserved or disproportionate...
5.11 Factors to consider in assessment of hardship
Subsection A25(1) provides the flexibility to grant exceptions
to overcome the requirement of obtaining a permanent residence visa from
abroad, to overcome class eligibility requirements and/or inadmissibilities, on
humanitarian and compassionate grounds.
Officers must assess the hardship that would befall
the applicant should the requested exemption not be granted.
Applicants may base their requests for H&C
consideration on any number of factors including, but not limited to:
·
establishment
in Canada;
·
ties
to Canada;
·
the
best interests of any children affected by their application;
·
factors
in their country of origin (this includes but is not limited to: Medical
inadequacies, discrimination that does not amount to persecution, harassment or
other hardships that are not described in A96 and A97);
·
health
considerations;
·
family
violence considerations;
·
consequences
of the separation of relatives;
·
inability
to leave Canada has led to establishment; and/or
·
any
other relevant factor they wish to have considered not related to A96 and A97.
[25]
Mr.
Gill alleges that he is established in and has ties to Canada. He states that
he is well integrated in the country and that after 13 years away, he would
have trouble finding a job in India. Moreover, he claims that he would be
tortured by the police should he return to his country of origin.
[26]
In
his decision, the officer recognized there was [translation]
"a willingness to settle" (see tribunal record at page 8) but made a
negative finding in response to [translation]
"the issue of whether such efforts were sufficient to justify the
exception, the visa exemption as per [the Immigration Applications in Canada
made for Humanitarian or Compassionate Grounds guide]" (see tribunal record
at page 8).
[27]
The
Court endorses the officer's analysis that the establishment in Canada factor
is only one of many others and that:
[translation]
If this were the criterion, the H&C review process
would become an ex post facto screening device that prevails over the review
process set out in the Immigration Act and regulations. This would encourage
people to take a chance claiming refugee status believing that if they can stay
in Canada long enough to show they are the type of person Canada is looking
for, they will be allowed to stay. The purpose of the H&C
application process is not to eliminate hardships; it is designed to provide
relief from unusual, undeserved or disproportionate hardship." (see
tribunal record at page 8)
[28]
Moreover,
the Court must note that the inherent hardship of leaving Canada is not
sufficient in itself to warrant an exemption under subsection 25(1) of the IRPA (see Kawtharani,
supra, at para 16).
[29]
In
this case, although Mr. Gill succeeded in business in Canada and he acted in an
exemplary manner, the officer could find that his return to India would not
result in any unusual, undeserved or disproportionate hardship. Moreover, the
officer notes that Mr. Gill's wife and children still live there and that [translation] "his strongest ties
are there" (see tribunal record at page 8).
[30]
Since
Mr. Gill did not submit any new evidence to clearly establish he would have
trouble finding employment in India or that he would be tortured because of his
political affiliations, the Court does not see any reason to intervene in this
case.
[31]
On
this, the Federal Court of Appeal stated that "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] FCA No 751 at
para 12).
[32]
Mr.
Gill's application for judicial review shall be dismissed for the above-noted
reasons.
VII. Conclusion
[33]
The officer reasonably found that Mr. Gill would not experience
any unusual, undeserved or disproportionate hardship if he were to file his
application for permanent residence in India. The officer's
decision falls within the possible and acceptable outcomes in respect of the
facts and applicable law (Dunsmuir, supra, at para 47). Mr. Gill's
application for judicial review is therefore dismissed.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that:
1.
the
application for judicial review is dismissed; and
2.
there
is no question of general interest to certify.
"André
F.J. Scott"
Certified true
translation
Elizabeth Tan,
Translator