Date: 20101104
Docket: IMM-5199-09
Citation: 2010 FC 1090
Ottawa, Ontario, November 4, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
VASANTHANAYAKI
KANDASAMY
Applicant
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
the decision of an immigration officer (the officer) dated October 7, 2009,
which refused the applicant’s application under subsection 25(1) of the Act to
have her application for permanent residence processed from within Canada based
on humanitarian and compassionate (H&C) grounds.
[2]
The
applicant requests that the decision be set aside and the matter referred back
to a different immigration officer for reconsideration and the convocation of
an in-person interview.
Background
[3]
The
applicant is a citizen of Sri Lanka who fears persecution
at the hands of the Liberation Tigers of Tamil Eelam (LTTE) and various other
groups. She is of Tamil nationality herself and claimed the LTTE pressured her
to join. She also claimed that she was harassed and abused by pro-government
groups who suspected her of being an LTTE spy.
[4]
With
the assistance of a smuggler, the applicant was able to get into the United
States
in 2004 and on April 26, 2005, entered Canada with false
documentation and shortly thereafter made a refugee claim. On or about May 30,
2006, the Refugee Protection Division of the Immigration and Refugee Board (the
Board) determined that she was not a refugee or a person in need of protection,
finding generally that the applicant was not credible. Leave to commence
judicial review was granted by this Court, but ultimately Mr. Justice Robert Barnes
held that the Board did not make any reviewable errors and dismissed the
application (see Kandasamy v. Canada (Minister of
Citizenship and Immigration), 2007 FC 791).
[5]
In
September of 2007, the applicant submitted a pre-removal risk assessment (the
PRRA application) and the H&C application with the assistance of an
immigration consultant. The applicant updated her submissions in May 2008 and
again on October 6, 2009. There was no oral hearing. In the earlier submissions,
the applicant continued to assert the same fears of returning to Sri Lanka and cited
the resumption of violence between the LTTE and the Sri Lankan Armed Forces as
a source of increased risk. In the final submission, the applicant submitted
that the situation in Sri Lanka is at its worst and on
top of that, the applicant’s profile as a 36 year old Tamil female places her
at the highest risk of persecution. Numerous documents and articles on country
conditions were submitted in support of these allegations.
[6]
With
respect to establishment and ties in Canada, the applicant
mentioned that she has a brother who is a Canadian citizen and a sister who is
a permanent resident. She also submitted evidence of her employment, attendance
at English as a Second Language courses and volunteer activities at a local temple.
[7]
On
October 7, 2009, the officer rendered negative decisions for both of the
applicant’s applications. This application for judicial review only addresses
the decision with respect to the applicant’s H&C application.
The Officer’s Decision
[8]
With
respect to the risks of hardship if returned, the officer did not find that the
documentary evidence submitted substantiated the applicant’s claims. The
documents related to general country conditions and conditions faced by the
general population. The officer also noted that according to one report, since
the end of the war with LTTE rebels in May 2009, the conditions in Sri Lanka, while far
from ideal, have continued to steadily improve. The situation remains dire for
some Tamils displaced by the conflict. Most of the Tamils detained in camps are
young males unable to produce identity documents. Having read and considered
all of the documents, the officer felt that they did not support the
applicant’s assertion that hardship associated with the risk of returning to Sri Lanka would be
unusual and undeserved or disproportionate.
[9]
Turning
to personal ties and degree of establishment in Canada, the officer noted the
applicant’s two siblings in Canada but felt there was insufficient evidence
to indicate that severing those ties would amount to unusual and undeserved or
disproportionate hardship. The officer noted the applicant’s four years in Canada while
receiving due process in the refugee protection program and noted the
applicant’s good civil record while in Canada. The officer
also noted the applicant’s employment as a newspaper carrier, her English
courses and her volunteering. Ultimately, the officer found the information
insufficient to support a view that the applicant was established in Canada and
remarked that the applicant knew, or ought to have known, that removal from Canada was a
possibility following her negative refugee decision.
[10]
Finally,
the officer considered the difficulties of readjusting to life in Sri Lanka and found
that although the applicant would have some, her network of family there could
support her in the transition. In short, she had not demonstrated that
returning to Sri
Lanka
would be an unusual and undeserved or disproportionate hardship on the
applicant.
Issues
[11]
The
issues are as follows:
1. What is the standard
of review?
2. Was the officer’s
decision reasonable?
3. Was the applicant
entitled to be given notice of concerns with her application or an oral
hearing?
Applicant’s Written Submissions
[12]
The
applicant submits that the facts suggest that the officer viewed the PRRA
application no differently than the H&C application and allowed the Board’s
decision to weigh too heavily in those decisions. The officer misapplied the
separate legal tests. Evidence regarding the human rights situation in Sri Lanka was to be
assessed separately and differently in her H&C application.
[13]
In
addition, the officer made a further error by failing to take account of the
applicant’s profile as a 36 year old Jaffna Tamil. Instead, the officer seemed
to indicate that her plight in Sri Lanka would be no different
than anyone else’s. The reports before the officer pointed out that Jaffna
Tamils are largely displaced and noted that foreign governments and NGOs have
been very critical of their treatment. Clearly, the hardships faced in Sri Lanka are not felt
equally among the general population. The error went to the heart of the
decision and renders it unreasonable.
[14]
Finally,
the applicant asserts that an oral hearing was required. In several places
within the decision, the officer notes concerns with the application or areas
where the evidence was insufficient. The officer was required to send a letter
requesting more information on these topics or to convoke an in-person
interview to ask the applicant questions regarding these concerns. Failure to
do either was a breach of the duty of fairness.
Respondent’s Written Submissions
[15]
The
respondent submits that the officer did not err by having due regard to the Board’s
decision. The applicant’s lack of credibility was not legally or properly
something the officer could so easily disregard when assessing the H&C
application – the allegations of hardship based on risk were identical to those
rejected as not credible by the Board. The application is incongruous as it is
based on the same alleged risks of hardship that were found to be totally false
by the Board and the applicant ignores the materially changed conditions in her
country.
[16]
The
officer did not fail to account for the applicant’s profile. There was no
evidence in the documents which singled out individuals matching her profile.
It was young Tamil males without proper documents who were detained and even
they were released quickly.
[17]
The
respondent submits that the applicant’s primary argument that the officer
conflated the two legal tests is spurious and does not specifically identify
how the officer allegedly did so. Fundamentally, the same risk factors facing
an applicant will often be relevant in both PRRA and H&C applications. The
applicant concedes that the officer specifically stated the correct legal test
for H&C applications and it was no error to consider some of those same
facts in relation to that test. With regard to that test, the applicant’s
alleged hardship cannot be characterized as unanticipated or beyond her
control, given her negative refugee determination.
[18]
Finally,
the respondent submits that the applicant is wrong to suggest that the officer
had a duty to bring all concerns to the applicant’s attention. There is no such
duty, even where an officer finds an application deficient. The onus is on the
applicant to adduce all relevant evidence and to put her best case forward to
satisfy the officer that there were sufficient H&C grounds to warrant an
exemption from the usual process.
Analysis and Decision
[19]
Issue
1
What is the standard of
review?
H&C applicants seek a
special exemption from the regular rules which every other prospective
immigrant to Canada is expected
to follow. The discretion conferred on the Minister is assessing H&C
applications allows for flexibility to approve deserving cases not anticipated
in the Act.
[20]
The
applicant says the officer’s ultimate decision was unlawful and ought to be
quashed.
[21]
The
standard of review for H&C decisions is reasonableness (see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39
(QL)). The deferential standard encompasses all determinations of mixed fact
and law within the decision as well as the ultimate disposition of the
application (see Canada (Minister of Citizenship and Immigration)
v. Patel,
2008 FC 747, [2009] F.C.R. 196 at paragraph 14).
[22]
Findings
of fact made within an H&C decision, if challenged, are subject to the standard
of review imposed by paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7 (see Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339).
[23]
The
applicant’s suggestion that the officer erred by confusing and using the wrong
legal test is an issue of pure law and will be assessed for correctness (see Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[24]
Elemental
determinations by the officer (be they of law, fact or mixed fact and law) can
render the ultimate decision unreasonable if shown to seriously impugn the
merits and basis for that ultimate decision.
[25]
Matters
of procedural fairness such as the applicant’s claim that an oral hearing was
required, are not subject to any deference and will be reviewed against the
standard of correctness (see Karimi v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1010, 160 A.C.W.S. (3d) 860 at paragraph 16).
[26]
Issue
2
Was the
officer’s decision reasonable?
The applicant
has pointed to several perceived errors in the decision which she claims will
so severely impugn the merits of the decision that it will be found
unreasonable in the face of such errors.
[27]
In
my view, the applicant has failed to establish any error in the decision and
therefore it is unnecessary to proceed to the next step and consider the
reasonableness of the ultimate decision.
[28]
The
first error alleged by the applicant is that the officer, who also conducted
the applicant’s PRRA, conflated the two legal tests and applied the PRRA risk
of persecution test to her H&C application. This allegation lacks merit and
lacks any degree of specificity. I am left with a bare allegation to which I
cannot agree.
[29]
The
officer set out the correct legal test for H&C applications which considers
whether the applicant will face undue, undeserved or disproportionate hardship
if forced to apply for permanent residency abroad. The officer repeated the
hardship-focused nature of the test multiple times throughout the decision and
in my view, stayed appropriately on topic. It is not an error for the officer
to consider risk to the applicant upon her return to Sri Lanka. Indeed, it
would have been a reviewable error had the officer not considered that risk as
a component of the hardship facing the applicant.
[30]
Similarly,
it was not an error for the officer to consider that the allegations of risk
were identical in nature to the allegations the applicant made before the Board
and to thus make use of the Board’s decision. The applicant’s claim before the Board
was based on the extremely dangerous situation in Sri Lanka in general
and especially for persons matching her profile. Her claim was bolstered and
individualized by allegations of her own personal experiences with the LTTE and
other alleged persecutors. The Board did not believe any of the applicant’s
personalized allegations. Similarly in her H&C application, the applicant adamantly
submitted that there are risks facing persons of her profile, but also included
the same personalized allegations the Board found not credible. The officer was
correct to summarily dismiss those allegations and not engage in an improper
rehearing of the Board’s credibility findings.
[31]
The
officer did consider the evidence with respect to the applicant’s profile and
the new documentary evidence regarding country conditions in Sri Lanka. Indeed, Sri Lanka is a country
whose conditions have certainly changed. It is evident that the officer
understood the essence of the applicant’s argument; that a 36 year old female
Tamil faces a higher degree of risk than the general population. However, there
was simply no evidence placed before the officer which singled out the
applicant’s demographic group as a group experiencing higher than usual risk.
The officer did note evidence that many Tamils have been displaced since the
LTTE’s defeat. She also noted that many were detained in camps until such time
as Sri Lankan authorities were able to interview them and screen them to
identify Tamil combatants. Most of those detained were young Tamil males. Since
the applicant is female, it was not unreasonable for the officer to surmise
that these reports did not indicate a disproportionate risk of hardship to the
applicant’s demographic group. There was no indication that a 36 year old
female Tamil returning to the country with no profile or history of involvement
in the conflict would be subject to any more risk than anyone else in the
country.
[32]
While
it may have been an oversimplification to state that the documentary articles
related only to conditions faced by the general population, because clearly
some articles singled out certain groups, it was not an error for the officer
to take notice that the applicant’s specific group was not identified.
[33]
The
applicant asserts in argument that the officer failed to give fair consideration
to credible evidence that was contrary to her result. However, the applicant
fails to point to anything from the documentary evidence that stood in stark
contradiction to her conclusions.
[34]
Even
though it is unnecessary to continue, I would find that the ultimate conclusion
of the officer was reasonable. As noted, the H&C exemption is a
discretionary provision to address instances of severe hardship not anticipated
by the Act and usually the result of circumstances beyond the person’s control.
Hardship suffered by an applicant must be more than the mere inconvenience and
the predictable hardship associated with leaving Canada. It is only
when such hardship in a particular case is undue and undeserving or
disproportionate, that consideration under section 25 becomes engaged.
[35]
In
the present case, the applicant’s hardship can hardly be described as
unanticipated as the applicant has stayed in Canada after a
failed refugee claim and ought to have known removal was a possibility. In
addition, she has no children, dependants or partner spouse in Canada, separation
from whom may have enhanced a claim of disproportionate hardship. While she
explained that she had employment, education and volunteer activities in Canada, she did not
explain how such activities would put her in the special category of persons
who ought to be considered for a special exemption on H&C grounds.
[36] Issue 3
Was the applicant entitled
to be given notice of concerns with her application or an oral hearing?
The answer to the question
posed by the applicant is simply no. While the officer is obliged to consider
all evidence submitted by the applicant, the law is clear that there is no duty
on an officer to disclose any concerns or to seek clarification of information
provided or to elicit additional information. As this Court has held, this
would create a never-ending process.
[37]
In
Carreiro v. Canada (Minister of Citizenship and Immigration), 2002 FCT
342, [2002] F.C.J. No. 449, Mr. Justice Marc Nadon cited with approval, the
comments of Mr. Justice John Richard in Bara v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 992 at paragraph 15:
The officer is not required to put before
the applicant any tentative conclusions he may be drawing from the material
before him, not even as to apparent contradictions that concern him. However,
if he relies on extrinsic evidence, not brought forward by the applicant, he
must give him a chance to respond to the evidence….
[38]
The
onus is on the applicant to adduce all relevant evidence to satisfy the officer
that there are sufficient H&C grounds to warrant an exemption and it is on
the basis of the evidence presented that the immigration officer makes his or
her decision (see Mann v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 567, 21 Imm. L.R. (3d) 109 at
paragraph 16). There is no duty to elicit additional information. Even where
the immigration officer finds that the application is deficient, this Court has
repeatedly held that there is no duty on the officer to request additional
documents or facts (see Arumugam v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 985, 211 F.T.R. 65, at paragraphs 16 and 17 and Rodriguez
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 414 at
paragraphs 4 and 5).
[39]
With
respect to an oral hearing, H&C applications will usually not require an
oral hearing unless the issue of credibility is central and cannot easily be
resolved any other way but through an in person assessment (See Baker
above). In the present case, the officer accepted all of the applicant’s
evidence with respect to her establishment in Canada and did not
doubt the credibility of such evidence though she found it insufficient. The
only issue with respect to credibility was the same claims which had been
rejected by the Board and were not subject to reconsideration by the officer.
In my view, there is no basis upon which to find that the process offered to
the applicant was anything but fair.
[40]
As
a result, the application for judicial review is dismissed.
[41]
Neither
party wished to submit a proposed question of general importance for my
consideration for certification.
JUDGMENT
[42]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
|
11.(1) A foreign national must, before
entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document may be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
. . .
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.
. . .
72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
|
11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un
contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la
présente loi.
. . .
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.
. . .
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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