Date: 20071221
Docket: IMM-1746-07
Citation: 2007 FC 1356
Ottawa, Ontario, December 21,
2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ROOP SINGH
DEVI MADHU
MITALI KAUR
RAJAT SINGH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Roop
Singh (the “principal applicant”) and three other members of a family of five
seek to quash the March 8, 2007 decision of an Immigration Officer (the
“officer”) who refused their application for permanent residence to Canada based on
humanitarian and compassionate grounds (the “H&C application”). Their
H&C application was anchored on three elements: risk to their lives and
security if forced to return to India to make their
application for permanent residence, their establishment in Canada and the best
interest of their children two of which were born in India and 19 month
old Karishma born in Canada.
[2]
Their
judicial review application raises three principal issues:
1) Whether the
tribunal failed to properly assess their H&C application by adopting the
test under section 97 of the Immigration and Refugee Protection Act (IRPA)
rather than the test mandated by the operational guidelines, namely, they would
suffer unusual, excessive or disproportionate hardship if returned to their
country of nationality to make their application for permanent residence to
Canada from there;
2) Whether the
tribunal erred in its risk assessment by misconstruing the nature of the risk
which the principal applicant was alleging. The applicants’ counsel
argues the tribunal missed the mark by not examining the February 2005 threat
made against him; and
3) Whether the
tribunal actually considered the best interest of the children arguing that,
yes, they were mentioned in the officer’s decision but really, in actual fact,
their best interests were not assessed or taken into account.
[3]
Underlying
the first issue is the fact the officer who decided the H&C application on
March 8, 2007 also ruled, that same day, their application for a pre-removal
risk assessment (PRRA).
Facts
[4]
The
Singh family are citizens of India and are Sikhs. The source of their fears
stems from the riots and violence aimed at the members of the Sikh community
which took place in New Delhi in 1984 after the assassination of Prime
Minister Indira Gandhi. It is alleged the principal applicant’s father (the
“father”) had witnessed the riots in his neighbourhood in New Delhi where Roop
Singh was raised and had also recognized its organizers who were influential
members of the Congress Party (the “organizers”). His father went to the police
who refused to lay charges; his father continued his efforts to bring the
organizers to justice but to no avail. They also say the State is unable to
protect them.
[5]
In
2004, the government of India established a Commission of Inquiry into
the 1984 riots at which the father was called to testify; it is alleged he
identified the organizers of the riots in his area. After giving his testimony,
his father was harassed by these persons.
[6]
On
November 16, 2004, when he returned home from work at Indian Airlines where he
was an accounting supervisor, Roop Singh found his father clutching his chest; he
died minutes later. Roop Singh did not request an autopsy to determine the
cause of death.
[7]
After
being informed by a family friend, his father had been seen earlier in the day with
the three organizers, Roop Singh went to the police, made a complaint and also
told them he himself had been a witness to the 1984 riots in his area. The
police refused to do anything according to the principal applicant.
[8]
In
February 2005, Mr. Singh was stopped in his neighbourhood by goons who
assaulted him and told him he would die like his father. He says he complained
to the police who said he was lying. The threats continued.
[9]
In
March 2005, his daughter was followed home from school by unknown persons. The
principal applicant, it is alleged, received a telephone call threatening his
daughter with kidnapping.
[10]
The
family, who had obtained visitors’ visas for Canada and the United
Kingdom
in 2004 fled India on April 19, 2005 to England. They
remained in England for eight
days. The principal applicant sought advice on refugee applications in the U.K. but did not
file for refugee protection there.
[11]
The
family then travelled to Canada arriving on April 27, 2005. They remained
until May 9, 2005. They returned to the U.K. purportedly to
make a refugee application but apparently that opportunity was not available.
Ultimately, the family returned to Canada on June 8, 2005 where
they made their refugee application.
[12]
Their
refugee claim was refused on June 2, 2006 by the Refugee Protection Division
(the “RPD”) finding the principal applicant’s story not to be credible because
of contradictions between his point of entry statement (POE), his personal
information form (PIF) and his testimony; in addition, the RPD found his story
to be implausible. The applicants then sought permission to commence judicial
review proceedings in this Court but were denied leave on September 18, 2006.
[13]
On
November 14, 2006, their H&C application was received in Vegreville and
transferred to Montreal for determination on February 14, 2007. On
November 24, 2006, their PRRA application was received in Montreal.
[14]
As
noted, the officer rendered his decision in respect of both the H&C
application and the PRRA application on March 8, 2007.
[15]
On
April 27, 2007, the applicants sought leave and judicial review for both
applications. I understand leave with respect to the PRRA has been denied.
[16]
On
June 22, 2007, a judge of this Court stayed the execution of the removal order
against the applicants.
The Tribunal’s Decision
[17]
The
officer identified four H&C factors raised by the applicants in their
written submissions:
· Establishment
in Canada;
· Risk to life
and security;
· The best
interests of all the couple’s three children; and,
· Other factors
i.e. the principal applicant’s health problems.
[18]
She
then reviewed all of the evidence which had been submitted by the applicants in
support of the four factors identified.
[19]
Under
establishment, the officer reviewed Mr. Singh’s work history as well as letters
indicating the applicants’ implication in their temple and generally attesting
to their good character.
[20]
Under
risk, the officer reviewed the risks alleged by the principal applicant which
was the same risk as he had alleged in his PIF considered by the RPD and in his
PRRA application. The officer reviewed the findings of the RPD.
[21]
Under
the best interests of the children, the officer considered all of the evidence contained
in their written submissions which demonstrated how well Mitali, then age 13,
and Rajat, then age 11 were doing at school and the friendships they had
developed.
[22]
Under
other factors, the officer mentioned the November 21, 2006 letter from Dr. Tang
concerning Mr. Singh’s depression.
[23]
The
officer then provided her analysis. She first referred to the Minister’s
guidelines in the operational manual known as IP-5 to the effect the applicants
have the onus of satisfying the decision maker that their personal
circumstances are such that they would encounter unusual, undeserved or disproportional
hardship if required to return to India to apply for and obtain
a visa for landing in Canada.
[24]
The
officer then analysed the four factors identified above based on the
applicants’ submissions.
[25]
Under
risk, the officer, in essence, replicated the wording she had used in her PRRA
decision issued, as noted, on the day same as the negative H&C decision.
She referred to India as the largest parliamentary democracy in the world,
noted the population mix of Sikhs in India, the basis of the
applicants’ fear because of their being Sikhs, the changes of attitudes in
India since 1984 in terms of violence and discrimination against Sikhs pointing
to a specific problem, however, in Jammu and Kashmir. The officer identified
current problems in India including, violence towards women and concluded
none of those problems were raised by the applicants in their submission. The
officer referred to the fact the applicant had mentioned in his submissions he
had left a very good job in India which, according to him, was proof of his
fear.
[26]
Specifically,
she referred to a recent letter the principal applicant had received from his
brother mentioning goons had recently broken into his home and were inquiring
for the principal applicant. The officer accorded this letter little weight
principally because of the paucity of the information it contained. Referring
to the RPD’s finding the principal applicant was not credible, the officer
concluded the brother’s letter was not sufficient to establish risk to life or
security of the applicants.
[27]
In
terms of establishment, the officer found the principal applicant had enjoyed
in Canada steady
employment for one year i.e. since 2006. She referred to the family’s efforts
to learn French and the fact they were well liked in the community and the
children at school. She concluded, however, considering the applicants had been
in Canada for less than two years, she was not satisfied from the evidence
submitted their establishment was such as to warrant exemption from the normal
rule that permanent residents’ visas must be obtained outside of Canada. She
was not satisfied the compliance with this normal requirement would occasion
them unusual, unjustified or excessive hardship.
[28]
She
then considered the best interest of the children which she stated was an
important factor. In terms of the last born Canadian child of 19 months, she
expressed the view the interest of that child was to be with her parents. In
terms of Mitali and Rajat, the officer noted the evidence of their success at
school and the friendships developed. She found, however, large family support
available in India and
considered that the principal applicant to have demonstrated sufficient
resourcefulness as indicative of the ability to provide for the family if
returned to India. On this
point, the officer concluded, after considering what had been noted and after
having considered the best interest of the three children concerned, noting
they had demonstrated a good capacity for integration in Canada that, however,
she did not consider the elements presented in the record demonstrated
sufficiently they would incur unusual, unjustified or excessive hardship if
required to comply with the normal requirement of making an application for
permanent residence abroad. She stated she considered the age of the children,
the level of their integration, the consequences on their education and the
totality of the evidence to base her conclusion that the best interest of the
children were not sufficient to justify an exemption.
[29]
Finally,
in terms of other factors, she held the health problems raised by the principal
applicant were not sufficiently established in the evidence to demonstrate the
principal applicant would suffer consequences if his application for H&C
factors was refused since there was no evidence his depression could not be
treated in India. She was not
satisfied this factor was a sufficient and important factor.
Analysis
[30]
For
the reasons expressed below, I am of the view this application for judicial
review must be dismissed. The standard of review of an H&C decision, on the
merits, is reasonableness. This standard of review for H&C decisions on the
merits was recognized by the Supreme Court of Canada in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. An
unreasonable decision is one that is not supported by any reasons that can
stand up to a somewhat probing examination. A Court reviewing a
conclusion on the reasonableness standard must look to see whether any reasons
support it. The defect, if there is one, could presumably be in the evidentiary
foundation itself or in the logical process by which conclusions are sought to
be drawn from it. (See Canada (Director of Investigation and Research) v.
Southam Inc., [1997] 1 S.C.R. 748.)
[31]
A
review of the officer’s decision, in my view, clearly shows what the basis for
her decision was. After reviewing the evidence submitted by the applicants in
support of their H&C factors, the officer was not satisfied this evidence
was sufficient to justify an exemption from the normal requirement under the Immigration
and Refugee Protection Act (IRPA) that persons seeking landing in Canada
must be in possession of a permanent residence visa before coming to Canada for
that purpose.
[32]
It
is well established, in this Court’s jurisprudence, that:
· The onus is
on the applicants to establish the existence of sufficient H&C factors
justifying an exemption from normal legal requirements in IRPA;
· That onus
means the applicants must submit for review by the decision maker sufficient probative
and reliable evidence to support the existence of those H&C factors. The
applicants must put their best foot forward and cannot complain later on if
they did not lead sufficient persuasive evidence because it is not a function
of this Court on judicial review to reweigh the evidence before the decision
maker for the purpose of substituting its decision for that reached by a
tribunal (See Mann v. Canada (Minister of Citizenship and Immigration),
2002 FCT 567; see also Samsonov v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1158); the corollary to the requirement an
applicant is required to put his/her best foot forward is the obligation by the
decision maker to consider and weigh that evidence.
[33]
These
principles have a direct impact on counsel for the applicants’ submission of a
lack of analysis by the decision maker in reaching her conclusions on
establishment, best interest of the children and the principal applicant’s
health factors. I cannot accept this argument.
[34]
A
comparison between the evidence and the submissions made by the applicants and
the officer’s analysis clearly establishes she faithfully reviewed all of the
evidence, analysed it and concluded it was not sufficient on each point
(establishment, best interest of the children and other factors) to warrant an
exemption. In my view, the level of the officer’s analysis was directly
proportional to the level of the evidence submitted to her for consideration.
The officer could not be expected to analyse evidence which was not before her.
Issue no. 1
[35]
The
jurisprudence of this Court is to the effect the test underlying an H&C
application is hardship. As pointed out by my colleague Justice de Montigny in Ramirez
et al v. Canada (Minister of Citizenship and Immigration), 2006 FC
1404, the test of hardship in an H&C application and the concept of “risk”
contemplated in a PRRA application “is not equivalent and must be assessed
according to a different standard”. He went on to say at paragraph 43 of his
reasons: “It is perfectly legitimate for an officer to rely on the same set of
factual findings in assessing an H&C application and a PRRA application
provided that these facts are analyzed through the right analytical prism.”
[36]
As
stated by Justice O’Keefe in Dharamraj v. Canada (Minister of
Citizenship and Immigration), 2006 FC 674 at paragraph 24: “there is
a higher burden on the applicants to establish risk for the purposes of a PRRA
than there is for H & C purposes. Consequently, there may be circumstances
where risk would be relevant for an H & C application but not for a PRRA
application.” At paragraph 25, he found: “In the present case, the officer
merely adopted the assessment of risk made by the IRB and the PRRA officer
without further analysis for the purpose of the H & C application. In my
opinion, the officer made an unreasonable decision because she did not consider
the risk factors in the context of the H & C application.”
[37]
The applicants’ written submissions in respect of their
H&C application are found at page 562 of the certified tribunal record. The
risk outlined there is the same risk as alleged by them before the IRB and in
their PRRA applications namely risk to their life because the organizers of the
1984 riots will kill them if they returned to India since they fear he will
testify against them in the context of efforts by the government of India,
through the Commission of Inquiry, to bring to justice those responsible for
the 1984 riots.
[38]
The written submissions stressed one factor
which was said not to have been raised before the IRB as proof of Mr. Singh’s
fear. It was submitted that it was not plausible or logical Mr. Singh would
leave his important and well remunerated position at Indian Airlines unless the
risk to his life and that of his family was true.
[39]
The tribunal expressed its conclusion on this
point by stating: “After analyzing the risks alleged, I am of the opinion the
applicants have not demonstrated objectively a personalized risk to life and/or
security.”
[40]
In reaching this conclusion, the tribunal
specifically took into account and made specific reference to the applicants’
written submissions with respect to Mr. Singh’s employment. The officer was not
satisfied the applicants had led sufficient evidence to demonstrate that
employment and the circumstances of his leaving it.
[41]
In
the circumstances of this case, the jurisprudence cited by counsel for the
applicants is of no application. The crux of the officer’s decision is that the
risk alleged for H&C purposes is not substantiated; it does not exist. If
that is the case, the risk alleged cannot be the foundation for hardship for
H&C purposes.
[42]
Furthermore,
the applicants did not raise for consideration by the officer any other
circumstance associated with that risk which might have persuaded her on the
lesser burden associated with hardship.
[43]
The
case at hand is not similar to Ramirez, above, where Justice de Montigny
stated at paragraph 45: “While it may be that violence, harassment and the poor health and
sanitary conditions may not amount to a personalized risk for the purposes of a
PRRA application, these factors may well be sufficient to establish unusual,
undeserved or disproportionate hardship.”
[44]
Counsel for the applicant referred to Justice de Montigny’s
decision in Kaur v. the Minister of Citizenship and Immigration, 2005 FC
1491 and submitted it to be very similar to the case before me. I do not agree.
The Kaur case referred to me was not an H&C decision but was one
made by the IRB.
Issue no. 2
[45]
A
review of the record establishes the officer did not misconstrue the risk
alleged by ignoring the true nature of Mr. Singh’s fear arising out of the
February 2005 attack he says he suffered at the hands of goons.
[46]
The
certified tribunal record consisting of the material before the officer when
making her decision contains at pages 542 to 550 her PRRA decision which is
referenced and incorporated into her H&C decision.
[47]
At
page 545, the officer clearly states why Mr. Singh was allegedly attacked in
February 2005. The allegation was that he had contacted the police suggesting
he could identify the organizers of the 1984 riots.
Issue no. 3
[48]
The
Supreme Court of Canada in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 stated that an immigration
officer must be “alert, alive and sensitive to the interests of children”.
[49]
Counsel
for the applicant argues the officer’s decision minimized the best interests of
the children as there is no serious analysis of those interests. In my view, a
reading of the officer’s decision does not support the applicants’ submission.
[50]
The
officer, once again, referred to the applicants’ written submissions where the
benefits to the children of staying in Canada were identified
in terms of an assurance of quality education and enhanced freedom and
opportunities.
[51]
In
her decision, the officer took into account the evidence submitted and their
degree of integration. The officer referred to their age, the level of
establishment, the consequences on their education as well as the totality of
the evidence with regards to their best interests. The officer stated she was
not satisfied that all of the elements of the record exhibiting undue,
unjustified or excessive hardship if the applicants were to make their
application abroad for permanent residence to Canada. In her
opinion, all of the factors identified by the applicants to be in the best
interests of the children were not sufficient to justify an exemption from
Canada’s immigration law that those who want to reside in Canada must come to
this country have been screened abroad.
[52]
The
applicants have not satisfied me by reference to the jurisprudence cited that the
officer committed a reviewable error in reaching the decision she did with
respect to her analysis of the best interests of the children.
[53]
For
all of these reasons, this judicial review application must be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is dismissed. No certified question was proposed.
“François
Lemieux
___________________________
Judge
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