Date: 20090210
Docket: IMM-2644-08
Citation: 2009 FC 126
Ottawa, Ontario, this 10th day of February
2009
Present: The Honourable Orville
Frenette
BETWEEN:
GURCHARN
SINGH MANN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) of the decision of
a Pre-Removal Risk Assessment Officer (the “officer”), dated June 9, 2008,
denying the applicant’s humanitarian application for permanent residence in Canada.
Facts
[2]
The
applicant, born on October 10, 1952, is a citizen of India. He is a
Sikh and is from Punjab. He is married and has two children. His wife
and children are in India and he financially supports them with his
earnings in Canada. In India he acted as
a Sikh priest and was a member of a musical group.
[3]
The
applicant came to Canada on December 6, 1985 as a visitor but overstayed
his visa which expired on June 25, 1986. During his time in Canada, he has had
the full advantage of the immigration processes available to him. He stated his
intent to make a refugee claim on March 4, 1987. He was determined to have no
credible basis to his refugee claim on June 29, 1990. A warrant for removal was
issued on November 14, 1990 which he failed to report for and was only
subsequently found and arrested on August 3, 1997. The applicant was released
on a bond with reporting conditions. The applicant’s first application for
landing on Humanitarian and Compassionate (“H&C”) grounds filed on November
24, 1999 was refused on February 21, 2001.
[4]
The
applicant made his second application for permanent residence from within Canada on H&C grounds
on November
8, 2004.
This second H&C application was the subject of a judicial review, dated
April 30, 2008, wherein the applicant sought to obtain an order of mandamus to set a time frame to process and decide
this H&C application (Federal Court docket IMM-2033-08).
[5]
On
April
11, 2005,
his second H&C application was transferred for processing to the Mississauga
Immigration Centre. The applicant’s application is based on his successful
establishment and integration in Canada for 22 years, and the hardship and risk
to his life if returned to India. The decision refusing this second H&C
application was rendered on June 9, 2008, i.e. more than four years after its
presentation. The applicant obtained a stay of removal on May 15, 2008 (2008 FC
612), wherein the judge noted the weakness of the applicant’s arguments.
[6]
The
applicant also submitted an application for Pre-Removal Risk Assessment on August 6, 2004, which was
refused on January
5, 2005.
[7]
The
officer acknowledged that it is reasonable to expect that a level of
establishment would take place yet felt that the applicant’s length of stay in Canada has been
prolonged by his own actions. Despite his establishment and the acknowledged
fact that the applicant will face some difficulties having to re-adapt to life
in India, the officer
was not satisfied that having to apply for permanent residence from outside Canada is a
hardship that is unusual, undeserved or disproportionate.
[8]
The
issue in the present case is whether the officer’s decision was unreasonable.
The Standard of Review
[9]
The
standard of review when dealing with the assessment of facts is that of
reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190; Kamara
v. Canada (M.C.I.), 2008 FC
785, [2008] F.C.J. No. 986 (QL); Nasir v. Canada (M.C.I.), 2008 FC
504, [2008] F.C.J. No. 634 (QL)).
Analysis
[10]
The
applicant argues that the officer failed to make any reasoned assessment of his
establishment and integration into the community in Canada during his
23 years here. He alleges the officer ignored his contributions to the church and
the musical group he forms part of. Furthermore, he contends that the officer
relied on generalizations as to his right to work, study and participate in
various community activities and applied the wrong test in assessing the
H&C application. He did not consider adequately the risk of returning to India.
[11]
The applicant also argues that it is unreasonable for the officer
to not give significant weight to the length of time or establishment that he has
had in Canada. He cites Justice Russel W. Zinn’s recent decision in Ranji v.
Canada (M.P.S.E.P.), 2008 FC 521, [2008] F.C.J. No. 675 (QL), whereby Justice
Zinn held that in assessing an H&C application, the officer is required to
examine the unique circumstances of a particular applicant:
[22] When the officer concluded that the
evidence of establishment was no greater than is “naturally expected of him”,
that determination was required to be made based on the particular
circumstances of the Applicant. Therefore, the officer must consider the
evidence presented with respect to the background and characteristics of the
Applicant.
[23] Mr.
Ranji came to Canada approximately 10 years ago. He has only
a grade eight education in India and was a farmer there. He is neither
well-educated nor skilled.
[24] Despite
those circumstances, he has been continuously employed, save for a two month
period, in unskilled positions earning no more than $50,000 annually but has
managed to accumulate a sizable bank account, co-purchase a residence with his
brother, develop a significant equity in the residence, purchase an RRSP,
financially support his family in India including sending his two children to
private school in India, and has provided letters of support from community and
social groups for his activities with them.
[25] The
officer made no reference to Mr. Ranji’s personal circumstances as set out
above and there is no evidence that the officer considered them in concluding
that he did no more than was naturally expected of him.
Finally
he concludes:
[28] Given
the importance of Mr. Ranji’s personal circumstances, the failure of the
officer to reference them in her decision leads me to conclude that the officer
failed to consider them when assessing his establishment. That failure, in
these circumstances, is a failure to consider relevant and proper evidence and
is thus an error of law.
[12]
In the case at bar, the applicant originally arrived in Canada on December 6,
1985 as a visitor but overstayed his visa which expired on June 25, 1986. His
wife and children remain in India. During his stay in Canada, he has had
the full advantage of the immigration process. Every single application however
failed. Moreover, he has had a deportation order issued against him for which
he failed to report for removal in 1990 and remained underground until 1997.
[13]
The
Inland Processing Manual (IP 5) published by Citizenship and Immigration
Canada states:
5.21
Prolonged
stay in Canada has led to establishment
Positive consideration may be warranted
when the applicant has been in Canada for a significant period of
time due to circumstances beyond the applicant’s control.
[14]
This
rule was applied by Deputy Judge Maurice Lagacé in Sabharwal v. Canada
(M.C.I.), 2008 FC 1128, [2008] F.C.J. No. 1412 (QL), where he dismissed the
claim of lengthy establishment in Canada to support a positive H&C
application because there was no evidence the period of time was due to
“circumstances beyond his or her control”.
[15]
Here,
the applicant alleges the officer did not consider his particular circumstances.
A simple reading of the decision nevertheless shows that the officer
extensively considered these particular circumstances. He considered the
applicant’s long 23-year stay, his employment record, his involvement in his community
and his religious and musical activities. He, however, determined what was
obvious i.e. that the extended stay argument flawed, since during the first two
years he was a visitor and for the next seven years, after a refugee claim was
rejected, he disappeared. After he was arrested in 1997, he exhausted all
processes available under the law, which were dismissed, during the next 11
years. Therefore this lengthy time period is due to his own voluntary actions.
[16]
It
is difficult to understand why he continued to stay in Canada while his
wife and two children resided in India.
[17]
There
appear to be no inoperative legal impediment for him not to return to India.
[18]
In
regards to the applicant’s musical activities, Justice Michael L. Phelan, in
his reasons for granting a stay of removal on May 15, 2008 (2008 FC 612) wrote:
[18] . . . Reliance
on interference with the Applicant’s ability to play in his musical band or
teach in his temple is so weak an argument as to undermine the seriousness of
the challenge to the immigration processing system.
[. . .]
[29] The
Court is mindful that this Applicant has sullied his “clean hands” by
disappearing for seven years. Nor is the Court particularly persuaded in the Applicant’s
favour by his multiple use of immigration procedures.
This conclusion can be applied in the
case at bar.
[19]
The
officer considered all of the applicant’s submissions and rendered a decision
based upon a rational and reasoned conclusion which amply satisfies the
requirements set out in Dunsmuir, supra.
[20]
Finally,
the last allegation that the officer did not consider the evidence of the risk
factor if the applicant is returned to India is simply
not accurate. The officer spent extensive time in his decision considering this
factor of the evidence including recent documentary evidence.
[21]
He
noted the following conclusion from that evidence:
. . . Since the elevation of Manmohan
Singh as India’s first Sikh prime minister,
the divide between Sikhs and Hindus had been bridged.
[22]
In
any event, the risk allegations had been repeatedly rejected by the Refugee
Division and the Pre-Removal Risk Assessment unit and again by the officer in
his second H&C application.
[23]
In
my view, the applicant has exhausted all his recourses and can still pursue his
last H&C application outside of Canada.
[24]
For
all of these reasons, this application must be dismissed.
JUDGMENT
The
Court orders that this application for judicial review is dismissed.
No
serious question of general importance is certified.
“Orville
Frenette”
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