Date: 20090213
Docket: IMM-4715-07
IMM-1258-08
Citation: 2009
FC 159
OTTAWA, ONTARIO,
FEBRUARY
13, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
HARJIT
SINGH JAKHU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application by Mr. Harjit Singh Jakhu for judicial review of a decision,
rendered February 28, 2008, by Darin Jacques, rejecting his application for
permanent residence because of insufficient humanitarian and compassionate
grounds (“H&C”).
[2]
The
applicant had also filed an application for mandamus on November 7,
2007, to compel the Minister’s delegate to rule on his H&C application.
This application was filed on the same day the applicant’s wife submitted a
sponsorship application, which demonstrated their recent marriage.
[3]
Since the
H&C decision has now been rendered, the application for mandamus is
now moot. Counsel for the applicant conceded as much at the hearing. The
following reasons will therefore address only the application for judicial
review of the negative H&C decision.
BACKGROUND
[4]
The
applicant is a thirty-year-old Sikh from the Punjab. He arrived in Canada from India on September 16, 2000, and claimed refugee
protection that same day. On November
16, 2001, Mr.
Jakhu received a negative determination by the Immigration and Refugee Board
(“IRB” or the “Board”). The Board found that the applicant was not credible,
that he was not a trustworthy witness, and that his alleged subjective fear was
not reasonably grounded on an objective basis. The Board also stated that the
applicant provided no reliable documentation specific to his own claim and
that, even if the Board were to accept that the Punjab police had an interest
in him, the applicant could relocate elsewhere in India and avail himself of an Internal Flight
Alternative (“IFA”). The Federal Court refused leave on May 13, 2002.
[5]
On February 20, 2004, the applicant requested a
permanent residence exemption based on H&C grounds. This application was refused
on December 11,
2006. On April 25, 2007, the Federal Court refused
Mr. Jakhu’s application for leave against that negative H&C decision.
[6]
On August
8, 2005, the applicant submitted a Pre-Removal Risk Assessment (“PRRA”)
application based essentially on the same story and allegations as the ones he had
already presented to the IRB. The result of that PRRA was a negative decision
rendered December 11, 2006. Once again, the Federal Court refused leave to
review that decision on April 12, 2007.
[7]
Finally,
Mr. Jakhu made his second H&C application on July 16, 2007. As previously mentioned,
Mr. Jakhu’s wife submitted a sponsorship application on November 7, 2007. The
applicant also provided updates to his application on October 24, 2007 and on
February 4, 2008.
THE IMPUGNED DECISION
[8]
In a
detailed decision, the PRRA officer started off by summarizing briefly the
reasons provided by the applicant as to why the requirement to obtain a visa in
India would cause him unusual and
undeserved or disproportionate hardship. He noted that the applicant brought
forward the same allegations of risk that he brought before the IRB. He also
noted that the applicant’s refugee claim was rejected because of a lack of
credibility and sufficient evidence. However, he acknowledged that the
assessment of risk is more broadly canvassed in the context of an H&C
application, and therefore he continued to evaluate the risk factors.
[9]
The
applicant first submitted being at risk as a member of Akali Dal, an opposition
party in India. Even if some members have
alleged fear of ill-treatment in the past, the PRRA officer determined on the
basis of documentary evidence that these members are able to seek help from the
authorities. The applicant submitted two written statements from the president
of Akali Dal. One of them refers specifically to the applicant; it states that
the applicant would be subject to persecution and torture if he were to return
to India. The PRRA officer accepted
these documents as evidence of the applicant’s membership, but was not
satisfied that it rebutted the documentary evidence according to which members
of that political party do not generally face risk because of their political
affiliation. According to the officer, these documents were inadequate first because
the writers did not indicate that they had direct knowledge of the police
persecution outlined in the applicant’s allegations, and second because their
speculations as to the potential risk upon return to India were tempered by the
fact that they were forwarding a political agenda.
[10]
The
applicant also alleged that he was targeted by Indian authorities as a
suspected militant. While the PRRA officer recognized that in specific areas
there was cause for concern that police and security forces were committing
human rights violations, he nevertheless found that Sikhs who fear local
authorities may ask for protection from the National Human Rights Commission (“NHRC”).
Referring to the U.S. Department of State Report of 2007, the officer admitted
that some human rights groups claim that this government body is hampered by
numerous organizational and legal weaknesses. The PRRA officer then discussed
a medical certificate submitted by the applicant, but dismissed it as it did
not provide a conclusion regarding the source of the applicant’s injuries.
Similarly, the officer gave little weight to various written statements,
affidavits and a petition which reiterate the applicant’s risk allegations, as
it was impossible to determine if the sources of these documents personally
witnessed the events which they relate.
[11]
Finally,
the officer refers to reports from the UNHCR and the UK Home Office to the
effect that since 1996, Sikhs are less frequently subject to ill-treatment and
are entitled to diverse constitutional guarantees. Given the improved
situation for Sikhs in India, he concluded that there is insufficient evidence
that Mr. Jakhu would be subject to any threat due to his nationality, and that
there would not be undue and undeserved or disproportionate hardship if he
applied for permanent residence from India.
[12]
As for the
applicant’s links to Canada, the PRRA officer first
considered his employment in Canada. The officer mentioned that
he must determine whether the applicant’s established links in Canada are sufficient in that, if
they were broken, undue hardship would result, not whether the applicant is
making a contribution to Canadian society. Applying that standard, the officer
concluded that the applicant’s efforts in consistently working since his
arrival and in creating an enterprise were insufficient to warrant exceptional
consideration. Not only would he have made a similar effort to provide for
himself on a financial level under any circumstances, but these entrepreneurial
skills would be transferable to India.
[13]
With
respect to the applicant’s marriage, the officer stressed that marriage is not
automatically considered sufficient grounds for a positive H&C decision.
In the present case, the applicant knew that his situation was precarious; he had
already applied for an exemption and had been turned down; he had received a
negative PRRA assessment; and he would have been deported but for the expiry of
his travel documents. The couple could therefore have reasonably anticipated a
potential period of separation for immigration processing from abroad.
[14]
The
applicant stated that his father, who lives in Canada, was suffering severe
depression due to the fear that his son may be returned to India. The applicant submitted two medical
letters to that effect, one of which stated that despite the father’s condition
he was able to travel back and forth to India. The officer concluded that the father
would therefore be able to visit his son in India. Moreover, the officer was of the view
that hardship for the applicant’s father was not a determinant factor in his
son’s request for exemption.
[15]
Finally,
the officer was not convinced that it was necessary for the applicant to be
present at the birth of his child and found that the wife and child could visit
him in India. Not only was he not
satisfied that the child would suffer unusual and undeserved or
disproportionate hardship if the applicant had to apply for permanent residence
from abroad, but the best interests of a child could not outweigh the many other
factors the officer must consider when making such a decision.
ISSUES
[16]
Counsel
for the applicant has raised five separate arguments dealing with various
aspects of the PRRA officer’s decision. I shall address these arguments by
grouping them around the same headings as those considered by the PRRA officer:
a) the risk assessment; b) the links to Canada; and c) the best interests of the child.
PRELIMINARY MATTER
[17]
A few days
before the hearing, counsel for the applicant filed a motion to obtain
permission to submit a report by a human rights lawyer in India as part of the judicial review of the
applicant’s case. This so-called report was not filed as an affidavit and was
not sworn, yet it referred explicitly to the applicant. Counsel vaguely
referred to international legal authorities and s. 24 of the Canadian Charter
of Rights and Freedoms (the “Charter”) as the basis for introducing this
new piece of evidence.
[18]
Nor
surprisingly, counsel for the respondent vigorously opposed the filing of this
new material. After hearing submissions from both parties, I dismissed the
motion, essentially for the reasons put forward by the respondent. Not only
was there no explanation for the late submission of this report, but more
importantly, it would detract from the basic tenet of a judicial review
according to which the reviewing court must take the file as it was before the
original decision-maker. Neither s. 24 of the Charter nor international legal
norms can disrupt this long established rule of administrative law, and it is
to be noted that no Canadian authority has been submitted for that extraordinary
proposition. Quite to the contrary, counsel for the applicant has recently
been prevented from introducing new evidence in much the same fashion: Yansane
v. Ministre de la Citoyenneté et de l’Immigration, 2008 CF 1213.
ANALYSIS
[19]
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA” or the “Act”) requires
that a foreign national who wishes to live in Canada permanently must apply for and obtain a
permanent resident visa before entering Canada. However, the Act also allows an immigration
officer to exempt a foreign national from this requirement if the officer (or
the Minister) is of the opinion that an exemption is justified by H&C
considerations relating to him (ss. 11(1) and 25 of the Act): see Serda
v. Canada (Minister of Citizenship and Immigration), 2006 FC 356.
[20]
The grant
of an exemption is clearly an exceptional remedy, and it was up to the
applicant to demonstrate that the hardship he would suffer, if required to
apply for permanent residence in the normal manner, would be unusual,
undeserved or disproportionate: see Owusu v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 94 (F.C.A.); Monteiro v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1322; Samsonov v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1158; Hamzai
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1108; Liniewska
v. Canada (Minister of Citizenship and Immigration), 2006 FC 591; Ruiz
v. Canada (Minister of Citizenship and Immigration), 2006 FC 465; Legault
v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358
(F.C.A.).
[21]
There is
no dispute between the parties that the applicable standard of review with
respect to the ultimate decision of the H&C officer is reasonableness.
This is well established since the decision of the Supreme Court of Canada in Baker
v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817, and this standard has consistently been applied ever
since. This standard has not been displaced as a result of the decision
rendered by the Supreme Court in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. Given
the discretionary nature of the decision to exempt an applicant from the normal
requirements of the Act and the central role played by the facts in such
a decision, the deferential standard of reasonableness remains the applicable
standard. Such a standard does not call for intrusiveness, but requires the
reviewing court to look into both the process and the substantive result to
ensure that it is defensible. As the Court stated:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with 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, ibid., at para. 47.
[22]
Turning to
the assessment of the risk faced by the applicant if he is returned to India, it was argued that the officer erred both
in his evaluation of both the subjective and objective risks. Counsel for the
applicant submitted that the officer used the wrong criterion in assessing the
risk, and imposed a standard more appropriate to a PRRA claim than to an
H&C application. It was also contended that the officer erred by
disregarding corroborative documentary evidence, and by misinterpreting the
objective documentary evidence relating to the current situation of Sikhs in India.
[23]
Having
carefully examined the evidence upon which counsel for the applicant relies,
and the country documentation that was before the officer, I have come to the
conclusion that the officer did not err by applying the wrong legal test for
assessing risk, that he provided cogent reasons for rejecting the corroborating
evidence submitted by the applicant, and that his assessment of the country
conditions and his finding that the situation has much improved for Sikhs in
India is borne out by the various country reports that were before him.
[24]
The
applicant brought forward the same allegations of risk that he had previously
presented in the context of his refugee claim and of his PRRA. These
allegations were repeatedly rejected due to a lack of credibility and
insufficient evidence. The applications for judicial review of all these
previous decisions were all rejected. Yet, the H&C officer entertained the
applicant’s allegations once more, on the basis that risk is more broadly
assessed when hardship is the criterion. There is not a shred of evidence that
the officer applied the wrong test in his analysis of risk, and counsel for the
applicant has not substantiated his claim with any reference to a misguided
application of the test that the officer purports to apply. Indeed, the
officer concluded his review of all three facets of the risk alleged by the
applicant (risk as a member of Akali Dal, risk as a suspected militant, and
risk as a Sikh in India) with the same conclusion
that he is not satisfied the applicant would face unusual and undeserved or
disproportionate hardship. As a result, there is absolutely no evidence that
the officer applied the wrong test in assessing the applicant’s risk.
[25]
As for the
so-called corroborating evidence, the officer gave cogent reasons for rejecting
it. Most of that evidence is second-hand, and the authors merely rely for
their account on the applicant or his family’s story. As for the medical
certificate, it does establish that the applicant was treated for traumatic
injury, but it does not provide a definitive conclusion as to the source of the
injuries. Having read these documents, I come to the conclusion that the
officer was entitled to give them little weight and did not err in doing so.
[26]
Counsel
for the applicant also faulted the officer for having misunderstood the objective
country documentation, and for having found that the situation for Sikhs in India has improved over the last 10 to 15
years. Relying mostly on outdated evidence, he claims that the situation in India is much grimmer than that painted by the
officer. Once again, a careful reading of that documentation, and in
particular of the U.S Department of State Country Reports on Human Rights
Practices and of the Home Office (U.K.) Operational Guidance Note for the year
2007 has persuaded me that the officer’s analysis of the situation is fair and
balanced, and accurately reflects the current condition of Sikhs in India. To
be sure, the officer was not blind to the shortcomings of the human rights
record in India, and noted, for example, that
Amnesty International found that torture and violence in police custody
continued to be regularly reported. The officer also reported that some human
rights groups claim the NHRC is hampered by numerous organizational and legal
weaknesses. However on the whole, he found that Sikhs could find protection in
India, that ordinary members (as opposed to high-profile militants) of Akali
Dal party do not generally face risk because of their political affiliations, and
that Sikhs can relocate anywhere in India. While counsel for the applicant may
disagree with that finding, it is well supported by the evidence that was
before the officer, which he no doubt consulted as is made clear by his
numerous references to it.
[27]
In any
event, 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: see, for example, Nazaire v.
Canada (Minister of Citizenship and Immigration), 2006 FC 416; Hussain
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 719. The applicant bore the onus of establishing a correlation between
the particular facts of his case and the objective documentary evidence, which
he has failed to do.
[28]
All in
all, the officer assessed the risk factors alleged by the applicant and
considered the relevant documentary evidence. The officer’s decision and
reasons reflect a detailed analysis of the applicant’s submissions and of the
documentary evidence, and his findings on the issue of the situation of Sikhs
in India are supported by the
evidence. Moreover, he assessed the risk factors submitted by the applicant
against the appropriate standard. As a result, I have not been persuaded that
this is a case where the intervention of this Court would be warranted.
[29]
Counsel
for the applicant also claims that the officer erred in assessing the length of
time spent in Canada as well as his degree of
establishment in Canada. It is clear, however, that
as much as time spent in Canada and the establishment in the
community are important factors, they are not determinative of the application
for permanent residence on H&C grounds. Otherwise, as stated by Justice
Blais (then sitting on this Court) in Lee v. Canada (Minister of Citizenship and
Immigration),
2005 FC 413, at para. 9, “it would encourage gambling on refugee claims in the
belief that if someone can stay in Canada long enough to demonstrate that they
are the kind of persons Canada wants, they will be allowed to stay”. One must
never lose sight of the fact that on an H&C application, the test to be met
is whether applying for permanent residence from abroad would cause unusual,
undeserved or disproportionate hardship: see Uddin v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 937; Mann v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 567.
[30]
While the
applicant’s case no doubt attracts sympathy, this is not sufficient to overturn
the decision of the H&C officer. As he emphasized, the applicant would
already have been deported but for the expiry of his travel documents. Having
married despite the fact that he is currently under a deportation order, he
could have reasonably anticipated a potential period of separation in order to
process his immigration application from abroad. It would obviously defeat the
purpose of the Act if, the
longer an applicant was to live illegally in Canada, the better were his
chances to stay, even though he would not otherwise qualify as a refugee or
permanent resident. Moreover, establishment in Canada is but one factor among
others that the H&C officer must weigh in coming to a decision; it is not a
deciding factor, in and of itself: Samsonov v. Canada (Minister of Citizenship and
Immigration), 2006 FC
1158; Kawtharani v. Canada (Minister of Citizenship and Immigration),
2006 FC 162; Souici v. Canada (Minister of Citizenship and
Immigration), 2007 FC 66.
[31]
Finally,
counsel for the applicant submits that the officer failed to explain why he
refused to take into account the best interests of the child. Once again, I
cannot entertain that argument. The officer was clearly alert and sensitive to
the best interests of the child, and he provided reasons why the child would
not suffer unusual and undeserved or disproportionate hardship if the applicant
had to apply for permanent residence from abroad. He explained that the
evidence was directed at the well-being of the mother and did not indicate how
the applicant’s absence would negatively impact the newborn child. He also
indicated that the applicant’s wife and his child could visit him in India while he was applying for permanent
residence. Finally, he added that the applicant had not provided any statement
indicating his affective links with the child and did not mention fatherhood in
his submissions. While the applicant and, for that matter, this Court, may
disagree with the assessment of the officer, it cannot be said that the officer
was blind to the best interests of the applicant’s child. Again, it must be
remembered that the H&C process is designed not to eliminate the hardship
inherent in being asked to leave after having sojourned in Canada for a period
of time, but to provide relief from unusual, undeserved and disproportionate
hardship caused if an applicant is required to leave Canada and apply from abroad in the normal
fashion. That the applicant must leave a job or family is not necessarily
undue or disproportionate hardship; rather, it is a consequence of the risk the
applicant took in staying in Canada without landing.
[32]
For all
the above-mentioned reasons, this application for judicial review is therefore
dismissed. Counsel for the applicant proposed to turn into certified questions
two of the reliefs that he sought by way of this judicial review. Counsel for
the respondent opposed that strategy, arguing that the proposed issues are much
too general and based on unproven and controversial assumptions. I agree with
the respondent that the proposed questions do not meet the test elaborated for
certification purposes. Not only are they too vague to be of any usefulness,
but they would not be determinative of the appeal. There shall accordingly be
no certified questions.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed.
"Yves
de Montigny"
Email this Content