Date: 20091020
Docket: IMM-1358-09
Citation: 2009 FC 1062
Toronto, Ontario, October 20,
2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
NOMESHWAR SINGH, BARUNDAI
SINGH, JEETATMI
VINDIYA SINGH, HEETASMIN SHIVANI SINGH
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision dated February 17, 2009,
wherein the officer refused the applicants’ application for an exemption on
humanitarian and compassionate (“H&C”) grounds.
[2]
The
four applicants are a family consisting of Nomeshwar Singh and Barundai Singh
and their two adult daughters, Jeetatmi Singh and Heetasmin Singh; all citizens
of Guyana. They entered Canada on December 29, 2002, as visitors. On
January 8, 2003, they made claims for refugee protection. On April 22, 2004
the Immigration and Refugee Board determined that the applicants were not
Convention Refugees, nor were they persons in need of protection. A leave
application was denied by this Court on October 6, 2004.
[3]
The
family’s H & C application was received on May 20, 2005. Their submissions addressed
establishment in Canada, family ties in this country and risk factors
for returning Indo-Guyanese. The decision, made by an officer who had
previously rendered a negative pre-removal risk assessment (PRRA), found that
the evidence of risk was general in nature and insufficient to constitute an
unusual, undeserved or disproportionate hardship. While the applicants had
demonstrated a certain level of establishment, the officer was not satisfied
that severing the ties to Canada would have such a significant negative
impact so as to satisfy the hardship test.
ISSUES:
[4]
The
applicants contend that the officer erred in failing to consider the best
interests of the elderly mothers of the two principal applicants, that the officer
erred in applying the PRRA test to an H & C application, erred in making a
finding about the risk factors without conducting an interview and failed to
consider evidence of establishment.
ANALYSIS:
[5]
The
officer’s factual analysis is central to his or her role as a trier of fact.
As such, these findings are to be given significant deference by the reviewing
Court. The officer’s findings should stand unless the reasoning process was
flawed and the resulting decision falls outside the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9, at paragraph 47.
[6]
Given
the discretionary nature of H&C decisions, there might be more than one
reasonable outcome. However, as long as the process adopted by the officer and
its outcome fits comfortably with the principles of justification, transparency
and intelligibility, it is not open to a reviewing Court to substitute its own
view of a preferable outcome (Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at paragraph 59).
[7]
Contrary
to the applicants’ submissions, Mr. Singh’s credibility with respect to country
conditions in Guyana was not
questioned in the determination of hardship. The officer acknowledged the seriousness
of crime in Guyana and
considered all of the materials submitted together with reports prepared by the
Board in determining whether potential risk to the applicants, as returning
Indo-Guyanese, might constitute undue hardship. That the officer did not invite
the principal applicant to submit further evidence did not violate procedural
fairness. Credibility was not a factor in this case and an oral hearing to
discuss the evidence as provided by section 167 of the Immigration and
Refugee Protection Regulations was not called for: Lai v. Canada
(Minister of Citizenship and Immigration) (F.C.), 2007 FC 361, [2007]
F.C.J. No. 476.
[8]
The
applicants have failed to point to any evidence of risk that may have been
overlooked by the officer. Nor did the officer apply the PRRA test as opposed
to that required for an H & C determination. It is clear from the decision
that the officer addressed the risk factors in the context of the hardship test.
[9]
I
am satisfied that the best interests of Mr. and Mrs. Singh’s elderly mothers
were not overlooked. The information before the officer was that the parents resided
with other family members who enjoyed status in this country. There was no
evidence that they would lack for care or filial support if the applicants were
unable to remain in Canada. The officer was sensitive and alert to the
reality that physical separation of the family members would be difficult. It
is understandable that the extended family would prefer that the applicants
remained here but that is not a consideration that rises to the level of undue
hardship, absent some additional evidence that the impact would be unusual,
undeserved or disproportionate.
[10]
With
respect to the officer’s assessment of the evidence of establishment, the
applicants rely on the recent decision of Madam Justice Elizabeth Heneghan in
Nuria Ben Amer v. Canada (Minister of Citizenship and Immigration) 2009 FC
713, [2009] F.C.J. No. 878. In that case, Justice Heneghan found that the
officer had committed a reviewable error in finding that the applicant’s
establishment was no more than would be expected of a person who has been in
Canada for several years without status: see also Jamrich v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 804 (F.C.T.D.), [2003]
F.C.J. No. 1076; Raudales v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 385 (F.C.T.D.), [2003] F.C.J. No. 532.
[11]
In
Ben Amer, Jamrich and Raudales the assessment of
establishment was made without adequate reference to the particular
circumstances of the applicant. That is not the case here. The officer
carefully reviewed the significant evidence of establishment. It was not
necessary for the officer to expressly refer to matters such as the applicants’
bank accounts and credit cards, as was suggested in argument.
[12]
After
engaging in an extensive review of the evidence and having considered all of the
application’s information as a whole, including country conditions, it was
reasonable for the officer to find that the applicants’ personal circumstances
were such that the requirement of having to obtain a permanent resident visa
from outside of Canada did not constitute unusual, undeserved or
disproportionate hardship. This decision applied the proper threshold
applicable in the H & C context and falls within the range of possible,
acceptable outcomes defensible in respect of the facts and the law.
[13]
Neither
party proposed questions of general importance for certification.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the
application for judicial review is dismissed. No questions are certified.
“Richard G. Mosley”
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