Date: 20071127
Docket: IMM-4981-06
Citation: 2007
FC 1244
Vancouver, British Columbia, November 27, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
AITZAZ AHMAD
SHAGUFTA AITZAZ
HASSAN AITZAZ
AFAQ AHMAD
FARRAKH AITZAZ
FATIMA AITZAZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION and THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
Mr. Aitzaz
Ahmad (the “Principal Applicant”), his wife Shagufta Aitzaz and their children,
Hassan Aitzaz, Afaq Ahmad, Farrakh Aitzaz and Fatima Aitzaz, (collectively
called the “Applicants”) seek judicial review of the decision of S. McCaffrey,
Pre-Removal Risk Assessment Officer (the “PRRA Officer”), acting as a delegate
of the Minister of Citizenship and Immigration (the “Respondent”). In that
decision, made on July 31, 2006, the PRRA Officer rejected the application
made by the Applicants for permanent residence in Canada on humanitarian and
compassionate (the “H & C”) grounds.
[2]
The
Applicants are citizens of Pakistan. They entered Canada in May 2002 and claimed
refugee status. Their claims were refused and an application for leave and
judicial review in that regard was dismissed in 2003.
[3]
The
Principal Applicant established an automotive related business in Canada with other individuals.
Following rejection of their application for judicial review of refusal of
their refugee claims, the Applicants applied for permanent residence on H &
C grounds.
[4]
The
application was filed in Vegreville, Alberta but was later
referred to the Citizenship and Immigration Officer in Etobicoke, Ontario. After review of the H & C
application and supporting documentation, the matter was referred to the
Pre-Removal Risk Assessment Unit (the “PRRA Unit”) of the Niagara Falls regional office. The PRRA
Unit rejected both the H & C and PRRA applications.
[5]
The
Applicants did not seek judicial review of the negative PRRA decision. However,
they seek judicial review of the decision concerning their H & C
application.
[6]
The PRRA
Officer reviewed the material submitted by the Applicants, including an extract
from the narrative to the Personal Information Form (the “PIF”) submitted by
the Principal Applicant as part of his refugee Convention claim. The PRRA
Officer concluded that the Applicants would not be at risk if required to
return to Pakistan and further, that they had
not shown that they would suffer unusual, undeserved or disproportionate
hardship if their H & C application were refused.
[7]
The
Applicants argue that the PRRA Officer had no authority to make a decision upon
their H & C application, that the PRRA Officer used the wrong legal test in
making the negative decision and that the PRRA Officer erred in finding that
the acts submitted did not demonstrate lack of establishment.
[8]
In Umba
v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 169,
the Court found that, upon a pragmatic and functional analysis, the appropriate
standard of review that should apply to judicial review of a negative H & C
decision is reasonableness simpliciter. If an error of law is alleged,
the appropriate standard is that of correctness.
[9]
The first
argument advanced by the Applicants is not sustainable. An H & C
application is governed by section 25 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”). That provision accords
the Respondent a broad discretion to waive strict application of the terms
of the Act and the Immigration and Refugee Protection Regulations, SOR/2002-227, (the
“Regulations”). The Respondent is at liberty to delegate that discretion and
according to the affidavit of Karen M. Mendonça, the PRRA Officer in this case
held delegated authority to assess the Applicants’ application.
[10]
Did the
PRRA Officer misstate the applicable test? In my opinion and having regard to
the PRRA Officer’s notes, the answer is “no”. The PRRA Officer was aware of the
test to be applied in relation to an H & C application and applied it.
[11]
Finally,
did the PRRA Officer commit a reviewable error in assessing the evidence, in particular
the evidence with respect to establishment? The Officer’s conclusions in that
regard are essentially a question of fact, subject to review on the standard of
patent unreasonableness. I refer to paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F-7.
[12]
The PRRA
Officer’s conclusions with respect to the degree of establishment are supported
by the evidence submitted. The fact that the Principal Applicant chose to begin
business activities in Canada when his status had not been
regularized does not inevitably mean that he is entitled to a positive
determination of his H & C application.
[13]
In the
result, the application for judicial review is dismissed. There is no question
for certification arising.
ORDER
The application for judicial review is dismissed, there is
no question for certification arising.
"E. Heneghan"
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