Date: 20110310
Docket: IMM-4381-10
Citation: 2011 FC 293
Ottawa, Ontario, March 10,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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IN HEE KANG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of Immigration Officer L.
Harmon (the Officer) dated May 5, 2010, wherein the Officer refused Ms. Kang’s
application for permanent residence on humanitarian and compassionate (H&C)
grounds.
[2]
Based
on the reasons below, this application is dismissed.
I.
Background
A.
Factual
Background
[3]
The
Applicant, In Hee Kang, is a citizen of South Korea. She
arrived in Canada in June of
2004 as a visitor.
[4]
In
May 2005, the Applicant initiated a refugee claim. She claimed that she fled Korea in 2003
because she had been harassed and threatened by loan sharks from whom she was
forced to borrow money after her divorce. The Applicant claims that she was
never able to attain financial security and became helplessly indebted. She
began to fear that either her organs would be sold, or she would be sold
to a brothel in order to satisfy her debt.
[5]
The
refugee claim was rejected in February 2007. The Immigration and Refugee Board
drew a negative inference with respect to the Applicant’s credibility as her
testimony was found to contain several inconsistencies and embellishments.
[6]
In
March 2007, the Applicant submitted an application for permanent residence from
within Canada based on
Humanitarian and Compassionate considerations (H&C application).
[7]
In
July 2007, the Applicant submitted a Pre-Removal Risk Assessment (PRRA)
application.
[8]
In
August 2007, the Applicant submitted a spousal sponsorship to support her
H&C application. She had married her sponsor, Hamid Reza Mohseni, on
July 1, 2007. Additional H&C submissions were submitted in May 2008.
[9]
The
Applicant’s spousal sponsorship was withdrawn in March 2009. The relationship
between the Applicant and her sponsor began to disintegrate after they
separated in May 2008. Applicant’s counsel provided further H&C
submissions in March 2009 to address the dissolution of the relationship and
subsequent divorce, which was finalized in February 2009.
[10]
In
June 2009, the Applicant made further H&C submissions, requesting
specifically that the officer take into account Immigration Processing Manual
5. Sections of this manual address factors to consider when assessing an
applicant’s degree of establishment in Canada and the
issue of family violence. The Applicant alleged that she suffered financial
extortion at the hands of her ex-husband. During this period she claimed to
have been fearful of him and humiliated by him.
[11]
In
December 2009, an H&C risk opinion was rendered by a PRRA officer. The
opinion held that the Applicant would not be at risk if she were to return to Korea.
[12]
The
Applicant submitted materials rebutting the risk opinion, however, the PRRA
officer maintained his assessment.
[13]
The
Applicant’s H&C application was refused April 30, 2010. This was
communicated to the Applicant by way of letter dated May 5, 2010.
B.
Impugned
Decision
[14]
The
Applicant’s H&C application was based on establishment in Canada and risk of
returning to the Republic of Korea.
[15]
The
Officer reviewed the H&C risk opinion and found that there were no errors
or omissions in the report and that all evidence submitted had been adequately
considered. The Officer found that the opinion was reasonable and was
therefore satisfied that the Applicant would not face risk should she return to
Korea. The
Officer was not satisfied that the Applicant had provided sufficient evidence
to establish that the hardship and risk associated with returning to Korea
would amount to unusual and undeserved or disproportionate hardship.
[16]
The
Officer then reviewed the evidence submitted to demonstrate the Applicant’s
degree of establishment in Canada. The Officer found that the Applicant had
integrated into the community. However, the Officer did not find that the
Applicant had established that severing her ties to the community would
constitute unusual and undeserved or disproportionate hardship.
[17]
The
Officer noted that the Applicant had lived in Korea until she
was 50 and thus was familiar with the language, customs and culture of that
country. Considering her educational background and experience, there was
little evidence to suggest that she would be unable to re-establish
herself in Korea, or that she
would be without access to a support system.
II.
Issues
[18]
This
application raises the following issues:
(a) Did the Respondent provide
sufficient reasons?
(b) Did the Respondent err in
failing to consider the manuals?
(c) Did the Respondent err in
weighing the evidence?
III.
Standard
of Review
[19]
The
appropriate standard of review to apply to the findings of fact and assessment
of evidence in an H&C decision is reasonableness. Judicial deference to
the decision is appropriate where the decision demonstrates justification,
transparency and intelligibility within the decision making process, and where
the outcome falls within a range of possible, acceptable outcomes. (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 97).
[20]
As
for sufficiency of reasons, this is an issue of procedural fairness and is typically
reviewable on a standard of correctness (Adu v Canada (Minister of
Citizenship and Immigration), 2005 FC 565, 139 ACWS (3d) 164 at para
9). However, there is some caselaw that suggests that because the primary
function of reasons is to ensure that an administrative decision is justified,
transparent and intelligible, adequacy of reasons is in fact reviewable against
a standard more similar to reasonableness (Nicolas v Canada (Minister of
Citizenship and Immigration), 2010 FC 452, 367 FTR 223 at para
11). Either way, the analytical framework remains the same.
IV.
Argument
and Analysis
A.
Did
the Respondent Provide Sufficient Reasons?
[21]
The
Applicant submits that the reasons for the Officer’s decision are
insufficient. The Applicant argues that the reasons fail to provide any
meaningful analysis in that they are constituted by nothing more than a
recitation of the facts followed by a conclusion. As such, they are not
transparent or intelligible. The Applicant submits that they are boiler-plate
rationales designed to immunize the decision from judicial scrutiny. The
Applicant illustrates her argument by way of providing a side-by-side
comparison with reasons issued by the same Officer on a different day in a
different case – the Csaba reasons. The Applicant contends that it is
clear that the Officer used a template.
[22]
The
Respondent submits that the Officer’s reasons are sufficient and are not
identical to the Csaba reasons. The Respondent argues that a review of
the decision show that the Officer considered the H&C factors raised by the
Applicant, and explained why they did not justify an exemption.
[23]
The
Applicant based her H&C application on two grounds – fear of returning to Korea and degree
of establishment. In terms of the first ground, it is clear that the Officer
placed great weight upon the PRRA officer’s report. Without probative evidence
to counter-balance the reasonable finding of the risk report, the Officer
concluded that the Applicant failed to adduce sufficient evidence to establish
that the risk associated with returning to Korea amounted to
unusual or undeserved hardship.
[24]
With
regards to the second ground, degree of establishment, the Officer considered
all of the evidence and concluded that the Applicant failed to show that she
would experience unusual and undeserved or disproportionate hardship. The
Applicant cites Adu, above, in support of her submission that the
reasons provided are insufficient in that they are a recitation of the facts
followed by a conclusion. Having reviewed Adu, above, I am convinced
that the present matter is distinguishable on the facts. In Adu,
Justice Anne Mactavish noted that several of the cases cited by the Respondent
were distinguishable from the case before her. The cases cited by the
Respondent contained significantly more detailed reasons. Justice Mactavish
explained at paras 17 and 18:
[17] By way of example,
in Irimie, the officer noted that the applicants had argued that their
son would have difficulty adjusting to a new school if he was forced to return
to his country of origin. The officer then explained why he or she was not
persuaded by this argument, observing that the child had already adjusted well
when he moved to Canada, and would be returning to a
country where he had spent the majority of his life.
[18] Similarly, in Nazim,
the officer addressed the establishment factors identified by the applicant,
but also went on to note that the applicant had no family residing in Canada,
and still had family in Pakistan, factors that weighed against the granting of
the application.
[25]
Similarly,
in the present matter the Officer did not merely conclude that the Applicant
had failed to persuade him that she would suffer disproportionate hardship
without performing some critical analysis. The Officer acknowledged that the
Applicant owns and operates her own business, has worked very hard and
purchased a house, is economically established, and has a good civil record.
The Applicant has also ensured that her professional growth remains a priority
and in this regard has obtained numerous certificates. She has also
established ties to her community.
[26]
The
Officer went on to note, however, that:
• The Applicant received due process
in the refugee program and therefore a certain measure of establishment was expected
to take place over the six years she had been in Canada. Though it
was commendable that she had integrated herself into the community, she failed
to establish that severing these ties would have such a negative impact that it
would constitute disproportionate hardship.
• Having a good civil record is
expected of all temporary and permanent residents and Canadian citizens.
• Prior to coming to Canada, the
Applicant was established in Korea and received a formal education and was
professionally self-employed. There was no evidence to indicate that the
Applicant would be unable to re-establish herself in Korea.
• Although the Applicant had spent six
years in Canada, and rebuilding her life in Korea would not be
without difficulty, her entire extended family lives in Korea, and she lived in
Korea until she
was 50 years of age.
• The Applicant has gained several
skills and experiences throughout her employment history which are transferable
and will help her in finding employment.
[27]
In
Adu, above, the officer only pointed to the strengths of the applicant’s
application. In the present matter the Officer also pointed to factors
weighing against the granting of an exemption. Based on the reasons, the
Applicant is able to understand what factors the Officer considered, and how
they were weighed in coming to the conclusion. It is clear that the Officer
came to a negative decision because there was a lack of sufficient evidence to
persuade him to decide otherwise. The onus is on an applicant to submit sufficient
evidence to convince the officer that an exemption under the Immigration and
Refugee Protection Act, R.S. 2001, c. 27 (IRPA) is warranted. I am
satisfied that the reasons were adequate.
[28]
As
for the side-by-side comparison with the Csaba reasons, while generic
portions of both decisions contain the same or similar wording, significant
portions of each decision detailing the relevant facts and analysis thereof,
are unique. As the Applicant submits, this does suggest that the Officer was
making use of something like a template in composing his decision. However, I
accept the Respondent’s argument that there is nothing improper about an
officer using a precedent that addresses the principles in an H&C
application as a template. In fact, referring to the same principles in each
case ensures consistency, predictability and transparency in the
decision-making process. As long as it is evident that the Officer considered
the relevant factors and explained their conclusions adequately, the literary
quality or originality of the reasons is of little importance (Vajda v Canada (Minister of
Citizenship and Immigration), 2006 FC 917, 150 ACWS (3d) 691 at para
8). I am satisfied that the Officer addressed all of the factors raised by the
Applicant.
B.
Did
the Respondent Err in Failing to Consider the Manuals?
[29]
The
Applicant submits that the Officer erred in failing to consider relevant
passages of the Inland Processing Manual for H&C claims made from within Canada. The
Applicant specifically requested that the Officer refer to sections pertaining
to determining the degree of establishment in Canada and family
violence in assessing her application, and she argues that there is no
indication in the reasons that he did so.
[30]
Paragraph
11.3 of the manual outlines the factors officers should consider in determining
an applicant’s degree of establishment:
• does the
applicant have a history of stable employment?
• is there a pattern of
sound financial management?
• has the applicant
integrated into the community through involvement in community organizations,
voluntary services or other activities?
• has the applicant
undertaken any professional, linguistic or other studies that show integration
into Canadian society?
• does the applicant and
their family members have a good civil record in Canada? (e.g. no criminal charges or
interventions by law enforcement officers or other authorities for domestic
violence or child abuse)
[31]
The
passage of the manual detailing considerations relating to family violence is
found at paragraph 12.7:
12.7. Family violence
Family members in Canada, particularly spouses, who
are in abusive relationships and are not permanent residents or Canadian
citizens, may feel compelled to stay in the relationship or abusive situation
to remain in Canada; this could put them in a
situation of hardship.
Officers should be sensitive to
situations where the spouse (or other family member) of a Canadian citizen or
permanent resident leaves an abusive situation and, as a result, does not have
an approved sponsorship. Officers should consider the following factors:
• information indicating there was abuse
such as police incident reports, charges or convictions, reports from shelters
for abused women, medical reports, etc.;
• whether there is a degree of establishment
in Canada (see Section 11.3);
• the hardship that would result if the
applicant had to leave Canada;
• the laws, customs and culture in the
applicant's country of origin;
• the support of relatives and friends in
the applicant's home country; and
• whether the applicant has a child in Canada or/and is pregnant.
[32]
The
Respondent argues that a review of the reasons shows that the Officer
considered all five elements listed in the manual in assessing the Applicant’s
degree of establishment. Indeed, from my review of the reasons, this is so.
The Officer clearly considered: history of stable employment, pattern of sound
financial management, integration into the community, professional study, and
good civil record in Canada.
[33]
As
for the family violence section, there is no trace of any of the elements
listed in the manual in the Officer’s reasons. The Respondent submits that
this is because the Applicant’s allegations with respect to the dissolution of
her marriage involved no violence. The Applicant claimed that her husband
forced her to support him financially. When the Applicant had enough, she
separated from him and divorced him even though she knew that meant that he
would withdraw his sponsorship. I do find it strange that there was no mention
in the reasons of the Applicant’s submissions regarding her relationship with
her former husband. However, I am persuaded by the Respondent’s submissions on
this point. The Respondent argues that the Officer was under no obligation to
consider factors that were not supported by the Applicant’s own allegations or
evidence. The Applicant did not present any evidence that there was actual
violence, such as convictions, police reports, or reports from shelters for
abused women, as suggested by the manual. Accordingly, the Officer could not
consider information that did not exist. The Officer clearly did consider the
degree of establishment, the hardship the Applicant would endure if she had to
leave, and the support available to her in Korea. The Officer
also noted that since the Applicant lived in Korea until she
was 50 years old, she was familiar with the language, customs and culture of
that country.
[34]
In
any case, as Justice Yves de Montigny reiterated in Lee v Canada (Minister of
Citizenship and Immigration), 2008 FC 1152 at para 29:
[29] […] Moreover, it
has been held time and again that guidelines are not law, are not binding on
the Minister or his agents, and do not create any legal entitlement in
applicants who believe they have satisfied them (Legault v. Canada (Minister
of Citizenship and Immigration), [2002] F.C.J. No. 457, 2002 FCA 125).
While they can be of assistance to the Court, they cannot fetter the discretion
of an officer.
[35]
I
do not find that on this ground, the Court should intervene to disturb a
decision that is, on its face, reasonable.
C. Did
the Respondent Err in Weighing the Evidence?
[36]
The
Applicant submits that the Officer erred in attributing little weight to the
letters of support and reference from friends “as they were written by persons
who are not necessarily unbiased or a disinterested party in the outcome of
this application,” (Certified Tribunal Record (CTR) at pg 5). The Applicant
takes the position that the Officer was wrong to diminish the probative value
of the letters only because they were written by friends and acquaintances.
[37]
The
Respondent submits that while caselaw does suggest that it may be an error to
dismiss such evidence out of hand for being authored by interested parties,
caselaw also suggests that an officer does not err by at least considering this
factor in assessing the total weight of the evidence (Jiang v Canada
(Minister of Citizenship and Immigration), 2009 FC 794, 180 ACWS (3d) 8
paras 15-17; Sayed v Canada (Minister of Citizenship and Immigration),
2010 FC 796 at para 21; Obeng v Canada (Minister of Citizenship and
Immigration), 2009 FC 61 at paras 31-33; Mikhno v Canada
(Minister of Citizenship and Immigration), 2010 FC 386).
[38]
The
Officer considered the documents. He did not reject them outright. This is
clear when he states at pg 5 of the CTR:
I accept that the applicant
has integrated into the community and it is commendable that a certain level of
establishment has taken place. I acknowledge that the applicant has made
ties to her local community in Canada.
[39]
The
Officer decided to assign little weight to the letters. As per Justice Russel
Zinn in Sayed, above, at para 21:
[21] In Augusto v. Canada (Solicitor General), 2005 FC 673 at para. 9,
Justice Layden-Stevenson (as she then was) held that "[i]n the absence of
having failed to consider relevant factors or having relied upon irrelevant
ones, the weighing of the evidence lies within the purview of the officer
conducting the assessment and does not normally give rise to judicial review."
Put another way, the weighing of the evidence is a question of fact, entitled
to a high level of deference, and reviewable on the reasonableness standard.
[40]
I
do not find that the Officer was in error for assigning little weight to
letters written by friends of the Applicant. The Officer considered them, but
did not find that they were of sufficient probative value to demonstrate that
the Applicant would suffer disproportionate hardship if required to leave Canada. Absent
showing that the Officer acted in a perverse or capricious manner or
disregarded evidence before him, judicial intervention is not warranted in this
matter.
V. Conclusion
[41]
No
question was proposed for certification and none arises.
[42]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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