Date: 20110630
Docket: IMM-5447-10
Citation: 2011 FC 813
Ottawa, Ontario, June 30, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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PARWINDER SINGH
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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 pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 of the decision made on August
20, 2010, by a Pre-Removal Risk Assessment Officer refusing the applicant’s
application for permanent residence from within Canada on humanitarian and
compassionate grounds.
[2]
For
the reasons that follow, the application is dismissed.
BACKGROUND
[3]
The
applicant is a citizen of India. He came to Canada under a
false passport on August 17, 2003 and claimed refugee protection on September
13, 2003. On October 5, 2004, his refugee claim was rejected. He sought leave
to commence an application for judicial review, but leave was refused on March
3, 2005.
[4]
The
applicant sought humanitarian and compassionate [“H&C”] relief on April 8,
2005; his H&C application was based on the risk he faced if returned to India and on
establishment in Canada. Around the same time, he applied for a
Pre-Removal Risk Assessment. On June 29, 2008, the applicant made updated
submissions in his H&C application.
DECISION UNDER REVIEW
[5]
The
officer found that the applicant had not provided any additional evidence which
would allow him to depart from the factual findings of the Immigration and
Refugee Protection Board [“the Board”]. As the Board had determined that there
was no serious possibility that the applicant would face persecution if he was
returned to India, the officer found that there was, therefore, insufficient
evidence that the applicant faced risk in India which could
amount to hardship.
[6]
The
officer then considered the applicant’s establishment in Canada. The officer
summarized the applicant’s evidence of steady employment, financial independence
and community involvement. The officer also considered Immigration Manual IP5,
which states that establishment may warrant H&C relief where it results in
a prolonged stay in Canada because of circumstances beyond the
individual’s control. The officer stated that, had the applicant stayed in Canada because of
circumstances beyond his control, the evidence would have been given some
positive weight; however, as the applicant chose to remain in Canada despite
being subject to a departure order, the officer gave no weight to the evidence
of establishment which post-dated the unsuccessful leave decision.
[7]
The
officer went on to examine the evidence of establishment prior to the leave
decision, but found that it did not demonstrate hardship that would justify
H&C relief.
ISSUES
[8]
This
application raises only one issue:
a.
Did the
officer fetter his discretion and fail to consider the evidence of
establishment which post-dates the leave decision?
ANALYSIS
Standard of Review
[9]
The
issue of whether the officer fettered his discretion is one of procedural
fairness. A
standard of review analysis is not required where procedural fairness is in
question. The proper approach is to ask whether the requirements of procedural
fairness and natural justice in the particular circumstances have been met.
Deference to the decision-maker is not at issue. See: Ontario (Commissioner
Provincial Police) v MacDonald, 2009 ONCA 805, 3 Admin LR (5th)
278 at para 37 and Bowater Mersey Paper Co v Communications, Energy and
Paperworkers Union of Canada, Local 141, 2010 NSCA 19, 3 Admin LR (5th)
261 at paras 30-32.
a.
Did
the officer fetter his discretion and fail to consider the evidence of
establishment which post-dates the leave decision?
[10]
The
officer did not fetter his discretion or fail to consider the
post-leave-decision evidence. Rather, the officer considered it and decided to
give it no weight because it resulted from the applicant’s choice to remain in Canada without
status and not from circumstances beyond his control. As counsel for the
applicant fairly acknowledged, the officer’s reasons are commendably clear on
this point.
[11]
The
applicant seeks to rely on the decision in Lin v Canada (Minister of
Citizenship and Immigration), 2011 FC 316, 2011 CarswellNat 661.
However,
that decision is of little assistance in this application. The reasons are
exceedingly brief, consisting of only three paragraphs. In those three
paragraphs, Justice Campbell notes both that the processing time of the
application was unusually long (in that case, seven years) and that, in that
time, Ms. Lin became “firmly established” in Canada. There is no mention in the
decision of what evidence supported this firm degree of establishment. Further,
it appears from the decision that Ms. Lin was never subject to a removal order
while she was becoming established.
[12]
At
the hearing, the applicant submitted that the Federal Court of Appeal decision
in Hinzman v Canada (Minister of Citizenship and Immigration) 2010 FCA
177, 321 DLR (4th) 111 stands for the proposition that evidence of
establishment up to the date of the officer’s decision must be considered. This
argument is based on a statement in paragraph 40 of Hinzman that “…the
H&C officer had the duty to look at all of the appellant’s personal
circumstances.” I agree with the respondent that this statement is taken out
of the context of that decision which turned on the failure of the officer to
consider the evidence of the appellant’s religious and moral beliefs in assessing
whether he would suffer disproportionate hardship if returned to the United
States.
[13]
Although
the officer did not consider the applicant’s establishment in light of the fact
that his application took almost five and a half years to process, this failure
is not a reviewable error as the post-leave decision evidence does not change
the outcome of the decision. In his consideration of the post-leave-decision
establishment, the officer found that, had the establishment resulted from
circumstances beyond the applicant’s control, he would have accorded it “some
positive weight.” Notably, the officer stops short of saying that the evidence
would lead to a different conclusion or that it would be determinative of his
application. In any event, establishment is only one of the factors to be
considered in assessing an H&C application, and the applicant’s
establishment following the leave decision does not appear to be sufficient to
warrant H&C relief on its own.
[14]
In
my view, the decision in Serda v Canada (Minister of
Citizenship and Immigration), 2006 FC 356, 146 ACWS (3d) 1057 is
determinative of this application. In that decision, Mr. Justice Yves de
Montigny was faced with the same issue that is now before me – that is, whether
the officer fettered her discretion in not considering evidence of
establishment after the applicants became subject to a removal order. At
paragraphs 19 to 24, Justice de Montigny found that:
The Applicants, knowing that further time
in Canada waiting for their legal
processes to be completed would mean more alleged difficulty in returning to
their home country, and knowing that they had been ordered to be removed, made
the choice to stay anyway. This cannot be equated to a "prolonged
inability to leave Canada", which is one of the
situations where the Applicant's degree of establishment may be a factor to be
considered pursuant to section 11.2 of the IP5 Manual.
One of the cornerstones of the
Immigration and Refugee Protection Act is the requirement that persons who wish
to live permanently in Canada must, prior to their arrival in Canada, submit their application
outside Canada and qualify for, and obtain,
a permanent resident visa. Section 25 of the Act gives to the Minister the
flexibility to approve deserving cases for processing within Canada. This is clearly meant to be
an exceptional remedy […]
It would obviously defeat the purpose of
the Act if the longer an applicant was to live illegally in Canada, the better
his or her chances were to be allowed to stay permanently, even though he or
she would not otherwise qualify as a refugee or permanent resident. This
circular argument was indeed considered by the H & C officer, but not
accepted; it doesn't strike me as being an unreasonable conclusion. […]
[I]t cannot be said that the exercise of
all the legal recourses provided by the IRPA are circumstances beyond the
control of the Applicant. A failed refugee claimant is certainly entitled to
use all the legal remedies at his or her disposal, but he or she must do so
knowing full well that the removal will be more painful if it eventually comes
to it. […]
In any event, the Immigration Officer did
not refuse to consider the establishment of the Applicants in Canada, but decided to give this
factor little weight. It cannot be said, therefore, that she fettered her
discretion; quite to the contrary, she looked at all the circumstances before
concluding as she did, and therefore exercised her discretion.
[15]
As
in Serda, the officer in this application considered the
post-leave-decision evidence of the applicant’s establishment in Canada but
ultimately gave it no weight. This conclusion was open to the officer in light of
the facts of this application.
CONCLUSION
[16]
Accordingly,
the application for judicial review is dismissed. No question was proposed for
certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No questions are
certified.
“Richard
G. Mosley”
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