Date: 20110711
Docket: IMM-5818-10
Citation: 2011 FC 863
Ottawa, Ontario, July 11,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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HARJIT SINGH GILL
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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 pursuant to section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] for judicial review of a decision of
Immigration Officer L.M. Nunez (the Officer) dated September 27, 2010,
wherein the Officer decided not to grant the Applicant an exemption to apply
for permanent residence from within Canada on humanitarian and compassionate
grounds.
[2]
Based
on the reasons below, this application is allowed.
I. Background
A. Factual
Background
[3]
The
Applicant, Harjit Singh Gill, is a 51 year-old citizen of India. He came to
Canada in 1996 and
sought refugee protection. His claim was denied on December 18, 1997. His
subsequent application for leave to judicially review that decision was also
refused.
[4]
Although
the Applicant was under a removal order, he stayed in Canada and
submitted an in-Canada application for permanent residence. This application
was refused in January, 2000. He submitted another application for permanent
residence from within Canada on humanitarian and compassionate
(H&C) grounds. This application was also unsuccessful, and was refused on
June 29, 2004.
[5]
Following
the first H&C refusal, the Applicant submitted a second in-Canada H&C application
on September 29, 2004. His submissions focused on evidence of his
establishment in Canada, such as his role as President and major shareholder
of Bollywood Basics Inc., a restaurant specializing in Indian cuisine, his
employment as a chef, his savings and his involvement in the Sikh community.
The application was submitted to the Hamilton Citizenship and Immigration
Canada (CIC) office for processing.
[6]
After
not hearing from the Hamilton CIC office for some time, the Applicant’s former
counsel got in touch with the office sometime in 2008, only to learn that the
Applicant’s file had been inadvertently archived. Since the Applicant had
relocated to Mississauga in the
interim, his file needed to be transferred to the Mississauga CIC office. This
was confirmed by way of letter to the Applicant, dated May 2, 2008.
[7]
On
May 14, 2009, and again on July 13, 2009, the Applicant’s counsel wrote to the
CIC Mississauga office to request expedited processing.
[8]
By
letter dated September 16, 2010 the Mississauga CIC office requested updated
information due to the date of the original submissions. The letter emphasized
that the Applicant should, “Please submit any and all information and
other documents you wish considered at this time.” (Emphasis in original)
[9]
On
September 16, 2010, the Applicant provided the CIC office with updated
information. The Applicant indicated in his submissions that he provided
financial support for his wife and two children in India. Without
his Canadian income, he would not be able to continue to send his children,
aged 18 and 20, to private school. Although he receives rental income from
property he owns in India, it is not sufficient to support his family and
his earlier efforts at farming had failed. Furthermore, the Applicant
indicated that he doubted he would be able to find gainful employment in India due to his
age, length of absence from the country and redundant skills as an Indian chef
in India. He also
highlighted his integration into Canada through volunteer
work. He submitted documentary evidence including account statements showing
that he had amassed savings during his time in Canada and letters
of support from friends.
[10]
The
Applicant’s application was denied by letter dated September 27, 2010.
B. Impugned
Decision
[11]
The
Officer summarized the Applicant’s submissions. Under “Degree of
Establishment” the Officer noted that the Applicant had 8 years of schooling,
was employed as a chef, volunteered at the temple, paid taxes, and had savings
valued at over $70,000 plus $11,000 in U.S. funds and a
car.
[12]
Under
the “Decision and Rationale” the Officer decided that although the Applicant
had been in Canada for over 14
years, his level of establishment was not unusual and therefore did not warrant
favourable processing. The Officer also noted that the Applicant’s family is
in India, and that his considerable savings would assist him in resettling in
India and continuing to provide for his family until he is able to find
suitable employment. The Officer considered that the Applicant’s chef skills
may come in handy and otherwise he could manage his own land. Although the
Officer acknowledged that the Applicant had a long sojourn in Canada, he had
been under a removal order since 1997 and chose to remain in Canada despite
various negative decisions. That factor alone did not warrant a positive
decision.
[13]
The
Officer also considered the best interests of the children. The savings
accumulated would cover the cost of the rest of their studies in India, therefore
the Officer was not satisfied that the best interests of the children would not
be met if the Applicant left Canada to apply in the normal way.
[14]
The
Officer was of the opinion that the fine qualities the Applicant’s friends
attested that he possessed would assist the Applicant in resettling alongside
his loved ones in India. Based on all of the information, the Officer
was not satisfied that the Applicant’s case warranted favourable processing as
he was not satisfied that the Applicant would suffer undue and undeserved or
disproportionate hardship.
II. Issues
[15]
The
Applicant submits that the Officer’s decision was unreasonable, in that:
(a) The
Officer erred in law in assessing the Applicant’s degree of establishment and
integration in Canada;
(b) The
Officer erred in law in assessing the hardship the Applicant would suffer if
returned to India;
(c) The
Officer reached his decision without the full record, in violation of the
principals of natural justice.
III. Standard
of Review
[16]
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 defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190 at para 47).
[17]
The
Applicant also alleges that the decision is unreasonable in part because the
reasons are inadequate. 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 Officer Err in Assessing the Applicant’s Establishment and Integration?
[18]
The
Applicant submits that that the Officer’s reasons regarding the Applicant’s
establishment are deficient because: 1) the reasons are inadequate to support
the conclusion that the Applicant’s establishment was “not unusual” and 2) the
Officer failed to consider the Applicant’s personal circumstances and thus
reached a conclusion without regard for the evidence.
[19]
The
Respondent submits that the reasons are adequate, in that they are clear,
precise, intelligible and demonstrate that the Officer had a grasp of the
issues raised by the Applicant. Moreover, the Officer did have regard to the
Applicant’s personal circumstances, and noted these in the reasons.
[20]
The
Officer did not dispute that the Applicant is established in Canada. As the Respondent
submits, the Officer must consider whether an exemption from the IRPA is
warranted by assessing hardship. Establishment is but one factor to be
considered in assessing hardship, and establishment in and of itself is not a
determinative factor in an H&C application (Ahmed v Canada (Minister of
Citizenship and Immigration), 2009 FC 1303, 372 FTR 1 at para 32).
[21]
In
the present matter, the Officer considered it natural that some degree of
establishment would occur over the course of a 14-year stay in the country. He
concluded that the Applicant’s degree of establishment was not unusual such
that it warranted favourable processing. The Applicant argues that the Officer
does not adequately explain why his degree of establishment is not unusual.
[22]
I
agree with the Respondent. The Officer’s reasons with respect to establishment
and integration are clear and cogent. As the Respondent submits, a positive
H&C decision is an exceptional measure and, moreover, it is discretionary
in nature. Although the Applicant might be able to make a strong case for why
he would make a good permanent resident, H&C applications are not
alternative streams for immigration to Canada, and a
positive decision is not guaranteed just because the Applicant feels he can
check off the required boxes.
[23]
As
evidenced by the reasons, the Officer was clearly aware of the Applicant’s
submissions and utilized the suggested measures of establishment listed in the
processing manual (proper considerations include whether the applicant has a history
of stable employment, if there is a pattern of sound financial management, and
if the applicant has integrated into the community). The Applicant argues that
the Officer merely restates the facts, then states a conclusion with no
explanation or analysis. I disagree. The Officer is, of course, under a duty
to provide adequate reasons that allow the Applicant to understand the basis of
the refusal, but he is not required point-by-point to construct an alternative
argument that supports his conclusion. The Respondent cites, and I approve of
Justice Roger Hughes’ statement in Rachewiski v Canada (Minister of
Citizenship and Immigration), 2010 FC 244, 365 FTR 1 at para 17:
[17] Frequently, the
Court is taken microscopically through the reasons provided by an Officer in
counsel's endeavour to demonstrate shortcomings, omissions and mistakes. There
is no requirement that the reasons be of a quality attributable to the Supreme
Court of Canada or that they detail every piece of evidence provided and every
argument raised. They are to be an intelligible and transparent justification
of the result sufficient to enable the reader to appreciate whether the
decision was within the appropriate bounds of reasonableness.
[24]
The
reasons need to be read as a whole. While the Applicant may have established
himself in Canada, the Officer did not merely state that his degree of
establishment in Canada was insufficient. The Officer went on to
discuss how elements of that establishment – significant savings, developed
work skills – operated to mitigate any hardship that the Applicant would face
in having to re-establish himself in India. The Officer also
noted that the Applicant would be reunited with his family if he returned to India. While the
Applicant might face hardship after removal, the Officer was not convinced that
it would rise to the level of undue or disproportionate hardship. The reasons
make this clear and are adequate.
[25]
The
Applicant contends that the Officer failed to take into account the Applicant’s
personal circumstances in rendering his decision. However, a review of the
decision shows that the Officer listed the allegedly ignored circumstances,
such as the Applicant’s grade 8 education, suggesting that he did in fact
consider them.
[26]
Though
the Applicant’s degree of establishment might be commendable and the success he
experienced as a new-comer to Canada more unlikely given his limited education,
the Officer still has the discretion to determine how to weigh these
considerations. In the present matter the Officer did not find that the
Applicant’s personal circumstances would cause an unreasonable impact on the
Applicant should he have to apply for permanent residence from abroad, and thus
the Officer concluded that he would not suffer undeserved or disproportionate
hardship (Lee v Canada (Minister of Citizenship and Immigration), 2005
FC 413, 45 Imm LR (3d) 129 at para 11). The Applicant has not shown that this
was an unreasonable determination.
B. Did
the Officer Err in Assessing Hardship?
[27]
The
Applicant submits that the Officer disregarded the evidence in finding that the
Applicant would be able to establish himself in India and that the
Applicant would not suffer undue hardship due to lack of viable employment
opportunities. In the Applicant’s submissions he explained that he would be
unable to find gainful employment in India because his skills as
an Indian chef would not be valued in urban areas and because there are not
many restaurants in the rural area where he is from. Additionally, although the
Applicant owns land, he is not skilled as a farmer and would be unable to make
a living farming. As a result, the Applicant takes the position that the
Officer must have ignored the evidence in order to state, “He has acquired chef
skills that may come in handy otherwise he can manage his land.”
[28]
I
am not convinced that the Officer ignored the Applicant’s submissions. Once
again, the Officer noted that the Applicant took the position that his chef
skills would not be transferable. And as the Respondent points out, the
Officer never suggests that the Applicant resort to farming, but merely states
that the Applicant’s savings coupled with the land income would allow him to
continue to provide for his family while he looks for suitable employment.
Counter to the Applicant’s submissions, the Officer finds that the Applicant
will not be totally cut-off from a stream of income. Although the Applicant
disagrees with the Officer’s assessment, he has not shown it to be
unreasonable.
[29]
The
Applicant cannot argue on the one hand that he came to Canada and did well
for himself despite many obstacles, but on the other, that those same
attributes will be of no assistance in re-establishing himself in India. The
Officer did not ignore the evidence, rather he rejected the Applicant’s
submissions, which the Applicant concedes the Officer is entitled to do.
[30]
No
one disputes that the Applicant will experience some degree of hardship should
he be required to leave Canada, however, the Officer found that it would
not be undeserved or disproportionate. The Applicant chose to establish
himself in Canada knowing that
his immigration status was uncertain and that he might be required to leave at
some point. His stay in Canada is not a result of circumstances beyond
his control. He cannot now argue before this Court that his long stay in
Canada prevents him from being able to return to his country of citizenship
because the skills he developed in Canada during his extended stay would be
less lucrative at home (Serda v Canada (Minister of Citizenship and
Immigration), 2006 FC 356, 146 ACWS (3d) 1057 at para 23).
C. Did
the Officer Breach the Principals of Natural Justice?
[31]
The
Applicant submits that the Officer made his decision solely on the basis of the
updated September 2010 submissions because CIC misplaced the Applicant’s
initial submissions. The Applicant argues that this constitutes a breach of
natural justice as the Officer made the decision without the benefit of the
entire record.
[32]
The
Respondent concedes that the Applicant’s initial application and submissions
were not before the Officer for consideration, but argues that since the
Applicant did not suffer prejudice as a result of this breach of procedural
fairness, this does not constitute a reviewable error. The Respondent urges
the Court to follow the holding in Yassine v Canada (Minister of Employment
and Immigration) (FCA), 172 NR 308, 27 Imm LR (2d) 135, where, citing the Supreme
Court decision in Mobil Oil Canada Ltd v Canada-Newfoundland Offshore
Petroleum Board, [1994] 1 S.C.R. 202, the Federal Court of Appeal created an
exception to the general rule for cases where "the demerits of the claim
are such that it would in any case be hopeless" and "the claim could
only be rejected" (paragraphs 9-10). In such circumstances, returning the
matter to the decision-maker because of a procedural irregularity would serve
no purpose.
[33]
The
Applicant’s case illustrates a significant failing in CIC’s record keeping
system. The initial submissions contained proof of the Applicant’s role as
president and shareholder in a restaurant business. By September 2010,
however, this information was no longer up-to-date, as at the time the decision
was made, the Applicant was no longer an owner of the restaurant. I take note
of the Respondent’s position that the Applicant’s one-time part-ownership of a
restaurant was perhaps not material to the decision, but I cannot say with any
certainty that the Applicant’s original submission would not have affected the
outcome of this matter. I follow the reasoning of Justice Anne Mactavish
in Hussain v Canada (Minister of
Citizenship and Immigration), 2004 FC 259, 40 Imm LR (3d) 177.
She wrote at para 25:
[25] The failure of the Board to
consider the submissions of one party, albeit inadvertently, is a beach of
procedural fairness. In all of the circumstances, I cannot say with any degree
of certainty that the applicants' final submissions would not have had any
effect on the outcome of the case.n" [sic] As a consequence, the decision
of the Board should be set aside, and the matter remitted to a differently
constituted panel for reconsideration on the basis of a complete record.
The Applicant’s right to procedural
fairness has been breached. Accordingly, I will allow this judicial review.
V. Conclusion
[34]
No
question was proposed for certification and none arises.
[35]
In
consideration of the above conclusions, this application for judicial review is
allowed and the matter is remitted to a different officer for reconsideration.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed and
the matter is to be remitted to a different officer for reconsideration.
“ D.
G. Near ”
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