Date: 20110526
Docket: IMM-6212-10
Citation: 2011 FC 594
Ottawa, Ontario, this 26th
day of May 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
JOHN LIE LIM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision of an Officer from
Citizenship and Immigration Canada (the “Officer”), pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, by
John Lie Lim (the “applicant”). The Officer refused the applicant’s application
from within Canada for
permanent residence on humanitarian and compassionate grounds.
[2]
Before
arriving in Canada, the applicant applied for and was refused a Temporary
Resident Visa in New
York on
May 25, 2006. He allegedly entered Canada on foot on July 8, 2006 at an unsupervised
border crossing, and he claimed refugee status in Etobicoke, Ontario on July 25,
2006. His claim was refused and his application for leave to review to the
Federal Court was denied on May 26, 2009. The applicant submitted a request for
an exemption from the immigrant visa requirements on humanitarian and
compassionate (H&C) grounds on April 22, 2009.
[3]
Prior
to his arrival, the applicant lived in the United States from 1991 to 1996 and
from 1997 to 2006, both times as a refugee claimant. Both applications were
rejected. In 1996 he returned briefly to Indonesia and in 2006 he came to Canada.
[4]
The
applicant alleges that the Indonesian government will have revoked his
citizenship due to his long absence from the country, rendering him stateless.
He is a Christian and ethnically Chinese. He has no family ties remaining in Indonesia. He has learned to
read, write and speak in English.
[5]
Since
his arrival in Canada, the applicant has been working as a part-time custodian
of the church of which he is a member, Walmer Road Baptist Church in Toronto.
* * * * * * * *
[6]
The
Officer determined that there were no humanitarian and compassionate grounds in
this case that would justify the granting of permanent residence from within Canada. The removal order made
against the applicant was therefore enforceable.
[7]
The
applicant raises the following issues:
a.
Did the Officer err
by failing to consider the evidence from the applicant’s therapist?
b.
Did the Officer err
regarding the persecution faced by Christians in Indonesia?
c.
Did the Officer err
in his conclusions regarding the applicant’s ability to regain his Indonesian
citizenship?
[8]
The
standard of review applicable to an Officer’s analysis of an H&C
application is that of reasonableness, according to Justice Russel Zinn in Gelaw
et al. v. Minister of Citizenship and Immigration, 2010 FC 1120 at para 14.
The Officer’s decision should therefore be accorded deference.
* * * * * * * *
A. Evidence of the therapist
[9]
The
applicant submits that the Officer erred in ignoring the evidence of Elaine
Lenehan, the applicant’s social worker and therapist who submitted that his
anxiety had recently increased. The therapist noted that in other cases where
an individual has a history of not being wanted, there can be deep experiences
of anxiety, despair, hopelessness, rejection, and suicide ideation. The
therapist submitted that the traumas experienced by the applicant would amount
to undue hardship were he to be made to leave Canada.
[10]
The
respondent notes that at page 7 of the decision, the Officer explicitly notes
the existence of “letters describing the volunteer activities [the applicant]
had participated in and the impact his departure from Canada would have on him and
the community”. The respondent argues that though the letter from Ms. Lenehan
was not referred to individually, this statement shows that it was read and
taken into account.
[11]
I
agree with the respondent that the Officer’s reference to letters describing
the impact the applicant’s departure from Canada would have on him includes the letter from Ms. Lenehan.
While the letter shows that the applicant will suffer some hardship if he
leaves Canada, the jurisprudence
shows that such emotional hardship does not necessarily amount to unusual or
disproportionate hardship. Hardship which is inherent in having to leave Canada after living here for a
while is not enough to constitute unusual and undeserved or disproportionate
hardship (Uddin v. Minister of Citizenship and Immigration, 2002 FCT 937
at para 22; Irimie v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 1906 at para 26). In Irimie, Justice Denis Pelletier
noted that the H&C process “is not designed to eliminate hardship; it is
designed to provide relief from unusual, undeserved or disproportionate
hardship”.
[12]
Given
that H&C considerations are the exception to the general rule that
applicants must apply for permanent residence from outside of the country (Serda
v. Minister of Citizenship and Immigration, 2006 FC 356 at para 20), and
that the Officer has discretion in assessing the application, I do not think
that the Officer’s decision that the evidence, including all of the letters
submitted, did not prove that the applicant would suffer undue hardship, is
unreasonable.
B. Religious persecution in Indonesia
[13]
The
applicant contends that the Officer failed to consider whether it is undue
hardship for the applicant to practice his faith, which is clearly deep, given
all the support letters from his fellow churchgoers in both the United States and Canada, in an environment
where it is admitted that violence against Christians remains. The applicant
argues that the Officer considered this issue from the point of view of a risk
assessment, rather than from whether it would constitute undue hardship for this,
vulnerable, applicant to practice his faith in the face of ongoing violence.
The applicant argues that impairments to practicing one’s religion freely can
amount to persecution, let alone undue hardship. The applicant argues that the
mere fact that there is less religious violence than before is irrelevant.
[14]
The
respondent contends that the Officer clearly examined the documentary evidence
relating to religious freedom and persecution in Indonesia and found that the government generally
respects constitutional protections of religious freedom (page 8 of the
decision).
[15]
I
agree with the respondent. The Officer did examine the documentary evidence
submitted by the applicant. The Officer concluded that the government respects
religious freedom and is making progress in halting sectarian violence. The
Officer did not merely find “less” religious violence than before, as the
applicant argues, but found that within the last two years, with the exception
of one incident, there was no evidence of violence or discrimination of such a
nature as to affect the applicant. In light of this finding, which was based on
the documentary evidence, in my view the Officer’s decision was reasonably open
to him.
C. Indonesian citizenship
[16]
The
applicant submits that affidavits submitted by him and by Leslie Topping show
that the process of regaining his Indonesian citizenship would be complicated
and very long. The applicant takes issue with the fact that the Indonesian
consulate asked to see his Refugee and H&C documents, and argues that the
Officer should have considered that the only way for the applicant to regain
his citizenship was to comply with an unlawful request by the Indonesian
government.
[17]
The
respondent repeats the Officer’s finding that there is no evidence that the
consular officer was correct in stating that the application process would take
“very long” or that the applicant would have to submit his Canadian immigration
documents in support of his request. The respondent submits that it was
reasonably open to the Officer to rely on the letter of the law rather than on the
statements of an individual officer.
[18]
I
agree that it was open to the Officer to find that the application process
would not take “very long” considering that the law requires a decision within
three months by the Minister. I am troubled by the consular officer’s
assertion, as laid out in the affidavits, that the Indonesian government required
the Refugee and H&C documents in order to see what claims the applicant had
made against the government of Indonesia. However, the Officer noted in the decision that the most
recent affidavit from the applicant’s designated representative stated that
there appears to be no basis in the Indonesian citizenship law for this
requirement. Given this evidence, I find that it was reasonably open to the
Officer to conclude that this would not be required of the applicant, and
therefore that he would not face undue hardship in the attempt to regain his
citizenship, such an attempt having yet to be made formally.
* * * * * * * *
[19]
For
the above-mentioned reasons, the application for judicial review is dismissed.
I agree with counsel for the parties that this is not a matter for
certification.
JUDGMENT
The application for judicial
review of a decision of an Officer from Citizenship and Immigration Canada,
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, refusing the applicant’s application from within Canada for
permanent residence on humanitarian and compassionate grounds is dismissed.
“Yvon
Pinard”
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