Docket: IMM-7629-10
Citation: 2011 FC 1179
Toronto, Ontario, October 18,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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Sonila
Luzati,
Xhevair
Luzati,
Orsida
Luzati
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Applicants
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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 under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (“IRPA”) of a decision of an officer
of the Department of Citizenship and Immigration, dated November 13, 2010, in
which it was determined that the applicants would not be afforded an exemption on
humanitarian and compassionate grounds from the general requirement to apply for
permanent residence in Canada, from outside Canada.
[2]
For
the reasons that follow, the application is dismissed.
BACKGROUND:
[3]
The
applicants, Sonila Luzati (mother), Xhevair Luzati (father) and Orsida Luzadi
(adult daughter) are citizens of Albania. A son is married to a
Canadian citizen and has been sponsored by her. The parents were engaged in
political activities in Albania. After the parents
experienced conflicts with the party in power, the mother and children came to Canada in July 2000
and applied for refugee status in February 2001. The father followed in April
2001 and claimed protection in November 2001.
[4]
The
refugee claims were denied by the Refugee Protection Division (“RPD”) of the
Immigration and Refugee Board in April 2004. That decision was quashed in May
2005 on the ground of unreasonable credibility findings (Luzati v Canada (Minister of
Citizenship and Immgration), 2005 FC 638). The RPD redetermined the claim
and denied it on June 4, 2008 because of intervening changes in the conditions
in Albania. An application
for leave and for judicial review of that decision was denied on January 20,
2009.
[5]
While
awaiting the results of their application for leave from the first negative RPD
decision, the applicant applied on January 4, 2005 for permanent residence from
within Canada on the basis
of humanitarian and compassionate ("H&C") considerations. The
applicants submitted preremoval risk assessment ("PRRA") applications
on September 8, 2010. The PRRA and H&C applications were decided by the
same officer and the decisions were provided to the applicants on the same date
in December 2010. The applicants did not apply for leave and for judicial
review of the negative PRRA decision which concluded that there had been no
material change in country conditions in Albania since the
refugee claims were determined in June 2008.
DECISION UNDER REVIEW:
[6]
The
officer concluded that the applicants would not suffer unusual and undeserved
or disproportionate hardship if they were required to obtain a permanent
resident visa from outside of Canada. In reaching that determination, the officer considered
the effect of severed personal and family relationships, the degree of
establishment in Canada and the applicants'
ties to Albania.
[7]
As
risks of return were cited in the submissions provided by counsel, the officer
considered whether the applicants had provided information or supporting
evidence that would indicate hardship due to that factor. The officer
concluded that the evidence before her, including current, publicly available,
country conditions documentation did not support the applicants' assertion that
the hardships associated with the risk of returning to Albania were unusual and
undeserved, or disproportionate.
ISSUES:
[8]
In
the written material filed, the applicants raise the following issues:
1. Did the officer err in ignoring
certain evidence and in determining risk?
2. Did the officer err in her assessment
of unusual and undeserved, or disproportionate hardship?
3. Did the officer err in providing inadequate
reasons?
4. Did the officer err in not considering
the best interests of the child?
[9]
The
“child” in question is the female applicant, Orsida Luzadi, who was an adult at
the time the application was considered. At the hearing, counsel for the applicants
did not pursue this argument.
ANALYSIS:
[10]
As
the adequacy of reasons is an issue related to procedural fairness, no
deference is called for: Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43; Sivabalasuntharampillai v Canada (Minister of
Citizenship & Immigration), 2011 FC 975 at para 19). The remaining issues are questions of fact or of mixed
fact and law calling for the application of the reasonableness standard: Dunsmuir
v New
Brunswick,
2008 SCC 9 at para 53.
Did the officer err in
ignoring certain evidence and in determining risk?
[11]
The
officer’s reasons refer to updated H&C submissions provided on April 28,
2010 and make three references to submissions provided in support of the
applicants' PRRA applications. The applicants submit that the officer erred in
not considering the submissions and supporting material contained in a letter
from counsel dated September 17, 2010 regarding the PRRA applications. The
applicants contend further that the officer erred in applying the new evidence
test, applicable to PRRA applications, to the determination of risk in the
H&C context.
[12]
The
September 17, 2010 letter, filed in the applicants’ record, states that their apprehension
of risk of harm is based upon (1) their social\political status in Albania; (2) the
gender of the female applicants; and (3) their status as expatriates perceived
to have wealth after a lengthy stay abroad. The applicants contend that these
included new risk factors not considered by the RPD. At least some of the material,
notably an undated report by Prof. Ines Murzaku on the effects of divorce on
women in Albania, was filed
in support of the H&C application in 2004 as it appears in the Certified
Tribunal Record (“CTR”) filed on this application.
[13]
The
September 17, 2010 letter does not appear in the CTR. Counsel for the
applicants says that is because it would have been filed in the PRRA and not
the H&C applications. As the PRRA decision was not challenged, there is no
CTR in relation to that file. However, in the PRRA decision, attached as an
exhibit to an affidavit filed by the respondent, the officer wrote the
following:
The applicant submitted their
PPRA applications on 08 September 2010. The applications submitted by the
applicants at this time indicate only "submissions to follow" in the
portions of the application reserved for stating the reasons for applying for a
product and identifying supporting evidence to be provided. No further
submissions, evidence or supporting documents have been provided since this
time.
[14]
The
only evidence that the letter was submitted is a statement in the applicant
Sonila Luzati’s affidavit that it was “presented to the PRRA office by our
lawyer”. I agree with the respondent that this is insufficient to establish that
the letter was in fact submitted in the absence of any evidence that it was
mailed or delivered from someone who would have knowledge of that fact: Khatra
v Canada (Minister of
Citizenship and Immigration) 2010 FC 1027 at paras 5-6. I appreciate
that the applicants would only have learned that the September 17, 2010
submissions were not received by the officer when they were given both
decisions in December 2010, but that would not have prevented evidence being
filed in this matter to establish mailing or delivery.
[15]
In
the circumstances, I am unable to find that the officer erred in failing to take
into account claims that were not before her. Having read the documents
attached to the September 17, 2011 letter, I am also doubtful that they may
have resulted in a different decision if they had been considered. For example,
the June 2010 update from Professor Fischer is of questionable relevance to the
applicants’ circumstances.
[16]
I
am also satisfied that the officer applied the correct test for assessing risk
in the context of an H&C application: citing Davoudifar v Canada (Minister of
Citizenship & Immigration), 2006 FC 316 at paras 25 & 43. From my
reading of her reasons, the officer is clearly assessing “hardship” and not
risk in the PRRA sense as set out in Herman v Canada (Minister of Citizenship &
Immigration),
2010 FC 629
at paragraphs 40-44. She did not reject evidence because it
was not new in the sense addressed in s.113 of the IRPA and referenced ss.96
and 97 to differentiate the requirements of hardship. She did note that the
evidence submitted was out-dated and did not contradict the RPD findings on the
same grounds. The officer researched current country conditions with publicly
available documents and concluded that the applicants would not suffer hardship
if they were to return to Albania to submit their
applications.
Did the
officer err in her assessment of unusual and underserved or disproportionate
hardship?
[17]
The
applicants submit that the officer erred in her assessment of unusual and undeserved,
or disproportionate hardship by not properly considering the amount of time the
applicants spent in Canada and by not properly considering establishment
factors.
[18]
At
page 5 of her reasons for decision the officer writes that “[w]hile entitled to
remain in Canada during the
processing of their application, it cannot be argued that any resulting
hardship was not anticipated by the Act or beyond the applicant’s control”. This
is language taken directly from the Immigration Manual IP-5 which describes at
section 5.10 what is meant by hardship that would justify an exemption:
The hardship faced by the applicant (if
they were not granted the requested exemption) must be, in most cases, unusual.
In other words, a hardship not anticipated or addressed by the Act or Regulations;
and the hardship faced by the applicant (if they were not granted the requested
exemption) must be undeserved so, in most cases, the result of circumstances
beyond the person’s control.
Sufficient humanitarian and compassionate
grounds may also exist in cases that do not meet the “unusual and undeserved”
criteria but where the hardship of not being granted the requested exemption(s)
would have an unreasonable impact on the applicant due to their personal
circumstances.
[19]
The
applicants argue that the delay of redetermination of their refuge claim was
beyond their control since the first RPD decision was declared “patently unreasonable”
by this Court.
The applicants also assert that they have
been diligent and have sent many requests to the PRRA office to enquire on the
status of their application and in requesting that the office expedite matters.
[20]
Consequently,
the applicants submit, the 5 years delay of the H&C determination was
beyond their control and the hardship that would result from their removal is
undeserved. They cite Lin v Canada (Minister of
Citizenship and Immigration) 2011 FC 316 at paragraph 3 and Benyk v Canada (Minister of
Citizenship and Immigration) 2009 FC 950 at paragraph 14 in support. In
my view, neither decision is very helpful to the applicants. In Lin, it
appears that no attempt was made to remove the applicant while she became
firmly established in Canada in the seven years before the
determination was made. Benyk was decided on the issue of the best
interests of the applicant’s grandchildren who had come to rely on her over the
eight years delay period.
[21]
Here,
the applicants were fully entitled to use all of the legal remedies at their
disposal. Their choice to do so, however, does not mean that the circumstances
were beyond their control. The time elapsed during immigration proceedings
cannot serve as the sole basis to demonstrate establishment as it would promote
“backdoor” immigration: Gonzalez v Canada (Minister of
Citizenship & Immigration), 2009 FC 81 at para 29. And to paraphrase
the statement by Justice de Montigny in Serda v Canada (Minister of
Citizenship and Immigration) 2006 FC 356 at paragraph 23, the applicants
must have known that their eventual removal, if it came to that, would be all
the more painful.
[22]
The
applicants contend further that the officer imposed an overly onerous burden to
satisfy the degree of establishment required to justify the exemption. I don’t
agree. It was open to the officer to review the evidence of establishment, as
she did, and to find that it did not meet the appropriate threshold: Irimie
v Canada (Minister of
Citizenship & Immigration), [2000] FCJ No 1906 at para 16. Her
decision in that regard, as the trier of fact, is entitled to considerable
deference.
[23]
A
positive determination does not flow from the mere fact that an applicant has started
a business while his status was not regularized: Ahmad v Canada (Minister of
Citizenship & Immigration), 2007 FC 1244 at para 12. Here, the officer underlined
the lack of detail regarding the father’s business and the applicants’ savings.
The officer indicated that without those details it was hard to evaluate the
hardship that would result from their removal, such as a loss of employment if
the father’s business had employees or loss of investments. This type of
assessment was found to be reasonable in Irimie, above, at para 16.
Were the officer’s reasons
inadequate?
[24]
The
applicants submit that the officer’s reasons were not adequate as they consist
merely of statements of fact and conclusions without analysis: Shpati v Canada (Minister of
Public Safety & Emergency Preparedness), 2010 FC 1046 at paras
24-28.
[25]
That
is not how I see the officer’s reasons in this case. I find that they meet the criteria
of adequacy set out by the Federal Court of Appeal in VIA Rail Canada Inc. v
Canada (National Transportation Agency), 26 Admin LR (3d) 1, [2001] 2 FC 25
(CA) at paragraphs 21-22. While concise, the reasons are clear, precise,
intelligible and logical in the application of the law to the evidence. The
officer set out her findings of fact and the principal evidence on which those
findings were based. She addressed the major points in issue and the relevant
factors.
CONCLUSION:
[26]
In
the result, I find that the decision as a whole is reasonable as the officer’s
reasoning supports her conclusion and all of the relevant factors and evidence
were considered: Mirza v Canada (Minister of Citizenship & Immigration),
2011 FC 50 at para 29. The decision falls within the range of acceptable
outcomes justifiable on the law and the evidence.
[27]
Neither
party proposed serious questions of general importance and none will be
certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application is dismissed;
2.
No
questions are certified.
“Richard
Mosley”
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