Date: 20110118
Docket: IMM-2788-10
Citation: 2011 FC 50
Ottawa, Ontario, January 18,
2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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MIRZA, SOHAIL RASHID
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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
I. Introduction
[1]
The
humanitarian and compassionate (H&C) decision-making process is a highly
discretionary one that considers whether a special grant of an exemption is warranted.
It is widely understood that invoking subsection 25(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) is an
exceptional measure, and not simply an alternate means of applying for
permanent resident status in Canada (Barrak v Canada (Minister of
Citizenship and Immigration), 2008 FC 962, 333 FTR 109, at paras 27, 29; Doumbouya
v Canada (Minister of Citizenship and Immigration), 2007 FC 1186, 325 FTR
186, at para 7; Pannu v Canada (Minister of Citizenship and Immigration),
2006 FC 1356, 153 ACWS
(3d)
195, at para 26).
[2]
It
was up to the Applicant to demonstrate that the hardship he would suffer, if
required to apply for permanent residence in the normal manner, would be
unusual, undeserved or disproportionate, which are the criteria adopted by the
jurisprudence (Paul v Canada (Minister of Citizenship and Immigration),
2009 FC 1300, [2009] FCJ No 1698 (QL/Lexis), at para 5; Paz v Canada
(Minister of Citizenship and Immigration), 2009 FC 412, 176 ACWS (3d) 1124, at paras
15-18; Tikhonova v Canada (Minister of Citizenship and Immigration),
2008 FC 847, 170 ACWS
(3d)
170, at para 17).
[3]
The
difficulties inherent in having to leave Canada are not sufficient (Paz,
above; Singh v Canada (Minister of
Citizenship and Immigration), 2009 FC 11, 340 FTR 29; Ahmad v Canada (Minister of
Citizenship and Immigration), 2008 FC 646, 167 ACWS (3d) 974, at para
49).
II. Background
[4]
The
Applicant, Mr. Sohail Rashid Mirza, is a citizen of Pakistan. He came to
Canada in July 2002 after having spent nearly 15 months in the United
States
without claiming refugee status.
[5]
After
his arrival, the Applicant claimed refugee status in Canada. His refugee
claim was refused by the Immigration and Refugee Board (IRB), on January 24,
2003, based on lack of credibility. The IRB held that the inconsistencies and
contradictions in the Applicant’s testimony, the different declarations made by
the Applicant before the Immigration Officer during his interview and in his
Personal Information Form (PIF), undermined his credibility.
[6]
The
IRB did not believe that the Applicant suffered from the incidents of
persecution in Pakistan as he alleges. The IRB wrote in its decision:
… the panel does not believe the claimant
suffered past persecution at the hands of the SSP, and given the current
situation in Pakistan, the panel does not find that
there is an objective basis to the claimant’s well-founded fear of persecution.
(IRB Decision, Tribunal Record, at p 287).
[7]
On
September 6, 2003, the Federal Court denied Mr. Mirza’s leave application with
respect to the negative decision of the IRB.
[8]
The
Applicant has three children who are all residing in Pakistan. His other
siblings (two brothers) also live in Pakistan.
III. Decision under Review
[9]
After
considering all of the relevant factors contained in the Applicant’s
application, the Officer concluded that the facts and information he submitted
did not demonstrate that there are unusual and undeserved or disproportionate
hardships for the Applicant if he is required to submit his Permanent Residence
Application from outside Canada.
[10]
Before
arriving at the conclusion, the Officer considered all the relevant factors in
this particular case, including the degree to which the Applicant has
established himself in Canada, the best interests of his three children
in Pakistan and the difficulties to return to Pakistan after 8
years in Canada.
IV. Analysis
[11]
The
Court considered and accepted the position of the Respondent.
[12]
The
Applicant has not demonstrated that the Officer erred in the determination of
the application for permanent residence based on H&C grounds.
Statutory
Framework and Standard of Review
[13]
Subsection
11(1) of the IRPA provides that all foreign nationals seeking admission to
Canada must first apply to an officer for a visa or for any other document that
may be required by the Immigration and Refugee Protection Regulations,
SOR/2002-227 prior to entering Canada.
[14]
Pursuant
to section 25 of the IRPA, the Minister is authorized to grant a foreign
national permanent resident status or an exception from any applicable criteria
or obligation of the IRPA if the Minister is of the opinion that it is
justified by H&C considerations. The decision of an officer not to grant an
exemption under section 25 of the IRPA does not remove the right of the
Applicant to apply for landing from outside Canada.
[15]
Many
factors exist which an officer can take into account when making a H&C
decision, including the manner in which an applicant entered and remained in
Canada, whether the grounds on which an applicant claims an exemption are due
to his own making and whether an applicant has possible employment or relatives
in his/her country of origin. No one factor is determinative (Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] 4 FC 358).
[16]
The
onus is on the Applicant to demonstrate that he would face unusual and
undeserved or disproportionate hardship by having to apply for permanent
resident status outside of Canada (Arumugam v Canada (Minister of
Citizenship and Immigration), 2001 FCT 985, 211 FTR 65, at paras 16-17
(TD)).
[17]
As
to the meaning of the expression “unusual, undeserved or disproportionate” in
this context, the Court in Singh, above, quoted with approval the
following dicta of Justice Yves de Montigny in Serda v Canada (Minister of
Citizenship and Immigration), 2006 FC 356, 146 ACWS (3d) 1057:
[19] With regard to the meaning of the words “unusual,
undeserved or disproportionate” in this context, the following remarks by
Justice Yves de Montigny in Serda … were cited with approval in
Doumbouya, above, at paragraph 9:
[20] …
In assessing an application for landing from within Canada on Humanitarian and
Compassionate grounds made pursuant to section 25, the Immigration Officer
is provided with Ministerial guidelines. Immigration Manual IP5 -
Immigration Applications in Canada made on Humanitarian or compassionate Grounds, a manual put out
by the Minister of Citizenship and Immigration Canada, provides guidelines on
what is meant by Humanitarian and Compassionate grounds …
…
The IP5 Manual goes on to define “unusual and undeserved”
hardship and “disproportionate” hardship. It states, at paragraphs 6.7 and
6.8:
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6.7 Unusual and underserved hardship
Unusual and undeserved hardship is:
- the hardship (of having to apply for a permanent resident visa
from outside of Canada) that the applicant would
have to face should be, in most cases, unusual, in other words, a hardship
not anticipated by the Act or Regulations; and
- the hardship (of having
to apply for a permanent resident visa from outside of Canada) that the applicant would
face should be, in most cases, the result of circumstances beyond the
person's control.
6.8 Disproportionate hardship
Humanitarian and compassionate grounds may exist in cases that
would not meet the "unusual and undeserved" criteria but where the
hardship (of having to apply for a permanent resident visa from outside of Canada) would have a
disproportionate impact on the applicant due to their personal circumstances.
(Emphasis added).
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6.7 Difficulté inhabituelle
et injustifiée
On appelle difficulté
inhabituelle et injustifiée:
- la difficulté (de devoir
demander un visa de résident permanent hors du Canada) à laquelle le
demandeur s'exposerait serait, dans la plupart des cas, inhabituelle ou, en
d'autres termes, une difficulté non prévue à la Loi ou à son Règlement;
et
- la difficulté (de devoir
demander un visa de résident hors du Canada) à laquelle le demandeur
s'exposerait serait, dans la plupart des cas, le résultat de circonstances
échappant au contrôle de cette personne.
6.7[sic] Difficultés
démesurées
Des motifs d'ordre
humanitaire peuvent exister dans des cas n'étant pas considérés comme
"inusités ou injustifiés", mais dont la difficulté (de présenter
une demande de visa de résident permanent à l'extérieur de Canada) aurait
des répercussions disproportion-nées pour le demandeur, compte tenu des
circonstances qui lui sont propres.
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[18]
The H&C
decision is not a simple application of legal principles but rather a
fact-specific weighing of many factors. As long as the immigration officer
considers the relevant, appropriate factors from a H&C perspective, the
Court cannot interfere with the weight the immigration officer gives to the
different factors, even if it would have weighed the factors differently (Legault,
above, at para 11; reference is also made to Suresh v Canada
(Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 2
SCR 3, at paras 34-37).
Officer entitled to
weigh the evidence and the appropriate factors
[19]
In
the present case, the Officer took into consideration the particular situation
of the Applicant, including the efforts made by the Applicant to integrate into
Canadian society and to support himself financially and the risks of return
alleged.
[20]
The
Officer concluded that the Applicant did not establish that his situation meets
the threshold of unusual, undeserved or disproportionate hardship if he had to
return to Pakistan to apply for permanent
residency.
[21]
It
was reasonable for the Officer to conclude as he did.
[22]
Essentially,
the Applicant argues that the Officer erred by not finding that his application
warranted the exercise of his discretion. The Applicant’s submissions simply
amount to a disagreement with the weight assigned to the evidence he submitted
with respect to his work and social activities in Canada; however, the weighing
of relevant factors is not the function of a Court reviewing the exercise of
ministerial discretion (Agot v Canada (Minister of
Citizenship and Immigration), 2003 FCT 436, 232 FTR 101, at para 8; Legault,
above).
[23]
The
Officer considered all the relevant factors, positive and negative, and put the
appropriate weight on each of these factors. There is no proof that the weight
ascribed by the Officer to any of the relevant factors was disproportionate so
as to amount to an unreasonable appreciation of the evidence.
[24]
Furthermore,
the Federal Court has determined that this factor is not overriding and is only
one of the factors to be taken into consideration:
[30] … the officer found that
severing her community and employment ties in Canada would not have a significant
negative impact that would justify an exemption under humanitarian and
compassionate considerations. This is a conclusion that she could legitimately
draw from the evidence submitted to her, and I am unable to find it was unreasonable to
so conclude. In any event, it must be remembered that the degree of
establishment is only one of the factors to be taken into consideration to
determine if an applicant would suffer undue, undeserved or disproportionate
hardship if returned to his or her country of origin. (Emphasis added).
(Pannu, above).
The risks of return as part
of the H&C
[25]
In
the present case, the Officer noted that the Applicant raised the same risks
that were part of his claim before the IRB; however, the IRB did not believe
the narrative on which the risks of return were based and rejected the claim.
[26]
Given
that the IRB’s decision rejecting the Applicant’s claim for refugee protection
was challenged before the Federal Court which declined to grant judicial
review, the conclusions drawn by the Refugee Protection Division (RPD) remain
in place (Hausleitner v Canada (Minister of Citizenship and
Immigration), 2005 CF 641, 139 ACWS (3d) 115, at para 34).
[27]
Furthermore,
contrary to the Applicant’s allegation, the Officer assessed the Applicant’s
risks of return not on the basis of the higher threshold of a Pre-Removal Risk
Assessment (PRRA) determination, but on examination of the impact of the risk
factors on the Applicant and whether he would face undue hardship in having to
apply for a permanent residence visa from outside Canada (Officer’s notes, at p
2).
[28]
It
is important to note that the relief under section 25 of the IRPA is an
exceptional remedy dependent on the Minister’s discretion. An applicant is not
entitled to a particular outcome, even if there are compelling H&C
considerations at play. The Minister is entitled to balance H&C
considerations against public interest reasons that might exist for refusing to
grant an exceptional remedy (Pannu, above, at para 29).
V. Conclusion
[29]
A
decision is unreasonable only if there is no line of analysis within the
given reasons that could reasonably lead the tribunal from the evidence
before it to the conclusion at which it arrived. If any of the reasons
that are sufficient to support the conclusion are tenable and can stand up to a
somewhat probing examination, then the decision is not unreasonable and the
reviewing court is not to interfere.
[30]
The
decision rendered by the Officer is not unreasonable since the reasons entirely
support the conclusion reached.
[31]
The
documents filed by the Applicant in support of the judicial review do not
demonstrate any error on the part of the Officer in the decision as rendered.
[32]
For
all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be dismissed with no question
for certification.
“Michel M.J. Shore”
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