Date: 20070726
Docket: IMM-587-07
Citation: 2007 FC 779
OTTAWA, Ontario, July 26, 2007
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
RANJIT BACHAN SINGH MOOKER
KANWALJIT KAUR
AMRITPAL KAUR MOOKER
MANJINDER SINGH MOOKER
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by an immigration officer,
(the “Officer”), dated January 22, 2007, wherein the Officer determined that
there were no humanitarian and compassionate (H&C) factors justifying an
exemption for the applicants from the requirement that an application for
permanent residence be made from outside Canada.
[2]
The
applicants are a family of four. The principal applicant, Ranjit Bachan Singh
Mooker and his two adult children, Amritpal and Manjinder, are citizens of Kenya. The
principal applicant’s wife, Kanwaljit Mooker is a citizen of India and has
residence in Kenya. The
applicants came to Canada from Kenya in 2002. Their refugee claims were refused
and they were subsequently removed to the U.S. where they
stayed for six months. They returned to Canada in 2004 and
have remained here since that time.
[3]
In
their application for H&C consideration the applicants put forward a number
of reasons why they should be granted H&C relief. First, they submitted
they are well-established in Canada. The primary applicant is working as a
machinist in a permanent, full-time position. The son, Manjinder, worked
full-time in Canada until he
went back to school in September 2006 to study mechanical engineering
technology at Sheridan College. The
daughter, Amritpal Kaur Mooker, works part-time at DWS logistics and studies at
Sheridan
College. She hopes
to get into a nursing program in Canada. The applicants have
never relied on social assistance and have used their savings to support
themselves and to pay for Amritpal and Manjinder’s education. The applicant
also provided evidence of community involvement.
[4]
The
applicants also requested H&C relief on the grounds that it is in the best
interest of the children to remain in Canada. At the time of the
Officer’s decision Manjinder was 24 years old and Amritpal was 22 years old.
The applicants fear that Amritpal and Manjinder will face discrimination should
they return to Kenya as there is discrimination against South Asians
there. They submit that returning to Kenya would cause them
serious emotional trauma. To this effect, they included psychological reports
for both Amritpal and Manjinder done by Dr. J. Pilowsky. Amritpal’s assessment indicates
that her psychological condition has significantly deteriorated and that she
suffers from a Major Depressive Episode of moderate severity. Manjinder’s
assessment indicates that he suffers from a Major Depressive Episode of moderate
severity and from symptoms of anxiety. Manjinder’s psychological assessment
indicates that he has become overwhelmed by the persistent anxiety about his
family’s future and has become emotionally exhausted. The assessment
concludes that there is every indication that his clinical symptoms have become
pervasive and interfere with all relevant areas of functioning.
[5]
The
applicants also submit that they would face disproportionate, unusual and
undeserved hardship if forced to apply for permanent residence from outside
Canada because of the situation in Kenya. They submit that a
return to Kenya would be
particularly hard for Amritpal as an Asian woman because the documentary
evidence indicates that women in Kenya are second-class
citizens who face discrimination. The applicants also submits that the family
is at risk of persecution, cruel and unusual treatment and torture at the hands
of Kenyan nationalists and point out that the family has been subjected to
physical and verbal abuse, as well as theft and destruction of their property.
THE DECISION UNDER
REVIEW
[6]
The
Officer considered the three grounds raised by the applicants. With respect to
the applicants’ submission that they fear returning to Kenya, the Officer
noted that the applicants suffered verbal and physical attacks from African
Kenyans and that in February 1999 the principal applicant was attacked, beaten
and robbed. The Officer also noted that the applicants’ home was broken into by
Kenyan nationalists in June 2000. Their home was robbed again in May 2001
although it is not clear whether Kenyan nationalists were responsible. The
Officer noted the Refugee Board had concluded that the Asian population in Kenya faces
periodic discrimination but that the treatment did not amount to persecution.
The Officer reviewed the current country conditions in Kenya and
concluded that there had been no significant change in the overall country
conditions. She further noted that the applicants have recourse available to
them should they experience ethnic intolerance as a documentary evidence
indicates that state protection is available in Kenya. The Officer
acknowledged that the applicants attempted unsuccessfully on two occasions to
access state protection but then suggests that the applicants should have sought
protection at other levels than the police. The Officer concluded the
applicants had failed to establish that they would face personalized risk to
their life or risk to the security of their person if they returned to Kenya.
[7]
In
considering risk, the Officer considered psychological reports for Amritpal and
Manjinder. She noted that Amritpal’s report stated that her condition had
significantly deteriorated and that she suffers from Major Depressive episode
of moderate severity and symptoms of anxiety. The Officer noted that although
the assessment indicated that Amritpal’s coping mechanisms had been severely
drained it also noted that “Ms. Mooker is a bright and hardworking young woman
who has adapted remarkably well to this country. She has taken on the responsibility
of emotionally supporting her family while endeavouring to build a career and
integrate more fully into her new community.”
[8]
With
respect to Manjinder, the Officer noted that his assessment indicated that he
suffers from Major Depressive Episode of moderate severity and from symptoms
anxiety. The assessment also noted that “I believe that this bright young man
will be able to forge a successful future as an outstanding member of his
community. Mr. Mooker impressed me as hardworking and studious, and he is fully
committed to his career as an engineer…” It is not clear from the Officer’s
decision what impact Dr. Pilowsky’s comments as to Amritpal and Manjinder’s
personal qualities had on her determination.
[9]
The
Officer noted that no diagnostic test was provided and no description of level
of functioning was provided in either Amritpal or Manjinder’s assessment.
Moreover, she noted that there was insufficient evidence to indicate that
Amritpal and Manjinder were currently receiving continuing treatment. Even if
there did require treatment, she held that the applicants had not provided
documentary evidence to the effect that treatment would not be available in Kenya. She also
noted that that documentary evidence obtained through independent research shows
that depressive illnesses are highly responsive to treatment. She noted that
health services in Kenya are provided by the government, private individuals,
churches, and voluntary organizations and that governmental health care
services are provided on national, provincial and district level and that
mental health care is integrated into general health care at the district
level. The Officer concluded that the evidence does not suggest that Amritpal
and Manjinder would be unable to obtain treatment in Kenya.
[10]
The
second factor considered by the Officer is the applicants’ degree of
establishment in Canada. The Officer noted that the family initially
supported itself on its savings in Canada. She also noted that
the primary applicant had been continuously employed as a machinist since March
2002 and Amritpal and Manjinder were currently studying and both had work
experience in Canada. The Officer
noted that the family has extensive community involvement as they attend temple
and volunteer their time preparing and serving meals to the congregation. She
also noted that they have made donations to various charities. The Officer
concluded the applicants’ level of establishment does not exceed what is
reasonably expected after having resided in the country for a period of 4 and a
half years and that the degree of establishment is not such that it makes the
pursuit of permanent residence in the normal manner a cause of hardship which
was not anticipated in the Immigration and Refugee Protection Act and
the Immigration and Refugee Protection Regulations.
[11]
The
final factor considered by the Officer is the best interests of the children.
Amritpal and Manjinder were both born in Kenya and resided
there from 1992 until the family left in November 2001. The Officer noted that
they attended school in Kenya and that they have been exposed to Swahili
language and culture. She then went on to conclude that the applicants had not
established that the general consequences of relocating and resettling back to
their home country would have a significant negative impact on Amritpal and
Manjinder which would amount to unusual, undeserved or disproportionate
hardship.
[12]
In
addition to the factors raised by the applicants, the Officer considered how
the applicants would likely adapt upon return to Kenya. She noted
that the applicants speak, read and write English, one of Kenya’s official
languages. She also noted that the applicants were well-established in Kenya with the
primary applicant being professionally employed prior to their departure.
Finally, she noted that while in Canada the applicants worked
in a variety of fields and the abilities they have acquired are transferable
employment skills.
ISSUES
[13]
This
case raises the following issues:
1.
Did the
Officer err in determining that the applicants were not sufficiently
established in Canada that leaving would cause
unusual or undue hardship?
2.
Did the
Officer apply the correct test with respect to the risk assessment portion of
H&C decision?
3.
Was the
Officer alive, alert and sensitive to the best interests of the children?
ANALYSIS
Degree of establishment
[14]
The
standard of review for humanitarian and compassionate decisions is
reasonableness simpliciter (Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817). This is also
the applicable standard of review to the issue of whether the Officer erred in
considering the degree of establishment of the applicants as such a
determination requires applying a legal test, i.e. usual and undeserving
hardship, to the facts of the present case.
[15]
The
applicants submit that the Officer’s decision with respect to establishment is
unreasonable. I am satisfied that the Officer was quite thorough in considering
all aspects of the applicants’ situation including the applicants’ employment
history in Canada and their community involvement. The Officer also considered
how likely the applicants were to be able to re-establish themselves in Kenya
and considered the applicants’ background and experiences, including their work
experience, employment skills and connections to Kenya, before
concluding that there is insufficient evidence to indicate that they would be
unable to re-establish themselves in Kenya. The Officer reasonably
concluded that the applicants’ level of establishment does not exceed what is
reasonably expected after having resided in the country for a period of four
and a half years. Moreover, the degree of establishment is only one factor to
be considered in an H&C assessment and is not in itself determinative (Klais
v. Minister of Citizenship and Immigration, 2004 FC 785; Irimie v.
Minister of Citizenship and Immigration (2000), 10 Imm. L.R. (3d) 206).
Risk assessment
[16]
The
question of whether the Officer applied the correct test in assessing risk in
an H&C application is a question of law and therefore must be reviewed on
the standard of correctness (Pinter v. Minister of Citizenship and
Immigration, 2005 FC 296).
[17]
The
applicants submit the Officer erred by failing to apply the appropriate
standard when assessing the risk factors within the H&C application by only
assessing whether the applicants faced risk of torture or risk to life rather
than assessing whether the discrimination the applicants would face upon return
to Kenya would amount to unusual hardship. The applicants rely on Pinter where
Chief Justice Lufty held that the risk considerations within an H&C fall
below the threshold of risk to life or cruel and unusual punishment. They also
cite Ramirez v. Minister of Citizenship and Immigration, 2006 FC 1404, wherein the Court cited Pinter and held
that
[42]
It is beyond dispute that the concept of
“hardship” in an H&C application and the “risk” contemplated in a PRRA are
not equivalent and must be assessed according to a different standard. As
explained by Chief Justice Allan Lutfy in Pinter v. Canada (Minister of Citizenship and
Immigration),
2005 FC 296:
[3] In an application for
humanitarian and compassionate consideration under section 25 of the
Immigration and Refugee Protection Act (IRPA), the applicant's burden is to
satisfy the decision-maker that there would be unusual and undeserved or
disproportionate hardship to obtain a permanent resident visa from outside Canada.
[4] In a pre-removal risk
assessment under sections 97, 112 and 113 of the IRPA, protection may be
afforded to a person who, upon removal from Canada to their country of nationality, would be subject to a risk to
their life or to a risk of cruel and unusual treatment.
[5] In my view, it was an
error in law for the immigration officer to have concluded that she was not
required to deal with risk factors in her assessment of the humanitarian and
compassionate application. She should not have closed her mind to risk factors
even though a valid negative pre-removal risk assessment may have been made. There
may well be risk considerations which are relevant to an application for
permanent residence from within Canada which fall well below the higher threshold of risk to life or
cruel and unusual punishment. [Emphasis Added]
[…]
[45]
While it may be that violence, harassment and
the poor health and sanitary conditions may not amount to a personalized risk
for the purposes of a PRRA application, these factors may well be sufficient to
establish unusual, undeserved or disproportionate hardship…
[18]
The
respondent for its part submits that if the Officer’s decision is read in its
totality it is clear that the Officer applied the correct standard. The
respondent submits that the Officer referred to “risk to life” because the
applicants submitted that they faced risk to life in their H&C application.
The respondent relies on the Court’s decision in Doukhi v. Minister of
Citizenship and Immigration, 2006 FC 1464, where the Court held that:
[24]
As evidence that the Officer applied the higher
threshold applicable in PRRAs instead of the lower threshold applicable in the
H&C context, the Applicant points to page 3 of the H&C Applications -
Notes to File where the Officer writes (Tribunal Record, H&C Applications -
Notes to File, p.16):
… the objective documentary
evidence does not support the applicant’s conclusions that the nature and
severity of the situation amounts to persecution, or that Lebanese State policies or practices amount
to persecution against the Palestinians.
…
[25] Before addressing whether this evidence is proof that
the Officer applied the higher threshold applicable in PRRAs instead of the one
applicable in the H&C context, it is essential to note that the Applicant
raised the issue of persecution in his submissions in support of it’s H&C
Application as indicators that he would face ‘unusual and underserved or
disproportionate hardship’.
…
[26] Taking into
account the Applicant’s own submissions as to his risk of persecution, in my
view it is logical that the Officer would undertake an analysis as to whether
the Applicant would face persecution if returned to Lebanon. Furthermore, the
Officer was justified in using the term “persecution” in his decision, even
though he was dealing with an H&C application. Having read the
Officer’s decision, I can note that the Officer does not use the term
“persecution” or conduct an analysis as to whether persecution exists other
than to respond to the Applicant’s suggestion that he would face persecution as
a Palestinian refugee living in a refugee camp in Lebanon.
[19]
In
the present case, the Officer did not simply use the language of risk to life
only to respond to the applicants’ submission but also explicitly stated that
this was the test on an H&C application. The Officer held that “In the
context of this H&C application, the issue is whether there are reasonable
grounds to believe that the applicant would be at risk for loss of life or a
risk to the security of his person, should he return to Kenya.” Later the
Officer concluded that “the applicants have failed to establish that they face
personalized risk to their life or risk to the security of their person if they
are returned to Kenya.” The Officer clearly applied the PRRA
standard. As Pinter and Ramirez make clear it is a reviewable
error to apply the PRRA standard in an assessment of an H&C application.
[20]
The
respondent submits that the Officer reasonably found that state protection is
available to the applicants and, therefore, any error with respect to the standard
to be applied is not determinative. This argument would be persuasive had the
Officer provided a reasonable assessment of the availability of state
protection. The Officer noted that the applicants had attempted to seek state
protection on two separate occasions but the police would not take a report.
She then went on to conclude that adequate state protection was available.
Given the evidence of the applicant’s attempts to seek state protection, the
Officer was required to provide a thorough explanation as to why this did not
rebut the presumption of state protection. In my view, the Officer’s assessment
of the availability of state protection is not strong enough to negate the
Officer’s error with respect to the standard to be applied in H&C decisions.
Best interests of the
child
[21]
In
Hawthorne v. Minister of Citizenship and Immigration, 2002 FCA 475, the Federal Court of
Appeal held that an H&C decision will be found to be unreasonable if the
officer was not “alive, alert and sensitive” to the best interests of the
child:
[31]
Counsel agreed that, under the
legal test established by Baker and Legault for reviewing
officers' exercise of discretion, the refusal to grant Ms. Hawthorne's H &
C application could be set aside as unreasonable if the officer had been
"dismissive" of Suzette's best interests. On the other hand, if the
decision-maker had been "alert, alive and sensitive" to them (Baker,
at para. 75), the decision could not be characterized as unreasonable.
[22]
The
applicants submit that the psychological report presented to the Officer
indicated that the children, Amritpal and Manjinder, were depressed about their
potential return to Kenya and that the Officer erred by not considering these
reports when she looked at the best interests of the children.
[23]
Although
the Officer did not consider the psychological reports under the heading of
best interests of the children in her decision, this in itself does not
indicate the Officer was not “alive, alert and sensitive” to the interests of
the children given that she considered the reports in other sections of her
decision. The Officer considered the psychological assessments of Amritpal and
Manjinder and reasonably concluded that since there was no evidence indicating
that they were currently receiving continuing treatment and no evidence
indicating that any required treatment would be unavailable to them in Kenya this factor
was not a reason to grant H&C relief.
[24]
The
Officer also considered how well equipped Amritpal and Manjinder would be to return
to Kenya. She
considered their work experience in Canada and concluded that it
would benefit them in Kenya. She also considered their connections to Kenya, including
the fact that they had both lived there from 1992-2001 and that Manjinder had
received some post-secondary education there. She concluded that adjustments to
Kenya would be
minimal. In my view, the Officer was alive, alert and sensitive to the best
interests of the children.
[25]
The
Officer did not err in her assessment of the best interests of the child and
her assessment of the degree of establishment of the applicants in Canada. She did,
however, err by applying the PRRA standard in the risk assessment portion of
the applicants’ H&C decision.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed and the matter is to be returned for
a new hearing before a different immigration officer in accordance with the
above reasons. No question was submitted for certification.
"Max M. Teitelbaum"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-587-07
STYLE OF CAUSE: RANJIT
BACHAN SINGH MOOKER ET AL v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 19, 2007
REASONS FOR ORDER: Teitelbaum, D.J.
DATED: July 26, 2007
APPEARANCES:
Krassina Kostadinov FOR
THE APPLICANTS
Don Hewak FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Lorane Waldman
Waldman & Associates FOR
THE APPLICANTS
Toronto, Ontario
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario