Date: 20070814
Docket: IMM-317-07
Citation:
2007 FC 842
Ottawa,
Ontario, August 14, 2007
Present:
The Honourable Mr. Justice Max M. Teitelbaum
BETWEEN:
MOUADH
BEN ABDE KHARRAT
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) of a decision by an
immigration officer dated December 18, 2006, refusing the applicant’s application
for an exemption on humanitarian and compassionate grounds (H&C
application).
RELEVANT FACTS
[2]
The
applicant is a citizen of Tunisia and a deaf-mute. In 2001, his visa
application to come to Canada was refused. In 2003, he submitted a new visa application
so that he could participate in the World Federation of the Deaf Congress. His
two deaf-mute sisters also went. The visa was granted, and the applicant
entered Canada on July 18, 2003.
[3]
He claimed
refugee status on September 30, 2003, alleging persecution in the form of
contempt, lack of understanding and lack of support on the part of the Tunisian
state regarding his disability. His application was refused on April 4, 2004.
The IRB found that the applicant was not a refugee or a person in need of
protection and observed that the potential prejudice the applicant would suffer
in Tunisia amounted to discrimination, not persecution.
[4]
Following
this decision, the applicant brought an application for judicial review, which
was dismissed on January 25, 2005. Some weeks earlier, the applicant met his
spouse who is also a deaf‑mute. The two married on March 28, 2005, and
the applicant filed an application for permanent residence in the Spouse or
Common-Law Partner in Canada class.
[5]
On
September 12, 2006, the wife/sponsor asked to withdraw her sponsorship because
she no longer lived with the applicant and had begun divorce proceedings. In
her letter of withdrawal, the wife had also noted incidents of spousal abuse
beginning in February 2006. The wife/sponsor was pregnant when the abuse
occurred; the child was born in August 2006. According to a letter dated
December 11, 2006, the applicant did not know the baby’s sex, name or exact
date of birth. The applicant also said he had taken steps in civil court for a
divorce, acknowledgement of paternity and custody of the child.
[6]
In the
meantime, the applicant made an application for permanent residence on
humanitarian and compassionate considerations (the H&C application) on
April 4, 2005. The negative decision on that application is the basis of this
application for judicial review.
IMPUGNED DECISION
[7]
The
immigration officer acknowledged that the applicant suffers from a hearing
disability and encounters difficulties on a daily basis, but also noted that
the applicant had been able to go to the Tunisian embassy twice to apply for a
visa to come to Canada, assisted by his father who is now deceased. The officer
therefore gave little weight to this factor to justify granting an exemption
from abroad.
[8]
The
officer also acknowledged that the applicant was able to live in his country
all his life, had learned two sign languages and was a member of the Voix
des sourds, a Tunisian theatre troupe. The officer observed that there were
close to twenty-nine organizations in Tunisia working in the disability field,
in addition to a number of artistic associations that the applicant belonged
to, and that the Tunisian government had paid for his trip to Canada. The
officer also noted that the applicant’s two deaf-mute sisters had not claimed
refugee status during the same trip. Accordingly, the officer found that the
allegation that the claimant was unable to develop normally in Tunisia had
little merit and that the documentary evidence indicated the contrary.
[9]
The
officer also noted that the applicant had not highlighted any new facts, that
he relied on the same allegations that had been before the IRB and that the
H&C process is not a rehearing of the application. The officer was not
satisfied that the applicant had demonstrated that his integration in Canada
was sufficient to warrant an exemption.
[10]
Last,
referring to the charges of spousal abuse, the officer gave considerable weight
to the fact that the applicant had displayed behaviour that is [TRANSLATION] “not supported by Canadian
values,” despite the fact that the applicant has not been convicted of these
charges to date.
SUBMISSIONS OF THE PARTIES
The Applicant
[11]
The
applicant’s primary argument is that the immigration officer breached her duty
to act fairly by giving considerable weight to the fact that the applicant had
not displayed behaviour consistent with Canadian values. The applicant asserts
that an immigration officer cannot consider outstanding charges as part of an
assessment and that the officer should have delayed her decision pending the
outcome of the criminal proceedings. The applicant relies on section 5.15 of
the IP-5 Manual, which states that “[o]fficers should provide an opportunity
for the applicant to address any concerns about the alleged criminal conduct
and the outstanding charges, in the context of the H&C application.”
[12]
The
applicant also maintains that the officer erred by refusing to consider the
applicant’s allegations of risk and argues that an officer cannot adopt the
risk evaluation done by the IRB and/or a PRRA officer without conducting a more
in-depth analysis in the context of an application on humanitarian and
compassionate grounds.
[13]
Last, the
applicant contends that the agent failed to consider all the evidence, i.e. the
evidence confirming the applicant’s allegations and fears pertaining to the
serious problems impacting the deaf population in Tunisia.
The Respondent
[14]
The
respondent maintains that, according to the jurisprudence established by the
Court, an officer may take into account outstanding criminal charges when
deciding whether to refuse or grant an application for exemption based on
humanitarian and compassionate considerations.
[15]
The
respondent also contends that the officer considered the alleged risks in light
of the evidence adduced. Therefore, the officer considered all the evidence and
simply chose to prefer the objective documentary evidence.
ISSUES
1. Did the immigration officer err in considering the
outstanding charges when assessing the application?
2. Did the immigration officer err in refusing to consider
the applicant’s allegations of risk and in adopting the IRB’s risk assessment?
3. Did the immigration officer consider the totality of the
evidence?
STANDARD OF REVIEW
[16]
In Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
the Supreme Court of Canada established that the appropriate standard of review
of decisions by immigration officers concerning applications based on
humanitarian and compassionate grounds is reasonableness. (See also Khosa v.
Canada (M.C.I.), [2007] F.C.J. No. 139 (F.C.A.)).
[17]
Where the
appropriate standard of review is reasonableness, it is not for the Court to
substitute its assessment of the facts for that of the decision-maker. The
Court must instead determine “whether the reasons,
taken as a whole, are tenable as support for the decision” (Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 56).
[18]
On the
other hand, if the Court finds that there was a breach of procedural fairness,
the application for judicial review will be allowed since it is settled law
that the appropriate standard of review for questions of natural justice and
procedural fairness is correctness (Canadian Union of Public Employees
(C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at
paragraph 100); Milushev v. Canada (M.C.I.), [2007] F.C.J. No.
248).
ANALYSIS
1. Did the immigration officer err in
considering the outstanding charges when assessing the application?
[19]
This case
is distinguishable from the cases cited by the applicant and the respondent. In
Bakchiev v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1881, La v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 649 and Kumar v. Canada (M.E.I.), [1984] F.C.J. No.
1046 (F.C.A.), the Court held that evidence surrounding withdrawn or dismissed
charges cannot be used as evidence. However, these cases deal with issues in an
IAD decision or a danger opinion. In Thuraisingam v. Canada (M.C.I.),
[2004] F.C.J. No. 746, the opinion was to the contrary, that is, the Court
allowed the use of evidence in the same context.
[20]
However,
in the recent case Sittampalam v. Canada (Minister of Citizenship and
Immigration) (F.C.A.), [2006] F.C.J. No. 1512, 2006 FCA 326, the Federal Court
of Appeal confirmed the legal principle to be applied when faced with the issue
of whether evidence surrounding charges can be considered in a decision:
50 The jurisprudence of this Court
indicates that evidence surrounding withdrawn or dismissed charges can be
taken into consideration at an immigration hearing. However, such charges
cannot be used, in and of themselves, as evidence of an individual's
criminality: see, for example, Veerasingam v. Canada (M.C.I.) (2004),
135 A.C.W.S. (3d) 456 (F.C.), at paragraph 11; Thuraisingam v. Canada
(M.C.I.) (2004), 251 F.T.R. 282 (F.C.), at paragraph 35.
[21]
The case
at bar deals with an application for exemption based on humanitarian and
compassionate considerations and outstanding charges, not with a decision of
the IAD, a danger opinion or a situation where charges were withdrawn or
dismissed. In my view, in the context of an H&C decision, the Court can
nonetheless rely on reasoning similar to the established principle to conclude
that the officer could use the evidence about charges against the applicant in
her analysis, but could not use it as evidence of his criminality. Contrary to
the applicant’s allegations, the officer simply used the outstanding charges to
find that the applicant’s behaviour relating to spousal abuse was not
“supported by Canadian values.”
[22]
In any
event, even if the immigration officer decided to give significant weight to
this factor, she assessed all the circumstances before making the finding that
she did and exercised her discretion in so doing. In Hamzai v. Canada
(M.C.I.), [2006] F.C.J. No. 1408, 2006 FC 1108, at paragraph 24, Mr.
Justice Shore added this:
24 This Court is not to lightly
interfere with the discretion given to an H&C officer. 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 H&C officer considers the
relevant, appropriate factors from an H&C perspective, the Court
cannot interfere with the weight the H&C officer gives to the different
factors, even if it would have weighed the factors differently.
[23]
Although
the IP-5 Manual indicates that the officer should “provide an opportunity for
the applicant to address any concerns about the alleged criminal conduct and
the outstanding charges, in the context of the H&C application,” the Manual
also indicates in the same section that “[a]pplicants bear the responsibility
of providing all information in order to demonstrate that their personal
circumstances warrant exemption from the permanent resident visa requirement,”
which the applicant failed to do.
[24]
As the
Federal Court of Appeal confirmed in Minister of Public Safety and
Emergency Preparedness v. Cha, [2006] F.C.J. No. 491, 2006 FCA 126,
the Manual and other governmental guidelines are not binding on government
institutions and even less so on the courts. (See also Canada (Information
Commissioner) v. Canada (Minister of Citizenship and Immigration), 2002 FCA
270, at paragraph 37; Hernandez v. Canada (Minister of Citizenship and Immigration),
[2005] FC 429, at paragraphs 34 and 35).
[25]
Even if
the officer had erred on this point or put too much emphasis on certain
factors, such an error would not be sufficient in and of itself to find that
the decision as a whole is unreasonable (Miranda v. Canada (M.C.I.),
[2006] F.C.J. No. 813, at paragraph 13) since the other elements of the
application were considered in determining whether the applicant would face
undeserved or disproportionate hardship if he were removed to his country of
origin, and the officer concluded that would not be the case.
2. Did the immigration officer err in
refusing to consider the applicant’s allegations of risk and in adopting the
IRB’s risk assessment?
[26]
First, the
burden is on the applicant to establish the relevant factors to be considered
on the assessment in order for the officer to find that there were relevant
humanitarian and compassionate grounds (Owusu v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 158, 2004 FCA 38).
[27]
Second, to
be able to convince the officer that humanitarian and compassionate
considerations existed to support his application, the applicant had the onus
of proving that the requirement to apply for a permanent resident visa from
outside Canada would cause him to suffer unusual, undeserved or
disproportionate hardship (Uddin v. Canada (M.C.I.), 2002 FCT 937; Hamza
v. Canada (M.C.I.), [2006] F.C.J. No. 1408, 2006 FC 1108).
[28]
Thus, the
emphasis is on the difficulties that the applicant would face. In Sahota v.
Canada (M.C.I.), [2007] F.C.J. No. 882, 2007 FC 651 (available in English
only), Mr. Justice Harrington explains the concept of risk when assessing a
H&C decision:
7 While PRRA and H&C
applications take risk into account, the manner in which they are assessed is
quite different. In the context of a PRRA, “risk” as per section 97 of IRPA
involves assessing whether the applicant would be personally subjected to a
danger of torture or to a risk to life or to cruel and unusual treatment or
punishment.
8 In an H&C application,
however, risk should be addressed as but one of the factors relevant to
determining whether the applicant would face unusual, and underserved or
disproportionate hardship. Thus the focus is on hardship, which has a risk
component, not on risk as such.
[29]
Furthermore,
the applicant relies on Pinter v. Canada (M.C.I.), 2005 FC 296 to argue
that the officer erred in refusing to consider the applicant’s allegations of
risk. However, in Pinter, Chief Justice Lutfy found that the officer had
decided that she was not required to deal with risk factors in her assessment
of the humanitarian and compassionate application. He also found that she
should not have closed her mind to risk factors even though a valid negative
pre-removal risk assessment may have been made. In the case at bar, the officer
did not find that she was not required to deal with risk factors, and there had
not yet been a decision on the risk of removal; the Court therefore hesitates
to strictly apply the findings in Pinter to this case.
[30]
In my
view, the officer’s decision was not unreasonable because she assessed the risk
as one of the factors in the context of the humanitarian and compassionate
application and did find that the applicant would not suffer any unusual,
undeserved or disproportionate hardship if he were to apply from abroad.
[31]
Last, the
officer noted in her decision that the applicant had not highlighted any new
facts and that he had submitted the same allegations that were before the IRB.
Accordingly, I cannot conclude that the officer adopted the IRB’s risk
assessment.
3. Did the immigration officer consider the
totality of the evidence?
[32]
Absent
evidence to the contrary, an officer is presumed to have considered all the
evidence that was before him or her (Florea v. Canada (M.E.I.), [1993]
F.C.J. No. 598; Barua v. Canada (M.C.I.), [2000] F.C.J. No. 1342; Chowdhury
v. Canada (M.C.I.), [2002] F.C.J. No. 477; Houssou v. Canada (Minister
of Citizenship and Immigration), [2006] F.C.J. No. 1730, 2006 FC 1375). In
her decision, the officer mentioned a number of pieces of evidence that she had
considered. The Court cannot find that the officer erred on this point.
[TRANSLATION]
“Can an immigration officer who is called
upon to determine an application for permanent residence based on humanitarian
and compassionate grounds find the applicant’s behaviour to be unacceptable and
accordingly refuse his application based on allegations contained in
outstanding criminal charges in Canada?”
[34]
In my
view, this question cannot be submitted for certification. In Bakchiev v.
Canada, supra, the Court of Appeal determined that even where the
applicant has not been formally charged, outstanding criminal charges against
him or her may be assessed on a humanitarian and compassionate application.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the
application for judicial review is dismissed and that no question was submitted
for certification.
“Max
M. Teitelbaum”
Certified true
translation
Mary Jo Egan, LLB
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