Date: 20081222
Docket: IMM-945-08
Citation: 2008 FC 1382
Ottawa, Ontario,
December 22, 2008
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
Saeb
Ozdemir BACHA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
a pre‑removal risk assessment officer (PRRA officer), dated November 30, 2007,
rejecting the application of Mr. Bacha and his family to authorize them to
apply for permanent residence in Canada.
[2]
The applicant, Saeb Ozdemir Bacha, and his family—his wife,
Sahar Fleifel Bacha, and his children, Ihsan, Izdomir and Karim—are Lebanese
citizens. The youngest son, Loay, was born in Canada in July 2007.
[3]
The
PRRA officer rejected the application because [translation]
“the claimants have not discharged their burden of proving that they would face
unusual, undeserved and/or disproportionate hardship if they had to file their
application for permanent residence outside of Canada, as provided by the Act”.
[4]
Specifically,
on the issue of establishment, the officer found that the five years the
applicants spent in Canada did not give them time to adopt such a Canadian [translation] “way of living and
thinking” that their return to Lebanon would be [translation] “like a second immigration”. In addition, the
officer found that they had not demonstrated sound financial management, noting
that the evidence did not contain any bank accounts with transactions over a
number of months, bills for essential services from the past year, credit card
statements, investments, etc. The officer noticed that the applicants did not
submit any federal or provincial tax returns or any official proof of their
income or its source, other than letters from their employers. Last, the
evidence did not contain any indication that the applicants participated in
social, recreational or charitable activities.
[5]
With
respect to their links to Canada, the officer noted that the parents of the
applicant’s wife live in Canada, as well as her brother, uncles, aunts and
cousins. However, he found nothing in the evidence to indicate [translation] “the real level of
support that the applicants had”, other than an undertaking signed by a
brother.
[6]
Turning
to the best interests of the children, the officer found that, although the two
adolescent children would certainly experience some difficulties in
reintegrating themselves in Lebanon, they would not face
any disproportionate obstacles if they had to return. The two younger children,
aged seven and one, respectively, are, in his opinion, [translation] “too young to speak of uprooting”.
[7]
The
officer also considered the risks of return that the applicants would face.
However, it is only the humanitarian and compassionate (H&C) part of the
decision that is currently being disputed.
[8]
The
following provision of the Act is relevant in this case:
|
25.
(1) The
Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or on request of a foreign national outside
Canada, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
25. (1) Le ministre doit, sur demande
d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne
se conforme pas à la présente loi, et peut, de sa propre initiative ou sur
demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
|
[9]
First,
and primarily, the applicant submits that the PRRA officer breached his duty of
fairness towards him because the officer did not give him the opportunity to
provide information and documents that were missing from his initial
application.
[10] I agree
completely with the respondent that there is no basis in the case law for this
assertion. In Serda v. Minister of Citizenship and Immigration, 2006 FC 356, Mr. Justice de Montigny wrote,
at paragraph 20:
One
of the cornerstones of the Immigration and Refugee Protection Act is the
requirement that persons who wish to live permanently in Canada must, prior to their
arrival in Canada, submit their application outside Canada
and qualify for, and obtain, a permanent resident visa. Section
25 of the Act gives to the Minister the flexibility to approve deserving cases
for processing within Canada. This is clearly meant to be an exceptional
remedy, as is made clear by the wording of that provision: . . .
(Emphasis
added.)
[11] Mr. Justice
Lemieux summarized the case law on this point in Singh v. Minister of
Citizenship and Immigration, 2007 FC 1356, at paragraph 32:
It
is well established, in this Court’s jurisprudence, that:
- The onus is on the applicants
to establish the existence of sufficient H&C factors justifying an
exemption from normal legal requirements in IRPA;
- That onus means the
applicants must submit for review by the decision-maker sufficient probative
and reliable evidence to support the existence of those H&C factors. The
applicants must put their best foot forward and cannot complain later on if
they did not lead sufficient persuasive evidence because it is not a function
of this Court on judicial review to reweigh the evidence before the decision-maker
for the purpose of substituting its decision for that reached by a tribunal
(See Mann v. Canada (Minister of Citizenship and Immigration), 2002 FCT
567; see also Samsonov v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1158); the corollary to the requirement an applicant
is required to put his/her best foot forward is the obligation by the decision-maker
to consider and weigh that evidence.
[12] Furthermore,
the following excerpts from the operational guide concerning applications
submitted by immigrants in Canada based on humanitarian and compassionate
considerations seem to me to be consistent with this case law:
|
5.1.
Humanitarian and compassionate grounds
Applicants
bear the onus of satisfying the decision-maker that their personal
circumstances are such that the hardship of having to obtain a permanent
resident visa from outside of Canada
would be
(i)
unusual and undeserved or
(ii)
disproportionate.
Applicants
may present whatever facts they believe are relevant.
.
. .
|
5.1.
Motifs d’ordre humanitaire
Il
incombe au demandeur de prouver au décideur que son cas particulier est tel
que la difficulté de devoir obtenir un visa de résident permanent de
l’extérieur du Canada serait
(i)
soit inhabituelle et injustifiée;
(ii)
soit excessive.
Le
demandeur peut exposer les faits qu’il juge pertinents, quels qu’ils soient.
[...]
|
|
5.26
Onus on applicant
Officers
do not have to elicit information on H&C factors and are not required to
satisfy applicants that such grounds do not exist. The onus is on applicants
to put forth any H&C factors that they feel exist in their case.
Although
officers are not expected to delve into areas that are not presented,
officers should attempt to clarify possible H&C grounds if these are not
well articulated by the applicants.
.
. .
|
5.26.
Fardeau de la preuve
L’agent
n’a pas à découvrir les facteurs CH par des questions et n’a pas à convaincre
le demandeur de la non-existence de ces motifs. Il incombe au demandeur de
présenter tous les facteurs CH qu’il estime présents dans son cas.
Même
si l’agent n’est pas tenu de creuser les points non soulevés à l’examen, il
devrait essayer de clarifier tout point que le demandeur ne réussit pas à
bien exposer.
[...]
|
|
5.29 The “Case to be met”
There is no particular “case to be met.” Applicants determine
what they feel are the H&C factors for their particular circumstances and
make submissions on them. While officers do not have to elicit H&C
factors (i.e., delve into areas that are not presented in the applicants'
submissions), it is a good practice to clarify possible H&C grounds if
these are not well articulated.
. . .
|
5.29.
Les points à prouver
Il
n’existe pas de point particulier à prouver. Il appartient au demandeur de
déterminer les motifs qui, selon lui, sont des facteurs CH pertinents dans
ses circonstances particulières et de présenter des observations à leur
propos. L’agent n’a pas à tirer au clair les facteurs CH (c.-à-d. creuser les
points non présentés dans les observations du demandeur), mais il serait bon
de préciser les motifs CH éventuels si ceux-ci ne sont pas bien exposés.
[...]
|
[13] It is obvious
that, despite the fact that “it is a good practice to
clarify possible H&C grounds if these are not well articulated”, the
onus is on the applicant to determine the relevant H&C factors in his or
her circumstances and to present them to the officer.
[14] Therefore, I
cannot agree with the applicant’s argument that the officer erred by not taking
the initiative to ask for missing documents or information.
[15] Second, and
in the alternative, the applicant contends that the PRRA officer did not
correctly assess the degree of establishment of the applicant and the members
of his family and that he did not weigh the best interests of the children
directly affected by his decision, especially the child born in Canada, in a
humane and positive manner.
[16] On this
issue, it appears to me that the applicants simply disagree with the PRRA
officer’s assessment of the evidence. It is settled law that this Court cannot
substitute itself for such a decision‑maker to assess the facts where, as
in this case, the applicant failed to establish that the decision rendered was
based on “an erroneous finding of fact that it made in a perverse or capricious
manner or without regard for the material before it” (see
paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985,
c. F‑7). In the circumstances, the PRRA officer’s decision appears
reasonable to me.
[17]
For
all these reasons, the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review of the decision of a pre‑removal risk
assessment officer dated November 30, 2007, is dismissed.
“Yvon
Pinard”
Mary
Jo Egan, LLB
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