Date: 20080502
Docket: IMM-4369-07
Citation: 2008 FC 518
Ottawa, Ontario, May 2, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
RANJIT BACHAN SINGH MOOKER
MAJINDER SINGH MOOKER
KANWALJIT KAUR
AMRITPAL KAUR MOOKER
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision dated October 4, 2007 of Humanitarian
and Compassionate (H&C) Officer, S. McCaffery (Officer), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act), refusing the applicants’ application for permanent residence on
H&C grounds.
ISSUES
[2]
The
applicant raises three issues in the present application:
a)
Did
the Officer err in applying an incorrect test in the risk assessment portion of
the H&C decision?
b)
Did
the Officer err in assessing the applicants’ claim of hardship?
c)
Did
the Officer err in assessing the applicants’ degree of establishment and
integration into Canadian society?
[3]
For
the following reasons, the application for judicial review shall be dismissed.
FACTS
[4]
The
applicants are a family of four who came to Canada on February
6, 2002 and made a claim for refugee protection. The principal applicant, Mr.
Rajit Bachan Singh Mooker, is a citizen of Kenya, born on October 8, 1958 in India. He is
married to Kanwaljit Kaur, born January 5, 1958, and is a citizen of India. Together
they have two children, a son Manjinder Singh Mooker, born November 7, 1982,
and a daughter, Amritpal Kaur Mooker, born May 5, 1984. Both children are
citizens of Kenya.
[5]
The
applicants’ claim for refugee protection before the Immigration and Refugee
Board (Board) was rejected on March 10, 2003. They applied for a Pre-Removal
Risk Assessment (PRRA) on December 15, 2003, and received a negative decision
on April 5, 2004.
[6]
The
applicants were subsequently removed from Canada to the United
States
on May 18, 2004. They initiated a refugee claim in the United States, but
abandoned it, and returned to Canada on November 18, 2004. They made a second
PRAA application upon their return. The applicants also had a pending H&C
application, initiated in September of 2003. On January 11, 2007, they received
negative decisions on both the second PRRA and the H&C applications.
[7]
The
applicants made an application for leave and judicial review to this Court on
February 8, 2007, challenging the negative H&C decision. The Court allowed
the application for judicial review in part, on the grounds that the H&C
officer erred by applying the PRRA standard in the risk assessment portion of
the H&C request. The Court found no error in the assessment of the best
interests of the child or in the assessment of the degree of establishment
of the applicants in Canada. The judicial review was granted on July
26, 2007 and the H&C application referred back for redetermination.
[8]
The
applicants made further submissions to the Officer relating primarily to the
risk factors. They submitted that they would face undue, disproportionate and
undeserved hardships if they were required to apply for permanent resident
status from outside of Canada. They submitted that they are at risk
because of the discrimination they face as South Asians living in Kenya, and because
they are targets of criminals because of their ethnicity and gender. They also
argued that they should be granted an exemption on H&C grounds because of
their high degree of establishment in Canada.
DECISION UNDER REVIEW
[9]
The
applicants’ request for an exemption based on H&C grounds was refused by
letter dated October 4, 2007. The Officer’s reasons are contained in the notes
to file. The reasons include a detailed case history, and a review of the
applicants’ submissions, including all of the documents filed in support of the
application. The Officer provides summaries and excerpts from the documentary
evidence submitted by the applicants, as well as the documentary evidence
consulted by him in the course of his research. Before providing notes on all
of the documents, the Officer notes: “The documentation is too voluminous for
extensive note taking here, but I have considered all of it.” The Officer reviews
the findings of the Refugee Protection Division of the Immigration and Refugee
Protection Board in the decision dated March 3, 2003.
[10]
The
Officer’s concludes that he is not satisfied that the circumstances of the case
are such that the applicants should be granted an exception from the usual
requirements of the Act. The conclusion is premised on the following reasons:
a)
The
Officer finds that the applicants settled and adapted as well as might be
expected for a family who has been in Canada for five and a half
years. He notes that the two adult children work part-time and go to school,
the principal applicant is working and Ms. Kaur provides childcare to a member
of the community. He notes some ties to the community as shown by the
supporting documentation.
b)
The
Officer finds that the hardships now in view were not unforeseeable in the
normal working of the Act, and they were within the control of the applicants.
The Officer notes that the applicants were, or could have been, aware of the
process they were entering into in Canada. By prolonging their
stay, as a result of the ordinary working of the Act, the applicants would have
been aware of the hardships and disappointments which might follow a negative
decision. The Officer concludes that he is not satisfied that the consequences
of their removal would be disproportionate, and that the family could return to
Kenya and continue
to prosper in reasonable safety.
c)
The
Officer writes that the applicants’ key submission is that they face risk upon
return, which might not meet the threshold required to obtain refugee
protection, but which could nevertheless constitute hardship. The Officer
determines that the evidence does not support the allegation of risk. Rather,
he points to the fact that Kenya
is a poor country with significant disparity between the rich and the poor.
The evidence shows high crimes rates, and a generalized risk of crime,
particularly in areas dominated by Mungiki and other organized crime groups. The
Officer finds that Kenya has been unique among
East African countries in valuing its South Asian minorities, who may be
resented in some circles, but are generally well established through political,
business and social ties.
d)
The
Officer finds that state protection is not so deficient as to make wealth, and
the risk of being a target of criminal activity, a hardship in and of itself. The
Officer notes that Kenya is a democracy, and that the reformist
government in place had made real efforts to improve law enforcement and the
rule of law. In particular the Officer finds that part of the reformist agenda
is to bring Mungiki under control, and that the police and state shows no
inclination to collude with organized crime.
[11]
The
Officer concludes that the totality of the evidence regarding establishment and
risk does not satisfy him that the applicants should be granted an exemption
from the ordinary requirements of the Act on H&C grounds.
ANALYSIS
Standard of Review
[12]
This
Court has previously held that the review of H&C decisions should be
afforded considerable deference, and that the applicable standard was
reasonableness simpliciter (Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817).
[13]
Following
the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, review of H&C decisions should continue to be subject to
deference by the Court, and are reviewable on the newly articulated standard of
reasonableness (Dunsmuir, at paragraphs 47, 55, 57, 62, and 64).
[14]
For
a decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, at paragraph 47).
[15]
However,
the first issue in the case at bar is a question of law, which in the context
of the review of H&C decisions, this Court has found to be reviewable on a
standard of correctness (Mackiozy v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1106 at paragraph 9, [2007] F.C.J. No. 1428; El
Doukhi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1464,
at paragraph 11, [2006] F.C.J. No. 1843; Mooker v. Canada (Minister of
Citizenship and Immigration), 2007 FC 779, at paragraph 16, [2007] F.C.J.
No. 1029). It is my opinion that the standard of correctness should continue to
be applied when determining if the correct test was applied with respect to the
risk assessment portion of an H&C decision (Dunsmuir, at paragraphs 55,
57, 62, and 64).
Did
the Officer err in applying an incorrect test in the risk assessment portion of
the H&C decision?
[16]
The
applicants submit that the Officer stated the correct test but did not apply
it. The applicants contend that the Officer erroneously applied the test
applicable to a PRRA decision in the determination of the H&C application. While
the risk in a PRRA decision must amount to a risk to life or of cruel and
unusual punishment or torture, risk is assessed differently in an H&C
application. In the context of the present case, the Officer must ask himself
whether the risk factors amount to unusual, undeserved or disproportionate
hardship. In Ramirez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1404, at paragraphs 42 and 45, [2006]
F.C.J. No. 1763, Justice de Montigny outlines the test, and carefully reviews
the case law on this point:
[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] F.C.J. No. 366, 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. I would therefore adopt the following conclusion reached by Justice
O'Keefe in Dharamraj v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 853, 2006
FC 674:
[24] There is no dispute
that there is a higher burden on the applicants to establish risk for the purposes
of a PRRA than there is for H&C purposes. Consequently, there may be
circumstances where risk would be relevant for an H&C application but not
for a PRRA application.
[25] In the present case, the
officer merely adopted the assessment of risk made by the IRB and the PRRA
officer without further analysis for the purpose of the H&C application. In
my opinion, the officer made an unreasonable decision because she did not
consider the risk factors in the context of the H&C application.
[17]
The
applicants also rely on the decision of Justice Teitelbaum in Mooker,
above, in which they were successful in making the same argument.
[18]
The
applicants further allege that by applying the incorrect test, the
Officer ignored evidence which might meet the lower threshold of risk relevant
to the assessment of hardship.
[19]
The
line of cases relied upon by the applicants (Ramirez and Mooker,
above; Dharamraj v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 853, 2006 FC 674; Pinter
v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 366, 2005 FC 296)
imposes upon H&C Officers the requirement that the generalized risk of
violence, or risks flowing from discrimination, be considered according to
the appropriate test. It does not go so far as to require the Officer to
conclude that discrimination and a risk of generalized violence always
constitute undue, undeserved or disproportionate hardship.
[20]
I
am of the opinion that the officer considered and applied the correct
test in the assessment of the risk portion of the H&C decision. At page 34
of the notes to file, the Officer stated:
It has been submitted that a key element
of their application is risk, a risk which might not meet a threshold which
would indicate a need for international protection, but nevertheless serious
enough to impose hardship by itself or in combination with other factors.
The evidence will not support the risk
submissions. …
[21]
It
is clear from the above mentioned passage that the Officer understood that risk
could be assessed for the purposes of refugee protection according to a higher
threshold, as well as for the consideration of undue hardship, according to a
lower threshold. The Officer was cognizant of the Court’s decision in Mooker,
above in which the application was sent back for re-determination.
Did the Officer err in
assessing the applicants’ claim of hardship?
[22]
The
applicants submit that the officer erred in his assessment of the hardship they
would face if required to make an application for permanent residence from
outside of Canada. The
applicants submit that the IRB decision dated March 10, 2003, the PRRA decision
dated April 5, 2004, and the PRRA and H&C decisions dated January 11, 2007 all
noted instances of discrimination against Kenyans of South Asian origin. The
applicants argue that these four previous determinations, as well as the
Officer’s own finding that there exists a generalized risk of crime in all
areas of Kenya, clearly
indicate a lack of personal security amounting to unusual, undeserved or
disproportionate hardship.
[23]
By
making this argument, the applicants attempt to equate a lack of personal
security with undue, undeserved or disproportionate hardship. I disagree.
[24]
The
Officer specifically considered the evidence of discrimination against South
Asians, and provided reasons why he did not find that the applicants would
suffer unusual, undeserved or disproportionate hardship. Notably, the Officer
cited evidence before him indicating that South Asians in Kenya are
subjected to occasional resentment, but they are “well established in elite
circles, where they have established solid political, business and social
ties.”
[25]
The
reasons provided by the Officer are justified, and intelligible. It was
reasonably open to the Officer to conclude that any difficulties arising from
the applicants’ South Asian ethnicity in Kenya would not
amount to unusual, undeserved or disproportionate hardship. It is not the role
of this Court to reweigh the evidence that was before the decision maker. Though
the applicants may not agree with the outcome of the decision, it falls
within the range of possible, acceptable outcomes which are defensible in
respect of the evidence he had before him.
[26]
The
applicants submit that the Officer’s preference of the documentary evidence
with respect to the treatment of South Asians in Kenya, over the
four previous findings and the applicants’ own evidence is a reviewable error. They
also argue that the Officer failed to give reasons for preferring the
documentary evidence, and that as well constitutes an error.
[27]
I
am of the opinion that the Officer carefully reviewed the documentary
submissions of the applicants, as well as other documents, and acknowledged
certain instances of discrimination and crime which the applicants might face if
returned to Kenya. It was
open to the Officer to prefer certain documentary evidence over other sources. The
Officer was not bound by the previous determinations made in the context of a
PRRA application or a refugee claim, since he must assess the facts on
H&C grounds. Assessing documentary evidence as it related to the risk of
undue, undeserved or disproportionate hardship falls squarely within the
functions of an H&C Officer. In the present case, the Officer did so
diligently.
[28]
The
applicants argue that the Officer erred by addressing the issue of state
protection, which is not relevant to the assessment of an H&C application,
and thereby erred in the assessment of hardship.
[29]
It
is clear from the Officer’s reasons that state protection was addressed only in
the context of the risk assessment. The Officer wrote at page 35 of the notes
to file:
Therefore, even taken at face value, Mr.
Mooker’s statement, that he was a victim of African nationalist youth, “likely”
members of Mungiki, would have to be weighed against the availability of state
protection, even where the risk is described simply in terms of hardship. …
[30]
It
was open to the Officer, in the circumstances, to consider state protection in
so far as it might bear on the assessment of risk and therefore hardship. In
fact, it was the applicants who raised the issue of state protection in their
submissions to the Officer, and that it was therefore open to him to examine
the question.
[31]
The
applicants contend that the Officer did not consider the totality of the
evidence, particularly with regard to gender, and that he did not give any
actual regard for the evidence of discrimination against women in his analysis.
[32]
While
a more fulsome analysis of the risks faced by the female applicants might have
been preferable, in the circumstances, I do not find that the applicant has raised
a reviewable error.
Did
the Officer err in assessing the applicants’ degree of establishment and
integration into Canadian society?
[33]
The
applicants allege that the Officer erred in assessing the degree of
establishment and integration of their family into Canadian society. They argue
that the Officer should not have considered whether their level of
establishment was exceptional, but whether being uprooted from Canada would cause
excessive hardship. The applicants restate certain points demonstrated by the
evidence, namely that they have nothing to return to in Kenya, they have
friends, relatives and associates in Canada, a strong community, employment and
courses of education. The applicants further submit that they meet all five
criteria proposed in the Inland Processing Manual Chapter 5, Immigrant
Applications made in Canada on Humanitarian and
Compassionate Grounds, at paragraph 11.2, used to evaluate the degree
of establishment:
The degree of the applicant’s
establishment in Canada may include such questions
as:
• Does the applicant have
a history of stable employment?
• Is there a pattern of
sound financial management?
• Has the applicant
integrated into the community through involvement in community organizations,
voluntary services or other activities?
• Has the applicant
undertaken any professional, linguistic or other study that show integration into
Canadian society?
• Do the applicant and
family members have a good civil record in Canada (e.g., no interventions by police or
other authorities for child or spouse abuse, criminal charges)?
[34]
While
the evidence does demonstrate a significant degree of establishment, it was
open to the Officer to weigh establishment as one factor among many. The
Officer found that the degree of establishment shown by the applicants resulted
from the ordinary working of the immigration and refugee legislation, and was
within the control of the applicants.
[35]
In
Nazim v. Canada (Minister of Citizenship and Immigration), 2005 FC
125, at paragraph 15, [2005] F.C.J. No. 159, Justice Rouleau writes:
[15] The humanitarian and
compassionate process is designed to provide relief from unusual, undeserved or
disproportionate hardship. The test is not whether the applicant would be, or
is, a welcome addition to the Canadian community. In determining whether
humanitarian and compassionate circumstances exist, immigration officers must
examine whether there exists a special situation in the person's home country
and whether undue hardship would likely result from removal. The onus is on the
applicant to satisfy the officer about a particular situation that exists in
their country and that their personal circumstances in relation to that
situation make them worthy of positive discretion.
[36]
I
am satisfied that the Officer in this case considered all of the evidence
before him. His conclusion that the applicants’ circumstances do not warrant an
exemption from the requirement to make an application for permanent residence
from outside of Canada was justified, and intelligible, and
fell within a range of acceptable outcomes.
[37]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review is dismissed. No question is certified.
“Michel Beaudry”
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