Date: 20080416
Docket: IMM-2284-07
Citation: 2008 FC 489
Ottawa, Ontario, April 16,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
PERMINDER
KAUR THANDAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant’s application of permanent residence as a skilled worker and her
H&C application from outside Canada were denied. She has
sought judicial review of that decision.
II. BACKGROUND
[2]
The
Applicant is a 34-year-old citizen of India with a 9-year-old
daughter. She is a widow living in her ancestral village while she claims her
parents and brothers live in Canada and are Canadian citizens. Her parents and
brothers provide financial assistance to her and her parents visit her every
six months.
[3]
An
interview was conducted where the Applicant went on to explain that she had
little contact with her other family members in the same village, that her
brother-in-law had tried to kidnap her and that she had concerns for her
daughter’s education in India.
[4]
The
officer who considered her application found insufficient evidence to justify a
favourable H&C and concluded that the best interests of the Applicant’s
daughter were to remain in India where she was born, where she was being
raised by her mother and where she was going to school.
[5]
The
officer had some difficulties with the Applicant’s story. The officer found no
good explanation for the lack of contact with her relatives in the village, the
absence of evidence that the daughter could not obtain a good education in India, and the lack
of evidence that her financial support from Canada would be
terminated. The Applicant had not established fear of her brother-in-law, had
made no contact with police at the time of the threatened kidnapping and had
had no contact from the brother-in-law since then.
[6]
The
Applicant has raised issues of procedural fairness and the merits of the
H&C decision itself. There was no issue concerning her ineligibility under
the skilled worker class.
III. ANALYSIS
[7]
With
the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, it is settled that procedural fairness is to be reviewed on a
correctness standard while the H&C decision is to be reviewed on a
reasonableness standard. The reasonableness standard admits of a range of
reasonable outcomes. The Court is aware that an H&C decision is
discretionary, an exception to the normal rules. The officer, by virtue of
familiarity and having interviewed the Applicant, was in an excellent position
to assess the merits of the Applicant’s story.
[8]
On
the matter of procedural fairness, the Applicant complains that she was not
given a further opportunity to further address the officer’s concerns about
some aspects of her story.
[9]
It
is well established that an applicant has the burden of establishing her case. Generally,
an applicant is to do that once, rather than on the basis of some sort of
rolling story of reply, sur-reply and so forth. The Applicant had an interview
at which all the relevant issues were canvassed. There is nothing unfair in the
officer deciding the case on the evidence as provided by the Applicant at that
time.
[10]
Regarding
the merits of the H&C decision, the CAIPS Notes, prepared
contemporaneously, indicate as well that the officer considered all the
humanitarian issues. Even though the issue of best interests of the non-Canadian
child may not fall within the officer’s mandate to consider, the issue was nevertheless
considered fully.
[11]
In
my view, it was open to the officer, on this record, to reach the decision
under review. The attempt to put forward evidence not before the officer is
neither permissible nor is the evidence of particular assistance to the
reasonableness of the officer’s conclusions.
IV. CONCLUSION
[12]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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