Date: 20080724
Docket: IMM-166-08
Citation: 2008 FC 895
Ottawa,
Ontario, July 24, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SIMARJIT
KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of Pre-Removal Risk
Assessment Officer, G. Vlachos (the Officer), dated December 19, 2007, pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act), in which the Officer refused an exemption from the
permanent resident visa requirements on humanitarian and compassionate
(H&C) grounds.
ISSUES
[2]
One
issue is raised in the case at bar: did the Officer fail to provide adequate
reasons, or otherwise fail to address the grounds raised by the applicant, and
thereby err in concluding that the applicant would not suffer unusual,
undeserved or disproportionate hardship if required to apply for permanent
residence from outside Canada?
[3]
The
judicial review shall be dismissed for the following reasons.
FACTUAL BACKGROUND
[4]
The
applicant is a citizen of India, born on January 26, 1963. She arrived in Canada on November
3, 2000, and made a claim for refugee protection. The claim was denied on March
18, 2003 and her application for leave and judicial review was denied by
this Court on July 18, 2003. The applicant claimed refugee status following a
series of events that occurred between March 1997 and March 2000 in her native
country, India. Notably,
the applicant alleged that her husband was a member of Akali Dal Armistar, and
was arrested and tortured on three occasions. She also alleged that she was
arrested and beaten on one occasion. She approached a human rights
organization, and claimed that she was consequently arrested, beaten and raped
by police over a period of two days. The applicant subsequently discovered
that her husband was dead. The applicant’s claim was rejected on the grounds of
credibility.
[5]
The
applicant filed an H&C application in August 2005 based on the best interests
of the children, and her prolonged inability to leave Canada resulting in
establishment. The applicant is a widow and the mother of two children of 17
and 18 years of age, respectively. In her submissions to the Officer, she included
photocopies of two citizenship cards with the notation “relative”. The
applicant also indicated that she volunteered at the local Sikh temple. She has
been employed since her arrival and has paid her bills. Further, she has
amassed ten thousand dollars in savings. Since coming to Canada, she has
sent money to India to support her family members there, which she claims she
would be unable to do if she were employed in India.
[6]
The
applicant provided updated submissions for the H&C application on October
22, 2007 and identity documents on November 14, 2007. The identity documents
provided include a photocopy of the applicant’s birth certificate, dated
January 10, 2002, a family ration card issued in January 1998, and an election
card issued on January 18, 2001.
DECISION UNDER REVIEW
[7]
The
Officer rejected the applicant’s H&C application, concluding that she had
not demonstrated that she would face unusual, undeserved or disproportionate
hardship if required to apply for permanent residence from outside of Canada. In coming
to this decision, the Officer considered the applicant’s identity, the risk to
the applicant upon return, the applicant’s personal situation (establishment),
and the best interests of the children.
[8]
The
Officer determined that the applicant failed to establish her identity. The
determination was supported by the following reasons:
a) The Officer
noted that the Immigration and Refugee Board (IRB) accepted the applicant’s
birth certificate as an acceptable identity document. However, the Officer mentioned
that the applicant did not submit her birth certificate when it was requested
on April 21, 2005 by Canada Border Services Agency. The document was requested a
second time; the applicant explained that it must be with the IRB file, but the
Officer noted that no efforts were made to retrieve the document.
b) A request was
made for the applicant to produce a passport. The applicant explained that she
was refused service by the India High Commission in Ottawa because she
made a claim for refugee status. Further, she explained that the High
Commission had refused to give her a refusal letter.
c) The Officer
considered the identity documents submitted following the final request. One
was an Indian electoral card. The Officer determined that this document was not
genuine based on the fact that it was printed on the wrong colour and quality
of paper; that it was the wrong size, of poor quality and issued
following the applicant’s arrival in Canada.
d) The Officer
also considered the applicant’s ration card, which she mentioned was of
poor quality and easily able to be altered. She noted that a translation, dated
November 5, 2005, was included with the submissions. Because the translation
predated the submission of the document by two years, the Officer considered
that the applicant withheld the document for that period of time in order to
avoid removal.
e) The Officer wrote
that the applicant appeared to be much older than the age indicated by her
identity documentation. The Officer considered a psychological report which
stated a similar observation.
[9]
The
Officer concluded that the risk that the applicant would face if returned would
not amount to undue hardship for the following reasons:
a) The Officer
considered that the evidence provided by the applicant in support of the
allegations of risk before the IRB was found not to be credible.
b) The Officer
noted that the applicant did not make any specific claims of risk in her
H&C application, nor did she submit any evidence that would support her
allegation of risk. The Officer therefore determined that she did not have any
evidence which would allow her to come to a different conclusion than that of
the IRB.
c) Finally, the
Officer considered the country conditions in India, and
determined that no change was indicated by the documentary evidence that would
warrant a positive decision.
[10]
The
Officer concluded that the applicant’s personal situation did not reflect
sufficient establishment to warrant an exemption on H&C grounds. She relied
on the following elements :
a) The Officer
noted contradictions in the length of time the applicant claimed to have been
employed. In her 2005 submissions, the applicant stated that she had been
working at C.M. Finition from November 2000 until November 2003, and again from
November 2004 until May 2004. In her 2007 submission, she stated that she was
unemployed from her date of entry into Canada until April
2003, and was employed from May 2003 to May 2004. A letter from C.M. Finition
dated June 4, 2004 indicated that the applicant began employment on April 12,
2004. The Officer noted that no explanation was provided for the
contradictions.
b) The Officer
noted that the tax assessments filed for 2000 and 2002 bore the name of
Jaswinder Singh, and not the applicant. The Officer drew a negative inference
from this discrepancy and as well as the discrepancies related to the dates of
employment.
c) The Officer
considered the applicant’s submission that she made many new friends through
work and her community life. She noted the applicant’s good financial planning,
and the fact that she amassed ten thousand dollars in savings. The Officer
considered that the applicant would have less earning power in India, but
determined that her work skills and financial management skills would be
transferable.
d) The Officer
determined that the applicant had not demonstrated that she had personal
attachments in Canada that would cause hardship if severed. The
Officer noted in her review of the facts, that though the applicant submitted
copies of two citizenship cards which she indicated belonged to relatives, no
indication was made as to how these people were related to her.
[11]
The
Officer determined that it was in the best interests of the children to have
their mother with them in India, and as such the best interests of the
children was not a positive factor in the assessment of the H&C
application:
a) The Officer
noted that the applicant sent financial support to her children in India. However,
the Officer also considered the fact that the applicant’s son and daughter were
17 and 18 years of age respectively, as well as the fact that no identity
documents were submitted for them. The Officer determined that only the
applicant’s reduced income would negatively affect the children. However, given
the applicant’s savings and the fact that the children are almost of age to
contribute financially, the Officer concluded that the best interests of the
children did not constitute a positive factor.
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 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).
Did the Officer fail to
provide adequate reasons, or otherwise fail to address the grounds raised?
[15]
The
applicant raises four arguments. First, the applicant submits that the
Officer erred by considering the applicant’s identity after recognizing
that the IRB concluded that identity was established. The applicant further
submits that the Officer erred by discounting the applicant’s explanation that
the embassy would not provide her with a passport.
[16]
I
cannot accept this argument. It was open to the Officer to note the applicant’s
failure to produce the requested documents. While the Officer may consider what
happened before the IRB, she was certainly not bound by the decision or any
conclusions therein. Further, it is my opinion that the Officer’s determination
that the applicant failed to establish her identity was not determinative of
the claim; in the event that the Officer erred by examining the applicant’s
identity, the error would be immaterial.
[17]
Second,
the applicant argues that the Officer wrongly considered the risk faced by the
applicant, since she did not raise risk in her H&C application.
[18]
The
Officer’s review of the risk which the applicant might face upon return as a
factor in her H&C application does not constitute an error. To the
contrary, it demonstrates that the Officer conducted a careful assessment of
the application. The H&C application made pursuant to section 25 of the Act
provides for exceptional relief from the requirements of the Act, and constitutes
a discretionary decision. In the context of the legislative scheme, the Officer
may examine all factors which are deemed to be relevant to the file. The
Officer’s examination of risk in the case at bar is no exception.
[19]
Third,
the applicant alleges that the Officer erred in her assessment of the facts
relating to the applicant’s personal situation and establishment, and that the
Officer did not mention in her decision that the applicant was a widow with
only five years of education. Notably, she points to the fact that the Officer
did not take into consideration the length of her stay in Canada as a
positive factor. Further, the applicant disagrees with the Officer’s
conclusion as to her ability to find work and save money in India.
[20]
The
arguments raised by the applicant demonstrate a disagreement with the
conclusions of the Officer; the applicant asks the Court to intervene by
reweighing the evidence. Weighing the evidence is a task which falls squarely
within the purview of the Officer, and is not the role of the Court unless
reviewable errors are demonstrated. The Officer provided clear and cogent
reasons for her determination with regard to the establishment of the
applicant, and the decision clearly falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law. The
date of arrival is clearly indicated in the section of the decision entitled
Immigration Information, and again under Case Summary. In combination with the
Officer’s reasons addressing the degree of establishment, it was not necessary
for her to explicitly address the length of the applicant’s stay in Canada.
[21]
Finally,
the applicant submits that the officer’s general statement that the applicant
would not suffer undue hardship is not supported by the evidence, and the
lack of reasons warrants the review of the decision.
[22]
I
do not agree. The Officer clearly addressed the relevant factors in making her
determination. The applicant has failed to point to any evidence that relevant
H&C factors were not addressed in the decision. As a whole, the decision
was justified, intelligible and transparent.
[23]
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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