Date: 20081007
Docket: IMM-506-08
Citation: 2008
FC 1128
Montréal, Quebec, October 7,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
KULJIT SINGH SABHARWAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant, a citizen of India, seeks judicial review of a refusal to grant an
exemption on humanitarian and compassionate (H&C) grounds from the
statutory requirement that he apply for permanent resident status from outside
Canada. That decision, dated January 17, 2008, was rendered by a pre-removal
risk assessment (PRRA) officer.
[2]
The
applicant had his refugee claim rejected on July 22, 2005 on the basis of a
lack of credibility. Leave for judicial review was dismissed on November 7,
2005. The application for an H&C waiver was filed in December 2005.
[3]
The
applicant submitted that applying for permanent residence from India would put him at risk of arbitrary
imprisonment and torture as a falsely accused supporter of militants and failed
refugee claimant. He also contended that it would cause him undue and
disproportionate hardship because he was established in Canada, as shown by his employment,
linguistic ability and the presence of his wife and father in Canada. He finally submitted that he
would be financially unable to support his family if required to apply from India because he would be unemployed.
Impugned decision
[4]
The PRRA
officer noted that the risks alleged by the applicant were identical to those
he had asserted before the RPD, and gave considerable weight to the Panel’s finding
that he was not credible. In light of the failure of the applicant to provide
evidence which would establish the contrary and the documentary evidence which
showed that failed asylum seekers were generally not at risk upon their return
to India, the officer found that no
waiver could be given on the basis of risk. The applicant does not contradict
these findings.
[5]
The
officer then turned to the question of undeserved or disproportionate hardship
based on the applicant’s personal situation and found that the written
representations wrongly asserted that he would be “un immigrant idéal”. The question was not whether an
applicant would be a “good” immigrant but whether the hardship he or she would
face having to apply for status from outside Canada would be unnecessarily undue. He
rejected the argument that the applicant would lose his job and found that he
had acquired transferable work experience and savings and did not provide
sufficient evidence to support a conclusion that he would not be gainfully
employed in India.
[6]
The
officer also noted that insufficient information had been provided to allow him
to assess the best interests of the applicant’s two minor children, both of
whom remain in India. He also noted that the
applicant’s wife is in Canada, but with no status. He
ascribed greater weight to the applicant’s family ties to India than those to Canada. As a result, the
officer found that the applicant would not face undue, undeserved or
disproportionate hardship if required to apply for permanent resident status
from outside Canada.
Issues
[7]
The
applicant contends that the officer failed to provide adequate reasons and
based his negative findings on speculation.
Standard of review
[8]
Reasons
must permit the person about whom the decision is taken and a reviewing Court
to understand the basis for that decision. This is a requirement of natural
justice and will result in the decision being vacated if found not to exist. Basing
a decision on speculation, for its part, is an error of fact as set out in
paragraph 18.1(4)(d) of the Federal Courts Act as it is a
decision not based on the evidence before the tribunal and is therefore
necessarily unreasonable.
Adequacy of reasons
[9]
The
applicant argues that since the PRRA officer did not state that he purposely
contributed to or otherwise prolonged his stay in Canada, one can conclude that his stay was
beyond his control. As such, that factor needed to be considered in the context
of his establishment. Further, he contends that the reasons of the PRRA officer
amount to nothing more than a recitation of the facts and a negative
conclusion, which is a reviewable error: Adu v. Canada (Minister of Citizenship and
Immigration),
2005 FC 565.
[10]
The
respondent counters that it is evident from reading the applicant’s submissions
and the officer’s notes on file that the PRRA officer adequately addressed
them. She notes in particular that the applicant’s stay in Canada after the rejection of his
claim for refugee status in 2005 resulted entirely from his own action. The
applicant has failed to rebut the presumption that the officer had considered
all of the evidence.
[11]
I would
note that the assessment of H&C considerations is governed by the
guidelines set out in section 11.2 of Chapter 5 of the Inland Processing Manual
(IP5). This section reads:
11.2 Assessing the applicant's degree
of establishment in Canada
The applicant's degree of establishment
in Canada may be a factor to consider
in certain situations, particularly when evaluating some case types such as:
- parents/grandparents not sponsored;
- separation of parents and children
(outside the family class);
- de facto family members;
- prolonged inability to leave Canada has led to establishment;
- family violence;
- former Canadian citizens; and
- other cases.
(emphasis added)
[12]
The
relevant language for the question of the length of time in which the applicant
has established him or herself in Canada
is whether they were able to leave the country during that time. There
is no evidence here that the applicant asserted to the officer that he was not
able to do so, and thus the officer’s failure to consider that as a factor of
his establishment was not an error. Likewise, the applicant’s contention
that the decision as a whole was inadequate as being simply a recitation of the
facts is unfounded. The officer explained why he gave little weight to certain
arguments and evidence provided by the applicant and thereby fulfilled the duty
to provide adequate reasons.
[13]
The
applicant also argues that the PRRA officer speculated about the best interests
of his children and thereby came to an erroneous decision. He notes that the
officer initially stated that he had not identified particular considerations
which would allow an assessment of the best interests of his minor sons, but
then asserted that it was in their best interest “to be reunited with at least
one parent as quickly as possible.” For this reason, the applicant claims that
the evaluation of the applicant’s family situation is unreasonable.
[14]
The
respondent counters that the officer did not speculate, but rather examined the
applicant’s family ties and came to the conclusion that those in Canada were insufficient to show
undue or disproportionate hardship. She further submits that the Court should
be guided by Owusu v. Canada (Minister of Citizenship and Immigration),
2004 FCA 38, where it was found that the best interests of children need not be
examined where references to those interests are oblique and cursory.
[15]
The Court
disagrees with the applicant that this was speculation on the part of the
officer. First, the point being made by the officer at that point of his
decision was that there was insufficient evidence to show that the applicant’s
family connections in Canada were strong enough to cause him undue, undeserved
or disproportionate hardship by requiring him to apply for permanent resident
status from outside the country as required by statute. Further, seeing that
the applicant’s spouse is in Canada without legal status and that
the children are left behind in India,
the officer only applies here a rule of common sense, when he states that it
would be in the best interest of the children “to be reunited with at least one
parent as quickly as possible”. This statement does not constitute speculation
on the part of the officer, and certainly does not constitute an error
justifying the intervention of this Court.
[16]
The
officer in the case currently under review found that there was insufficient ground
to justify the exercise of his discretion. The applicant was unable to show any
error in the officer’s reasoning and conclusion, justifying the intervention of
this Court.
[17]
For the
foregoing reasons, and seeing that the officer provided adequate reasons and
did not base his negative findings on speculation, the application for judicial
review will be dismissed. No questions were proposed for certification and none
arise on the facts of this case.
ORDER
THIS COURT ADJUDGES AND ORDERS
that the
application is dismissed. No questions are certified.
“Maurice
E. Lagacé”
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