Date: 20081113
Docket: IMM-2249-08
Citation: 2008 FC 1262
Toronto, Ontario, November 13,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
RANA
ABDUL RAUF et al.
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are a family, father, mother and two children. The father, mother
and oldest child left Pakistan and went to the United
States where they resided for about nine years before coming to Canada. The
youngest child was born in the United States. All including the
youngest child are apparently citizens of Pakistan.
[2]
The
Applicants came to Canada and claimed refugee status on January 21,
2003. The claim was rejected by the Immigration and Refugee Board in a written
decision dated April 14, 2004. Leave to seek judicial review was denied.
[3]
The
Applicants made an application for exemption from the requirement to file an
application for permanent residence outside Canada on
humanitarian and compassionate grounds (H&C) in February 2005. In a
written decision dated March 28, 2008, a PRRA Officer decided that an exemption
would not be granted. This is a judicial review of that decision.
[4]
For
the Reasons that follow, I find that the application for judicial review is
dismissed.
[5]
The
adult Applicants are both of the Muslim faith however, he is Shi’a and she is
Sunni. This disparity has caused strife in each of their families, so much that
the Applicants allege that their lives are at risk. The evidence suggests that
some family members may have become reconciled to the marriage however it is
alleged that a risk to their lives remains.
[6]
The
Applicants seem to have become adjusted to life in North America, first in the United
States,
then in Canada. The elder child
was just two years old when he entered the United States. The younger
has never lived outside of North America. The reasons for leaving the United
States
and coming to Canada were not
clear on the Record. Dr. Pilowski, a psychologist who examined the Applicants,
states in a reporting letter that they did not apply for refugee status in the
United States as they were told that they would be returned to Pakistan. This is,
of course, hearsay- there is no direct evidence from the Applicants on this
point.
[7]
The
principal issue raised on behalf of the Applicants on this judicial review
relates to the Officer’s findings in respect to the children and as to whether
they would face undeserved and disproportionate hardship. The Applicants’
counsel asserts that the Officer erred in three ways:
a)
Finding
that the children would have the support of their parents to adjust to life in
Pakistan, while noting that their parents were diagnosed with depression and
post-traumatic stress disorder, but failing to mention that their psychologist
indicated that would likely suffer from breakdown if ordered to return to
Pakistan.
b)
Finding
that the fact that these children been able to adjust to the move from Queens,
New York to Montreal and then to Mississauga, was somehow an indication that
they would be able to cope with the transition from a multi-cultural, diverse
and tolerant western society, to Sialkot, Pakistan.
c)
Finding
that the children were responsible in some way for the fact that they have
remained in Canada in the fact of a valid removal
Order, and have become established here, and therefore are responsible for the
degree of establishment that has occurred since the removal Order became
operative.
[8]
The
plight of the children was the main focus of the Applicants’ argument. The
Officer in deciding the H&C application said at the penultimate page of the
decision, in respect of the children:
The PA’s children are enrolled
in school and according to reports are doing well. They are young and have
experienced a move in the past. The evidence before me does not inform that
they would be unadaptable at this state of their lives. Dr. Pilowsky writes
that Rana “…is afraid of leaving Canada because he had many friends here and he
also sees that his parents feel safe and happy”. Farheen loves living in Canada because “her parents feel
safe and generally happy”. No doubt it is difficult at any time for children
to move and leave their friends. However, the children have the benefit of
support from their parents and the evidence before me does not inform that the
children would be unable to forge new friendships in Pakistan. There is the possibility of
them acquainting themselves with their father’s family. Further, education and
health services would be available to the children. I have considered the best
interest of the children and the information submitted by the applicants in
that regard nonetheless, I find that relocating them to Pakistan would not be a hardship that
is unusual and undeserved or disappropriate.
[9]
The
Applicants argue that for the Officer to come to the conclusion that the
children would “have the benefit of support from their parents…” means
that the Officer must have ignored the conclusions of a psychologist who
examined the Applicants and opined in a written report dated August 24, 2006
which is of record:
“With regards to Mr. Rauf and
Ms. Rana, I am of the opinion that they would most likely suffer a
psychological breakdown if ordered to return to Pakistan…”
[10]
Applicants
counsel argues hat if the parents would most likely suffer a psychological
breakdown, they would be unable to provide the “support” upon which the
officer relied in the decision. Therefore, Applicants counsel argues, the
decision is unreasonable.
[11]
Respondent’s
counsel argues that the psychologist’s report does not go so far as to say that
if the Applicants’ parents suffered a breakdown then they would be unable to
provide adequate support for the children. The result of one to the other has
not been established in the evidence. Further, counsel argues, that while
parental support is a factor upon which the Officer relied in coming to the
decision at issue, there were a number of other factors enumerated as well.
[12]
The
granting of a dispensation under humanitarian and compassionate grounds
(H&C) is a highly discretionary matter residing with the Minister and
administered by the Minister’s Officials. Considerable deference must be
accorded to these officers as stated by the Supreme Court of Canada in Baker
v. Canada (MCI), [1999] 2 S.C.R. 817 at paragraph 62.
[13]
Given
the considerable deference afforded to the Officers, and the standard against
which a decision such as this one is to be reviewed, which all parties agree is
reasonableness and given the instruction recently provided by the Supreme Court
of Canada in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 that in
reviewing a decision on the basis of reasonableness, considerable deference is
to be given to the decision maker, the decision of the Officer under review
here must be considered within the boundaries of reasonableness as described in
Dunsmuir.
[14]
Accordingly,
the application is dismissed. No party requested certification, the matter is
fact specific. There is no special reason to award costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1. The
application is dismissed;
2. There is no
question for certification;
3. There is no
order as to costs.
"Roger
T. Hughes"
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