Date: 20130410
Docket: IMM-6148-12
Citation: 2013 FC 356
Ottawa, Ontario, April 10, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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SOHAIL
NADEEN REHMAT DIN, PAKEEZA SOHAIL NADEEM, MARHAMAH SOHAIL, MOHAMMAD UMAIR
SOHAIL AND MOMENA SOHAIL, by their litigation guardian SOHAIL NADEEN REHMAT
DIN
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Applicants
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The Applicants – the Male Applicant, his wife (the Female
Applicant) and three children – are citizens of Pakistan who came to Canada in 2005 after residing in the United Arab Emirates (UAE) for many years. Once in Canada, the family claimed refugee protection on the basis that they feared being the subject of
honour killings in Pakistan. In a decision dated June 27, 2008 (the RPD
decision), the claim was rejected on multiple grounds, including a negative
credibility finding that “the incidents, as described, never occurred”. The
Federal Court dismissed an application for leave to judicially review this
decision. A negative pre-removal risk assessment (PRRA) decision was made in
February 2010.
[2]
The Applicants filed an in-Canada application for permanent
residence on humanitarian and compassionate grounds in September 2009. In a
decision dated May 24, 2012 (the H&C Decision), a Senior Immigration
Officer (Officer) determined that the H&C factors did not warrant an
exemption from the usual requirement to apply from outside Canada. The Applicants seek to overturn the H&C Decision.
[3]
The Applicants assert that the Officer erred by:
1.
failing to be alive, alert and sensitive to the best
interests of the three minor Applicant children;
2.
failing to reasonably assess the Applicants’ establishment
in Canada; and
3.
failing to reasonably assess the hardship to the Applicants
in Pakistan.
[4]
For the following reasons, the Court’s intervention is not
warranted.
Standard of Review
[5]
Reasonableness is the standard of review in the context of
a discretionary H&C determination (Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at para 18, [2010] 1 FCR 360).
As stated in Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47,
[2008] 1 S.C.R. 190 [Dunsmuir], “reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process”. A court must also consider “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir, above at para 47).
Best Interests of the Children
[6]
In assessing an H&C application under s. 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), an officer must
be “alert, alive and sensitive” to the best interests of children directly
affected (see, for example, Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para 75, 174 DLR (4th) 193; Legault v
Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para 12,
212 DLR (4th) 139).
[7]
The Applicants argue that the Officer failed in his
assessment of the best interests of the Applicant children. I do not agree.
[8]
Although the words used by the Officer may not be ideal,
the Officer reasonably considered the children’s circumstances in the context
of submissions provided. To refrain from elevating form over substance, it is
necessary to take into account the context of the Officer's decision.
[9]
Firstly, the Officer considered what was in the
children’s best interests, addressing their educational achievements, one child’s
particular cognitive delay, the children’s exposure to their Pakistani heritage
and the residence of extended family in Pakistan.
[10]
Although the Officer commented on the ability
of the children to cope with change, the children’s best interests were not measured
against this standard. Instead, upon reading the decision as a whole, I am
satisfied that the Officer evaluated the extent to which the children’s
interests would be compromised by removal. I find it relevant
that the Officer did not employ language of
“undue hardship” or “basic amenities”, which demonstrated
the use of an improper standard in Williams v
Canada (Minister of Citizenship and Immigration), 2012 FC 166 at paragraphs 63-66, [2012] FCJ No 184 and Sebbe v Canada (Minister of Citizenship and Immigration),
2012 FC 813 at paragraphs 15-16, 10 Imm LR (4th) 321.
[11]
Secondly, the decision must be viewed in the context of
the submissions before the Officer. The onus is on the Applicants to include
pertinent information about children and to explain the effect of particular
circumstances on them (Owusu v Canada (Minister of Citizenship and
Immigration), 2004 FCA 38 at para 8, [2004] 2 FCR 635). Applicants omit
relevant information from their written submissions “at their peril”.
[12]
The submissions in the present case were brief and general,
focused on the establishment of the children and the family in Canada. The Applicants did not draw the Officer’s attention to certain issues raised on
judicial review, including particular economic difficulties, danger to children
and educational challenges for girls in Pakistan. The Applicants also failed to
provide evidence about ongoing treatment for the child with a diagnosed
cognitive delay.
[13]
The Officer observed that the best interests to have an
education and the support of one’s parents are general concerns that would
apply to all children upon removal. It was open to the Officer to conclude that
the Applicants did not specify how the children’s interests would be
compromised beyond this extent.
[14]
In sum, the Officer’s analysis of the best interests of the
children demonstrates the justification, transparency and intelligibility
necessary. The Officer did not fail to consider what was in the children’s best
interests and did not employ an artificially low standard to minimize those
interests.
Establishment
[15]
One of the factors to be assessed by an officer, in
reviewing an H&C application, is the degree to which the applicants are
established in Canada. The Applicants assert that, given the length of time
spent and activities in Canada, the analysis of establishment is unreasonable.
However, in my view, the Officer’s decision is supportable.
[16]
I agree with the Applicants that it is an error to minimize
an applicant’s establishment in a way that does not reflect an applicant’s
particular circumstances (see, for example, Jamrich v Canada (Minister of
Citizenship and Immigration), 2003 FCT 804 at para 29, [2003] FCJ
No 1076; Raudales v Canada (Minister of Citizenship and Immigration),
2003 FCT 385 at paras 18‑19, [2003] FCJ No 532).
[17]
However, in this case, the Officer reasonably analyzed all
of the evidence submitted by the Applicants with respect to their establishment
in Canada.
[18]
Citing Justice de Montigny’s remarks in Serda v Canada
(Minister of Citizenship and Immigration), 2006 FC 356 at paragraph 21,
[2006] FCJ No 425, the Officer found it significant that the Applicants failed
to leave Canada when their removal orders came into effect. At this point, the
decision to remain in Canada was reasonably within the control of the
Applicants.
[19]
As stated in Shallow v Canada (Minister of Citizenship
and Immigration), 2012 FC 749 at paragraph 9, [2012] FCJ No 745:
Unless the establishment in Canada is both exceptional in nature and not of the applicant's own choosing, this will not
normally be a factor that weighs in favour of the applicants. At best, this
factor will usually be neutral.
[20]
Therefore, the Officer did not minimize the establishment
of the Applicants or form findings that are contrary to their personal
circumstances. The analysis of establishment is reasonable.
Hardship in Pakistan
[21]
In reviewing an H&C application, an officer must
consider the hardship to an applicant in his home country.
[22]
The key element of the submissions of the Applicants was a
reassertion of the risk of honour killing disbelieved by the RPD.
[23]
In addressing this risk, the Officer acknowledged that the
test under s. 96 and s. 97 of the IRPA is different than the standard of
unusual and undeserved or disproportionate hardship for H&C applications.
Nonetheless, the letter and documentary evidence submitted by the Applicants
were insufficient to overcome the RPD’s credibility finding. Further, the
Applicants had not addressed the internal flight alternative proposed by the
RPD.
[24]
The Officer also concluded that the skills, training and
experiences of the Applicants in Canada and other countries would be
transferable upon return to Pakistan.
[25]
The Applicants take issue with three aspects of the
Officer’s analysis: economic hardship; violence and security matters; and
psychological hardship.
Economic Hardship
[26]
The Officer’s finding that the Applicants would not suffer
economic hardship was reasonable. Given the work experiences of the Male and
Female Applicants, it was reasonable for the Officer to find that the adult
Applicants have transferable skills for employment in Pakistan. This finding was not speculative or contrary to the evidence.
Violence and Security Issues
[27]
As stated in Owusu v Canada (Minister of Citizenship and
Immigration), 2003 FCT 94 at paragraphs 11-12, [2003] 3 FC 172, it is the
responsibility of the Applicants to bring all relevant H&C considerations
to the Officer’s attention. The risks of gender-based violence and poor
security conditions asserted by the Applicants on judicial review were not
drawn to the Officer’s attention in the written submissions of the Applicants.
These submissions only describe risk of honour crimes, which was fully
canvassed by the Officer. The Officer’s analysis does not demonstrate a
reviewable error on this ground.
Psychological Hardship
[28]
As part of their H&C application, the Applicants
obtained the opinion of a psychiatrist. The report concluded that:
it will be inhumane and indeed
disastrous to condemn this family to return to Pakistan where all indications
are that their lives will be highly unstable and that even their physical
safety will continuously be threatened, quite apart from the emotional havoc
that would play on all members of the family.
[29]
The Officer did not ignore but assigned little weight to
the report.
[30]
It is the role of the officer to evaluate medical reports
and assign weight to them. If the officer’s observations of reported treatment
are accurate and expert evidence is not rejected without basis, then the
analysis is reasonable.
[31]
In this case, the Officer had a reasonable basis for
assigning less weight to the psychiatrist’s report. The report included
information about the doctor’s own personal experiences in Pakistan. The report also relied, at least in part, on the Applicants’ self-assessment,
which was relevant in the context of the credibility finding of the RPD.
Further, the report did not recommend further treatment for depression and
anxiety, and the Applicants failed to provide evidence that any further
treatment was sought.
[32]
The cases cited by the Applicants are distinguishable. Romiluyi
v Canada (Minister of Citizenship and Immigration), 2006 FC 1194 at
paragraph 5, [2006] FCJ No 1500 relates to the formation of a global adverse
credibility finding in the context of a refugee claim. In Mile v Canada (Minister of Citizenship and Immigration), 2005 FC 1450 at paragraph 22, [2005]
FCJ No 1450 the medical report was rejected solely because it was
self-serving. By contrast, in this case, the medical report was rejected on
three other grounds noted above.
[33]
In sum, there is no reviewable error with respect to the
analysis of the psychiatric report.
Conclusion
[34]
In conclusion, I am not persuaded that the decision of the
Officer is unreasonable. While I might have weighed the evidence differently, I
am satisfied that the decision, as a whole, falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above at para 47).
[35]
Neither party proposes a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith
A. Snider”
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