Docket:
IMM-1502-13
Citation: 2013 FC 1075
Ottawa, Ontario,
October 24, 2013
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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SINGH, AMAN (A.K.A. AMANJOT KOONER)
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Applicant
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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
I. Overview
[1]
Fraud is fraud and misrepresentation is
misrepresentation. The Applicant is the recipient of his parents’ acts as well
as his very own in respect of illegal acts to Canada’s immigration legislation
(reference is made to the Federal Court of Appeal decision, penned by Justice
Robert Décary, in Canada (Minister of Citizenship and Immigration) v Legault,
2002 FCA 125, [2002] 4 FC 358).
II. Introduction
[2]
The Applicant seeks a judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision of an Immigration Officer, dated November 6,
2012, refusing the Applicant’s application for permanent residence on
humanitarian and compassionate grounds [H&C] pursuant to section 25 of the IRPA.
II. Background
[3]
The Applicant, Mr. Amanjot Kooner, is a citizen
of India, born in Jalandhar in 1986.
[4]
The Applicant arrived to Canada with his parents
on June 23, 2000. On July 8, 2000, both of his parents made refugee claims
using false identities, presenting themselves as widowers. They also sought
refugee status for the Applicant under the name “Aman Singh”.
[5]
On May 23, 2001, the Applicant and his mother
were granted refugee status. Two years later, the Applicant’s father’s refugee
claim was refused.
[6]
The Applicant’s mother proceeded to marry his
father in a fictitious wedding ceremony in order to sponsor him.
[7]
In 2003, an anonymous letter was submitted to
Immigration Canada revealing the family’s true story. Immigration Canada began
an investigation.
[8]
In 2007, the Applicant was confronted by
immigration authorities regarding his family’s immigration scheme.
[9]
On October 18, 2010, the Applicant and his
mother’s refugee status were vacated by the Refugee Protection Division of the
Immigration and Refugee Board, thereby nullifying their permanent resident
status. The Applicant’s mother’s sponsorship application for his father was
consequently refused.
[10]
On March 2, 2011, the Applicant filed his
H&C application.
[11]
On January 18, 2012, the Applicant filed an
application for a Pre-Removal Risk Assessment [PRRA].
[12]
On March 3, 2012, the Applicant married a
Canadian citizen named Navdeep Saini. It is noted by the Court that a letter
appears in the file emanating from a Ms. Sonia Archambault which specified that
the Applicant started dating her on January 23, 2011. Interestingly, however,
as part of his H&C application, the Applicant, himself, submitted this
letter, dated three days later (January 26, 2011), from this woman,
Ms. Sonia Archambault, which states that she and the Applicant are in a
loving and happy relationship, and are planning to get together in the near
future.
[13]
On November 6, 2012, the Officer refused the
Applicant’s H&C and PRRA applications.
III. Decision
under Review
[14]
In her decision, the Officer assessed the
allegations raised by the Applicant regarding his establishment in Canada and
the hardship he would face if returned to his country of origin.
[15]
With regard to his establishment, the Officer
recognized that the Applicant had demonstrated a considerable degree of social
and economic establishment in Canada; however, the Officer found that these
factors alone could not constitute sufficient H&C grounds to merit an
exemption of the requirements of the IRPA. The Officer noted that the
Applicant’s establishment had been acquired entirely under false pretences.
This was a significant factor that the Officer determined seriously negated the
degree of establishment of the Applicant in Canada.
[16]
The Officer also concluded that the Applicant
had not provided any evidence to demonstrate that he would suffer unusual and
undeserved or disproportionate hardship if required to return to India. She
noted that relocation and severing ties with family and employment was a
hardship faced by many people forced to leave Canada, and was not unusual and
undeserved or disproportionate, in and of itself.
[17]
The Officer also found that there was
insufficient evidence on file to determine how the adverse conditions in the
Applicant’s country of origin would cause him unusual and underserved or
disproportionate hardship.
[18]
Based on these factors, the Officer rejected the
Applicant’s H&C application.
IV. Issues
[19]
(1) Did the Officer fail to properly assess the
Applicant’s establishment in Canada?
(2) Did the Officer err in assessing the hardship the
Applicant would face if returned to India?
V. Relevant
Legislative Provisions
[20]
The following legislative provision of the IRPA
is relevant:
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25. (1)
Subject to subsection (1.2), the Minister must, on request of a foreign
national in Canada who applies for permanent resident status and who is
inadmissible — other than under section 34, 35 or 37 — or who does not meet
the requirements of this Act, and may, on request of a foreign national
outside Canada — other than a foreign national who is inadmissible under
section 34, 35 or 37 — who applies for a permanent resident visa, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
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25. (1)
Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger
se trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire — sauf si c’est en raison d’un cas visé aux
articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit
de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de
résident permanent, étudier le cas de cet étranger; il peut lui octroyer le
statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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VI. Position of the Parties
[21]
The Applicant submits that the Officer did not
give enough weight to the presence of his spouse and sponsorship application in
Canada, his degree of establishment and the disproportionate hardship he would
face upon removal. The Applicant also submits that the Officer gave excessive
importance to his misrepresentation, which he contends he should not be held
responsible for as he was a minor at the time he arrived to Canada.
[22]
The Respondent submits that the Applicant’s arguments
merely reflect his disagreement with the Officer’s assessment of his
establishment in Canada and does not demonstrate that the Officer’s decision is
unreasonable.
[23]
The Respondent affirms that the Officer took into
account the positive establishment factors of the Applicant, but when balanced
with other factors, did not justify granting him an exemption to the law.
[24]
The Respondent also submits that the Officer reasonably
concluded that the country conditions in India would not be unusual and
undeserved or disproportionate in the Applicant’s particular circumstances. The
Applicant provided no evidence to demonstrate how he would be personally
affected by the adverse conditions in India. Moreover, the Respondent notes
that the Applicant would be returning to India with valid travel documents and
he did not have the profile of a person who would typically be at risk of harm
upon re-entry.
VIII. Analysis
Standard of Review
[25]
The standard of review applicable to a decision
relating to an H&C application is that of reasonableness (Ramirez
v Canada (Minister of Citizenship and Immigration), 2006 FC 1404, 304 FTR
136; Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA
189, [2010] 1 FCR 360).
[26]
A heavy burden rests on an applicant to satisfy the
Court that a decision under section 25 requires its intervention (Mikhno v
Canada (Minister of Citizenship and Immigration), 2010 FC 386; Cuthbert
v Canada (Minister of Citizenship and Immigration), 2012 FC 470, 408 FTR
173).
(1)
Did the Officer fail to properly assess the Applicant’s establishment in
Canada?
[27]
The Court is of the view that the Officer's assessment
of the Applicant's establishment is reasonable. The Officer considered all of
the positive factors of the Applicant's H&C application, including his
establishment; however, these factors were simply found to be insufficient to
outweigh the significant negative factor of the Applicant's misrepresentation
with regard to his identity. The Applicant in this case, as in the case of Moore v Canada (Minister of Citizenship and Immigration), 2011 FC 550, did
not come to the Court with clean hands. He and his parents used a false
identity to support their refugee claim when they arrived in Canada. The Applicant’s
real identity has still not been clearly or definitively established by
Canadian authorities.
[28]
As stated in Moore, above, an applicant's
misrepresentation on a central element such as identity can be taken into
account by an officer when rendering a decision. This position has been
reaffirmed by this Court in a number of decisions, including Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, 309 DLR (4th) 411 (at
para 64), Ebebe v Canada (Minister of Citizenship and Immigration), 2009
FC 936 (at para 21) and Legault, above. In Legault, Justice Décary summarized the law on this point:
[19] In short,
the Immigration Act and the Canadian immigration policy are
founded on the idea that whoever comes to Canada with the intention of settling
must be of good faith and comply to the letter with the requirements both in
form and substance of the Act. Whoever enters Canada illegally contributes
to falsifying the immigration plan and policy and gives himself priority over
those who do respect the requirements of the Act. The Minister, who is
responsible for the application of the policy and the Act, is definitely
authorised to refuse the exception requested by a person who has established
the existence of humanitarian and compassionate grounds, if he believes, for
example, that the circumstances surrounding his entry and stay in Canada
discredit him or create a precedent susceptible of encouraging illegal entry in
Canada. … [Emphasis added].
[29]
In Shallow v Canada (Minister of Citizenship and
Immigration), 2012 FC 749, 410 FTR 314 this Court further found:
[8] ... merely
managing to evade deportation for a lengthy period of time through various
procedures and protections available through the immigration process ought
not to enhance an applicant’s “right” to remain in Canada on H&C grounds.
In this case, the Applicants’ stay in Canada was of their own choosing. They
could have returned to St. Vincent at any time and chose not to.
[9] For this
factor [establishment] to weigh in favour of an applicant, much more than
simple residence in Canada must be demonstrated. And, it must always be
remembered that the focus is on the hardship to the Applicants on
applying for permanent residence from their country of origin as is required by
s. 11 of the Immigration and Refugee Protection Act, SC 2001, c 27. 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.
On this question, the Officer did not err. [Emphasis added].
[30]
Contrary to the Applicant's position, the Officer was
entitled to give little or no weight to the Applicant's degree of establishment
in Canada as he misrepresented himself to gain entry in order to remain in
Canada.
[31]
It is important to note that, although the Applicant
was a minor (age 13) when he first arrived to Canada, he continued to mislead
Canadian authorities well into his adulthood. The Court cannot accept the
Applicant's argument that his decision to remain in Canada illegally was exceptional
and not of his own choosing simply because his entry into Canada was
orchestrated by his parents in his youth. Once the Applicant reached the age of
majority, the decision to remain illegally in Canada became reasonably within
his control. The Applicant chose to continue living in Canada, knowing he
was without legal status. There is no evidence that he has taken any steps to
rectify this situation (Certified Tribunal Record [CTR] at p 7).
[32]
The Court, therefore, finds that the Officer's decision
to give more weight to the Applicant’s misrepresentation over other elements
was completely reasonable. Her reasons were transparent, justifiable and
intelligible and well within the range of acceptable outcomes based on the
limited evidence before her. It is not for this Court to re-weigh that evidence
simply because the Applicant is unsatisfied with the weight that was given to
it (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration)
(1998), 157 FTR 35).
[33]
The Court agrees with the Applicant that establishment
is an important factor that must be considered in an H&C application;
however, it is not the determining factor, nor does it outweigh all other
factors (Irimie v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 1906 at para 20 (QL/Lexis) (Fed TD)).
(2)
Did the Officer err in assessing the hardship the Applicant would face if
returned to India?
[34]
Section 25 of the IRPA is an exceptional provision.
It allows an exemption only where an applicant can prove that he or she would
face unusual and undeserved or disproportionate hardship if he or she was
required to file an application for permanent residence from his or her country
of origin. In the H&C context, it is the applicant who has the burden of
providing evidence to establish such hardship.
[35]
In the present case, there is no doubt that the refusal
of the Applicant’s H&C application will cause him some degree of hardship;
however, given the circumstances of the Applicant’s presence in Canada and the
limited evidence provided regarding the hardship he would endure if returned to
India, the Court does not find that the Officer erred in determining that his
removal from Canada would not cause unusual and undeserved or disproportionate
hardship.
[36]
A stated in Irimie, above, it must be remembered
that the H&C process is not designed to eliminate all hardship; it
is designed to provide relief from unusual and undeserved or
disproportionate hardship. This Court has repeatedly declared that leaving
behind friends, family, employment or a residence is not necessarily enough to
justify the exercise of discretion by an officer (Irimie, above, at para
12; reference is also made to Mayburov v Canada (Minister of Citizenship and
Immigration) (2000), 183 FTR 280, [2000] FCJ No 953 (QL/Lexis) (FCTD)).
[37]
Based on the evidence before her, the Officer acted
reasonably in concluding that the Applicant’s situation was no different than
that which is inherent of being asked to leave one’s environment after a long
period of time. The Officer recognized that the Applicant would be leaving
behind his loved ones and his employment; however, she did not consider these
circumstances would bring hardship that would be enough to justify the exercise
of her discretion. The Applicant provided no evidence to demonstrate how his
personal circumstances would lead to such hardship.
[38]
The Court also finds that the Officer reasonably
concluded that the Applicant would not suffer unusual and undeserved or
disproportionate hardship in India. Again, the onus was on the Applicant to
substantiate his allegations with respect to the hardship he would personally
face and to demonstrate how the country’s conditions would cause such hardship.
Without any evidence allowing her to “gauge the conditions that exist in India
and their possible and particular impact on [the Applicant]” (CTR at p
8) [emphasis added], the Officer could not be expected to identify an unusual
or disproportionate hardship in the Applicant’s circumstance.
[39]
Contrary to the Applicant's allegation on this point,
the Officer did use the correct standard to assess the Applicant’s hardship.
This Court has previously addressed similar allegations in the context of an
H&C application in Webb v Canada (Minister of Citizenship and
Immigration), 2012 FC 1060, 417 FTR 306 and found:
[17] … A
determination of disproportionate hardship requires the evaluation of personal
circumstances. The officer was simply not convinced that the general
conditions of St. Vincent and the Grenadines would constitute unusual and
undeserved or disproportionate hardship. That was a finding reasonably open
to the officer on the evidence. She found that the applicant produced insufficient
evidence that he would be personally affected by the conditions. This does
not demonstrate that the officer applied the incorrect test. [Emphasis added].
(Reference is also
made to Tarafder v Canada (Minister of Citizenship and Immigration),
2013 FC 817)
[40]
In the present case, it is clear that the Officer
carefully examined the documentary evidence on the general conditions in India;
she found that it had human rights problems, widespread corruption and
impunity, an overburdened judiciary and continuing military insurgency; however,
due to a lack of evidence, the Officer could not satisfy herself that these
conditions applied to the Applicant personally or that the hardship relating to
the country conditions would be unusual and underserved or disproportionate in
his particular circumstances (CTR at p 8).
[41]
In light of the foregoing, the Court finds that the
Officer did not commit a reviewable error. The hardship resulting from
prospective risk in India was appropriately dealt with by the Officer and
supported by the evidence. The Applicant did not raise any substantive
arguments as to how the country conditions in India would cause him personally
unusual and undeserved or disproportionate hardship.
VII. Conclusion
[42]
For all of the above reasons, the Applicant’s
application for judicial review is dismissed.
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