Docket: IMM-4248-13
Citation:
2015 FC 362
Ottawa, Ontario, March 20, 2015
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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DILARA MOMTAZ, ISRAT JAHAN, NAGIA FARHA, NAFISA MOSTAFA
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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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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the
decision of a senior immigration officer [Officer], dated May 10, 2013
[Decision], which rejected the Applicants’ application for permanent residence
from within Canada on humanitarian and compassionate [H&C] grounds.
II.
BACKGROUND
[2]
The Applicants are a mother [Principal
Applicant] and her three daughters who are sixteen [Minor Applicant], twenty-five,
and twenty-seven years old. The Applicants are citizens of Bangladesh.
[3]
The Applicants arrived in Canada and sought refugee protection in December 2009. The Applicants claimed that they were
subjected to threats and attacks at the hands of the oldest daughter’s ex-fiancé. The Principal Applicant says that after a celebration of the
engagement, she learned that the man was the leader of a terrorist organization.
She rescinded the marriage arrangement which resulted in harassment and attacks
from the man and his terrorist associates. The Applicants say that they went to
the police but did not receive any assistance.
[4]
In December 2011, the Refugee Protection
Division of the Immigration and Refugee Board [RPD] rejected the Applicants’
claim due to a lack of credibility. The RPD found a number of inconsistencies,
discrepancies and contradictions in the Applicants’ evidence. The RPD also
found a lack of a well-founded fear on the basis that the Applicants had travelled
to a number of different countries, and had returned to Bangladesh each time, during the period when they claimed they were being harassed and
attacked. The RPD also found it implausible that the ex-fiancé was associated with the terrorist group. The Applicants were denied
leave for judicial review of the RPD decision in April 2012.
[5]
In February 2012, the Applicants submitted an
H&C application. They claim that they will experience hardship if they are
required to apply for permanent residence outside of Canada based on: their
continued fear of the ex-fiancé and his terrorist associates; adverse country
conditions in Bangladesh; the severance of close personal and familial ties in Canada; and, the best interests of the Minor Applicant.
III.
DECISION UNDER REVIEW
[6]
The Applicants’ H&C application was rejected
on May 10, 2013.
[7]
The Officer stated that the factors considered
in the application included: adverse country conditions in Bangladesh; the Applicants’ establishment in Canada; hardship from severing personal ties; and, the
best interests of the child [BIOC]. The Officer said that the risks of ss. 96
and 97 harm that the Applicants had raised could not properly be considered in
an H&C decision.
[8]
The Officer noted that the Applicants had the
burden of establishing that their personal circumstances would result in
unusual, undeserved or disproportionate hardship if they were required to apply
for permanent resident visas from outside of Canada. The Officer defined unusual
or undeserved hardship as that which was not anticipated by the legislative
scheme or which was beyond the Applicants’ control. The Officer defined
disproportionate hardship as that which would have a disproportionate impact on
the Applicants because of their personal circumstances.
[9]
The Applicants claimed that they would face
discrimination in Bangladesh and would not receive state protection. The
Officer acknowledged that there was evidence that women are socially and
economically disadvantaged in Bangladesh. There was also evidence that legal
and political advances were being made to improve the situation for women in Bangladesh. In addition, the number of women in the work force in Bangladesh continues to increase. The Officer concluded that the Applicants had not
established that undue, undeserved or disproportionate hardship would arise
upon their return to Bangladesh.
[10]
The Officer then reviewed the Applicants’
educational and employment establishment in Canada. The Officer acknowledged
that the Principal Applicant is the sole owner of a small business that employs
one part-time employee. The Officer found that there was nothing to suggest
that the Principal Applicant could not either find someone else to run her
business or sell the business. The Officer acknowledged that the oldest daughter
had completed her grade twelve education in Canada and was working part-time.
The middle daughter was also working part-time and enrolled in a Professional
Pilot Training Program to be completed in September 2012. The Officer said that
the Applicants’ education and employment experiences would be transferable in Bangladesh. The Officer concluded that the evidence did not establish that the Applicants
were so well established that their departure would cause undue, undeserved or
disproportionate hardship.
[11]
The Officer also found that the evidence did not
indicate that returning to Bangladesh would be contrary to the Minor
Applicant’s best interests. The Officer noted that primary education is free
and compulsory in Bangladesh. The Officer also noted that the Minor Applicant’s
native language is Bengali and that it was reasonable to expect that the Minor
Applicant had attended school in Bangladesh and had continued to be exposed to
the Bengali language and Bangladeshi culture by her family while in Canada. The
Officer concluded that there was no evidence to suggest that the Minor
Applicant would not receive an education and would not have her mother’s love
and support in Bangladesh.
[12]
The Officer noted that there were no impediments
to the Applicants’ return to Bangladesh. The Applicants are citizens of Bangladesh and were well established prior to coming to Canada. The Officer, again, noted the
transferability of the Applicants’ Canadian education and employment
experiences.
[13]
The Officer concluded that while the Applicants
may face hardship on their return to Bangladesh, the hardship to “trigger the exercise of discretion on humanitarian and
compassionate grounds should be something other than that which is inherent in
removal after a person has been in a place for a period of time” (Certified
Tribunal Record [CTR] at 11). The Applicants failed to establish that the
hardship they would face was undeserved, unusual or disproportionate.
IV.
ISSUES
[14]
The Applicants raise one issue in this
proceeding: Whether the Decision fails to provide adequate reasons.
V.
STANDARD OF REVIEW
[15]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[16]
The parties devote much of their submissions to
arguing the applicability of Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland
Nurses] to this proceeding. In Newfoundland Nurses, the Supreme
Court of Canada had the following to say regarding the purpose of reasons and
how they should be treated by reviewing courts:
[14] Read as a whole, I do not see Dunsmuir
as standing for the proposition that the “adequacy” of reasons is a stand-alone
basis for quashing a decision, or as advocating that a reviewing court
undertake two discrete analyses — one for the reasons and a separate one for
the result (Donald J. M. Brown and John M. Evans, Judicial Review of
Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510).
It is a more organic exercise — the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes. This, it seems to me, is what the Court was saying
in Dunsmuir when it told reviewing courts to look at “the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes” (para. 47).
[15] In assessing whether the decision
is reasonable in light of the outcome and the reasons, courts must show
“respect for the decision-making process of adjudicative bodies with regard to
both the facts and the law” (Dunsmuir, at para. 48). This means that
courts should not substitute their own reasons, but they may, if they find it
necessary, look to the record for the purpose of assessing the reasonableness
of the outcome.
[16] Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees’
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn.,
[1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[17] The fact that there may be an
alternative interpretation of the agreement to that provided by the arbitrator
does not inevitably lead to the conclusion that the arbitrator’s decision
should be set aside if the decision itself is in the realm of reasonable
outcomes. Reviewing judges should pay “respectful attention” to the
decision-maker’s reasons, and be cautious about substituting their own view of
the proper outcome by designating certain omissions in the reasons to be
fateful.
[17]
The Applicants submit that Newfoundland
Nurses should not apply to the review of an H&C decision for two
reasons. First, the Applicants say that, unlike in the labour dispute at issue
in Newfoundland Nurses, there is no formal record in an H&C decision.
As a result, the Applicants say that this issue is more properly characterized
as a breach of natural justice and Newfoundland Nurses should not apply.
I gather that the Applicants would have the Court review the Decision on a
standard of correctness as a result. Second, the Applicants say that the
Federal Court held that Newfoundland Nurses does not apply to the review
of H&C decisions in Velazquez Sanchez v Canada (Citizenship and
Immigration), 2012 FC 1009 [Velazquez Sanchez]
[18]
The Respondent submits that Newfoundland
Nurses should apply to this proceeding. Newfoundland Nurses requires
the Court to review the reasons for the Decision in the context of reviewing
the reasonableness of the Decision as a whole. The Respondent says that this
Court has applied Newfoundland Nurses when reviewing H&C decisions: Hussain
v Canada (Citizenship and Immigration), 2012 FC 1298 at paras 28, 45 [Hussain].
Further, the Respondent submits that the Applicants have failed to identify the
deficiencies in the record that render it impossible to apply Newfoundland
Nurses when reviewing an H&C decision.
[19]
I cannot accept the Applicants’ argument that
the Federal Court overruled Newfoundland Nurses in Velazquez Sanchez,
both above. As a preliminary point, stare decisis prevents the Federal
Court from overruling a binding precedent from the Supreme Court of Canada. If
I believed Velazquez Sanchez was an attempt to overrule Supreme Court of
Canada jurisprudence, I would not be bound to follow the decision. Judicial
comity only requires that I follow Federal Court decisions when I believe they
are persuasive: Apotex Inc v Allergan Inc, 2012 FCA 308 at paras 43-48. However,
in my view, Velazquez Sanchez makes no such efforts and is properly in
line with Newfoundland Nurses. In Velazquez Sanchez, the
Court had the following to say on the adequacy of the reasons provided in that
proceeding:
[18] I agree with the applicants that
the Officer’s reasoning in rejecting the submission that Iris and her sisters
would face social stigma due to her sexual assault is insufficient. The
Officer acknowledged this submission but found insufficient evidence to
substantiate it. That was the extent of the analysis. I agree with the
applicants that this is a mere statement of a conclusion and does not meet the
requirements of justification, transparency and intelligibility. The evidence
under consideration was not identified let alone the deficiency which purportedly
permits the conclusion.
[19] It has become commonplace to read
H&C and PRRA decisions in which the reasons offered are confined to the
following formula: “The applicants allege X; however, I find insufficient
objective evidence to establish X.” This boilerplate approach is contrary to
the purpose of providing reasons as it obscures, rather than reveals, the
rationale for the officer’s decision. Reasons should be drafted to permit an
applicant to understand why a decision was made and not to insulate that
decision from judicial scrutiny: Lorne Sossin, “From Neutrality to Compassion:
The Place of Civil Service Values and Legal Norms in the Exercise of
Administrative Discretion” (2005), 55 UTLJ 427.
[20]
In my view, there is nothing inconsistent with Newfoundland
Nurses and a finding that the reasons in a particular decision before the
Court were inadequate to allow for proper review. I also note that the Court
reviewed the decision in Velazquez Sanchez on the standard of
reasonableness (at para 15).
[21]
Further, this Court has repeatedly applied Newfoundland
Nurses when reviewing the adequacy of the reasons provided for H&C decisions:
see Tarafder v Canada (Citizenship and Immigration), 2013 FC 817 at para
52; Westmore v Canada (Citizenship and Immigration), 2012 FC 1023 at
para 17; Hussain, above, at paras 28, 45; Aggrey v Canada
(Citizenship and Immigration), 2012 FC 1425 at paras 6, 14-16.
[22]
I note that the Federal Court of Appeal has said
that it is inappropriate to apply Newfoundland Nurses and “supplement” a
tribunal’s reasons when it has failed to consider an issue it was required to
address (Lemus v Canada (Citizenship and Immigration), 2014 FCA 114);
however, that is not the issue that arises in this proceeding.
[23]
Finally, there is no merit to the Applicants’
complaint that the record available to the reviewing court in an H&C
application is so uniquely deficient that it fails to allow for a proper review
of the Decision. The record presently before the Court consists of the Decision
and its reasons, the submissions and documentary evidence that the Applicants
submitted in support of their H&C applications, as well as the documentary
evidence that the Officer obtained through her own research. It is not clear
what the Applicants think is missing from this record that renders it
impossible for the Court to review the Decision.
[24]
The question in this proceeding is whether the
reasons offered for the Decision are adequate to allow the “ reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes” (Newfoundland Nurses, above, at
para 16). The adequacy of the reasons will be considered as part of the review
of the reasonableness of the Decision.
[25]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: see Dunsmuir, above, at para 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put
another way, the Court should intervene only if the Decision was unreasonable
in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
VI.
STATUTORY PROVISIONS
[26]
The following provisions of the Act are
applicable in this proceeding:
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Humanitarian
and compassionate considerations — request of foreign national
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Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
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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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[…]
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[…]
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Non-application
of certain factors
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Non-application
de certains facteurs
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(1.3) In
examining the request of a foreign national in Canada, the Minister may not
consider the factors that are taken into account in the determination of
whether a person is a Convention refugee under section 96 or a person in need
of protection under subsection 97(1) but must consider elements related to
the hardships that affect the foreign national.
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(1.3) Le
ministre, dans l’étude de la demande faite au titre du paragraphe (1) d’un
étranger se trouvant au Canada, ne tient compte d’aucun des facteurs servant
à établir la qualité de réfugié — au sens de la Convention — aux termes de
l’article 96 ou de personne à protéger au titre du paragraphe 97(1); il tient
compte, toutefois, des difficultés auxquelles l’étranger fait face.
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[…]
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[…]
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Public
policy considerations
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Séjour
dans l’intérêt public
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25.2 (1) The
Minister may, in examining the circumstances concerning a foreign national
who is inadmissible or who does not meet the requirements of this Act, grant
that person permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the foreign national complies with any
conditions imposed by the Minister and the Minister is of the opinion that it
is justified by public policy considerations.
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25.2 (1) Le
ministre peut étudier le cas de l’étranger qui est interdit de territoire ou
qui ne se conforme pas à la présente loi et lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, si l’étranger remplit toute condition fixée par le ministre et
que celui-ci estime que l’intérêt public le justifie.
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VII.
ARGUMENT
A.
Applicants
[27]
The Applicants submit that the Decision provides
no real analysis or reasons. They describe the Decision as a simple listing of
their evidence followed by a series of generic statements which fail to analyze
their particular circumstances. The Applicants submit that the Decision is
contrary to Supreme Court of Canada jurisprudence which highlights the
importance of fulsome reasons: Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817. Further, this Court’s jurisprudence has
held that decision-makers may not avoid judicial scrutiny by simply stating
evidence and making vague conclusions: Adu v Canada (Minister of Citizenship
and Immigration), 2005 FC 565 at paras 13-16 [Adu]; Velazquez
Sanchez, above, at paras 18-21.
B.
Respondent
[28]
The Respondent submits that reasons must be “sufficiently clear, precise and intelligible so that an
applicant may know why her application failed and be able to decide whether to
seek judicial review” (Respondent’s Record at 4, citing Ogunfowora v
Canada (Citizenship and Immigration), 2007 FC 471; Mendoza v Canada
(Minister of Citizenship and Immigration), 2004 FC 687 at para 4). The Decision
shows that the Officer adequately and reasonably assessed the factors raised by
the Applicants. For example, the Officer found that there was no evidence to
conclude that the Principal Applicant could not sell the business, or find
someone to take over, before leaving Canada. The Officer also noted that the
Principal Applicant purchased the business after receiving the negative refugee
decision and, as a result, any hardship arising from the business ownership
cannot be said to have been unanticipated or beyond the Principal Applicant’s
control.
[29]
The Officer also reasonably found that the
Applicants’ establishment did not amount to unusual, undeserved or
disproportionate hardship as this Court has held that employment and community
integration do not constitute an unusually high degree of establishment: Persaud
v Canada (Citizenship and Immigration), 2012 FC 1133 at para 45; Ramotar
v Canada (Citizenship and Immigration), 2009 FC 362 at para 33. The
decision-maker is entitled to review the evidence and find that it does not establish
hardship: Luzati v Canada (Citizenship and Immigration), 2011 FC 1179 at
para 22 [Luzati]; Irimie v Canada (Minister of Citizenship and
Immigration), [2000] FCJ no 1906 at para 16. It is clear from the reasons
that the Officer considered the best interests of the child: Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at para 5; Ahmad v Canada (Citizenship and Immigration), 2008 FC 646 at paras 30-31.
VIII.
ANALYSIS
[30]
The Applicants come to the Court with a familiar
complaint that often arises in the context of H&C and Pre-Removal Risk Assessment
decisions. They say the reasons in this case are unreasonably insufficient
because they are boiler plate and amount to no more than a recitation of the
evidence and a conclusionary tag that does not explain how the evidence leads
to the conclusion.
[31]
The Court has, on occasion, found that such an
approach gives rise to a reviewable error. See, for example, Velazquez
Sanchez, above; Adu, above; Tindale v Canada (Citizenship and
Immigration), 2012 FC 236 at para 11.
[32]
In the end, everything depends upon the
particular decision under review. In the present case, a simple reading of the
Decision reveals there are no grounds for the Applicants’ allegations. In fact,
the reasons in this Decision are quite fulsome and entirely sufficient. They
are not just a recitation of evidence with a conclusionary tag.
[33]
To take but one area under consideration, the
Officer looked at Return to Country of Nationality (CTR at 11):
While the applicants have not been in their
home country since November 2009, return to Bangladesh is feasible. The
applicants are citizens of Bangladesh and the evidence before me does not
support that there are medical impediments to their return. The applicants were
well-established in Bangladesh prior to their departure, with the PA completing
her post-secondary education and raising her family. The PA’s daughters were
all born and raised in Bangladesh and attended school in their home country.
The experiences, education and employment skills they have acquired while in Canada are transferable. It is noted that, both Israt and Nagia attended the Trainee Pilots
program at the Bangladesh Flying Club in Dhaka; the evidence before me does not
support that they would be unable to return to the club and continue their
training, applying the skills and training they received while in Canada. The evidence before me does not support that the applicants would be unable to
re-establish themselves in Bangladesh, or that doing so would amount to unusual
and undeserved, or disproportionate hardship.
[34]
The Applicants say this is boiler plate and
generic. However, it obviously is not. The particular situation of the
Applicants is discussed and an explanation is given as to why they do not face
unusual and undeserved or disproportionate hardship if they return to Bangladesh.
[35]
A review of other areas of the Decision reveals
that they also contain more than a mere recitation of facts. For example, under
establishment, there is a discussion of why the fact that the Principal
Applicant owns and operates her own business does not, in this case, establish
unusual and undeserved or disproportionate hardship. Similarly, under the BIOC
section there is a full discussion of why the child’s return to Bangladesh with her mother would not be contrary to her best interests.
[36]
The Officer acknowledged that Canada is obviously a better place to live for these Applicants but that, of course, is not
the test. As with many H&C cases, the Applicants here point out that for
family, business and educational reasons, Canada is the best place for them to
be and it will be painful to have to return to Bangladesh. They fail to
appreciate that they have no status in Canada and that s. 25 is an exceptional
remedy which requires unusual and undeserved or disproportionate hardship. The
Officer found that this degree of hardship had not been established. It is
obvious to me, reading the Decision and looking at the record, why the Officer
reached this conclusion. The Applicants are naturally disappointed but that
does not mean there is a reviewable error of the kind alleged.
[37]
Justice Mosley had the following to say in Luzati,
above:
[24] The applicants submit that the
officer’s reasons were not adequate as they consist merely of statements of
fact and conclusions without analysis: Shpati v Canada (Minister of Public
Safety & Emergency Preparedness), 2010 FC 1046 at paras 24-28.
[25] That is not how I see the
officer’s reasons in this case. I find that they meet the criteria of adequacy
set out by the Federal Court of Appeal in VIA Rail Canada Inc. v Canada
(National Transportation Agency), 26 Admin LR (3d) 1, [2001] 2 FC 25 (CA)
at paragraphs 21-22. While concise, the reasons are clear, precise,
intelligible and logical in the application of the law to the evidence. The
officer set out her findings of fact and the principal evidence on which those
findings were based. She addressed the major points in issue and the relevant
factors.
[38]
Looking at the Decision and the record before
me, I come to the same conclusion.
[39]
Counsel agree there is no question for
certification and the Court concurs.
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