Docket: IMM-2782-16
Citation:
2017 FC 264
Ottawa, Ontario, March 6, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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JOSWY SURAJ D’SOUZA
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is a judicial review of a decision by a senior immigration officer [the Officer] of Citizenship
and Immigration Canada [CIC] dated June 2, 2016, refusing the Applicant’s
application for an exemption from the requirements of the Immigration
and Refugee Protection Act, SC 2001, c 27,
based on humanitarian and compassionate [H&C] grounds, to allow his
application for permanent residence to be processed from within Canada.
[2]
As explained in greater detail below, this application
is dismissed, because the Applicant has not demonstrated that the Officer’s
decision falls outside a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
II.
Background
[3]
The Applicant, Joswy Suraj D’Souza, is a citizen
of India and a practicing Roman Catholic. After completing his studies in
India, Mr. D’Souza spent considerable time as a foreign worker in Saudi Arabia
and Israel. He alleges that he received threats to his life and fears
persecution in India based on his religious beliefs.
[4]
Mr. D’Souza came to Canada on February 18, 2007
and claimed refugee status. His claim was rejected, and his application for
leave and judicial review of that decision was dismissed for failure to perfect
the application, which he attributes to inadequate legal representation.
[5]
Between then and 2014, Mr. D’Souza submitted
three unsuccessful H&C applications. He states that he understood his
previous counsel would be appealing or seeking judicial review of the negative
decisions but that his counsel instead filed successive H&C applications.
[6]
Mr. D’Souza then retained his current counsel
and filed a fourth H&C application, which was rejected on October 14, 2015.
He filed an application for leave and judicial review, which was discontinued
as the Respondent consented that the decision be set aside and the matter be
referred back to be re-determined by a different officer. That redetermination,
dated June 2, 2016, is the subject of this judicial review.
[7]
Mr. D’Souza has been issued work permits, the
latest of which is valid until March 2017. He is a professional floor installer
and has maintained steady employment in this trade in Canada, beginning a business
as a sole proprietorship in 2010 which was later incorporated in 2014.
III.
Issues and Standard of Review
[8]
Mr. D’Souza’s written submissions do not set out
specific issues for the Court’s consideration. He submits that the Officer’s
decision is reviewable on the standard of reasonableness, relying on the
articulation of that standard by the Supreme Court of Canada in Dunsmuir v
New Brunswick, 2008 SCC 9, as whether the decision falls outside a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
[9]
I agree that this is the applicable standard and
have applied this standard to the arguments raised by Mr. D’Souza at the
hearing of this application.
IV.
Analysis
[10]
As a preliminary point, the Respondent noted at
the hearing that Mr. D’Souza’s oral submissions largely raised arguments that
had not been set out in his written submissions. This appears to be
attributable in part to Mr. D’Souza not having received the reasons for the
Officer’s decision until they were provided by the Respondent and in the Certified
Tribunal Record in the course of this application, notwithstanding that his
Notice of Application states that he had received written reasons from the
tribunal. The Respondent also noted that Mr. D’Souza did not avail himself of
the opportunity to file a Further Memorandum of Fact and Law after receiving
the reasons. However, notwithstanding the lack of advance notice of the
arguments intended to be advanced by Mr. D’Souza at the hearing, the Respondent
did not object to the Court considering those arguments.
[11]
Mr. D’Souza’s arguments focused significantly
upon his degree of establishment in Canada, noting the Officer’s positive
findings in that regard. The Officer found that, during Mr. D’Souza’s time in
Canada, he has maintained a good civil record and become “somewhat established” through employment, involvement
in the community, his religious observance and relations with individuals in
Canada. Mr. D’Souza contrasts this finding with the Officer’s subsequent
acknowledgement that he has been in Canada for approximately nine years and
that during that time he has become established. The Officer also concludes
later in the decision that Mr. D’Souza has established himself in Canada and
that it is reasonable to assume that he has fostered relationships and that the
separation may be difficult for him.
[12]
In support of his position that the decision is
unreasonable, Mr. D’Souza argues that these represent inconsistent findings as
to his degree of establishment but also that overall the evidence and the
Officer’s conclusions demonstrate a significant degree of establishment, such
that his H&C application should have been allowed. He submits that the
Officer’s only negative finding, which must have been responsible for his
application being refused, is the conclusion that his work experience and
skills would be transferable upon a return to India, which he argues to be
speculation by the Officer without any evidentiary support.
[13]
Having reviewed the decision as a whole, I find
no error in the Officer’s consideration of Mr. D’Souza’s establishment in
Canada. The various references to establishment do not read as inconsistencies,
but rather as the Officer accepting Mr. D’Souza’s submission that he has
established himself in Canada to a degree such that he would experience
difficulties in returning to India. However, the Officer also considered Mr.
D’Souza’s ties to persons in Canada and India, noting that his mother and four
siblings continue to reside in India, and found that he had not demonstrated
that the consequences of resettling back to his home country would have a significant
negative impact on him or others in either country. Overall, the Officer’s
reasons demonstrate that, while his degree of establishment was a factor
operating in Mr. D’Souza’s favour, the Officer was not satisfied that Mr.
D’Souza’s circumstances warranted the granting of an H&C exemption. It is
also settled law that an applicant’s degree of establishment is not sufficient
in itself to justify exempting the applicant from the requirement to obtain an
immigrant visa from outside Canada (see Singh v Canada (Minister of
Citizenship and Immigration), 2009 FC 11 [Singh], at paras 51-52). I
find nothing unreasonable in the Officer’s treatment of this factor.
[14]
I also find no error in the Officer’s
consideration of Mr. D’Souza’s employment prospects upon return to India. In
the course of the analysis, the Officer noted that the burden of proof rests
with an applicant to provide evidence to substantiate the grounds of his
application and to show the hardship that would be faced if the requested
exemption is not granted. The Officer also considered Mr. D’Souza’s statement
that he would be unable to secure unemployment in his trade as a tile installer
if he were to return to India. However, the Officer noted that Mr. D’Souza has
had worldly work experience and training in his employment in Israel and in
Saudi Arabia and concluded that he had not put forth documentary evidence to
support that he would be unable to re-establish himself professionally as a tile
installer, in the hospitality service industry, or in a different profession
upon his return to India. I find that the Officer’s identification of the
burden of proof upon Mr. D’Souza is consistent with the case law (see Singh,
at para 52) and that the treatment of this aspect of the application falls
within the range of possible, acceptable outcomes.
[15]
Mr. D’Souza also argues that the Officer erred
in failing to take into account the fact that the period of time he has been in
Canada is attributable to his involvement in immigration processes and
therefore outside his control. He relies on Section 5.14 - Establishment in
Canada, of CIC’s manual entitled IP 5 Immigration Applications in Canada
made on Humanitarian or Compassionate Grounds [IP 5], which states that
positive H&C consideration may be warranted where there is a period of
inability to leave Canada of a considerable duration that is due to
circumstances beyond the applicant’s control. Section 5.14 provides examples of
circumstances beyond the applicant’s control, including where an applicant is
awaiting a decision on an immigration application and spent several years in
Canada with status.
[16]
Mr. D’Souza refers the Court to the application
of this factor in Lin v Canada (Minister of Citizenship and Immigration),
2011 FC 316 [Lin], in which Justice Campbell granted judicial review
because the officer considering an H&C application failed to analyse the
fact that the applicant’s establishment occurred over a period of seven years
while that application was under consideration. Mr. D’Souza notes that the
periods between submission and decision in his first three H&C applications
were, respectively, 598 days, 353 days and 88 days. Between the date of his
fourth H&C application, the decision in which was set aside, and the date
of the hearing of this application for judicial review, a further 721 days
elapsed. These periods cumulatively total 6 years and 7 months, during which
Mr. D’Souza had valid work permits and was establishing himself in Canada.
[17]
I do not find the reasoning in Lin, or in
Section 5.14 of IP 5, applicable to Mr. D’Souza’s circumstances. As
noted in paragraph 22 of Richardson v Canada (Minister of Citizenship and
Immigration), 2012 FC 1082 [Richardson], Lin has frequently
been distinguished, as the timeframe in Lin was exceedingly long, having
been found by Justice Campbell to be unreasonable. In Richardson, Justice
Boivin noted that, while applicants are entitled to use all legal remedies at
their disposal, choosing to do so does not constitute circumstances beyond
their control. During the 6 years and 7 months to which Mr. D’Souza refers, he
has submitted a series of H&C applications and has pursued legal remedies
in relation to the two most recent negative decisions. He is entitled to have
pursued such processes, but the length of time he has been in Canada pursuing
them cannot be characterized as outside his control. There is no evidence
before the Court that the period of time consumed by any of these processes is
unreasonable, as the 7 years in connection with one H&C application was found
to be in Lin.
[18]
Mr. D’Souza also takes issue with the Officer’s consideration
of the hardship he argues he would experience in returning to India based on
country conditions surrounding the treatment of Christians. He is a practising
Roman Catholic and argues that, due to the escalation of violence against
Catholics in all parts of India, his life would be at risk. Mr. D’Souza notes
that his counsel submitted a number of links to Internet articles, showing
escalating violence against Christians, that the Officer questioned why the
full articles were not provided for consideration, and that it is not clear if
the Officer considered these articles. However, Mr. D’Souza submits that the
Officer nevertheless acknowledged that the documentary evidence indicates that
minority religious groups experience violence in India. Mr. D’Souza therefore
challenges the reasonableness of the Officer’s finding that the country
conditions in India would not have a direct negative impact on him such as
would warrant an H&C exemption.
[19]
I find no reviewable error in the Officer’s
consideration of the country condition documentation. As noted by Mr. D’Souza,
the Officer acknowledged that the evidence supported a conclusion that
religious violence is an issue in India. However, the Officer also concluded
that the evidence demonstrated that each religious group in India faces
incidents of violence and that Mr. D’Souza did not link any of the documentary
evidence to hardships that he specifically would face in India. The Respondent
submits that Mr. D’Souza’s position amounts to an argument that every Christian
would face hardship in returning to India that would justify granting an
H&C exemption.
[20]
I find no basis to conclude that the Officer
erred in consideration of the country conditions or the resulting hardship that
Mr. D’Souza would experience on return to India. Mr. D’Souza has not
demonstrated that the officer’s findings are unsupported by the evidence or
outside the range of possible, acceptable outcomes based on that evidence.
[21]
The Officer’s analysis can be distinguished from
the decision in Roshan v Canada (Minister of Citizenship and Immigration),
2016 FC 1308 [Roshan], upon which Mr. D’Souza relies. In that case,
Justice Bell allowed the judicial review application of an applicant who feared
harm upon return to Iran because he was an atheist. However, this result turned
on specific errors made by the H&C officer, which Justice Bell found to
render the decision unreasonable. The officer based the decision in part on the
fact that the applicant had lived in Iran for 30 years with no problems related
to his atheism, notwithstanding the evidence that his atheism was of recent
genesis. The officer also accepted evidence regarding the treatment of atheists
by the government of Iran but discounted it completely by observing that
atheism is becoming more accepted in Iran, without establishing a link between
this increased acceptance by some citizens and the state’s actions toward
atheists. The decision by the Officer in the case at hand does not demonstrate
reviewable errors of the sort that influenced the outcome in Roshan.
[22]
Having considered Mr. D’Souza’s arguments, I
find no basis to conclude that the Officer’s decision falls outside the range
of possible, acceptable outcomes which are defensible in respect of the facts
and law. The decision is therefore reasonable, and this application for
judicial review must be dismissed.
V.
Certified Question
[23]
Mr. D’Souza proposes that the Court certify the
following question for appeal:
Does
the Officer’s decision fall within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law?
[24] This is not a serious question of
general importance, as it relates solely to the application of the standard of
review to the particular facts of this case. It is therefore not an appropriate
question for certification.
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