Docket: IMM-1143-17
Citation:
2017 FC 924
Ottawa, Ontario, October 20, 2017
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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AROOJ ASAD
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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]
The applicant seeks judicial review of a
decision by a Senior Immigration Officer of Citizenship and Immigration Canada
(the officer) denying an application for permanent residence from within Canada
on humanitarian and compassionate (H&C) grounds for her and her family
members.
[2]
The applicant, Arooj Asad, is a 25-year-old
citizen of Pakistan who, with her mother, sister and two brothers, claimed
refugee protection in Canada in 2014. That claim was refused before the Refugee
Protection Division (RPD) of the Immigration and Refugee Board due to lack of
credibility concerning the allegations of risk in Pakistan. The Refugee Appeal
Division (RAD) upheld the RPD’s decision. An application for judicial review of
the RAD’s decision was dismissed in 2016.
[3]
Subsequently, the family made an application for
pre-removal risk assessment (PRRA) citing the same risks as were not believed
before the RPD and the RAD. The PRRA application was dismissed earlier this
year. Leave to commence an application for judicial review of the PRRA decision
was later denied.
[4]
In parallel with the PRRA application, the applicant
and her family filed their H&C application. The grounds advanced were (i)
the family’s establishment in Canada, (ii) the best interests of the children
(the applicant’s sister and younger brother are minors), and (iii) hardship in
Pakistan.
II.
IMPUGNED DECISION
[5]
I preface this section by noting that it is
unclear whether the officer’s decision concerns only the applicant, or also
concerns her mother, sister and brothers. The H&C application was made on
behalf of all of them, but the officer’s decision is addressed to the applicant
only and indicates that the other family members are not included in the
application. I note also that, for the most part, the subjects of the H&C
application are referred to in the officer’s decision in the plural. However,
this lack of clarity was not addressed by the parties and it appears that
nothing turns on it.
[6]
The officer refused, for the purposes of the
H&C application, to consider any of the allegations of risk in Pakistan
that had been disbelieved before the RPD and the RAD, and in the context of the
PRRA application. The officer added that allegations in the broader context of
the family’s degree of hardship would be considered. The only analysis of risk
and hardship factors by the officer comes near the end of the decision where
the officer stated: “The Applicants lived in Pakistan
without any problem. They were educated and worked in Pakistan until they left
for Canada.”
[7]
With regard to the family’s establishment in
Canada, the officer found that they had been in Canada for two and a half
years, were working and studying, and were not a burden to society. The officer
also observed that the family had been living in Canada off assistance from another
family member. The officer concluded that, though the family took positive
steps to establish themselves in Canada, “their
integration and establishment are very modest as expected and do not justify an
exemption [from] the legislative requirement to apply for immigrant visa from
abroad.” Near the end of the decision, the officer added: “Beside a brother the Applicant has no family in Canada. They
have no emotional ties to Canada. As the applicants have been in Canada for a
short period of time, re-insertion in their country of origin is still
feasible.”
[8]
With regard to the best interests of the
children, the officer noted that the minor children had not seen their father
(who remains in Pakistan) for almost three years and that it was in the best
interest of any child to have both parents in his/her life. The officer stated
that moving back to Pakistan would give the children a chance to develop
relationships with their father and extended family, and would not be
detrimental to their development. The officer noted the lack of evidence that
the children’s access to education or to health care would be adversely
affected by such a move. The officer concluded that:
[T]he applicants had not demonstrated that
severing their ties to Canada would have a significant negative financial,
emotional and social impact on these children that justifies an exemption under
humanitarian and compassionate considerations.
[9]
The H&C application was accordingly refused.
III.
ISSUES
[10]
The applicant takes issue with the officer’s
assessment of (i) establishment in Canada, and (ii) hardship in Pakistan.
[11]
The applicant’s memorandum of argument at the
leave stage also took issue with the officer’s analysis of the best interests
of the children, but this line of argument was not followed in the applicant’s
further memorandum of argument or in oral argument. Accordingly, I will say
nothing more on this issue.
IV.
ANALYSIS
A.
Establishment in Canada
[12]
The applicant argues that the officer erred by
failing to explain in any meaningful way why the family’s degree of
establishment in Canada was insufficient to justify an H&C exemption, or
what degree of establishment would have been sufficient. The applicant focuses
on the officer’s statement that establishment was “very
modest as expected” (emphasis added).
[13]
In support of this argument, the applicant cites
the decision of Justice Catherine Kane in Chandidas v Canada (Citizenship
and Immigration), 2013 FC 258, at paras 74 and following [Chandidas].
In Chandidas, the analysis of the issue of establishment in the impugned
decision was not dissimilar to the analysis by the officer in the present case:
the details of the applicants’ establishment in Canada were reviewed but found
to be no more than one would expect. The following passages from Chandidas
are of particular interest:
[77] In my view, even after considering
the reasons in their entirety, the officer’s finding with respect to
establishment is not adequately explained and, as a result, is not reasonable.
The applicants are not asking the court to reweigh the evidence; they are
asking for the reasons underlying the officer’s conclusion.
[78] In Adu v Canada (Minister of
Citizenship and Immigration), 2005 FC 565, [2005] FCJ No 693, Justice
Mactavish held, at para 20:
… in this case, the officer reviewed
the evidence of establishment in Canada offered by the applicants in support of
their applications, and then simply stated her conclusion that this was not
enough. We know from the officer's reasons that she did not think that the
applicants would suffer unusual, undeserved or disproportionate harm if they
were required to apply for permanent residence from abroad. What we do not know
from her reasons is why she came to that conclusion.
[79] This reasoning was recently echoed
by Justice Rennie in Tindale v Canada (Minister of Citizenship and
Immigration), 2012 FC 236, [2012] FCJ No 264 at para 11.
[80] Similarly, in the present case,
the officer fails to provide any explanation as to why the establishment
evidence is insufficient. The officer reviewed the family’s degree of
establishment in detail, and referred to their work, income, family ties,
courses taken, schools attended, and community involvement in various passages
of the decision. The officer does not indicate what he would consider to be
extraordinary or exceptional establishment; he simply states that this is what
he would expect and that it would not cause unusual and undeserved or
disproportionate hardship if the family were forced to apply for a visa from
outside Canada. While this could be argued to be a reason, it is barely
informative.
[14]
In Baco v Canada (Citizenship and
Immigration), 2017 FC 694 [Baco], Justice Keith Boswell recently
noted the discussion in Chandidas and commented as follows at para 18:
The degree of an applicant’s establishment
in Canada is, of course, only one of the various factors that must be
considered and weighed to arrive at an assessment of the hardship in an H&C
application. The assessment of the evidence is also, of course, an integral
part of an officer’s expertise and discretion, and the Court ought to be
hesitant to interfere with an officer’s discretionary decision. However, the
Officer in this case followed the same objectionable and troublesome path as in
Chandidas… It was unreasonable for the Officer to discount the
Applicants’ degree of establishment merely because it was, in the Officer’s
view, “of a level that was naturally expected of them… [and it is not] beyond
the normal establishment that one would expect the applicants to accomplish in
their circumstances.” The Officer unreasonably assessed the Applicants’ length
of time or establishment in Canada because, in my view, the Officer focused on
the “expected” level of establishment and, consequently, failed to provide any
explanation as to why the establishment evidence was insufficient or to state
what would be an acceptable or adequate level of establishment.
[15]
On the other side of the issue is the decision
of Justice Denis Gascon in Rocha v Canada (Citizenship and Immigration),
2015 FC 1070 [Rocha], with the following comments at para 31:
The Chandidas decision referred to by
Mr. Rocha is clearly distinguishable. In that case, Justice Kane found that the
officer had omitted to provide any explanation as to why the establishment
evidence was insufficient despite several positive establishment factors (Chandidas
at para 83). In Chandidas, the evidence showed that the family had
established themselves successfully in the community, in the schools and in
business, and that their daughter was being treated for a severe illness in
hospital, with many appointments. The officer did not turn his mind to whether
applying for permanent residence from outside Canada in those circumstances
would impose hardship going beyond that which is inherent in having to leave to
Canada (at para 82). Unlike in Chandidas, the Officer did explain why
the Mr. Rocha’s establishment evidence was insufficient. Mr. Rocha simply
disagrees with the weight that the Officer accorded to the evidence. This is
not sufficient to warrant the intervention of this Court.
[16]
In Rocha, the officer had observed that
the applicant’s relationships did not represent strong personal ties to Canada
and concluded that his degree of establishment was unremarkable.
[17]
The Court in Rocha also noted that:
- An H&C
exemption is exceptional and discretionary remedy (para 16);
- There is a very
high threshold to meet when requesting an H&C exemption (para 17);
- The standard of
review of the officer’s decision on an H&C application is
reasonableness (para 19); and
- “Given the highly discretionary nature of H&C decisions,
immigration officers have a broad range of acceptable and defensible
outcomes and a large margin of appreciation available to them.” (para 20)
[18]
In my view, the decisions in Chandidas
and in Baco are distinguishable from the present case. Chandidas
is distinguishable on the basis set out in Rocha. There was an important
element of the applicants’ establishment in Canada that the officer had failed
to consider in Chandidas: the effect of the family’s removal from Canada
on the daughter’s treatment for a severe illness. That is not the case here.
[19]
In Baco, the Court was concerned that the
officer’s focus on the expected level of establishment distracted from
explaining why the establishment evidence was insufficient. In my view, the
officer in the present case reasonably explained the insufficiency of the
evidence by observing that only one family member is in Canada and that the family
has no emotional ties here.
[20]
The applicant may have wished for more
explanation and a different result, but this explanation is sufficient in the
context of the decision as a whole.
B.
Hardship in Pakistan
[21]
With regard to the officer’s refusal to consider
the risk allegations that had previously been disbelieved, the applicant argues
that there is a difference between risk assessment for the purposes of a
refugee claim or a PRRA, and assessment of hardship in the context of an
H&C application that those risks may cause. The applicant argues that the
risk allegations should have been considered anew in the context of the H&C
application. I disagree. The officer observed that the family’s entire story
hinges on these allegations which have been previously considered and
dismissed. If the previous conclusions on lack of credibility are to be
respected (which the applicant does not dispute), then there is no basis for
finding any hardship arising from those risks.
[22]
After removing the disbelieved risk allegations
from consideration, the only remaining risks upon which the applicant relies
concern conditions in Pakistan, particularly for women. The applicant argues
that this aspect of the H&C application was not adequately considered by
the officer. As noted above, the officer stated: “The
Applicants lived in Pakistan without any problem. They were educated and worked
in Pakistan until they left for Canada.” These reasons are indeed brief,
but they do offer some explanation. The evidence and arguments in the H&C
application related to hardship in Pakistan were general, and I have heard no
argument that there was evidence of any personal impact of such general
hardships on the applicant. In the absence of such evidence of personal impact,
I conclude that the officer’s reasons on the issue of hardship were adequate,
and the conclusion was reasonable.
V.
CONCLUSION
[23]
For the foregoing reasons, the present
application should be dismissed. The parties are agreed that there is no
serious question of general importance to certify.
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