Docket: IMM-2246-17
Citation:
2018 FC 128
Ottawa, Ontario, February 5, 2018
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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AMINA CHAUDHARY
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
On this application, Ms. Chaudhary [the
Applicant] seeks review of the April 27, 2017 decision of a Senior Immigration
Officer [the Officer] denying her humanitarian and compassionate [H&C] claim
for relief under s.25 of the Immigration and Refugee Protection Act
[IRPA] and also denying her a temporary resident permit [TRP] under s.24(1) of
the IRPA. The Officer determined that the Applicant’s serious criminality outweighed
any H&C considerations.
[2]
For the reasons that follow, this judicial review
is dismissed.
I.
Background
[3]
The Applicant became a permanent resident in
1977. It is unclear if her country of citizenship is India or the United
Kingdom. In 1984, the Applicant was convicted of first degree murder of an
eight year old child, and sentenced to life in prison. An appeal of the
decision was dismissed in 1986.
[4]
As a result of this conviction, the Applicant was
reported for serious criminality and was issued a deportation order.
[5]
In 1989 the Applicant married her husband while
they were both serving time in prison. She and her husband had three children
while she was in prison. All three children have special needs.
[6]
In June 2016, the Applicant was granted day
parole by the Parole Board of Canada, and has been living at an Elizabeth Fry
halfway house. The Applicant alleges that she spends the remainder of her time
at her husband’s home, whose health has deteriorated since a stroke in August
2016.
[7]
In August 2015, the Applicant submitted the
H&C application which is the subject of the present judicial review.
II.
Decision Under Review
[8]
The decision under review is the April 27, 2017
decision of the Officer refusing the Applicant’s H&C application and
refusing the TRP request.
[9]
The Officer addressed the following H&C
factors: establishment, family, the best interests of the children [BIOC], the
Applicant’s rehabilitation, the country conditions of India and the United
Kingdom, and the hardship on removal. The Officer weighed these factors against
the seriousness of the Applicant’s offence.
[10]
On establishment the Officer noted that the Applicant
was employed while incarcerated, earned a graduate degree while incarcerated
and purchased a home in 2006. The Officer also noted the Applicant’s
participation in various programs as detailed in a letter of support from the
Elizabeth Fry Society.
[11]
The Officer focused heavily on the Applicant’s
family and particularly the Applicant’s ill husband. The Officer noted a letter
from a doctor which indicates that the husband requires 24/7 supervision and
that the presence of the Applicant is necessary for life preservation. According
to the doctor, without the Applicant’s care, her husband would experience “premature death.”
[12]
The Officer noted that the Applicant and her
husband had an unconventional relationship based on distance. As such, the Officer
noted that the husband had managed to care and provide for himself while the
Applicant was incarcerated. The Officer acknowledged that the husband’s
condition deteriorated after 2016, but found that he would have access to
medical care and support from other sources.
[13]
With respect to the BIOC, the Officer noted that
two of the Applicant’s three children are non-verbal and require 24/7 care. The
Officer noted that there was little evidence to demonstrate the nature of the
relationship between the Applicant and her children, and there were no
submissions about the Applicant’s role in the developmental years of the
children. The Officer cited the comments of the institutional parole officer
who noted that there had been a distinct lack of effort on the part of the
Applicant in establishing or maintaining contact with the children. The Officer
concluded that while the situation was unfortunate, it was caused by the
Applicant’s own decisions. The Officer noted that the Applicant’s immigration
status and proceedings were “well under way” at
the time she decided to “enlarge her family.”
[14]
On rehabilitation, the Officer noted that the
Applicant does not accept responsibility for her crimes, as she maintains her
innocence. The Officer did note that the Applicant successfully participated in
all required institutional programs. The Officer also cited letters from the
John Howard and Elizabeth Fry Societies in support of the Applicant’s
application.
[15]
The Officer addressed the issue of hardship and
risks alleged by the Applicant if removed to the United Kingdom or India. India
was the primary country of analysis. The Applicant alleged that, if returned to
India, her brother would likely kill her as an “honour
killing” because she married a Muslim man. The Applicant also alleged
that she would be jailed. The Officer concluded that these risks are best
assessed in a pre-removal risk assessment [PRRA] application, which the
Applicant had an opportunity to file but did not do so. The Officer
acknowledged the hardship of reintegration in India, but noted that the same
problems would exist in Canada upon the Applicant’s full release into the
community, and that the Applicant had the skills to reintegrate.
[16]
The Officer noted the relevant test for H&C
considerations from Kanthasamy v Canada (Citizenship and Immigration),
2015 SCC 61 [Kanthasamy], and noted that all relevant factors had to be
assessed holistically. The Officer noted that the passage of time since the
commission of the offence, the low probability of recidivism, and the
Applicant’s husband and children weighed in her favour. However, the Officer noted
that the seriousness of the offence coupled with the fact that the Applicant
had not taken responsibility for her crimes weighed against her application. The
Officer noted that while the Applicant’s children had special needs, her
absence would not be detrimental to their well-being, given that extended
family members, friends, and other groups could help the children.
[17]
The Officer, based on this reasoning, also declined
the Applicant’s request for a TRP.
III.
Standard of Review
[18]
The standard of review for an H&C
application is reasonableness (Kisana v Canada (Citizenship and Immigration),
2009 FCA 189 at para 18 [Kisana]).
[19]
The decision to grant a TRP is a “highly discretionary decision” and is also subject to
the reasonableness standard of review (Lorenzo v Canada (Citizenship and
Immigration), 2016 FC 37 at para 23; Evans v Canada (Citizenship and
Immigration), 2015 FC 259 at para 26).
IV.
Issues
[20]
The Applicant argues that the Officer’s decision
is unreasonable in relation to the following issues:
A.
Husband’s Medical Care
B.
BIOC
C.
Hardship
D.
TRP Refusal
V.
Analysis
A.
Husband’s Medical Care
[21]
The Applicant argues that the Officer failed to
properly consider the medical evidence which confirms that her husband is very
ill and is dependent upon her for his healthcare needs. She points to the medical
reports from Dr. Gutman stating that since his stroke in 2016, his care needs
are significant and she has been his primary caregiver. She also points to the evidence
from her husband himself as well as a niece.
[22]
An H&C exemption is exceptional and
discretionary (Canada (Minister of Citizenship and Immigration) v Legault, 2002
FCA 125 at para 15 [Legault]), and the onus to adduce relevant evidence
in aid of establishing eligibility for an H&C exemption lies with the
Applicant (Kisana, at para 45; Owusu v Canada (Minister of
Citizenship and Immigration), 2004 FCA 38 at para 5 [Owusu]).
[23]
Here the Officer considered and weighed the
evidence pertaining to the Applicant’s husband. His decision is thorough and
thoughtful. Specifically, he pointed to the fact that the husband’s condition
has worsened since 2016, the very evidence which the Applicant says was not
adequately addressed. The Officer specifically weighed this evidence as a
positive factor in the overall balance. However, this evidence was not
sufficient to overcome the seriousness of the Applicant’s convictions.
[24]
The Applicant cannot point to evidence which was
ignored by the Officer. In essence then, the Applicant is asking to reweigh the
evidence, which is not the role of this Court (Kaur v Canada (Citizenship
and Immigration), 2017 FC 757 at para 58). While H&C factors could be
reweighed in this case to support a different result, it is not the job of this
Court to do so where “…the decision fell within the
acceptable range of reasonableness” (Betoukoumesou v Canada
(Citizenship and Immigration), 2014 FC 591 at paras 35-43).
[25]
Here, the Applicant simply wishes that the
Officer put more positive weight on the medical evidence and less weight on the
criminal convictions. However, the Officer is entitled to focus on the
Applicant’s criminal history and to find that the history outweighs any H&C
considerations, especially where the exemption sought on H&C grounds
pertains to criminal inadmissibility (Horvath v Canada (Citizenship and
Immigration), 2016 FC 1261 at para 49; Lupsa v Canada (Citizenship and
Immigration), 2009 FC 1054 at para 51).
[26]
On an H&C application, the Officer is
presumed to have reviewed all the evidence. In a similar case, the Court in Guiseppe
Ferraro v Canada (Citizenship and Immigration), 2011 FC 801 at para 17
states [Ferraro]:
There is a presumption that the
decision-maker has considered all the evidence before her. The presumption will
only be rebutted where the evidence not discussed has high probative value and
is relevant to an issue at the core of the claim…
[27]
Here, the Officer directly addressed contrary
evidence and explained why the seriousness of the offence overcame the situation
of the Applicant’s husband. The Applicant seeks to reargue the merits of the
H&C application before this Court. Parliament delegated power to the
Minister of Citizenship and Immigration to make H&C determinations on the
merits. The Court cannot intervene to put more weight on the medical evidence
or reweigh the evidence (Leung v Canada (Citizenship and Immigration),
2017 FC 636 at para 34 [Leung]) absent a “badge
of unreasonableness” which takes the H&C decision out of the realm
of reasonable, possible outcomes (Re: Sound v Canadian Association of
Broadcasters, 2017 FCA 138 at para 59).
[28]
Since the Officer assessed the evidence,
especially the contradictory evidence, no such indications of unreasonableness
arise on these facts. For that reason, the Applicant has failed to show that
the decision is unreasonable.
B.
BIOC
[29]
The Applicant argues that the Officer erred in
the BIOC analysis, and that her children, 18 years and older, should be
considered “children” because of their special
needs. The Applicant argues that the Officer’s statement regarding the
Applicant’s having kids in the first place is unreasonable. According to the
Applicant, the Officer did not assess what the Applicant’s presence in Canada
would add to the children’s lives.
[30]
The Applicant argued that her children will be
affected by her removal from Canada. While the Applicant has three children, only
two children were listed on her permanent residence application: her daughter,
Toni (18 years of age at the time of the H&C application) and her son Omar
(22 years of age at the time of the application).
[31]
An H&C decision will be found to be
unreasonable if the interests of children affected by the decision are not
sufficiently considered (Kanthasamy, at para 39). The BIOC must be “well identified and defined” and examined “with a great deal of attention” (Kanthasamy,
at para 39; Legault, at paras 12-31), and decision-makers must be “alert, alive, and sensitive” to the BIOC (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
para 75). The BIOC does not mandate a certain result (Legault, at para
12) because, generally, the BIOC will favour non-removal (Zlotosz v Canada
(Immigration, Refugees and Citizenship), 2017 FC 724 at para 22).
[32]
As a preliminary matter, though not addressed in
the Officer’s reasons this Court has held that those 18 years of age and over
are not eligible for BIOC consideration: Leung, at para 28; Saporsantos
Leobrera v Canada (Citizenship and Immigration), 2010 FC 587; Norbert v
Canada (Citizenship and Immigration), 2014 FC 409 at para 37. However,
cases at this Court also indicate that the BIOC analysis may be available for
those over the age of 18 (Naredo v Canada (Minister of Citizenship and
Immigration), 2000 CanLII 15973 (FC); Yoo v Canada (Citizenship and Immigration),
2009 FC 343 at para 32; Noh v Canada (Citizenship and Immigration), 2012
FC 529 at para 63).
[33]
Notwithstanding this, the Officer nonetheless
conducted a BIOC analysis for the two relevant children, and ultimately weighed
the BIOC factor positively in the application.
[34]
While there is case law from this Court on both
sides of the question, I agree that the age of 18 is not necessarily a hard cut
off for BIOC considerations, as there may well be circumstances where it is
appropriate to consider the BIOC over the age of 18. In fact, the situation of
children with special needs as here might well merit BIOC consideration beyond
the age of 18.
[35]
However, this analysis has to take into account
the facts of the case. The reality here is that Applicant has not been a part
of her children’s lives on account of her incarceration. Other than attempts to
see her children during escorted leaves, there is no evidence that the Applicant
played a role in their upbringing or their emotional or financial support. There
is no evidence of a dependency relationship between the Applicant and her three
adult children. The onus is on the Applicant to provide enough evidence to
support her BIOC arguments in an H&C application: Owusu, at para 5.
[36]
Further, the Applicant’s children all live in
different cities and provinces from the Applicant. There was no evidence that
the Applicant has attempted to spend time with her children since her release
and in reality her parole conditions may not make that feasible. The Officer
noted that he had no evidence of the Applicant’s role in the developmental
years of the children, and further noted evidence from the Applicant’s
institutional parole officer who concluded that there had been a distinct lack
of effort in establishing or maintaining contact with the children.
[37]
Nonetheless, the Officer assessed the limited
evidence before him to determine the Applicant’s relationship with the
children. The record of this interaction is limited as given the circumstances
the Applicant has not had a great deal of interaction with her children. It was
therefore reasonable for the Officer to conclude that her future interaction
with her children could be accomplished by other means.
[38]
In this case, the Officer considered the needs
of the children and ultimately concluded that the Applicant’s presence in
Canada would not be sufficiently beneficial to warrant an exercise of the
exceptional H&C discretion. He did so on the basis of the little evidence
offered by the Applicant. The Officer reasonably concluded that the BIOC could
be maintained through other means, and that the children—as they have for most
of their lives—could be cared for by others.
[39]
Since the BIOC does not mandate a certain result
(Legault, at para 12) and the Applicant failed to show sufficient evidence
that the BIOC was a strong factor in favour of non-removal (Owusu, at
para 5), the Officer’s decision is reasonable.
C.
Hardship
[40]
The Applicant argues that the Officer erred by
concluding that the risks alleged by the Applicant on return to India are best assessed
in a PRRA application.
[41]
Section 25 (1.3) of the IRPA expressly notes
that risk factors which inform an analysis under ss. 96 and 97 of the IRPA are
not to be imported into H&C consideration under s.25 of the IRPA: Kanthasamy,
at para 24. However, Kanthasamy, at para 51 notes that an H&C
application can “take the underlying facts into account
in determining whether the applicant’s circumstances warrant humanitarian and
compassionate relief.”
[42]
Here, the Officer did take these facts into
account. He noted that relocation in India would be difficult, and that the
greatest hardship the Applicant would face is reintegration into a country
which is foreign to her, especially as a woman. However, the Officer noted that
the Applicant had skills to reintegrate. On balance, the Officer concluded that
the hardship and other H&C factors were not enough to outweigh the “horrific nature of Mrs. Chaudhary’s crime, her refusal to
accept responsibility for its commission and consequent lack of remorse.”
[43]
The Court cannot reweigh this balance of factors
on judicial review, and the Officer made no error on this factor.
D.
TRP Refusal
[44]
The Applicant argues that the refusal of the
Officer to analyze her TRP request is unreasonable. She takes issue with the Officer’s
statement that the Applicant’s prolonged stay in Canada would be “…more disruptive to her family…” She argues that this
contradicts the evidence on the care she provides to her husband.
[45]
However the Officer’s comment must be placed in
the context of the overall request. A decision to grant a TRP is a highly
discretionary decision and therefore is accorded a high degree of deference (Voluntad
v Canada (Citizenship and Immigration), 2008 FC 1361 at para 25).
[46]
The court in Ferraro, at para 25 held
that if there are insufficient grounds to support a H&C claim, as here, then
there is no obligation on the Officer to conduct a separate analysis for the TRP
request.
[47]
Here, the Officer concluded:
I have also taken into consideration whether
a TRP is warranted in the circumstances…and conclude that issuing a TRP is
similarly not warranted in the circumstances….having carefully weighed the
considerations in this case, I find that there is no particular reason to
prolong her presence in Canada (emphasis added).
[48]
Clearly, the Officer decided the TRP refusal on
the same basis as he rejected the Applicant’s H&C application. There was no
error by the Officer in doing so.
VI.
Conclusion
[49]
Overall the legal impediment faced by the
Applicant was not sufficient to meet the test to obtain H&C relief or a TPR.
[50]
The Officer reasonably considered the evidence. Therefore
the decision is entitled to deference.
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