Docket: IMM-801-17
Citation:
2017 FC 730
[ENGLISH TRANSLATION]
Montréal, Quebec, July 27, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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PAVITTAR SINGH
SANDHU
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NINDERJIT KAUR
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DILRAJ SINGH
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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]
It is well-established in jurisprudence that the
duration of an applicant’s stay in Canada is not enough in itself to justify an
exemption from the law for humanitarian and compassionate considerations (Mbau
Mpula v Canada (Citizenship and Immigration), 2007 FC 456, at para 30 [Mbau
Mpula]). Although the applicants provided proof of their employment in
Canada, on which the officer placed a certain amount of positive weight, those
factors alone were not able to demonstrate that removal of the applicants from
Canada would cause them unusual or disproportionate hardship that would justify
an exemption from the law (Irimie v Canada (Minister of Citizenship and
Immigration), 2000 CanLII 16640 (FC), [2000] FCJ no 1906, 10 Imm LR
(3d) 206, at para 20 [Irimie]).
[2]
It is always up to the applicants to provide
evidence to demonstrate the humanitarian and compassionate considerations in
support of an exemption from the Immigration and Refugee Protection Act,
SC 2001, c. 27 [IRPA] in relation to permanent residence, which burden they did
not discharge (Khader v Canada (Citizenship and Immigration), 2013 FC
315, at para 49 [Khader]; Chowdhury v Canada (Citizenship and
Immigration), 2012 FC 943, at para 16 [Chowdhury]).
II.
Nature of the case
[3]
This is an application for judicial review under
subsection 72(1) of the IRPA, from a decision dated January 31, 2017, in which
an officer of Immigration, Refugees and Citizenship Canada [IRCC or the
Department] refused an application by the applicants for an exemption for
humanitarian and compassionate considerations under subsection 25(1) of the
IRPA to submit their application for permanent residence from within Canada.
III.
Facts
[4]
The Applicants are citizens of India. The principal
applicant, Pavittar Singh Sandhu, is 60 years old. His spouse, Ninderjit Kaur,
is 49 years old. Their son, Dilraj Singh, is 19 years old. The applicants also
have an elder son who remained in India.
[5]
Based on the decision, and recognizing that
there is some confusion regarding the dates based on statements in by the
principal applicant, the female applicant and their son arrived in Canada using
false identities in 2004 and applied for refugee protection in May 2004. That
application was dismissed in May 2005. The principal applicant arrived in
Canada in 2005 or 2006, also using a false identity, and filed a separate
refugee claim in 2006, which was dismissed in November 2008.
[6]
In 2012, the applicants’ initial application for
an exemption on humanitarian and compassionate considerations was rejected, and
the Federal Court dismissed the application for leave against that decision in
2013.
[7]
In 2012, the applicants’ request for a
pre-removal risk assessment was dismissed.
[8]
On June 8, 2015, the applicants filed a second
application for exemption from the obligation to submit their permanent
residence application from outside Canada, due to the existence of humanitarian
and compassionate considerations. On January 31, 2017, an IRCC officer
dismissed the application and that decision is the subject of this judicial
review.
IV.
Decision
[9]
On January 31, 2017, an immigration officer with
the Department found that the applicants had not submitted sufficient
humanitarian and compassionate considerations to justify an exemption from the
requirements set out in the Act for permanent residence applications.
[10]
The officer first examined the applicants’
degree of settlement in Canada, considering that they had entered the workforce
and accumulated savings to be positive factors. She placed some weight on those
positive elements, noting that, by themselves, they could not be a determining
factor, as immigrants are generally expected to be financially independent. As
for the applicants’ social network in Canada, the officer noted their volunteer
involvement in their religious community and the ties that they have developed
in Canadian society. However, she was not convinced that those ties to Canada
were stronger that their ties to India, particularly given that the applicants’
elder son remained in India. The officer did not place significant weight on
the applicants’ establishment in Canada.
[11]
The officer then analyzed the best interests of
the applicants’ child, now a young adult. She noted that the applicants had not
submitted any proof of parentage. Moreover, the applicants did not submit any
documents to show that they would be unable to meet their child’s needs if they
were to return to India, and did not demonstrate that a return to India would
be detrimental to them. Based on the school reports submitted, the officer
noted that the applicants’ son had shown difficulties regarding motivation and
attitude. The officer noted that he had obtained a work permit in Canada, but
no evidence was submitted regarding his current occupation (work or school) and
his efforts to be financially stable. However, the officer stated that she was
satisfied that he developed ties to Canadian society, without being convinced
that they were greater than his ties to India. She noted the allegations that
he suffers from depression and adjustment problems due to the uncertainty of
their situation in Canada, although no evidence was submitted in that regard,
or to show that he could not receive adequate treatment or have family support
if he were to return to India. The officer therefore placed little weight on
the best interests of the child.
[12]
The officer completed her analysis by examining
the risks and unfavourable conditions in India. She found that the applicants
had not submitted any evidence to support their allegations of fear of
persecution, arbitrary detention and extorsion. The officer consulted objective
documentation on the situation in India, and particularly on the return of unsuccessful
refugee claimants. As the applicants did not demonstrate that they were wanted
for crimes and that they risked being arrested if they were to return to India,
the officer did not place any weight on their allegations. The officer also
considered the difficult economic conditions in India. She concluded that,
although the economic situation is far from ideal, it was the reality for
everyone and that the applicants had not demonstrated any specific, personal
risk. The officer noted that the applicants had acquired skills in Canada that
could be transferred to India and that they had savings and family in India,
which would help them deal with the difficulties associated with their return.
The officer thus placed little weight on this factor.
V.
Issue
[13]
This case raises the following issue: Was the
officer’s decision to dismiss the application for humanitarian and
compassionate considerations reasonable?
[14]
An officer’s decision to allow or reject the
exemption set out in subsection 25(1) of the IRPA is a discretionary decision
that can be reviewed on the standard of reasonableness. The Court must show
significant deference in reviewing decisions by officers in this regard.
VI.
Relevant provisions
[15]
Subsection 25(1) of the IRPA sets forth
exemptions for humanitarian and compassionate considerations:
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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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VII.
Analysis
[16]
For the following reasons, the Court dismisses
this judicial review.
A.
Applicants’ claims
[17]
The applicants argued that the officer erred in
deeming that they were not established in Canada when they have been here for
more than 10 years and that she incorrectly weighed the importance of the ties
they had created to Canada compared to their ties to India, in addition to
suggesting that the applicants could find work in similar fields if they were
to return to India.
[18]
The officer allegedly also erred in examining
the best interests of the applicants’ child, in that she did not understand his
emotional needs and incorrectly concluded that he still had ties to India (i.e.
with his older brother and his parents’ family), when he only lived in that
country a few months when he was just seven years old. She also allegedly
ignored issues related to his future and his integration, and distorted the
fact that the applicants have savings, determining that they could benefit from
them if they were to return to India (Lauture v Canada (Citizenship and
Immigration), 2015 FC 336, at para 26 [Lauture]).
[19]
Finally, in reviewing the difficult financial
situation in India, the officer allegedly incorrectly analyzed the difficulties
that justify the applicants’ application for humanitarian and compassionate
considerations. She allegedly confused the requirements in section 97 of the
IRPA that a personal risk be demonstrated, and those in subsection 95(1) of the
IRPA, based on the applicants’ personal circumstances and the difficulties
caused by their removal from Canada (Lauture, above, at paras 30–31).
B.
Respondent’s claims
[20]
The respondent claimed, to the contrary, that
the officer’s decision was reasonable and that it was made after she assessed
and weighed all humanitarian and compassionate considerations raised by the
applicants, which were not sufficient to justify an exemption from the Act. The
respondent thus alleged that the officer had to consider the applicants’
overall situation, which includes their ties to Canada, as well as their ties
to India. The respondent also noted that the officer assessed the best
interests of the applicants’ child, noting that he is now a young adult, that
he would be with his parents, and that he would be supported in his return to
India. Finally, the respondent argued that the officer was correct in concluding
that, regarding the difficult economic situation in India, there is no
specific, personal risk to the applicants that justified an exception of a
provision of the Act (Lalane v Canada (Citizenship and Immigration),
2009 FC 6, at para 1).
C.
Analysis
[21]
In this case, the Court feels that the decision
falls within the range of possible, acceptable outcomes that are defensible in
respect of the facts and law, and that its intervention is not warranted (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 47). The applicants did not
demonstrate any error or omission allegedly committed by the officer and it is
not this Court’s role to reweigh the evidence. The officer considered all
evidence submitted by the applicants: the duration of their stay in Canada, the
jobs they hold, the ties they have developed to the country, the best interests
of their son, and the difficulties they would face if they were to return to
India.
[22]
It is well-established in jurisprudence that the
duration of an applicant’s stay in Canada is not enough in itself to justify an
exemption from the law for humanitarian and compassionate considerations (Mbau
Mpula, above, at para 30). Although the applicants provided proof of their
employment in Canada, on which the officer placed a certain amount of positive
weight, those factors alone were not able to demonstrate that removal of the
applicants from Canada would cause them unusual or disproportionate hardship
that would justify an exemption from the law (Irimie, above, at para
20).
[23]
It would also be false to claim that the officer
was not alert, alive, and sensitive to the best interests of the applicants’
child, as she considered that factor, which was submitted even though he is an
adult, and she examined all the applicants’ arguments in that regard (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
paras 74–75). In doing so, she considered the child’s overall situation, as
required by the Supreme Court (Kanthasamy v Canada (Citizenship and
Immigration), [2015] 3 S.C.R. 909, 2015 SCC 61, at para 45 [Kanthasamy]).
It must also be noted that the Supreme Court set out the relevant factors to be
considered by officers based on the Minister’s Guidelines:
[40] Where, as here, the legislation
specifically directs that the best interests of a child who is “directly
affected” be considered, those interests are a singularly significant focus and
perspective: A.C., at paras. 80-81. The Minister’s Guidelines set out relevant
considerations for this inquiry:
Generally, factors relating to a child’s
emotional, social, cultural and physical welfare should be taken into account
when raised. Some examples of factors that applicants may raise include but are
not limited to:
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the age of the child;
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the level of dependency between the child and
the [humanitarian and compassionate] applicant or the child and their sponsor;
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the degree of the child’s establishment in
Canada;
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the child’s links to the country in relation
to which the [humanitarian and compassionate] assessment is being considered;
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the conditions of that country and the potential
impact on the child;
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medical issues or special needs the child may
have;
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the impact to the child’s education; and
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matters related to the child’s gender.
(Inland Processing, s. 5.12)
[Emphasis added.]
(Kanthasamy, above, at para 40.)
[24]
The Court therefore dismisses the applicants’
argument that the officer allegedly erred by considering the continued ties
between the applicants and their family who remain in India, both regarding
their level of establishment and the best interest of their son.
[25]
Finally, the Court is of the view that the
officer conducted an in-depth examination of the political and economic situation
the applicants would face if they were to return to India. She had access to
objective documentation and analyzed the arguments submitted by the applicants.
Given the evidence available to the officer, her conclusion that they would not
face any specific danger is reasonable.
[26]
It is always up to the applicants to provide
evidence to demonstrate the humanitarian and compassionate considerations in
support of an exemption from the IRPA in relation to permanent residence, a burden
that they did not discharge (Khader, above, at para 49; Chowdhury,
above, at para 16).
[27]
The reasons in support of the officer’s decision
are justified, transparent, and intelligible. The decision is therefore
reasonable, and there is no need for the Court to intervene.
VIII.
Conclusion
[28]
For these reasons, the application for judicial
review is dismissed.
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