Date: 20061025
Docket: IMM-625-06
Citation: 2006 FC 1285
Ottawa, Ontario,
October 25, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
BHUPINDER
SINGH KHUN KHUN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of a Pre-Removal Risk
Assessment Officer (the “officer”), to dismiss an application for permanent
residence from within Canada on humanitarian and compassionate (“H &
C”) grounds.
BACKGROUND
[2]
The
applicant is a citizen of India of Sikh faith, who claims to have been the
victim of unlawful arrest and torture at the hands of the Indian Army, for
allegedly providing assistance to Sikh militants. In September of 1990, the
applicant fled India, leaving behind his wife and two children.
[3]
On
October 6, 1990, the applicant arrived in the United Kingdom on a
visitor’s visa, subsequently claimed refugee status and was denied. After
exhausting his avenues of appeal in the UK, he arrived
in Canada on June 27, 1997
and immediately claimed refugee status. His claim was rejected by the
Immigration and Refugee Board on November 15, 1999.
[4]
The
applicant then submitted his application for a visa exemption on H & C
grounds on February 24th, 2000. The basis for his application was
twofold: 1) risk upon return to India (this was before pre-removal risk
assessments were introduced in the legislation), and 2) establishment in Canada.
[5]
On
December 22, 2005, close to six years after the filing of the H & C grounds
application, the officer asked for an update that was provided with a lot of
documentation on January 6, 2006.
[6]
The documents were stamped “received” on January 11, 2006
by Citizenship and Immigration Canada (Montreal). The decision was rendered by Charlaine Lapointe on January 17, 2006,
denying the application and a departure order was issued against him the same
day.
ISSUE FOR CONSIDERATION
[7]
The central issue for consideration in this case is whether
the officer made a reviewable error by failing to properly assess the evidence
before her. As such, the Court will consider the following question:
Did the officer take
into consideration all relevant factors in her assessment of humanitarian and
compassionate considerations?
STANDARD OF REVIEW
[8]
The decision in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, remains the
leading case for the standard of review of decisions made on H & C grounds. In Baker,
Justice Claire L’Heureux-Dubé engaged in a detailed pragmatic and functional
analysis before deciding on reasonableness simpliciter as the proper
standard.
[9]
More
recently, Justice Caroline Layden-Stevensen in Agot
v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 607,
provided a useful summary of the principles established in H & C
applications at paragraph 8:
[…]
The decision of the ministerial delegate with respect to an H&C application
is a discretionary one: Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker).
The standard of review applicable to such decisions is that of reasonableness simpliciter:
Baker. The onus, on an application for an H&C exemption,
is on the applicant: Owusu v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 94, [2003] F.C.J. No. 139
per Gibson J. citing Prasad v. Canada (Minister of Citizenship and
Immigration) (1996), 34 Imm.L.R. (2d) 91
(F.C.T.D.) and Patel v. Canada (Minister of Citizenship and
Immigration) (1997), 36 Imm.L.R. (2d) 175
(F.C.T.D.). The weighing of relevant factors is not the function of
a court reviewing the exercise of ministerial discretion: Suresh v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh);
Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358
(C.A.) (Legault). The ministerial guidelines are not law and
the Minister and her agents are not bound by them, but they are accessible to
the public and the Supreme Court has qualified them as being of great
assistance to the court: Legault. An H&C decision must be
supported by reasons: Baker. It is inappropriate to require
administrative officers to give as detailed reasons for their decisions as may
be expected of an administrative tribunal that renders its decisions after an
adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and
Immigration) (2001), 282 N.R. 394 (F.C.A.).
[10]
Therefore, the standard of review applicable in this case
is reasonableness.
ANALYSIS
[11]
As the applicant has not raised any argument with respect
to the officer’s determination that there were no security issues justifying an
exemption, this Court will only consider the reasons provided denying the H &
C application on the ground of establishment.
[12]
The test for determining whether an exception should be
made under humanitarian and compassionate grounds was articulated in Irimie
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.
1906, at paragraph 26, where Justice Denis Pelletier wrote that the
humanitarian and compassionate exemption process “is not designed to eliminate hardship;
it is designed to provide relief from unusual, undeserved or disproportionate
hardship”. This is why he also noted at paragraph 12:
[…] It would seem to follow that the hardship which would
trigger the exercise of discretion on humanitarian and compassionate grounds
should be something other than that which is inherent in being asked to leave
after one has been in place for a period of time. Thus, the fact
that one would be leaving behind friends, perhaps family, employment or a
residence would not necessarily be enough to justify the exercise of
discretion.
[13]
This was acknowledged by the officer in her reasons, where
she identified the correct standard to be met as being whether the applicant in
this case would suffer “unusual, underserved” or “disproportionate” hardship if
he were required to apply for permanent residence from outside Canada.
[14]
In reading the reasons provided by the officer, it becomes
clear that most of her time was spent on the risk analysis, which is not at
stake here.
[15]
In examining whether prolonged inability to leave has led
to establishment, the officer considered, in two short paragraphs, that the
applicant has continuously been employed since he has been authorized to work in
Canada and that he has been financially supporting his family. She also
acknowledged that the applicant operated a business employing Canadian citizens
and purchased a house, all elements reflecting positively on his degree of
establishment.
[16]
In the third and last paragraph of this short analysis,
before the “Conclusion”, the officer found at page 4 of her decision:
All this considered, it must be said that he risked starting
a business and purchasing a house before obtaining a legal status in Canada. Although it would
certainly cause him grief to leave Canada to make his application from abroad, I do not come to the
conclusion that he would suffer exceptional hardship to do so.
Conclusion
Put together, these facts do not establish that he would suffer
“unusual, undeserved” or “disproportionate” hardship if he applied for
permanent residence from outside Canada. I cannot conclude that the applicant has demonstrated that
he is at a sufficient level of risk, or that he would suffer hardship
sufficient to justify a visa exemption under L25 of IRPA. The visa exemption is
therefore denied.
[17]
In my view, this decision is unreasonable in light of the
evidence provided.
[18]
The applicant filed an application for H & C on
February 24, 2000. Five years later, without being asked, the applicant sent an
update to his file on February 10, 2005. The applicant then received a letter, dated
December 22, 2005, requiring updated information which he provided in the form
of a series of documents received on January 11, 2006.
[19]
Overall, the officer received over 700 pages of documents
regarding the applicant’s file. Yet, as noted on page 1 of her decision, the
file review started on January 17, 2006 and was concluded by a decision
rendered the same day. Furthermore, only three short paragraphs were dedicated
to the issue of establishment.
[20]
In looking at all this material, I find myself asking: how
can a person go through all this documentation in one day? Even if I were ready
to accept that the officer looked through all the documents submitted, there is
no question in my mind that the analysis of this material was deficient,
failing to disclose a proper evaluation of the evidence.
[21]
The applicant waited almost six years before having his H
& C application processed. He did what anybody else should have done: he
worked hard to establish a business, bought a house and took care of his
family. After recognizing those facts, the officer nonetheless concluded that
the applicant risked starting a business and purchasing a house before
obtaining a legal status in Canada.
[22]
As such, this Court finds that the decision of the officer
was unreasonable. After waiting six years for an answer, the applicant was entitled
to a fair assessment of his situation based on humanitarian and compassionate
grounds, disclosing a thorough assessment of the evidence, something which he
was not given.
[23]
Therefore, this application for judicial review is granted.
JUDGMENT
- This application is
granted;
- The immigration
officer’s decision is set aside and the matter is returned for
redetermination by a different immigration officer;
- No question for
certification.
“Pierre Blais”
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