Date: 20061219
Docket: IMM-5946-05
Citation: 2006 FC 1530
OTTAWA, ONTARIO, December 19, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
DJAMEL
BOUAROUDJ
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Djamel Bouaroudj (the “Applicant”) was born in
1969 in Algiers, Algeria. The Applicant’s parents and siblings reside in Algeria. He fears persecution in Algeria as a result of his “perceived
anti-government political opinion”. He claims that this fear arose in 1991,
when after serving two years of military service, he failed to report back to
the Algerian army after being called to re-enlist. He states he did not report
because he feared that he would be called on to suppress demonstrators in Algiers.
[2]
In February 1991, army personnel came to his house
to demand his whereabouts and behaved in a threatening manner towards his
mother.
[3]
In September 1993, he left Algeria. The Applicant arrived at Mirabel
Airport in Quebec, entering the country with a French passport that was not his
own. He immediately claimed refugee status under a false name. He feared that
disclosure of his real name and passport would lead to deportation. He did not
attend the hearing in March 1996, and he also failed to attend an abandonment
hearing in June 1996. As a result, his refugee claim was declared abandoned.
His application was refused in October 1996.
[4]
During the course of this process, the Applicant
married a Canadian citizen in 1994. She applied to sponsor him for permanent
residency. A sponsorship interview was held in 1997, but the application was
rejected shortly thereafter. The marriage ended around this time.
[5]
In late 1997, the Applicant received a letter
directing him to leave Canada. He left Vancouver for Seattle, Washington. However,
in October 1998, the Applicant returned to Canada at Niagara Falls.
[6]
He once again applied for permanent residence
status on the basis that he was a Convention Refugee. In October 2002, the
Applicant attended an appointment where the Immigration and Refugee Board
(“Board”) informed him he was not eligible to have his claim determined by the
Board because he had been found to have multiple identities. The Applicant
filed for leave to appeal this decision at the Federal Court but was denied.
[7]
In March 2004, the Applicant was convicted of
fraud personation and use of credit cards obtained from crime. In July 2005,
the Applicant received a negative Pre-Removal Risk Assessment (“PRRA”). Approximately
two months later on September 20, 2005, his humanitarian and compassionate (“H
& C”) application was refused. He is now seeking judicial review of that
decision.
ISSUES
[8]
The Applicant raises 2 issues:
1. The Officer erred by:
a.
Failing to consider his establishment;
b.
Making unjustified inferences about possible
family support in Algeria; and
c.
Failing to consider hardship apart from risk.
2. The Officer breached procedural fairness by not asking for
additional representations or conducting an interview regarding the issue of
family support in Algeria.
STANDARD OF
REVIEW
[9]
The appropriate standard when reviewing an
immigration officer’s H&C decision is reasonableness (Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). For a
decision to be considered reasonable, there must be a line of analysis that
could reasonably lead from the evidence to the Officer’s conclusion (Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 55). With
regard to procedural fairness the appropriate standard of review is correctness:
Canada
(Attorney General) v. Sketchley, 2005 FCA 404; Canadian Union of Public
Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R.
539.
ANALYSIS
Issue 1: Did
the officer err in her factual finding re establishment, family support and
risk?
[10]
The Applicant argues that the Immigration Officer
failed to give proper consideration to his long-time residence in Canada. The Applicant suggests that the Officer’s
decision was based solely on the fact that he is single and childless and that
he chose to reside in Canada
while knowing that a removal order had been issued against him. The Applicant
contends that if the Officer had taken account of the Applicant’s long-term
residence in the country, it would have revealed that the Applicant was
well-established in Canada.
Furthermore, the Officer made the observation: “He has his parents and several
siblings in Algeria to whom he
can return to and presumably offer some sort of support”. However, the
Applicant argues that there is no evidence that his family will support him.
Finally, the Applicant argues that the Officer relied on the opinion from a
PRRA Officer and did not make an independent assessment, as she should have, as
to the hardship that the Applicant would face, aside from the risk assessed
under a PRRA.
[11]
In my view, these submissions cannot succeed. First,
it should be noted that the face of the record does not support these
allegations. A sentence of the decision reads, “While I recognize the applicant
has been away from his country for several years, it is my opinion that he has
remained with the knowledge that he is under a removal order.” The first
clause suggests, contrary to the Applicant’s allegation, that the Officer has
considered the Applicant’s level of establishment in Canada.
[12]
Second, as to the Officer’s statement to the
effect that the Applicant could presumably obtain some support from family in Algeria, this should be considered as an
inference, not as an unsupported finding of fact. Such an inference is not
unreasonable given that the Applicant has disclosed in his application that he has
both parents and five siblings in Algeria. More importantly, the overall text does not suggest that this inference
was a decisive factor in the Officer’s ultimate decision. A straightforward
reading of the Officer’s decision does not reveal grounds for the Applicant’s
allegations.
[13]
Thirdly, there is no support in law for the
Applicant’s position. The claimant’s level of establishment in Canada is not an independent consideration
for the purposes of waiving s. 25(1) on humanitarian and compassionate grounds.
Instead, establishment in Canada is only one factor in the larger context of whether a claimant
would face undue, undeserved or disproportionate hardship upon being required
to obtain a permanent residency visa from outside the country. In Legault v.
Canada (Minister of Citizenship and Immigration, 2002 FCA 125, [2002] 4
F.C. 358, 212 D.L.R.
(4th) 139, Décary J.A. reviewed
the ministerial guidelines for evaluating H & C factors, and emphasized
that establishment in Canada is to be evaluated as a hardship factor only
insofar as such establishment has arisen for reasons beyond a claimant’s
control. He states at paragraph 27:
[27]
Paragraph 8.7 deals with the "prolonged inability to
leave Canada [having] led to establishment". It states that:
Positive consideration may be
warranted when the applicant has been in Canada for a significant period of
time due to circumstances beyond his or her control.
[Underlining in
original.]
[14]
The findings of the Officer and other
immigration officials reveal that the Applicant’s residency in Canada was not due to
circumstances beyond his control. Indeed, the record suggests that the only
reason the Applicant has remained in the country for as long as he has is
because of his repeated efforts to manipulate and abuse Canada’s immigration
procedures. If this is the case, it would be perverse indeed to reward such
behaviour on humanitarian and compassionate grounds.
[15]
Finally, the contention that the Officer
should have considered hardship in Algeria, other than risk determined under a PRRA, a sort of
“PRRA light”, is without foundation. The H & C process is not a substitute
immigration or refugee process. Rather an H & C application must be
regarded in a larger context wherein the waiver of s. 25(1) on humanitarian and
compassionate grounds is an exceptional judicial procedure that is not supposed
to regularly supplant Canada’s immigration rules. In Hamzai v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1108), Shore J. stated this in an admirably
concise manner when he wrote:
[19]
A decision made on H&C grounds is an exceptional
measure and, moreover, a discretionary one. The existence of an H&C review
offers an individual special and additional consideration for an exemption from
Canadian immigration laws that are otherwise universally applied. (Legault
v. Canada (Minister of Citizenship and Immigration),
2002 FCA 125, [2002] F.C.J. No. 457 (QL), at paragraph 15.)
…
[27]
The officer’s determination that these facts together fail
to demonstrate the exceptional circumstances of undue hardship was reasonable.
The law is well established that granting an H&C is a rare exemption,
granted only when applicants have demonstrated an unusual or excessive hardship…
[16]
There are no exceptional
circumstances in the case before the Court that justifies the granting of an
exemption from s. 25(1) on humanitarian and compassionate grounds. The Applicant
has shown nothing in the impugned decision or in the law to suggest otherwise.
Issue 2: Did
the Officer fail to observe the principles of procedural fairness?
[17]
The Applicant claims that he was not given the
opportunity of an interview with the Officer to discuss available family
support in Algeria. The
Applicant asserts that this denial amounted to a denial of procedural fairness.
[18]
There is nothing in the Act or in the
case law to suggest that the Applicant has a right to an interview with H &
C officers. It is settled law that there is no right to an interview in this
context. While common law rules of natural justice demand a right to be heard,
this right does not require the granting of an interview, but instead simply
requires that the Officer evaluate the relevant considerations in their
entirety.
[19]
In Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, 174 D.L.R.
(4th) 193), Wilson J. stated:
34
I agree that an oral hearing is not a general requirement for H
& C decisions. An interview is not essential for the
information relevant to an H & C application to be put before an
immigration officer, so that the humanitarian and compassionate considerations
presented may be considered in their entirety and in a fair manner …
Taking all the factors relevant to determining the content of the duty of
fairness into account, the lack of an oral hearing or notice of such a hearing
did not, in my opinion, constitute a violation of the requirements of
procedural fairness to which Ms. Baker was entitled in the circumstances,
particularly given the fact that several of the factors point toward a more
relaxed standard. The opportunity, which was accorded, for the
appellant or her children to produce full and complete written documentation in
relation to all aspects of her application satisfied the requirements of the
participatory rights required by the duty of fairness in this case.
[Underlining added.]
[20]
This principle espoused in Baker appears to have become a
well-established principle in the jurisprudence of this Court. For instance in Étienne v.
Canada (Minister
of Citizenship and Immigration), 2003
FC 1314 at para. 9, Pinard J. wrote:
9 The case law of this Court is consistent that an interview is
not required to ensure procedural fairness in processing applications for visa
exemptions for humanitarian
considerations (see, for example Cheema (Litigation Guardian) v. Canada
(Minister of Citizenship and Immigration), (June 4, 2002), IMM-2187-01,
2002 FCT 638, Ming v. Minister of Citizenship and
Immigration (November 15, 2001), IMM-5953-00, 2001 FCT 1253, and Sellakkandu
v. Minister of Employment and Immigration (October 13, 1993), 92-T-2029).
[21]
Accordingly, the lack of procedural fairness argument also fails.
ORDER
THIS COURT ORDERS that this application be
dismissed.
“Konrad
W. von Finckenstein”
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