Date: 20061219
Docket: IMM-1756-06
Citation: 2006 FC 1498
BETWEEN:
IQBBAL AQEEL
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT
Pinard J.
[1]
This is an application for judicial review of a decision
dated March 21, 2006, by a pre‑removal risk assessment officer (the PRRA
officer) refusing an in-country application for permanent residence on
humanitarian and compassionate grounds, originally submitted on August 25,
2003.
[2]
The
applicant, Mr. M. Aqeel
Iqbal, is a citizen of Pakistan and was admitted to Canada as a visitor
on September 21, 2001, for a period of six months to visit his brother who
lives in the Montréal area.
[3]
On
October 12, 2001, the applicant claimed refugee status, but his application was
refused on December 27, 2002, on the grounds that he was not a Convention
refugee or a person in need of protection as defined in sections 96 and 97,
respectively, of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act).
[4]
The
Immigration and Refugee Board found that the applicant was not credible because
of numerous inconsistencies, and therefore, that his life would not be in
danger if he were to return to Pakistan. An application for
judicial review of this decision was also filed, then dismissed on May 8,
2003.
[5]
The
applicant subsequently made an in-country permanent residence claim on
humanitarian and compassionate grounds. He states that he cannot submit his
application for permanent residence from outside Canada because he
fears for his life should he return to Pakistan.
[6]
The
application was received on August 25, 2003, and denied by the PRRA officer on
March 21, 2006. The officer reminded the applicant that he is
currently without status in Canada, and that a removal order had been issued
against him on November 21, 2001, in Montréal. Consequently, his file was
transferred to the Canada Border Services Agency.
[7]
In
this case, it is important to bear in mind the general principles that apply to
applications on humanitarian and compassionate grounds (HC applications) in
order to better assess some of the applicant’s arguments.
[8]
First,
in Agot v. Minister of Citizenship and Immigration, 2003 FCT 436, Madam
Justice Layden-Stevenson reviews some of the general principles:
[8] It is useful to review some of
the established principles regarding H&C applications. 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.)).
[9]
Next,
in Krotov v. Minister of Citizenship and Immigration, 2005 FC 438, at
paragraph 8, Mr. Justice Blais affirms the principle laid down in Zolotareva
v. Minister of Citizenship and Immigration, 2003 FC 1274, that a PRRA
officer has the authority under the Act to represent the Minister of
Citizenship and Immigration and to act on an application for permanent
residence in Canada on humanitarian and compassionate grounds under subsection
25(1) of the Act.
[10] The applicant
first challenges the PRRA officer’s assessment of his application on
humanitarian and compassionate grounds.
[11] In order to
convince the officer that humanitarian and compassionate grounds exist to
support his or her claim, the applicant has the onus of proving that the
requirement to obtain a permanent resident visa from outside Canada would
amount to unusual, undue or disproportionate hardship (Uddin v. Minister of
Citizenship and Immigration, 2002 FCT 937). After assessing the facts, the
officer makes a finding.
[12] The onus is
also on the applicant to set out the relevant factors that must be considered
on the assessment in order for the officer to find that relevant humanitarian
and compassionate grounds exist (IP 5 Manual: Immigrant Applications in
Canada made on Humanitarian or Compassionate Grounds (the Manual),
Citizenship and Immigration Canada, 5.29). In Owusu v. Minister of
Citizenship and Immigration, 2004 FCA 38, Mr. Justice Evans, for the
Federal Court of Appeal, wrote at paragraph 8:
. . . And, since applicants have the onus of establishing the facts on
which their claim rests, they omit pertinent information from their written
submissions at their peril.
[13] In this case,
the applicant made only brief and general statements that did not really assist
the
officer with her assessment:
“I am unable to get a visa for a country
where I can deposit my application and wait for the result. My life is in
danger in Pakistan. Therefore I cannot return to
Pakistan.” (Question 3, part A:
Special reasons to exempt you from the requirement to apply from outside Canada).
“I am working in Montreal and I am living with my brother who is a
Canadian citizen. I cannot return to Pakistan
because my life is in danger overthere.” (Question 3, part B: disproportionate
hardship)
[14] Moreover, I
agree with the respondent that it is well settled that the degree of
establishment in Canada is not sufficient to justify accepting a claim
on humanitarian and compassionate grounds.
[15] Moreover, in
order for the risks to be assessed, the applicant has the burden of providing
the evidence necessary to support his or her allegation on this issue (see Owusu,
above, Joseph v. Minister of Citizenship and Immigration, 2004 FC 344
and Nguyen v. Minister of Citizenship and Immigration, 2005 FC
236). The applicant herein submitted no evidence that he has been targeted or
that his life would be particularly at risk.
[16] It is well
established that an applicant may make written submissions to meet the
requirements of procedural fairness. In this case, the applicant did not do so.
Although he submits that the officer failed to consider all the grounds in his
application, I agree with the respondent that the officer considered what was
before her, as well as documents that had not been submitted to her.
[17] I also agree
with the respondent that this HC assessment, which includes a risk assessment,
cannot serve as an appeal of the risk assessment made by the Refugee Protection
Division, a risk that was found not to be credible.
[18] Thus, in
accordance with the reasonableness simpliciter standard of review, I
conclude that the officer’s finding was not unreasonable based on the
information before her.
[19] The applicant
also disputes the PRRA officer’s interpretation and application of
subsection 25(1) of the Act, which reads as follows:
|
25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
|
25.
(1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui
ne se conforme pas à la présente loi, et peut, de sa propre initiative,
étudier le cas de cet étranger et peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger
– compte tenu de l’intérêt supérieur de l’enfant directement touché – ou
l’intérêt public le justifient.
|
[20] Since
statutory interpretation is a question of law, the applicable standard of
review is correctness (Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R.
982, Chieu v. Canada (M.C.I.), [2002] 1 S.C.R. 84).
[21] Subsection
25(1) refers to two types of considerations: humanitarian and compassionate,
and public policy. In an application for permanent residence, it is settled law
that if there are no public policy reasons to refuse an exemption, the next
step is to see if there are humanitarian and compassionate grounds to grant an
exemption (Legault, above, at paragraph 17).
[22] In Vidal
v. Canada (M.E.I.), [1991] F.C.J. No. 63 (T.D.)(QL), Mr. Justice Strayer
held that the words “humanitarian and compassionate” have an objective meaning,
which each immigration officer is entitled to interpret. However, the term
“public policy” has no objective content and cannot be interpreted by an
officer:
. . . While it is plausible to say, as seems to
have been implicit in the Yhap case that the words "humanitarian
and compassionate" have some kind of objective meaning intended by
Parliament which must not be artificially narrowed through the fettering of the
discretion of immigration officers in applying those words, the same cannot be
said for the term "public policy". Subject to certain very broad
limitations, the content of "public policy" must be defined by those
having the authority to fix public policy and the political responsibility for
its content.
. . .
. . . As I have suggested earlier, the
rationale of Yhap is based on the proposition that the words
"humanitarian and compassionate" have some objective meaning which
each immigration officer is entitled to interpret. But the term "public
policy" has no objective content and must be defined by those having
authority to define public policy. I cannot accept that every immigration officer
has the right and the obligation to define his own "public policy".
That is surely a matter for the Governor in Council to determine in the
exercise of his authority under subsection 114(2) and it is perfectly
legitimate for the Minister to indicate through guidelines what she will
recommend to the Governor in Council as "public policy" (based,
presumably, on what the Governor in Council is likely to accept). The
guidelines may therefore prescribe the situations in which, for reasons of
public policy, the Governor in Council will by regulation exempt an individual
from other regulations or otherwise facilitate his admission. (Emphasis added.)
. . .
. . . It is accepted that those guidelines may
not fetter the discretion of immigration officers to consider any factor which
could arguably be embraced by the terms "humanitarian and
compassionate", but it is quite in order for the Minister on behalf of the
Governor in Council to indicate definitively to immigration officers what
elements of public policy she is prepared to recommend to the Governor in
Council as a basis for favourable action. It is surely within the expectation
of Parliament and of most Canadians that the Minister will try to ensure that
the discretionary powers granted by subsection 114(2) are exercised with some
coherence and consistency and that in matters of public policy Parliament can
rightly look to the Governor in Council and the Minister to be responsible for
the content of that policy.
[23] Thus, public
policy considerations, whether in the Manual or elsewhere, are left to the
discretion of the Minister. “These public interest
considerations [referring to illegal entry into Canada] need not have been, I believe, put on paper since they are
necessarily associated with the role and responsibilities of the Minister of
Immigration.”
(Legault, at paragraph 20). Public policy considerations include a
criminal conviction, the separation of parents and dependent children and
whether the applicant has lived in Canada for a significant
period of time due to circumstances beyond his or her control (Legault,
at paragraphs 24, 26 and 27).
[24] Like the
respondent in this proceeding, I would rely on Mr. Justice Cullen’s remarks in Dawkins
v. Canada (M.E.I.), [1992] 1 F.C. 639 (T.D.), at page 651:
I accept the
distinction drawn by Strayer J. between considerations of public policy and
humanitarian and compassionate concerns. In my opinion, he is correct in
stating that concerns of public policy should not be modified or extended by
immigration officers. As public policy is the province of those
constitutionally entrusted with the power to set policy, allowing immigration
officers to make exceptions to definitions adopted in the formulation of public
policy would amount in effect to the immigration officer usurping the
legislative role. . . .
[25] Although this
analysis was made under the former provision of the Act (subsection 114(2)), I
believe it is still valid in interpreting subsection 25(1). In addition, this
provision confers directly on the Minister the discretion to determine both
public policy considerations and humanitarian and compassionate considerations
without having to go through the Governor in Council.
[26] Although it
is true, as the applicant says, that the Manual has no legal value, it nonetheless
assists immigration officers and the Court in determining whether a decision is
reasonable (Baker, at paragraph 72, Legault, at paragraph 20, Lee
v. Canada (M.C.I.), 2005 FC 413).
[27] As for the
economic factors raised by the applicant before this Court, it should be noted
that subsection 25(1) comprises an exceptional, discretionary procedure,
limited to cases where there would be unusual or disproportionate hardship (Chieu,
above, and Legault, at paragraphs 15 and 16).
[28] Accordingly,
I am of the view that the applicant’s personal situation, i.e. the fact that he
is a skilled worker in an occupation that has a shortage of workers in Canada, does not
constitute a public policy consideration. In addition, none of the applicant’s
forms indicated that certain public policies applied to him; instead, he
submitted his application on simple humanitarian and compassionate grounds (see
page 99 of the tribunal record).
[29] Therefore,
the applicant has not persuaded me that the officer erred in interpreting
and/or applying subsection 25(1) of the Act.
[30] Finally, to
the extent that the applicant’s argument is based on procedural fairness, it
should be noted that the correctness standard of review applies to allegations
of a breach of natural justice or procedural fairness (C.U.P.E. v. Ontario (Minister of
Labour),
[2003] 1 S.C.R. 539). The Court must determine the circumstances of the matter
in question and decide whether the duty of fairness has been met.
[31] Whether the
applicant likes it or not, according to the Manual and Krotov, above, a
PRRA officer has the power to assess an HC application with risk allegations.
Therefore, there was no breach of procedural fairness in this case because the
application was assessed by the right person.
[32] Nor was there
a breach of procedural fairness in the steps taken to assess the exemption
request.
[33] Assessing an
application for exemption from the requirement to apply for permanent residence
from outside Canada is a
two-step process (Egbejule v. Minister of Citizenship and Immigration,
2005 FC 851). First, the officer determines whether there are sufficient
humanitarian or compassionate grounds to grant an exemption under section 25.
Next, if those grounds exist, the applicant has to meet all the other
requirements of the Act (Mutanda v. Minister of Citizenship and Immigration,
2005 FC 1101).
[34] If the
exemption is refused, there is no reason to assess the application for
permanent residence. However, that does not bar the applicant from applying for
permanent residence from abroad at a later time.
[35] In this case,
since the exemption was not granted, there was no need to send the application
to the appropriate authorities in Quebec to assess whether the
applicant met the selection criteria for an application for permanent
residence. The officer’s decision is consistent with the procedures in the
Manual and the principles of fairness.
[36] For all the
foregoing reasons, since the applicant has failed to prove an error warranting
the intervention of the Court, the application for judicial review is dismissed.
[37] Counsel for
the applicant submitted the following question for certification:
[TRANSLATION]
-Having regard to the provisions of the
IRPA, is it incumbent on the Minister:
to establish categories of persons whose
application for permanent residence may be considered and dealt with as a
“public policy case” under section 25 of the IRPA;
-
If so, can
the Minister determine on his own or by directive that only these categories
can be considered as relevant to “public policy” under section 25 of the IRPA;
-
If not,
and considering that this power has not been delegated, is the applicant
entitled to ask the Minister for a supplementary assessment with respect to the
public policy grounds in section 25 of the IRPA.
[38] The requested
certification is refused because the case law does not support the applicant’s
position (see Vidal v. Canada (M.E.I.), [1991] F.C.J. No. 63 (TD) (QL); Dawkins
v. Canada (M.E.I.), [1991] F.C.J. No. 505 (TD) (QL); and Egbejule v.
Canada (M.C.I.), 2005 FC 851, [2005] F.C.J. No. 1072 (QL)).
[39] I also concur
with counsel for the respondent that, without a factual foundation, the
proposed question would not be determinative of an appeal.
“Yvon
Pinard”
Ottawa, Ontario
December
19, 2006
Certified
true translation
Mary
Jo Egan, LLB
Email this Content