Date: 20020904
Docket No.: IMM-3175-01
Neutral Citation: 2002 FCT 937
Ottawa, Ontario, this 4th day of September 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
NASHIR UDDIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. This is an application for judicial review of a decision of M. Correira, an immigration officer, (the "officer") dated June 11, 2001, refusing Mr. Uddin's (the "applicant") application for permission to apply for permanent residence from within Canada on humanitarian and compassionate grounds (the "H & C decision") pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 and amendments thereto.
Facts
- 2. The applicant is a 40 year old citizen of Bangladesh, who fled his country in 1996 and made a refugee claim in Canada. The applicant's refugee claim was rejected by the Immigration Refugee Board in a decision dated February 26, 1998. An application for leave for judicial review of that decision was dismissed by the Federal Court on September 2, 1998.
- 3. An H & C application was made by the applicant which was negatively disposed of on March 24, 2000. The applicant filed an application for judicial review of this H & C decision. This application was discontinued by the applicant on the respondent Minister's undertaking to conduct another H & C review by a different officer.
4. A second H & C review was conducted pursuant to subsection 114(2) of the Immigration Act. Prior to making her decision, the officer provided copies of the prior decisions she considered, including the findings of the refugee division, the PDRCC decision and the risk opinion made by Steve McCaffery, a risk assessment officer. The officer also received additional materials and further written submissions of the applicants. The review was conducted without interviewing the applicant and resulted in a negative decision dated June 11, 2001.
- 5. The applicant fears returning to his home country due to past political problems while he lived in Bangladesh. It is alleged that, in 1991, the applicant joined the Jatiata Badi Juabdal ("JPJ"), which was affiliated to the Bangladesh National Party ("BNP"), the party in opposition in Bangladesh in 1998. He became the Treasurer of the JPJ in 1994. Before the elections of 1996, the rival political party, the Awami League, which formed the government in Bangladesh at that time, wanted the applicant to join them. The applicant says he rejected the offer and, as a result, he was attacked and received death threats on many occasions by the Awami League. The applicant alleges that after the elections false charges were brought against BNP members. He feared that a false charge would be brought against him so he went into hiding in November 1996. In early December 1996, the police attended his home to arrest him on a politically-motivated criminal charge. The applicant fled Bangladesh in December 1996 with a false passport.
- 6. The applicant is now in Canada and he has taken English courses and works as a certified welder for Cimco Division, Toronto Industries Ltd..
H & C Decision
- 7. The officer, after reviewing all of the information on file, was not satisfied that there were sufficient evidence to demonstrate that there are humanitarian and compassionate grounds to warrant waiving subsection 9(1) of the Immigration Act.
- 8. The officer's reasons for the refusal are the following:
· The applicant does not have any family ties in Canada, except for a sister-in-law; his wife and three children are in Bangladesh.
· The applicant's main point of hardship is the fact that he fears returning to his home country of Bangladesh. This issue has been addressed before by the Refugee Board and by the Federal Court, both of those decisions were negative. The applicant's fear for his life has also been looked at by two separate Post Claim Determination Officer ("PCDO"). In March 2000, the PCDO found that his life was not at risk if he returned to Bangladesh and in February 2001, another PCDO determined the same.
9. The applicant claims that he suffers from anxiety and submitted the report of Dr. J. Pilowsky, Psychologist, member of the Canadian Registry for Health Service Providers in Psychology. This report attests that the applicant's condition will deteriorate if he has to return to Bangladesh. The officer found that the applicant may well suffer from anxiety, but that there was insufficient evidence that he could not seek effective treatment in Bangladesh or that he was indeed seeking such treatment here in Canada.
10. With regards to the applicant's establishment in Canada, the officer found that the applicant has some level of establishment, but was not satisfied that it outweighed the fact that other factors considered by her assessment of hardship. The officer based her conclusion on the fact that the applicant applied for social assistance when he arrived in February 1997 and drew benefits until September 1998. At that point he began working as a welder for O'Connor Tank Ltd and then for Cimco Refrigeration in April 2001. The officer also refers to the fact that the applicant attended ESL courses and had a certificate from a welding school in the Toronto area. In terms of community involvement, there is reference to a letter from the "Madinah Masjid" stating that he is a member of their congregation. There is also a letter from the Bangladesh Association of Toronto stating that the applicant has been a member since 1996 and is actively involved in various community activities organized by the Association. Finally, the officer acknowledged that the applicant has over $3000.00 in RRSP's.
Issues
- 11. Whether the immigration officer failed to observe a principle of natural justice or procedural fairness by not providing the applicant with an opportunity to respond to the opinion of the risk assessment officer and not proceed to a new interview of the applicant.
- 12. Whether the immigration officer erred in its decision in dismissing or ignoring the applicant's establishment in Canada to conclude that there is insufficient evidence to demonstrate that the applicant has humanitarian and compassionate grounds to warrant waiving subsection 9(1) of the Immigration Act.
Analysis
13. Pursuant to subsection 114(2) of the Immigration Act, the Minister is authorised to exempt persons from any regulations made under subsection 114(1) or to otherwise facilitate their admission into Canada where the Minister is satisfied that such exemption or facilitation should occur owing to the existence of humanitarian or compassionate considerations. The process is one which is highly discretionary, and as such, the onus is on the applicant to satisfy the immigration officer that there are sufficient humanitarian and compassionate grounds to warrant a favourable recommendation.
14. The standard of review applicable to an immigration officer's decision made under subsection 114(2) of the
Immigration Act, and section 2.1 of the
Immigration Regulations, 1978, SOR/78-172, is reasonableness simpliciter [
Baker v. Canada (Minister of Employment and Immigration),
[1999] 2 S.C.R. 817]. The test for reasonableness is set out by Iacobucci J. in
Canada (Director of Investigation and Research) v. Southam Inc.,
[1997] 1 S.C.R. 748, at page 776 as follows:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
15. The applicant submits that the officer made an error of law in adopting the reasons provided in the risk assessment. It is submitted that the risk assessment from February 2001 relied on documents that were not provided to the applicant, and that there was no opportunity to respond to the risk assessment before the application for landing was denied.
- 16. The tribunal record contains a copy of a letter dated February 13, 2001, addressed to the applicant requesting the applicant's comments "...regarding Errors of Omissions in PCDO's Negative Risks Opinion." It is also noted that the applicant does not refer the Court to which documents were relied on by the risk assessment officer and not communicated to the applicant. I am satisfied, on the record, that the applicant had access to all the information and documents relied on by the officer and was afforded a full and fair opportunity to put his case foward.
- 17. The jurisprudence of this Court has held that immigration officers are entitled to place reliance on the findings of the Refugee Division so long as they do not indicate that they are bound by those findings. (See Rahbari v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 228.) In the instant case the officer considered the finding of the refugee division, the PDRCC decision, and the risk opinion made by Steve McCaffery, the risk assessment officer. There is no evidence that the officer fettered her discretion or, in any way, felt bound by any of these decisions. I am satisfied, on the record, that the officer, after considering all of this documentation and the materials and submissions from the applicant, rendered her own independent decision.
18. The applicant advances two other arguments, First, the officer, by not requesting an interview, did not perform her role as required by law. Second, the officer's reasons do not reflect the proper level of examination and lack understanding of the materials before her, and resulted in a patently unreasonable decision.
- 19. On the first of the these arguments, the Supreme Court of Canada in Baker, supra, has determined that there is no obligation on immigration officers to grant H & C applicants oral interviews or hearings so long as applicants are afforded a full and fair opportunity to put their case forward. As I mentioned earlier in these reasons, the applicant was made aware of the decision of the refugee division and opinions by other officers, was given an opportunity to make submissions on the negative risk opinion and did. I reiterate my earlier conclusion that the applicant was afforded a full and fair opportunity to put his case forward. The officer did not commit a reviewable error by not giving the applicant a hearing.
- 20. On the second argument, the applicant contends that the officer did not examine the additional materials provided by the applicant as a result of the up-date requested by the officer. In support of this contention the applicant points to the officer's reasons where no mention is made of additional welding certificates obtained by the applicant to show that he was improving. These additional certificates were included in the additional materials submitted by the applicant.
21. The applicant further contends that the officer did not examine the totality of the evidence regarding establishment. The applicant argues that the officer had sufficient evidence before her to conclude that the applicant was established in Canada. In this regard, the officer determined that the applicant had some level of establishment but she was not satisfied that this level of establishment outweighed other factors respecting hardship.
22. The applicant has the onus of proving that the requirement to apply for a visa from outside of Canada would amount to unusual, undue or disproportionate hardship. The applicant assumed the risk of establishing himself in Canada while his immigration status was uncertain and knowing that he could be required to leave. Now that he may be required to leave and apply for landing from outside of Canada, given that he did assume this risk, the applicant cannot now contend, on the facts of this case, that the hardship is unusual, undeserved or disproportionate. The words of Mr. Justice Pelletier in Irmie v. M.C.I. (2000), 10 Imm. L.R. (3d) 206 (F.C.T.D.), are applicable to this case:
I return to my observation that the evidence suggests that the applicants would be a welcome addition to the Canadian community. Unfortunately, that is not the test. To make it the test is to make the H & C process an ex post facto screening device which supplants the screening process contained in the Immigration Act and Regulations. This would encourage gambling on refugee claims in the belief that if someone can stay in Canada long enough to demonstrate that they are the kind of persons Canada wants, they will be allowed to stay. The H & C process is not designed to eliminate hardship; it is designed to provide relief from unusual, undeserved or disproportionate hardship. There is no doubt that the refusal of the applicants' H & C application will cause hardship but, given the circumstances of the applicants' presence in Canada and the state of the record, it is not unusual, undeserved or disproportionate hardship....
- 23. This is a case where the applicant was afforded a full opportunity to comment on the PCDO's risk assessment by way of written submissions. The officer considered the risk assessment by the PCDO, the expert in risk assessment, as well as the submissions filed by the applicant concerning his fear of returning to Bangladesh. I am satisfied that the officer's reasons had regard to the totality of the evidence and that the applicant has not demonstrated that the officer's decision was unreasonable, that is, her finding that his hardship did not meet the threshold of unusual, undeserved or disproportionate hardship.
- 24. I therefore conclude that the officer did not commit a reviewable error in this regard.
- 25. For the above reasons this application for judicial review will be dismissed.
- 26. The applicant has submitted for my consideration the following questions for certification:
1. In view of the Supreme Court of Canada's view of the meaning of the wording of s-s. 114(2) of the Immigration Act, as stated at ¶ 66 of Mavis Baker, and the definition of the words"compassionate" and "humanitarian" the Immigration Appeal Division has been applying for over thirty (30) years (a) is the Immigration Manual inconsistent with Parliament's intent in including s-s. 114(2) in the Act when it restricts acceptance of A114(2) petitioners to those who will suffer "unusual., undeserved, disproportionate hardship" and, thereby improperly fetters the decision-maker's discretion?
2. Does A3(f) require Immigration Officers to approve-in-principle applications made under 114(2) where the applicant has become "successfully established", consistent with A6(1) and measured by the standard found at R5(2)(f); i.e., LICO?
3. In assessing a request for landing made pursuant to s-s. 114(2) of the Act, are officers, consistent with the duty the Act and Regulations impose upon them to select those who are likely to be self-supporting in Canada, obliged - by virtue of s-s. 3(f) of the Act - to approve applicants whenever their Canadian income equals or exceeds the income the Department holds out - at s-s. 5(2)(f) and Schedule IV of the Regulations - as constituting "successful establishment" à la Chang-Jie Chen? In other words, when A114(2) petitioners have proven their ability to "become successfully established in Canada", are they entitled to be selected as immigrants (absent their being criminally or medically inadmissible)?
4. Does Parliament's inclusion of s-s. 114(2) in the Act reflect its realization that an ex post facto assessment, confirming an applicant's successful establishment in Canada, should not be treated as less worthy than a speculative assessment of a prospective immigrant who has not become successfully established in Canada? If so, does an officer commit reversible error by failing to consider, or give fair weight to, the degree A114(2) petitioners have proven their ability generate Canadian income equal to the level the Department - at R5(2)(f) - holds out as being sufficient to support a family of their size?
27. I have considered the four proposed questions submitted by the applicant for certification. I have carefully reviewed the written submissions of both parties on the proposed questions and conclude that the circumstances of this case do not give rise to a serious question of general importance as contemplated by section 83 of the Immigration Act. I do not propose to certify a question.
ORDER
THIS COURT ORDERS:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3175-01
STYLE OF CAUSE: Nashir Uddin v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 8, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: September 4, 2002
APPEARANCES:
Fay Fuerst FOR PLAINTIFF / APPLICANT
John Loncar FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Fay Fuerst FOR PLAINTIFF/APPLICANT
200-27 Carlton Street
Toronto, Ontario M5B 1L2
Morris Rosenberg FOR DEFENDANT/RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 3400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6
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