Date: 20100601
Docket: IMM-2738-09
Citation: 2010 FC 571
Ottawa, Ontario, this 1st
day of June 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Sabir Mohammad SHEIKH
Seema Sabir SHEIKH
Ashra Kamwal SHEIKH
Sami Mohammad SHEIKH
Applicants
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 the Pre-Removal Risk
Assessment (“PRRA”) Officer F. Osmane (the Officer) pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act), dated March 27, 2009, wherein he rejected the applicants’
application for a regulatory exception on humanitarian and compassionate
grounds (the “H&C application”) so as to apply for permanent residence from
within Canada.
[2]
Mr.
Sabir Mohammad Sheikh (“Sabir”) is the principal applicant. He is married to
Seema Sabir Sheikh (“Seema”) and they have three daughters and one son. His
eldest daughter, Tayyaba Kanwal, is married and living with her husband in
North York, Ontario, and she has two
children. She is not part of this application because her husband is sponsoring
her. Sabir’s youngest daughter was born in Canada and is not an applicant. His son, Sami
Mohammad (“Sami”) was born in the United Arab Emirates and his other daughter,
Ashra Kamwal (“Ashra”), in Pakistan. All of the applicants are citizens of Pakistan.
[3]
In
their H&C application, the applicants allege that they are at risk of harm
due to Sabir’s connections with the Pakistan People’s Party (“PPP”). The wife
and children of the principal applicant allege they will suffer the same risk
because of membership in a particular social group, namely, the family.
[4]
They
received a positive decision by the Refugee Protection Division of the Immigration
and Refugee Board (the “Board”) on December 21, 2001 which was annulled on
August 20, 2007 on the basis of the discovery of a misrepresentation and in the
absence of other evidence justifying granting them protection in Canada. The Federal Court did
not grant leave for judicial review of that decision.
[5]
The
Officer recognized that the evaluation of the risk of return in an H&C application
is different from the PRRA. The PRRA can apply sections 96 and 97 of the Act.
Critical to an H&C determination is whether there is excessive or
unjustifiable hardship. The Officer highlighted that the applicants had not
presented any evidence from a source independent of themselves or corroborative
that would show that they face hardship by reason of political opinion,
nationality or membership in a particular social group. This was their burden
to carry and they did not discharge it.
[6]
Also
to be assessed in an H&C application is the degree of establishment of the
applicants. They arrived in Canada on December 21, 2000 and since being granted
refugee status they have lived in Canada for almost a decade.
[7]
The
principal applicant has been self-employed in an office of immigration
consultants from January 2003 to June 2007 and as a manager of Marché B. K.
since July 2007. The Officer noted that the applicant had not provided income
tax returns or notices of assessment to corroborate his income or the assertion
that he has paid income tax since coming to Canada. The absence of this kind of proof is a
negative factor influencing the Officer’s conclusions on the establishment
factor because the applicant is well-educated, has worked in a bank in the
United Arab Emirates, which earned him a certificate in recognition of his
services, and he is represented by experienced counsel. In short, there is no
excuse to have omitted this information.
[8]
The
applicant did provide a bank statement for the months of March and June 2008
but the Officer found that this is not a sufficient substitute for income tax
statements or notices of assessment for many years. The Officer then considered
the evidence of Mr. Bilal Bakar, president of Marché B. K., which
indicates that the principal applicant held the position of manager for a year.
Nevertheless, Mr. Bakar confirmed to the Officer that the principal applicant
had not occupied his position since February 2008.
[9]
Generally,
with respect to establishment, the decision-maker determined that the principal
applicant had not met his burden. It was noted that the applicant had produced
six letters confirming his history as a kind and generous man. While the
decision-maker accepted that this is a positive factor it is not sufficient to
justify an exception to the permanent residency application out-of-country
requirements.
[10]
The
Officer then continued to evaluate the establishment factor with respect to
each of the other applicants.
[11]
In
regard to the spouse of the principal applicant, Seema, he found that she did
not provide any evidence that she has taken steps to integrate herself into the
community. The decision-maker considered the fact that in 2004 she had a baby
and this added to her workload in the house and noted that it would be
understandably difficult for her to integrate into the Canadian social fabric
to a significant extent. However, she had not given any indication as to
whether she was participating in activities to integrate into society. To
return to Pakistan would not constitute
hardship that is unusual and unwarranted or disproportionate.
[12]
With
respect to Ashra, the applicant’s 25-year-old daughter, the Officer noted that
she was divorced and had recently obtained her secondary school diploma and started
at Concordia University in May 2008. She is well-thought of at Walmart
where she works part-time. The Officer concluded that she had gone to some
lengths to establish herself after the breakup of her marriage.
[13]
The
applicant’s other child, Sami, was born in the United Arab Emirates in 1988, has Pakistani
citizenship, and completed secondary school in Montreal 2006. He has worked for
a polling company since March 2006.
[14]
From
the evidence, the Officer concluded that the children have made more effort
than their parents to establish themselves in Canada. However, it was ultimately insufficient
because it was their burden to show how making a visa application outside of Canada would be an unusual, excessive
or unjustifiable hardship.
[15]
The
Officer was not persuaded by the fact that requiring these children to quit
their jobs and interrupt their studies would constitute the requisite hardship
even in light of the economic conditions and professional opportunities for the
two of them.
[16]
Lastly,
the Officer considered the best interests of the child who was born in Canada, Sabrina. For someone
so young, the Officer recognized that it is not reasonable to expect that she
would have developed ties to Montreal and at this age she continues to depend on her parents.
Outside of the general concern that she will not be able to have access to the
kind of opportunities for quality of life outside of Canada, no evidence was
mentioned about her specific health or personal needs to demonstrate that the
child would experience unusual and unwarranted or disproportionate hardship.
The Officer also noted that members of the applicants’ extended family lived mostly
in Pakistan. This mitigated against
a finding of hardship for the child.
* * * * * * * *
[17]
Decisions
on H&C applications are discretionary requiring a “factual intensity” such
that the deferential standard of reasonableness is appropriate (Zambrano v. Minister
of Citizenship and Immigration, 2008 FC 481, 326 F.T.R. 174, at paragraph
31; Mooker v. Minister of Citizenship and Immigration, 2008 FC 518). The
essential questions in this inquiry are whether there exists “justification,
transparency and intelligibility within the decision-making process” and
whether the decision falls within “a range of possible, acceptable outcomes
which are defensible in respect of the law and the facts” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, at paragraph 47).
[18]
The
hardship factor is a major consideration for in-Canada applications on H&C
grounds for an in-Canada waiver of regulatory requirements which was the basis
of the Federal Court’s decision in Irimie v. Canada (Minister of Citizenship
and Immigration), 10 Imm. L.R. (3d) 206, [2000] F.C.J. No. 1906 (T.D.) (QL)
where Justice Denis Pelletier concluded:
[26] 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. Whatever standard of review one applies to the H
& C officer’s decision, it meets the standard. The application for judicial
review must therefore be dismissed.
(My
emphasis.)
[19]
The
applicants’ submissions in support of their H&C application suggested the
following risk factors that the Officer consider in regard to the family’s
situation:
-
The family has a
long-standing history with as members and activities with the PPP and has been
harassed and killed (his father and a nephew) by MQM terrorists. Given the
documented rise in sectarian violence in Pakistan, Mr. Sheikh and his family would face a
disproportionate risk of suffering violence.
-
The principal
applicant’s daughter faces a particularized risk of return because of the lack
of state protection for women who are targeted for violence. Furthermore,
professional women and westernized women are at a higher risk of being targeted
for violence.
-
A final risk-factor
raised by counsel for the applicants in the H&C application is the general
crisis of human rights in Pakistan. The documents relied on to support this
assertion include a 1994 UN communication regarding the potential of torture of
political dissidents in Kashmir,
Pakistan.
[20]
The respondent
emphasizes that the applicant was not found to be credible by the Board on
account of the misrepresentations discovered. According to the respondent, the
applicant simply disagrees with the Board’s findings with regard to the
assessment of risk upon return. The respondent further argues that the evidence
submitted in support of the principal applicant’s risk of return should be
considered in light of the negative credibility finding of the allegations made
by the Board at the vacation hearing. I agree. While I may have come to a
different conclusion regarding the evidence, the decision-maker’s finding that
the principal applicant does not face a risk of return due to his political
opinion is not unreasonable in light of all of the evidence and should not be disturbed.
Indeed, it is trite law that it is not for this Court to reweigh the evidence.
[21]
However,
there was no assessment of the risk of return faced by Ashra at either the
application to vacate, or the PRRA decision. Her alleged risk seems to have
been considered only in the context of the “best interests of the child” or
“establishment” rubrics in the H&C decision.
[22]
Counsel
for the applicants specifically raised a risk of return for the principal
applicant’s daughter, Ashra, which is not assessed in the decision.
[23]
She
survived domestic violence from her former husband. She is now divorced and is
completing studies in political science and dreams of becoming a criminal
lawyer. Her ex-husband is of Pakistani origin. Her ambition and her fight to
protect herself from her ex-husband will be drastically undermined if she must
apply for a permanent resident visa from Pakistan. Her ex-husband has threatened to kill her if
she returns to Pakistan. His intention to
avenge his perceived wrong (i.e. divorce) is demonstrated by his act to reveal
the family’s misrepresentation to immigration officials which caused them to
lose their status.
[24]
In
his submissions in support of the H&C application, counsel for the
applicants referenced the Amnesty International Report of April 2002 as an
authority that there is no protection for women who are targets of abuse in Pakistan. There would be no
state protection available for Ashra in the event that her ex-husband acted on
his threat.
[25]
It is
significant that the Amnesty Report explained that murdering women on the
grounds of “illicit” relationships or “perceived insubordination” (e.g.
divorce) by men is commonplace in Pakistan. The risk to Ashra is underscored by the
conclusions of the Amnesty Report: “Under international human rights law, state
officials are obliged to prevent abuse by private actors and state agents but
the Pakistani state has systematically failed to fulfill this obligation.” The
Amnesty Report specifically explains that women who seek divorce and who
successfully are granted a divorce abroad, or in Pakistan, are murdered at alarming rates. The men
who murder them are not persecuted and are supported in society. Often it is
the male relatives of the ex-husband who kill or torture the woman.
[26]
Surely,
the Officer’s failure to consider this specific risk of return is significant
in light of Ashra’s assertion that her ex-husband has abused her and threatened
to kill her upon return to Pakistan and the documentary evidence corroborating this risk. In my
opinion, this renders the decision regarding Ashra unreasonable because the
evidence and the submissions were mischaracterized by the Officer.
[27]
In
addition, the applicants’ submissions in support of their establishment in Canada highlight the following
key considerations:
-
Sabir: He is established in his business and has been involved in many
community organizations.
-
Ashra: Has completed
her high school education, works part-time at Walmart, and is currently
pursuing her studies at Concordia University in the hopes of applying to
McGill to study Law.
-
Sami: Is an excellent
student with ambition to become an engineer.
-
Neither of the adult
children has ever lived in Pakistan. The extent they know of that country is
from short family trips taken for the purposes of vacation.
[28]
The
respondent submits that the Officer clearly took into consideration their
personal situations praising the children’s courage and their determination to
complete their studies. However, I note that the Officer does not mention that
the children have spent ten years in Canada and prior to arriving in Canada they lived in
the United
Arab Emirates.
There is no mention that they have never lived in Pakistan. The seismic cultural
shock which the applicant’s adult children would be forced to experience upon
removal to Pakistan is not considered. An
indeterminate interruption in studies and work, combined with a separation from
their sister, Tayyaba, and her children, as well as their friends and lack of
connection or knowledge to Pakistan are clear indications that hardship will be forced on them.
There is no assessment with respect to this evidence by the Officer.
[29]
While
I am not prepared to intervene with respect to the Officer’s analysis
concerning the situation of the parents and their youngest child, which appears
to be reasonable in light of the entire evidence, I am of the view that the
decision with respect to the adult children cannot be reasonable given the
failure to acknowledge or engage in a discussion of their cultural connection
to Canada and the non-existence of a connection to Pakistan. These children who
came as dependents to their father’s refugee claim have lived in Canada for over a decade and
should be uniquely considered.
[30]
The
Officer does not distinguish between “unusual and undeserved” hardship - that
which is not anticipated by the Act or is a result of circumstances beyond the
person’s control - and “disproportionate hardship” - that which creates a
disproportionate impact on the applicant due to their personal circumstances
(IP-5 Guidelines). Regardless of the terminology, I consider that the Officer’s
decision that neither of the applicant’s adult children will face hardship is
unreasonable in light of the evidence of risk of return for Ashra (and the
Officer’s failure to acknowledge it) and the establishment of both of the adult
children in Canada and accordingly, it should
be quashed.
[31]
Finally,
with respect to the best interest of the youngest child, I agree with the
respondent that the fact that the child is young and entirely dependent of her
immediate family is a sufficient analysis of the best interest of the child.
* * * * * * * *
[32]
For
all the above reasons, the decision of Officer F. Osmane with respect to the
applicants Ashra Kamwal Sheikh and Sami Mohammad Sheikh is quashed and sent
back for redetermination by another officer. The decision made with respect to
Sabir Mohammad Sheikh, the principal refugee claimant, and Seema Sabir Sheikh,
his wife, was one which falls into the range of reasonable possible outcomes
and should not be disturbed.
[33]
The
applicants propose the following question for certification:
Do
the guarantees of Articles 23 and 24 of the International Covenant on Civil
and Political Rights regarding the protection of family life and the
protection of children mandate the acceptance of requests for residence based
on humanitarian consideration when there are Canadian children or a Canadian
spouse who is affected by the decision in the absence of significant negative
countervailing considerations?
[34]
I
agree with learned counsel for the respondent that the question proposed for
certification ought not be certified because it does not meet the criteria
enunciated by the Federal Court of Appeal in Liyanagamage v.Canada (M.C.I.) (1994),
176 N.R. 4.
[35]
The
applicants’ question is related to an issue which has already been settled by
the Federal Court of Appeal on more than one occasion (see, for example, Okoloubu
v. Canada (M.C.I.), [2009] 3 F.C.R. 294). Therefore, the proposed question
is not certified.
JUDGMENT
The application for judicial
review of a decision of the Pre-Removal Risk Assessment Officer F. Osmane,
dated March 27, 2009, with respect to the applicants Ashra Kamwal Sheikh and
Sami Mohammad Sheikh is allowed, the impugned decision is set aside and the matter
is sent back for redetermination by another Officer. The decision made with
respect to the principal applicant, Sabir Mohammad Sheikh, and his wife Seema
Sabir Sheikh is dismissed.
“Yvon
Pinard”
Email this Content