Date:
20120706
Docket:
IMM-7241-11
Citation:
2012 FC 859
Ottawa, Ontario, July 6, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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GUANG MING QIU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
matter involves an application for judicial review from a decision of a senior
immigration officer, dated September 9, 2011, in which the officer refused the
applicant's application under subsection 25(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] for permanent
residence from within Canada on humanitarian and compassionate [H&C]
grounds.
[2]
The
applicant is a 30 year-old citizen of the People's Republic of China. On March 12, 2001, he came to Canada and sought refugee protection, arguing that as
an adherent of the Tian Dao religion, he was at risk in China. The Refugee Protection Division of the Immigration and Refugee Board denied his
claim on March 7, 2003. The applicant made his H&C application in May of
2005. He also made a Pre-removal Risk Assessment [PRRA] application, which was
refused on October 3, 2011. Accordingly, the applicant has been in Canada for over 10 years and waited nearly 6 1/2 years to have his H&C application
determined.
[3]
In
the decision under review, the officer first identified the test applicable to
the determination of an H&C application, holding that the applicant was
required to demonstrate that the hardship of obtaining a permanent resident
visa from outside Canada in the normal manner would be “unusual and undeserved
or disproportionate”. The officer went on to note that in most circumstances
unusual hardship is one which is not anticipated by the Act, that undeserved
hardship most often results from circumstances beyond an applicant's control
and that H&C grounds may exist in cases that do not meet “unusual and
undeserved” criteria, where the hardship of needing to apply for permanent
resident status from outside Canada would have a disproportionate impact on an
applicant, due to his or her personal circumstances.
[4]
After
enunciating the applicable test, the officer went on to evaluate the factors
identified by the applicant in support of his H&C application, namely, his
degree of establishment in Canada, existing linkages with family members in
Canada and abroad, ties related to his country of origin, the best interests of
a child in Ecuador the applicant sponsored through Plan International Canada
and the risk the applicant claimed he would face if returned to China. Based on
an assessment of all the factors, the officer concluded that the applicant's
requested exemption was not justified on humanitarian and compassionate
considerations.
[5]
In
evaluating the applicant’s establishment in Canada, the officer commented on
the evidence provided by the applicant regarding his employment record, payment
of taxes, compliance with the law (including the requirements of the Act) and
noted that the applicant had “shown himself to be an independent, productive, and
law-abiding member of Canadian society” (Decision at p 4). However, the officer
went on to state that the degree of the applicant’s establishment in Canada was “not beyond what would normally be expected” given his presence in the country
since 2001 and that the applicant had not demonstrated an “unusual degree of
establishment” (Decision at p 4). The officer also noted that the applicant
was fully cognizant of the uncertainty of his immigration status and concluded
that he had not “demonstrated that his establishment and integration into
Canadian society is such that being required to sever his communal and
employment ties and depart Canada and apply for permanent resident status from
outside the country would constitute unusual, undeserved or disproportionate
hardship” (Decision at p 4).
[6]
In
this application for judicial review, the applicant asserts that the officer
committed three interrelated reviewable errors, all connected to the officer’s
assessment of the degree of the applicant’s establishment in Canada, arguing that:
1. The
officer erred in law by requiring an “unusual degree” of establishment in Canada;
2.
His
assessment of the applicant's degree of establishment in Canada was unreasonable because it lacks a clear evidentiary basis; and
3.
The
officer breached the duty of fairness by failing to provide the applicant with
a meaningful opportunity to respond to the officer’s concerns regarding the
applicant's degree of establishment in Canada.
[7]
The
respondent, on the other hand, argues that the officer's decision was
reasonable, was made in accordance with the applicable case law and,
accordingly, that this application ought to be dismissed. The respondent
asserted a further ground for dismissal centered on the fact that the applicant
failed to file an affidavit based on personal knowledge in support of the
application for judicial review. At the hearing, however, counsel for the
parties advised that this issue was settled, and the parties concurred that the
application could properly proceed based on the certified tribunal record and
Exhibit “B” to the impugned affidavit, being extracts from the Inland
Processing Manual 5 of Citizenship and Immigration Canada, entitled
“Immigration Applications in Canada made on Humanitarian and Compassionate
grounds” [IP 5], which sets out guidelines to be applied by immigration
officers in the assessment of H&C permanent residence applications.
[8]
The
parties agree that the standard of review applicable to all three of the
alleged errors is that of reasonableness. I concur. The case law firmly
establishes that the reasonableness standard is applicable to review of an
exercise of discretion by an H&C officer under subsection 25(1) of IRPA
(see e.g. Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 58, [2009] 1 SCR
339; Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, 174 DLR (4th) 193 at para 62 [Baker]; Minister of Citizenship
and Immigration v Okoloubo, 2008 FCA 326 at para 30, 301 DLR (4th) 591; Owusu
v Minister of Citizenship and Immigration 2004 FCA 38 at para 12, [2004] 2
FCR 635 [Owusu]). The case law likewise indicates that in applying the
reasonableness standard to an exercise of discretion by an H&C officer
under subsection 25(1) of the IRPA, the required approach is a decidedly
deferential one, which must be fully cognizant of the broad discretion afforded
to an officer under this section (see e.g. Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 at para 11, 212 DLR (4th) 139 [Legault];
Jung v Canada (Minister of Citizenship and Immigration), 2009 FC 678 at
para 40).
[9]
As
noted, the applicant first argues that the officer applied the incorrect test
by requiring an unusual degree of establishment. In my view, this argument is
without merit. While the officer perhaps conflated the language of the two
elements of the inquiry (i.e. whether removal would cause “unusual or
disproportionate hardship” due to the “significant degree of establishment”), I
do not believe he failed to perform the correct analysis. The officer reasoned
that, given the time the applicant had been in Canada, the applicant had taken
“positive steps” to integrate but concluded there was not such establishment
that “being required to sever his communal and employment ties and depart Canada
and apply for permanent resident status from outside the country would cause
unusual, undeserved or disproportionate hardship” (Decision at p 4). This is
the correct test to be applied to the assessment of an applicant’s degree of
establishment in Canada (see e.g. Legault at para 23; Reis v Canada (Minister of Citizenship and Immigration), 2012 FC 179 at para 49, 211
ACWS (3d) 437).
[10]
Thus,
the first of the arguments advanced by the applicant fails.
[11]
The
second ground, in my view, is likewise without merit. The applicant argues that
the officer incorrectly applied the criteria set out in IP 5, and, more
specifically, ought to have found that the applicant faced unusual and
undeserved hardship through the delay in processing his H&C and PRRA
applications. The applicant also asserts that the officer’s reasons are
lacking, and that he failed to provide any meaningful analysis of the degree of
the applicant's establishment in Canada, and, thus, that his conclusions are
without evidentiary foundation.
[12]
Turning
first to IP 5, the applicant relies in particular on section 5.14, which
provides that:
Positive H&C considerations may be warranted
when the period of inability to leave Canada due to circumstances beyond the
applicant's control is of considerable duration and where there is evidence of
a significant degree of establishment in Canada such that it would cause the
applicant unusual or disproportionate hardship to apply from outside Canada.
[13]
While
it is true, as the respondent argues, that IP 5, as a guideline, does not have
the force of law, it is useful in evaluating the reasonableness of an officer's
exercise of discretion on an H&C application as the Supreme Court of Canada
noted in Baker at para 72. In applying IP 5 to the applicant’s
situation, the question facing the officer was whether the applicant was
“unable to leave Canada” due to circumstances “beyond his control”. Contrary to
what the applicant asserts, the delay in processing his H&C and PRRA
applications do not constitute a “circumstance beyond his control” that
resulted in his being unable to leave Canada. This Court has so found on
several occasions (see e.g. Singh v Canada
(Minister of Citizenship and Immigration), 2012 FC 612 at
para 15, Luzati v Canada (Minister of Citizenship and Immigration), 2011
FC 1179 at para 21, 208 ACWS (3d) 386 [Luzati]; and Serda v Canada
(Minister of Citizenship and Immigration), 2006 FC 356 at para 23, [2006]
FCJ No 425 [Serda]). As Justice Mosley noted in Luzati at para
21, “[t]he time elapsed during immigration proceedings cannot serve as the sole
basis to demonstrate establishment as it would promote “backdoor” immigration”.
Thus, contrary to what the applicant claims, in my view, the officer correctly
applied the criteria set out in IP 5 to the assessment of the degree of the
applicant's establishment in Canada.
[14]
Turning
next to the officer’s alleged lack of any meaningful analysis of the
establishment factor in the decision under review, contrary to what the
applicant asserts, I believe that the reasons of the officer are more than
adequate, and consist of an elaboration of the correct test, review of the
relevant factual record, and a conclusion. In short, the officer considered the
evidence and arguments made and reached a conclusion that was reasonably open
to him.
[15]
In
addition, while one of the relevant factors for an officer to consider on an
H&C application for permanent residence is the degree of establishment in
Canada, this factor is not determinative (see e.g. Samsonov v Canada
(Minister of Citizenship and Immigration), 2006 FC 1158 at paras 16-18.
[2006] FCJ No 1457; Lee v Canada (Minister of Citizenship and
Immigration) 2005 FC 413 at para 9, [2005] FCJ No 507; Luzati at
paras 22-23; Serda at para 24). Thus, even if the officer had
made an unreasonable assessment of the establishment factor, this would not
necessarily result in the decision’s being set aside.
[16]
Turning
finally to the alleged breach of procedural fairness, the applicant argues that
the officer violated procedural fairness by not contacting him and explaining
his concerns regarding the applicant's claim of establishment. In my view, this
assertion is likewise without merit. It is trite law that the onus is on the
applicant to establish that his or her circumstances justify waiving the
requirement that a permanent residency application must normally be made from
outside Canada (Owusu at para 5; Anaschenko v Canada (Minister of Citizenship and Immigration), 2004 FC 1328 at para 8, [2004] FCJ No
1602). Moreover, where all the officer does is assess the adequacy of the
evidence provided by the applicant, there is no need to contact the applicant
or invite additional submissions. The cases cited by the applicant in support
of the alleged breach of procedural fairness – Wong v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 1791, 159 FTR 154; Lau v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 485, 146 FTR 116;
and Ma v Canada (Minister of Citizenship and Immigration), 2009 FC 1042,
[2009] FCJ No 1283 – are distinguishable in that none involved an H&C
application and in each instance the officer had concerns that were undisclosed
to and unanticipated by the applicant. That cannot be said in the present case.
All the officer did was assess the evidence tendered by the applicant in
respect of the degree of establishment demonstrated by the applicant, which the
applicant asserted was a relevant consideration. The officer found the evidence
fell short of establishing a degree of establishment sufficient to grant relief
under subsection 25(1) of the IRPA. There is no breach of procedural fairness
in proceeding in this fashion.
[17]
Thus,
none of the alleged errors warrants intervention and this application for
judicial review must be dismissed.
[18]
No
question for certification under section 74 of IRPA was presented and none
arises in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question of general importance is certified; and
3.
There
is no order as to costs.
"Mary
J.L. Gleason"
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