Docket:
IMM-8514-11
Citation:
2012 FC 928
Ottawa, Ontario,
July 23, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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JAYATHILAKA BANDA YAPA
MUDIYANSELE
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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
I. Introduction
[1]
This
is an application for judicial review filed pursuant to subsection 72(1) of the
Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], from a decision of the immigration Officer
(the Officer), refusing to grant Mr. Jayathilaka Banda Yapa Mudiyansele (Mr.
Mudiyansele) an exemption to apply for permanent resident status on humanitarian
and compassionate
considerations [H&C] under subsection 25(1) of the IRPA from outside Canada.
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
Mr.
Mudiyansele is a citizen of Sri Lanka. He belongs to the Singhalese majority
and was a Buddhist monk prior to his arrival in Canada.
[4]
Mr.
Mudiyansele arrived in Canada in October 2007 and claimed refugee status. His
claim was dismissed by the Refugee Protection Division [RPD] of the Immigration
and Refugee Board. This Court subsequently refused Mr. Mudiyansele’s application
for leave and judicial review of the RPD’s decision.
[5]
Mr.
Mudiyansele then applied for a Pre-Removal Risk Assessment [PRRA]. He also
submitted his H&C application. Both applications were respectively rejected
on August 25, 2011 and October 12, 2011.
[6]
On
February 6, 2012, Mr. Justice Shore refused Mr. Mudiyansele’s application for a
stay of removal pending his application for judicial review of the decision of
the Officer. Justice Shore wrote the following:
« La jurisprudence a clairement stipulé que l’existence
d’une demande pour des motifs humanitaires ne constitue pas un motif de
surseoir au renvoi (Baron c Canada (Ministre de la Sécurité publique et de
la Protection civile), 2009 CAF 81, [2010] 2 RCF 311, au paragraphe 50).
a. Sachant que la discrétion de l’agent de renvoi
est limitée, la demande d’autorisation et de contrôle judiciaire dans ce cas ne
soulève pas une question sérieuse.
b. Suite aux risques allégués déjà considérés devant
la SPR et la décision de la SPR qui a été confirmée par cette Cour, le
demandeur n’a pas établi qu’il subirait un préjudice irréparable s’il était
renvoyé du Canada avant que sa demande d’autorisation soit tranchée.
c. Compte tenu des circonstances, la balance des
inconvénients penche en faveur du défendeur qui doit procéder au renvoi »
(see Yapa Mudiyansele c Canada (Ministre de la sécurité publique et de la
protection civile), 2012 CF 155).
[7]
Mr.
Mudiyansele filed an application for leave and judicial review of the Officer’s
decision on November 23, 2011.
III. Legislation
[8]
Subsection
25(1) of the IRPA provides as follows:
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25. (1) The Minister must, on
request of a foreign national in Canada who is inadmissible or who does not
meet the requirements of this Act, and may, on request of a foreign national
outside Canada, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
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25. (1) Le ministre doit,
sur demande d’un étranger se trouvant au Canada qui est interdit de
territoire ou qui ne se conforme pas à la présente loi, et peut, sur demande
d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger; il
peut lui octroyer le statut de résident permanent ou lever tout ou partie des
critères et obligations applicables, s’il estime que des considérations
d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de
l’intérêt supérieur de l’enfant directement touché.
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IV. Issue
and standard of review
A.
Issue
·
Did
the Officer err by finding that Mr. Mudiyansele would not experience any
unusual, undeserved or disproportionate hardship if he were required to file
his application for permanent residence for humanitarian and compassionate
considerations abroad?
B. Standard
of review
[9]
In
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 [Dunsmuir],
the Supreme Court of Canada found that, in paragraph 62 of its decision, when
determining the appropriate standard of review, the first step is to “ascertain
whether the jurisprudence has already determined in a satisfactory manner the
degree of deference to be accorded with regard to a particular category of
question”.
[10]
In
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, at para 62, the Supreme Court explained that the appropriate standard of
review for decisions related to applications on humanitarian and compassionate
considerations is the standard of reasonableness (see also Paz v Canada
(Minister of Citizenship and Immigration), 2009 FC 412, [2009] FCJ No 497
at paras 22-25).
[11]
The
Court must consider “the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, at para
47).
V. Parties’ positions
A.
Mr.
Mudiyansele’s position
[12]
Mr.
Mudiyansele submits the Officer did not apply the appropriate criteria to
evaluate his application. He relies on Ramsawak v Canada (Minister of
Citizenship and Immigration), 2009 FC 636 at para 27, where the Court dealt
with this very issue and determined that “the mere fact that the officer stated
the proper test at the outset of his reasons does not indicate, of course, that
the officer properly assessed the evidence. To come to the contrary would be to
privilege form over substance”.
[13]
The
jurisprudence of this Court also states that an erroneous application of the
criteria is sufficient to overturn the decision. Mr. Mudiyansele adds that an
H&C decision warrants a separate analysis from a risk assessment and must
be conducted by applying the proper test.
[14]
Furthermore,
Mr. Mudiyansele argues that the RPD found his story credible.
[15]
Mr.
Mudiyansele filed a letter from Reverend Dodampahala Wipulasiri in support of
his application (see Mr. Mudiyansele’s Application Record at pages 47 and 48)
and alleges that the Officer’s assessment of that letter is flawed since it did
not contradict his testimony but rather confirmed that his fear of persecution
upon return to Sri Lanka to be plausible.
[16]
Mr.
Mudiyansele wrote, in his Personal Information Form [PIF], that he worked with
the Tamil population in Sri Lanka, after the Tsunami, and had demonstrated his
discontent with the authorities and was arrested. According to Mr. Mudiyansele,
his testimony having been found credible by the Board, his past involvement
with the Tamil population exposes him to harm upon his return to Sri Lanka.
[17]
Mr.
Mudiyansele submits that the Officer’s decision is arbitrary. The IP 5 manual
referred to by the Officer states that certain questions must be raised to
determine an Applicant’s degree of establishment.
[18]
Finally,
Mr. Mudiyansele claims the Officer used a template from another decision, which
demonstrates the arbitrariness of his decision.
B.
Respondent’s
position
[19]
The
Respondent underlines that the Officer reviewed the evidence adduced by Mr.
Mudiyansele and concluded that he did not demonstrate the existence of any
risk. Though Mr. Mudiyansele wants to be exempted from the requirements of the IRPA,
he was never a permanent resident of Canada. According to the Respondent, Mr.
Mudiyansele bears the onus of demonstrating that he would face unusual,
undeserved or disproportionate hardship if he had to file his application for
permanent residence from abroad.
[20]
The
Officer clearly applied the appropriate test in assessing Mr. Mudiyansele’s
H&C application, according to the Respondent.
[21]
Mr.
Mudiyansele did not allege that his situation as a former monk would expose him
to any hardship. In light of the evidence adduced, the Officer determined that
Mr. Mudiyansele would not be exposed to unusual, undeserved or disproportionate
hardship should he return to Sri Lanka.
[22]
Mr.
Mudiyansele, according to the Respondent, reargues his refugee claim before the
Officer, which is contrary to the law since an H&C application is not an
appeal of the RPD’s decision (Hussain v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 751 [Hussain]).
[23]
Mr.
Mudiyansele argues that the RPD found that he was credible. The Respondent
underlines that this is contrary to the RPD’s decision. Mr. Mudiyansele’s
assumption that he is suspected by the army of being a Liberation Tigers of
Tamil Eelam sympathizer, released only because he was a Buddhist monk was never
accepted by the RPD.
[24]
More
importantly, the Respondent affirms that Mr. Mudiyansele did not adduce any
evidence which allowed the Officer to reach a different conclusion from that of
the RPD on whether the risk alleged existed.
[25]
The
Officer acknowledged the fact that Mr. Mudiyansele made reasonable efforts to
establish himself in Canada. Nonetheless, the Officer also considered that Mr.
Mudiyansele had no close relatives in Canada and that his mother and five
brothers are still in Sri Lanka. The Officer found that he would obviously face
some difficulties if he had to return to Sri Lanka but these did not warrant
the granting of the exemption sought. The degree of establishment is not a
decisive criterion. Similarly, the hardship inherent in being required to leave
Canada is not sufficient to warrant an exception under subsection 25(1) of
the IRPA, according to the Respondent.
[26]
Finally,
Mr. Mudiyansele identified clerical errors in the Officer’s decision. While
certain sentences were imported from a different template, it does not justify
in itself quashing the decision. As was recently stated by the Supreme Court of
Canada in Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62:
[12] It is important to emphasize the Court’s endorsement
of Professor Dyzenhaus’ observation that the notion of deference to
administrative tribunal decision-making requires “a respectful attention to the
reasons offered or which could be offered in support of a decision”. In his
cited article, Professor Dyzenhaus explains how reasonableness applies to
reasons as follows:
“Reasonable” means here that the reasons do in fact
or in principle support the conclusion reached. That is, even if the reasons in
fact given do not seem wholly adequate to support the decision, the court must
first seek to supplement them before it seeks to subvert them. For if it is
right that among the reasons for deference are the appointment of the tribunal
and not the court as the front line adjudicator, the tribunal’s proximity to
the dispute, its expertise, etc, then it is also the case that its decision
should be presumed to be correct even if its reasons are in some respects
defective.” [Emphasis added]
[27]
The
Respondent submits that the Officer’s decision is reasonable.
VI. Analysis
[28]
“The
H&C decision-making process is a highly discretionary one that considers
whether a special grant of an exemption is warranted ...” (Doumbouya v Canada (Minister of Citizenship and Immigration), 2007 FC 1186 at para 7; Kawtharani v Canada (Minister of Citizenship and Immigration), 2006 FC 162, at para 15 [Kawtharani]). Mr. Mudiyansele
failed to discharge his burden of clearly establishing that he would face
unusual, undeserved or disproportionate hardship if required to file his
application for permanent residence from outside the country (Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125
at para 23 [Legault]).
[29]
Furthermore,
“the
degree of establishment of an applicant is not determinative of an H&C
application (Klais). It is only one of the factors that must be considered” (Kawtharani
cited above at para 32).
[30]
It
is also trite law that an H&C application is not an appeal of the RPD’s
decision (Hussain cited above at para 12).
[31]
The
IP 5 Guidelines - Immigrant Applications in Canada made on Humanitarian or
Compassionate grounds, provide assistance to immigration officers. While
these Guidelines are not binding in any way (Legault cited above), the
Court finds it important to reproduce sections 5.10 and 5.11 of the IP 5 Guidelines
concerning the Officer’s assessment of hardship:
5.10. The
assessment of hardship
The
assessment of hardship in an H&C application is a means by which CIC
decisionmakers determine whether there are sufficient H&C grounds to
justify granting the requested exemption(s).
The
criterion of "unusual, undeserved or disproportionate hardship" has
been adopted by the Federal Court in its decisions on Subsection 25(1), which
means that these terms are more than mere guidelines.
See
Singh v. Canada (Minister
of Citizenship & Immigration); 2009 Carswell Nat
452; 2009 CF 11, 2009 FC 11.
In
many cases the hardship test will revolve around the requirement in A11 to
apply for a permanent residence visa before entering Canada. In other words,
would it be a hardship for the applicant to leave Canada in order to apply
abroad.
Applicants
may, however, request exemptions from other requirements of the Act and Regulations.
In such cases, the test is whether it would be a hardship for the applicant if the
requested exemption is not granted.
Individual
H&C factors put forward by the applicant should not be considered in
isolation in a determination of the hardship that an applicant would face;
rather, hardship is determined as a result of a global assessment of H&C
considerations put forth by the applicant. In other words, hardship is assessed
by weighing together all of the H&C considerations submitted by the
applicant. Hardship must be unusal and undeserved or disproportionate as
described below:
Hardship
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Unusual
and undeserved
hardship
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Disproportionate
hardship
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·
The hardship faced by the applicant (if they
were not
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·
Sufficient humanitarian and compassionate
grounds may also
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Unusual
and undeserved
hardship
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Disproportionate hardship
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granted the requested exemption) must be, in most cases,
unusual. In other words, a hardship not anticipated or addressed by the Act
or Regulations; and
·
The hardship faced by the applicant (if they
were not granted the requested exemption) must be undeserved so in most
cases, the result of circumstances beyond the person’s control.
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exist in cases that do not meet the “unusual and
undeserved” criteria but where the hardship of not being granted the
requested exemption(s) would have an unreasonable impact on the applicant due
to their personal circumstances.
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5.11.
Factors to consider in assessment of hardship
Subsection
A25(1) provides the flexibility to grant exemptions to overcome the requirement
of obtaining a permanent residence visa from abroad, to overcome class eligibility
requirements and/or inadmissibilities, on humanitarian and compassionate grounds.
Officers
must assess the hardship that would befall the applicant should the requested exemption
not be granted.
Applicants
may base their requests for H&C consideration on any number of factors including,
but not limited to:
·
establishment in Canada;
·
ties to Canada;
·
the best interests of any children affected by their
application;
·
factors in their country of origin (this includes but is
not limited to: Medical inadequacies, discrimination that does not amount to
persecution, harassment or other hardships that are not described in A96 and
A97);
·
health considerations;
·
family violence considerations;
·
consequences of the separation of relatives;
·
inability to leave Canada has led to establishment; and/or
·
any other relevant factor they wish to have considered not
related to A96 and A97.
[32]
Mr.
Mudiyansele contends the Officer applied the wrong criteria for H&C
decisions. As the Court reviews the decision, it is apparent that the Officer
assessed all of the evidence adduced by Mr. Mudiyansele. Hence, no such error
was committed.
[33]
Mr.
Mudiyansele further submits that the RPD found his story credible. However, the
RPD refused his refugee application on the basis of credibility. This decision
was found to be reasonable by the Court and reiterated again in its Order of
February 6, 2012. The Officer mentioned in the decision that “[i]t is not my
role to reverse the findings of the RPD as I do not sit in appeal or review of
the decision of the tribunal” (see Tribunal Record at page 14). The Officer
also mentions the following:
“In the applicant’s PRRA application, I assessed the
risks of return under sections 96 and 97 of the IRPA. As explained in the IP05
Manual, the test in an H&C application is clearly different; thus, I
evaluated the alleged risks to determine whether they amounted to unusual and
undeserved of disproportionate hardship. In this application for a visa
exemption, he has reiterated the same risk allegations… Under the
circumstances, I find that the applicant would not, in regard to the first
ground, face unusual and undeserved of disproportionate hardships if he
returned to Sri Lanka to file an application for permanent residence” (see
Tribunal Record at page 14).
[34]
The
Court endorses this finding as reasonable. An immigration officer does not sit
in appeal of a RPD’s decision. In addition, Mr. Mudiyansele reiterated the same
risk allegations that were before the RPD.
[35]
Mr.
Mudiyansele alleges that he provided evidence of his establishment in Canada. The Officer underlines that Mr. Mudiyansele’s “efforts demonstrate a desire to put
down roots. The question is whether such efforts are sufficient to justify an
exceptional measure, i.e., the visa exemption under IP05” (see Tribunal Record
at page 15).
[36]
The
Officer determined that Mr. Mudiyansele did not adduce any evidence to
demonstrate his knowledge of Canada’s both official languages.
[37]
In
addition, Mr. Mudiyansele provided a letter from a Montreal city councillor,
letters from two Members of Parliament and two petitions with more than100
signatures in support of his application. He took, amongst other things, 105
hours of nursing courses and helped a 68 years old man suffering from
disability. All these positive factors were acknowledged and weighed by the
Officer.
[38]
The
Court finds the Officer’s conclusion on Mr. Mudiyansele’s establishment to be
an acceptable outcome as defined by the Supreme Court.
[39]
Mr.
Mudiyansele finally contends that the Officer made clerical errors in using a
template to make his decision. The Respondent acknowledged these mistakes in
his memorandum “[t]he Applicant identified clerical errors in the decision.
Firstly, there is an error as to the date of the H&C application was
received and secondly, two sentences in the reasons were wrongly imported from
another file. While this is unfortunate, this does not justify in itself the
quashing of the decision” (see Respondent’s Memorandum at page 13).
[40]
The
Court notes that the Officer mistakenly stated that Mr. Mudiyansele had filed
his H&C application on January 19, 2004. Furthermore, the Officer imported
two sentences from what appears to be part of another decision and wrongfully
added information that was not in Mr. Mudiyansele’s file. These errors are not
determinative of the decision. However, if these errors would have been at the
heart of Mr. Mudiyansele’s claim, the Court would not have hesitated to quash
the Officer’s decision. This kind of error can seriously undermine the H&C
process and is not taken lightly by this Court though it is not determinative
in this instance.
VII. Conclusion
[41]
This
application for judicial review is dismissed as the Officer’s decision is
reasonable as a whole.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1. This
application for judicial review is dismissed; and
2. There
is no question of general importance to certify.
"André F.J.
Scott"
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