Date: 20110621
Docket: IMM-5257-10
Citation: 2011 FC 739
Ottawa, Ontario, June 21, 2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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AJAYINDER SINGH SAHOTA
HARPREET KAUR SAHOTA
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Applicants
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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]
The
Applicants were denied their application to have their permanent residence
application processed from within Canada. The immigration
officer (Officer) determined that there were insufficient humanitarian and
compassionate (H&C) grounds to justify an exception to the usual rule that
permanent residence applications are processed from outside Canada.
II. BACKGROUND
[2]
The
Applicants are citizens of India who have two Canadian born children.
[3]
The
Applicants came to Canada in January 2002 and their refugee claim was
denied in January 2004.
[4]
In
their H&C application, which was submitted in September 2004, the
Applicants claimed that they had been accused of harbouring Sikh militants, that
they were well established in Canada and that they had one Canadian child (at
that time).
[5]
Six
(6) years later immigration officials reviewed the H&C application and
invited further submissions. These submissions included increased levels of
establishment by virtue of the establishment of a trucking business, and most
importantly, the evidence that the youngest son suffered from eczema which
would be exacerbated by the hot Indian climate. The Applicants also explained
that they had never had the opportunity to leave Canada voluntarily
because the Indian government had not issued them new passports.
[6]
The
Officer made three critical findings which are central to this judicial review:
(a) that
the Applicants’ prolonged stay in Canada was within their
control;
(b) that,
based on the Officer’s own research (copies of which were not provided to the
Applicants), the youngest son’s eczema was treatable in India; and
(c) that
in considering the best interests of the children, they would not suffer
unusual and undeserved or disproportionate hardship if returned to India.
III. ANALYSIS
[7]
The
overarching standard of review for H&C decisions is reasonableness (Mooker
v Canada (Minister of
Citizenship and Immigration), 2008 FC 518). The issues of proper legal
test applied and procedural fairness are to be assessed under the correctness
standard (Gurshomov v Canada (Minister of Public
Safety and Emergency Preparedness), 2010 FC 1212).
[8]
The
Officer’s analysis of the “best interests of the child” is legally flawed. The
Officer distorted the analysis and applied the wrong legal test by imposing the
burden of showing “disproportionate hardship” rather than the “best interests”
test mandated by Hawthorne v Canada (Minister of Citizenship and
Immigration), 2002 FCA 475.
While the
ultimate question in an H&C application is “disproportionate hardship”, the
“best interests” analysis operates as a separate consideration. The Officer’s failure
to keep the two issues distinct results in an unreasonable assessment of the
children’s best interests.
[9]
The
Officer’s “establishment” analysis is also unreasonable. The Officer
incorrectly found that the Applicants’ long stay in Canada was due to
circumstances within their control. This error resulted in the Officer’s
conclusion that any hardship due to dislocation of establishment was
self-induced.
[10]
The
Applicants could not obtain their passports from the Indian government in order
to return to India voluntarily.
The only other way to return to India was to be sent back by
Canadian authorities; however, those very authorities failed to act on the Applicants’
H&C application for six years. The Officer failed to take these facts into
account in his conclusions.
[11]
The
Officer also failed to accord procedural fairness in failing to give notice of
the results of his own research to contradict the Applicants’ evidence. The
research relied on was critical to the Officer’s conclusion that the son’s
medical condition was treatable in India. Had the Applicants received
notice of this research, they could have attempted to rebut the research, which
research, they contend, is not accurate.
IV. CONCLUSION
[12]
For
all these reasons, this judicial review will be granted, the decision quashed
and the matter remitted to a different officer for a new determination based on
updated information.
[13]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted, the
decision is quashed and the matter is to be remitted to a different officer for
a new determination based on updated information.
“Michael
L. Phelan”
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