Date: 20110418
Docket: IMM-4170-10
Citation: 2011 FC 473
Ottawa, Ontario, April 18,
2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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DEVI SOMA
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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
is an application for judicial review of a decision dated May 11, 2010,
refusing an application for permanent residency from within Canada on
humanitarian and compassionate grounds pursuant to section 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act). The
application for humanitarian and compassionate relief (hereinafter the H&C
application) was refused by the Pre-Removal Risk Assessment Officer (the Officer).
Factual Background
[2]
The
applicant, Ms. Devi Soma, is a 58 year old citizen of India. Ms. Soma
has three adult children: a son living in Canada, who is a
Canadian citizen, a son living in Dubai, and a daughter in India.
[3]
In
1998, the applicant, sponsored by her Canadian son, made an application from India to become a
Canadian permanent resident as a member of the family class. Her application was
refused.
[4]
On
May 20, 2003, the applicant arrived in Canada and made a
claim for refugee protection. At her refugee hearing on May 4, 2004, the
applicant sought protection on two grounds: persecution by authorities because
she feared that they wrongly suspect her of having ties to militant groups in
India, and her fear of returning to India as a woman of old age with no male
relatives to care for her. Her application was denied by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) in June of 2004. The
Board found that the applicant was not credible. The applicant’s application
for leave and judicial review of the Board’s decision was denied on October 5,
2004.
[5]
Throughout
her time in Canada, the
applicant has lived with her son and his family, and is helping to raise his
son – her only grandchild. Since 2006, the applicant has been working on a farm
and contributing to her family’s income.
The Impugned Decision
[6]
On
May 11, 2010, the Officer rejected the applicant’s H&C application, finding
that it would not cause the applicant unusual, undeserved or disproportionate
hardship to apply for permanent residency from outside of Canada.
[7]
The
Officer referred to the test for exercising the Minister’s discretion in order to
allow a foreign national who does not otherwise qualify under the Act to apply
for permanent residency from within Canada. The Officer recognized
that the onus is upon the applicant to demonstrate that she would face unusual
and undeserved or disproportionate hardship if she was to submit her permanent
residency application from abroad.
[8]
The
Officer analyzed the two bases for granting the H&C exemption: first, the
applicant’s establishment in Canada, and, second, risks the applicant would
face if returned to India.
[9]
With
regards to her establishment in Canada, the Officer noted that
the applicant has been living with her son’s family since her arrival in 2003.
She had been working in Canada since June of 2006. The Officer recognizes
that the applicant “contributes financially and emotionally to the family’s
well-being”.
[10]
The
Officer referred to the applicant’s son’s affidavit. In his affidavit, he
stated that it is in his son’s (grandmother’s grandchild) best interests to
have the applicant, the child’s grandmother, in physical proximity. The Officer
stated that the son was sponsoring the applicant in the H&C application.
[11]
However,
the Officer found that the evidence failed to demonstrate an unusual and
undeserved or disproportionate hardship.
[12]
First,
the Officer found that the applicant had not provided any document
demonstrating that her grandchild would suffer any hardship as a result of her
absence. Although her son’s affidavit attested that the son would face
“adjustment problems” and that the applicant’s absence would “have an impact on
our children’s future life,” the Officer found that this was insufficient.
[13]
Second,
the Officer was of the view that the time that elapsed since the applicant had
arrived in Canada did not constitute de facto establishment in Canada
because it was not due to circumstances beyond the applicant’s control. The
Officer found that the applicant could have left Canada at any time
following the refusal of her refugee claim in June of 2004 and the issuance of
a removal order against her in October of 2004. The Officer stated that the
applicant possessed a valid Indian passport at the time of the issuance of the
removal order.
[14]
Third,
while recognizing the applicant’s son’s perceived duty to care for his mother
as she ages, the Officer found that this duty could be accomplished if the
applicant was in India. The Officer stated that the applicant lived in
India while her son was in Canada from 1993 to 2003. The applicant has a son
in Dubai and a
daughter in India. Her
daughter’s family and the applicant’s siblings in India can also
care for her. The Board found that there was no evidence suggesting that the
applicant’s daughter in India could not care for the applicant.
[15]
The
Officer recognized the “positive elements” of the applicant’s stay in Canada,
and found that the applicant had demonstrated a will to establish herself in Canada. The Officer
found, however, that “these behaviours are normal and expected in such a case,
and do not justify by themselves that it would amount to unusual and undeserved
or disproportionate hardship if she was to submit a permanent resident
application abroad.” The Officer recognized that while the applicant has the
right to seek all avenues of remaining in Canada, this will
ultimately make removal from Canada harder. The Officer found that since the
applicant had lived most of her life in India and still had her daughter and siblings
in India, it further
mitigated the harshness of the readjustment.
[16]
With
regard to the risks faced by the applicant should she be returned to India, the Officer
stated the test to be applied:
The H&C assessment is lower in
threshold than PRRA and is not limited to the PRRA’s specific legislative
parameters of persecution: threat to life, torture and cruel and unusual
treatment or punishment. For an H&C application, the PRRA officer assesses
all elements of the application and decides if the risk or non-risk factors
would amount to unusual and undeserved or disproportionate hardship.
[17]
Regarding
the applicant’s fear of being targeted by Indian authorities because they would
think her tied to militants in India, the Officer found that this fear was not justified
on the evidence.
[18]
The
Officer reviewed documentary evidence indicating that Indian nationals
returning from abroad generally do not face trouble with Indian authorities if
they complied with Indian laws when they departed. The Officer found that the
applicant had complied with Indian laws and was properly authorized to leave India in 2003. The
Officer further found that although some “high profile” returnees may be
detained and questioned by authorities, there was no evidence that the
applicant was such a “high profile” individual.
[19]
The
Officer found that the applicant had not provided any additional personal or
objective evidence that would support her allegations – previously rejected by
the Board – that Indian authorities would be looking for her or wanting her:
The applicant has not provided any
personal, objective and independent evidence to support her claim that she is
personally at risk in India based on past militant problems of her sons or of
an employee, or that she is wanted by the Indian authorities, or because she
claimed refugee status in Canada or because her son did. The applicant has not
provided evidence that her name is on an police list of wanted persons or that
she will be arrested upon her entry into India. There is no information or evidence on
file supporting that the applicant’s name would be on a police list as per the
information found in the document IND102975.E from the IRB.
[20]
The
applicant’s second ground for alleging risk upon return to India was that she
would be an elderly woman living alone. The Officer found that the applicant
had demonstrated that she is capable of working. Moreover, the Officer found
that there is help available to elderly women in India in addition
to help from their families. The Officer referred to documents indicating that
there are community resources available to women who cannot be supported by
their families, as well as a functional healthcare system.
Standard of Review
[21]
The
standard of review applicable to decisions on H&C applications is reasonableness:
Kisana
v Canada (Minister of
Citizenship and Immigration), 2009 FCA
189, [2009]
FCJ No 713, at para 18. The Court must not determine whether the
Officer’s decision was correct, but, rather, “whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9,
at para 47).
Analysis
[22]
The
applicant submits that the Officer’s decision is unreasonable because of the
following findings, which the applicant submits are not supported by the
evidence:
1. The Officer’s
finding that the applicant had failed to demonstrate that the best interests of
her grandchild depends on her presence in Canada;
2. The Officer’s
finding that the applicant could be supported by her son in Dubai if she were
to return to India, and the Officer’s finding that the applicant’s daughter,
daughter’s family, and siblings in India could support her;
3. The Officer’s
finding that the applicant’s Canadian son could support her if she were to
return to India; and
4. The Officer’s
finding that the applicant had not demonstrated sufficient establishment in Canada, in
particular insofar as she had not remained in Canada due to
“circumstances beyond her control”.
[23]
With
regard to the Officer’s consideration of the best interests of the applicant’s
grandchild, the applicant submits that there could be no better authority than
the child’s father to inform the Officer of the child’s best interests. The
Officer specifically stated that aside from the father’s assertion, there was
no evidence of the child’s dependence upon his grandmother, nor of any
potential “adjustment problems” or future impacts that the child might suffer
should his grandmother return to India. Given the evidence, the
Court finds it was properly considered by the Officer. For instance, there is
no evidence stating the alleged importance of the relationship between the
applicant and her grandchild.
[24]
With
respect to the Officer’s finding that the applicant’s other relatives could
support the applicant in India, the applicant suggests that the Officer
erred in assuming that such assistance would be available in the absence of any
evidence to indicate as much. The Court finds that it was reasonable for the
Officer to find that the applicant’s relatives in India would assist
with her readjustment and provide support. Indeed, when her son left for Canada
in 1993, the applicant remained in India with her youngest son -
who was 11 years old at that time - until 2003. The Court notes that the
Officer also found that even if the applicant’s family is unable to support
her, there are considerable community resources available in India to support
elderly women. The Court finds that the Officer’s consideration with respect to
the availability of assistance to the applicant in India and that
living with her daughter in India would be “awkward”, was reasonable. Again,
no evidence was submitted to the contrary.
[25]
Similarly,
the applicant submits that the Officer erred by overlooking the obstacle that
distance would play in relation to the support the applicant’s Canadian son
would be able to provide to the applicant if she were to return to India. The
Court finds that the Officer was aware of the distance, but it was reasonable
to conclude that despite the distance, the applicant’s son could provide
additional financial support to the applicant.
[26]
Finally,
the applicant submits that the Officer erred by finding that the applicant’s
prolonged stay in Canada has not led to her establishment in Canada because it
is not due to circumstances beyond the applicant’s control. Both parties have
quoted Citizenship and Immigration Canada’s Operational Policy Manual regarding
inland processing of applications under section 25 of IRPA: IP 5 Immigrant
Applications in Canada made on Humanitarian or Compassionate Grounds
(IP-5). Section 5.16 of IP-5 also states that “Positive consideration may be
warranted when the applicant has been in Canada for a
significant period of time due to circumstances beyond the applicant’s control.”
(emphasis in original). IP-5 also states that an example of a circumstance
beyond an applicant’s control is where conditions in the country of origin are
dangerous, necessitating temporary stays of removal over a long period of time,
and where there is no other viable destination option for the applicant.
[27]
The
applicant submits that the delays in processing that led to the applicant’s
prolonged stay in Canada constitute “circumstances beyond her control.”
[28]
The
Court finds that the Officer was reasonable in relying upon this Court’s
decision in Serda v Canada (Minister of Citizenship and Immigration),
2006 FC 356, [2006] FCJ No 425, where Justice de Montigny held at paragraph 23
that legal proceedings do not constitute circumstances beyond an applicant’s
control:
[23] […] it cannot be said that the
exercise of all the legal recourses provided by the IRPA are circumstances
beyond the control of the Applicant. A failed refugee claimant is certainly
entitled to use all the legal remedies at his or her disposal, but he or she
must do so knowing full well that the removal will be more painful if it
eventually comes to it. […]
[29]
Further,
in considering all of the evidence adduced, the fact that the applicant works in
Canada since 2006 does
not amount to an unusual and underserved or disproportionate hardship if she
was to submit a permanent resident application abroad.
[30]
The
applicant has not demonstrated that the Officer neglected to consider any
evidence submitted by the applicant. It is trite law that the burden is borne
on the applicant. The applicant has to place before the Officer all information
available to support the H&C application (Mann v Canada (Minister of
Citizenship and Immigration), 2002 FCT 567, [2002] FCJ No. 738). The
Court finds that the Officer’s decision was reasonable and based upon the
material that was before the Officer. Consequently, the Court finds that this
application for judicial review must be dismissed.
[31]
No
question was proposed for certification and there is none in this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application for judicial review is dismissed;
2.
No
questions will be certified.
“Richard
Boivin”
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