Date: 20070614
Docket: IMM-2627-06
Citation: 2007 FC 634
Ottawa, Ontario, June 14, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
IVAN TOROMANOSKI and
ALEKSANDAR TOROMANOSKI
Applicant(s)
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by two brothers, Ivan Toromanoski
and
Aleksandar Toromanoski, from companion
Humanitarian and Compassionate (H & C) decisions. They had each previously
made refugee claims which were dismissed by the Immigration and Refugee Board
(Board) on June 24, 2003. An application for leave from that decision was
dismissed by this Court on October 16, 2003. The Applicants have also each had
the benefit of two separate Pre-Removal Risk Assessments (PRRA) none of which
were successful. The Applicants have remained in Canada since August
2005 under the protection of a stay Order rendered by this Court on August 22,
2005.
Background
[2]
The
Applicants came to Canada from Macedonia in 2001 as visitors.
When the political and military situation in Macedonia deteriorated, they
elected to stay in Canada and, to that end, they pursued their claims to
refugee protection. Those claims to protection were based on the risk that
they would be prosecuted in Macedonia for evading compulsory
military service and because they were in jeopardy from a blood feud. Those
claims were rejected by the Board and later in the context of the above-noted
risk assessments.
[3]
The
Applicants’ claims to H & C relief were not unexpectedly focussed on their
establishment in Canada since their arrival six years ago. Their
connections to Canada have, indeed, been admirable and include the
successful pursuit of post-secondary studies and the maintenance of gainful and
steady employment. They have both made considerable gains in learning English
and in integrating into Canadian society. They also have a close relationship
with family living here albeit that their parents continue to live in Macedonia. It was
largely on the strength of these considerations that H & C relief was
sought but, at the same time, the Applicants’ continued to rely upon the risk
issues that had earlier been the focus of their refugee and risk assessment
applications.
The H & C Decisions
[4]
The
H & C decisions contain a reasonable summary of the Applicants’ immigration
histories and the evidence bearing on the issue of their establishment in Canada. The H
& C Officer (Officer) invited the Applicants to update their claims shortly
before the decisions were rendered and they responded by providing additional
references and current financial, employment and academic records.
[5]
After
acknowledging their commendable efforts to become established in Canada, the Officer
found that the Applicants had not met the burden of showing that the negative
effects of a return to Macedonia were unusual and disproportionate.
The degree of establishment they had obtained was noted to be no more than what
could be reasonably expected by persons taking full advantage of the available
immigration processes. The Officer also observed that the Applicants’ academic
and language skills would serve them well in Macedonia and that options
remained open to them to return to Canada either on student visas
or through other existing immigration programs. The Officer considered the
risk issues that had been the subject of the earlier reviews and came to the
same conclusion, that is, that the Applicants would not be at risk in Macedonia.
Issues
[6]
(a) What
is the appropriate standard of review for the issues raised in this
application?
(b) Did
the Officer err in his consideration or interpretation of the available
evidence?
Analysis
[7]
The
arguments advanced on behalf of the Applicants were concerned with the
Officer’s treatment and assessment of the evidence under consideration. The
issues raised in this case bring it within the standard of review analysis in Baker
v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 where the Court held at
para. 62:
62 These factors must be balanced
to arrive at the appropriate standard of review. I conclude that considerable
deference should be accorded to immigration officers exercising the powers
conferred by the legislation, given the fact-specific nature of the inquiry,
its role within the statutory scheme as an exception, the fact that the
decision-maker is the Minister, and the considerable discretion evidenced by
the statutory language. Yet the absence of a privative clause, the explicit
contemplation of judicial review by the Federal Court -- Trial Division and the
Federal Court of Appeal in certain circumstances, and the individual rather
[page 858] than polycentric nature of the decision, also suggest that the
standard should not be as deferential as "patent unreasonableness". I
conclude, weighing all these factors, that the appropriate standard of review
is reasonableness simpliciter.
[8]
The
Applicants’ primary challenge to the H & C decisions was based on a concern
that the Officer failed to consider a number of documents which were submitted
to supplement their original applications. Although there are a couple of obvious
factual errors in one decision relating to academic standing and current employment,
it is clear from a reading of the decision that the Officer did consider the
documents which the Applicants had tendered. The decisions refer to that
package of material as having been received and reviewed and one decision also
incorporates some of the content of those documents. For instance, in the case
of Aleksandar Toromanoski the decision accurately identifies his current
employer which is information that was contained within the supplemental
submission. The factual errors that are apparent in the decision concerning
Ivan Toromanoski involve matters that would not have influenced the final
decision (ie. a higher grade average and a failure to note the name of his
current employer). In the result, I do not accept that the Officer committed
any reviewable error in the assessment of the Applicants’ supplemental
submission.
[9]
The
remainder of the Applicants’ criticisms of the H & C decisions are directed
at the role of the Officer in weighing and interpreting the evidence.
Certainly, there is no indication that the Officer overlooked material evidence
or drew any unreasonable inferences. In addition, the decision properly
identifies the legal test for the granting of H & C relief.
[10]
At
the end of the day, the Officer found that the Applicants’ connections to Canada – as
laudable as they were – were insufficient to justify their landing in Canada outside of regular
immigration channels. That was a reasonable conclusion to draw from the
evidence and it is not one that the Court can set aside given the significant
deference that is owed to such administrative decisions. Although another more
favourable decision might have been made on this record, it is not for the Court
to substitute another view in the absence of any errors of law or material
errors of fact.
[11]
Accordingly,
this application for judicial review is dismissed.
[12]
Although
the Applicants’ indicated that they had no interest in pursuing further
judicial recourse, I will allow them five days to submit a question to the
Court for a possible appeal should they now wish to do so.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2627-06
STYLE OF CAUSE: IVAN
TOROMANOSKI ET AL
v.
THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS ET AL
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: May 23, 2007
REASONS FOR JUDGMENT
AND JUDGMENT BY: BARNES, J.
DATED: June 14, 2007
APPEARANCES:
Ivan Toromanoski FOR
THE APPLICANT
Michael Butterfield FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Ivan
Toromanoski FOR
THE APPLICANT
Mississauga, Ontario
John H. Sims,
Q.C. FOR THE RESPONDENT
Deputy Attorney
General of Canada
Toronto,
Ontario
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