Date: 20070208
Docket: IMM-3573-06
Citation: 2007 FC 132
Ottawa, Ontario, February 8, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Sajjade
Hussain SHAH
Applicant
and
THE MINISTER OF PUBLIC
SECURITY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
An
analysis of a similar situation but in a different context is examined in light
of an excerpt from the decision rendered by Justice Pierre Blais in Majerby
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 878, [2002]
F.C.J. No. 1145 (QL):
1. Did the Immigration officer have a duty
to disclose the analysis of the risk of return which he made personally and to
give the plaintiff an opportunity to make comments before reaching a final
decision on the immigrant visa exemption application?
…
[7] No, the Immigration officer did not have a duty to disclose
the analysis of the risk of return and give the plaintiff an opportunity to
make comments before reaching a final decision on the immigrant visa exemption
application.
[8] The plaintiff submitted that the Immigration officer failed
in his duty of fairness and rendered an unreasonable decision. The plaintiff
relied entirely on Haghighi v. Canada (Minister of Citizenship
and Immigration), [2000] 4 F.C. 407 (F.C.A.).
[9] In Haghighi, supra, the Court concluded that before
rendering his decision the Immigration officer contravened the fairness
obligation by not telling the plaintiff the content of the risk assessment by
the review officer and by not giving him a reasonable opportunity to try to
identify errors or omissions in that assessment.
[10] Haghighi, supra may be distinguished from the case at
bar on three grounds. First, the Federal Court of Appeal held that the
Immigration officer had a duty to disclose to the plaintiff a report which was
prepared by a third party, namely a post-claim determination officer (PCDO),
with which she agreed, and that she should have given him an opportunity to
make corrections to that report. No report was filed by a third party in the
case at bar. The analysis of the risk of return was made by an Immigration
officer alone and is part of the final decision.
…
[12] Further, in Siavashi v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No. 1132 (F.C.T.D.), McKeown J. stated that
it was not usual to give the parties reasons in order to get their comments
before the decision itself was rendered:
[para 10] I cannot agree with this analysis since the Baker case, [1999]
2 S.C.R. 817, specifically provides that the summary document constitutes the
reasons. It is not normal to provide reasons to the parties for comments before
the issuance of the decision. The failure to disclose the summary report would
only cause a problem if new facts were included in the summary which were not
known to the Applicant. This is not the situation in this case.
[13] I entirely concur in that reasoning. Accepting the
plaintiff's argument in the case at bar would amount to requiring
administrative decision-makers to provide a draft of their decisions to
plaintiffs before making a final decision, which would be ridiculous.
(Reference is also made to: Shelliah v. Canada
(Minister of Citizenship and Immigration), 2004 FC 872, [2004] F.C.J. No.
1134 (QL).)
JUDICIAL PROCEDURE
[2]
This is an application
for judicial review, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of the decision of an
Immigration Officer (H&C Officer) dated June 1, 2006, refusing the
Applicant’s application for an exemption on humanitarian and compassionate (H&C
application) grounds to allow him to apply for permanent residence from within
Canada.
BACKGROUND
[3]
The Applicant, Mr. Sajjade Hussain
Shah, was born in the province of Punjab in Pakistan. He is a 48 year old Shia Muslim. He came to Canada on June
20, 2002, at which date he claimed refugee status.
[4]
On March 31, 2004, Mr. Shah filed
an application for leave of the Immigration and Refugee Board’s negative
decision dated March 5, 2004. On June 18, 2004, the Federal Court dismissed Mr.
Shah’s application.
[5]
On June 29, 2006, Mr. Shah filed
an application for leave of the negative Pre-Removal Risk Assessment (PRRA)
rendered on June 1, 2006. The Applicant also filed an application for leave of
the decision rendered on June 1, 2006, refusing his application for an
exemption to apply for permanent residence from within Canada.
[6]
On July 26, 2006 Mr. Shah filed a
motion to stay his removal to the United
States, pending the final adjudication
of his application for leave relating to the PRRA decision. This motion was
denied on August 16, 2006.
DECISION UNDER REVIEW
[7]
In a letter dated June 1, 2006,
the H&C officer found that, taking into consideration all the issues and
circumstances raised by Mr. Shah, there were no H&C grounds warranting
special relief under subsection 25(1) of IRPA.
[8]
In his reasons, the H&C
officer weighed the positive and negative factors with respect to Mr. Shah’s
profession, assets (including his residence) in Canada, and nuclear family in Pakistan.
[9]
Furthermore, the H&C officer
concluded that the Applicant would not face a subjective risk to his life
should he return to Pakistan and therefore would not suffer unusual and undeserved
or disproportionate hardship in obtaining a permanent resident visa from outside
of Canada.
ISSUES
[10]
The issues in the case at bar, are
as follows:
1) Did the H&C officer err in respect of his
assessment of the relevant factors involved in the H&C application?
2) Did the H&C officer violate procedural fairness
by failing to give Mr. Shah a chance to provide better copies of the warrant of
arrest, the First Information Report (FIR) and the Notice to Appear (Exhibits
A-1, A-2 and A-3)?
STATUTORY SCHEME
[11]
Pursuant to subsection 11(1) of
IRPA, a foreign national who wishes to live in Canada permanently must apply
for and obtain a permanent resident visa before entering Canada.
|
11. (1) A foreign national must, before entering Canada,
apply to an officer for a visa or for any other document required by the
regulations. The visa or document shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
|
11. (1) L'étranger doit, préalablement
à son entrée au Canada, demander à l'agent les visa et autres documents
requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un
contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente
loi.
|
[12]
However, pursuant to section 25 of IRPA, the
Minister is given the discretion to facilitate an individual’s admission to
Canada or exempt that person from any applicable criteria or obligation under
IRPA where the Minister is satisfied that such an exemption should be permitted
on the basis of H&C considerations.
|
25. (1) The Minister shall, upon request of a
foreign national who is inadmissible or who does not meet the requirements of
this Act, and may, on the Minister's own initiative, examine the
circumstances concerning the foreign national and may grant the foreign national
permanent resident status or an exemption from any applicable criteria or
obligation of this Act if the Minister is of the opinion that it is justified
by humanitarian and compassionate considerations relating to them, taking
into account the best interests of a child directly affected, or by public
policy considerations.
|
25.
(1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui
ne se conforme pas à la présente loi, et peut, de sa propre initiative,
étudier le cas de cet étranger et peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger
— compte tenu de l'intérêt supérieur de l'enfant directement touché — ou
l'intérêt public le justifient.
|
General Principles
[13]
The IRPA requires that a foreign national who
wishes to live in Canada
permanently must apply for and obtain a permanent resident visa before entering
Canada. However, the IRPA also
allows an immigration officer to exempt a foreign national from this
requirement if the officer (or the Minister) is of the opinion that an
exemption is justified by humanitarian and compassionate considerations
relating to him (Sections 11(1) and 25 of the IRPA).
[14]
The foreign national applying for
H&C exemption has the onus of satisfying the officer that, in his personal
and particular circumstances, the hardship of having to obtain a permanent
resident visa outside of Canada in the normal manner would either be unusual and
undeserved, or disproportionate. (Owusu v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 94, [2003] F.C.J. No. 139(QL).)
[15]
This Court should not interfere
with an officer’s decision not to grant an H&C exemption to a foreign
national unless the decision is unreasonable, meaning that there is no line of
analysis in the officer’s reasons from the evidence before him that could
reasonably lead the officer to his conclusion. (Baker v. Canada (Minister of
Citizenship and Immigration), (1999), 174 D.L.R. (4th) 193
(S.C.C.); Law Society of New Brunswick v. Ryan, [2003] S.C.R. 247.)
[16]
The Supreme Court of Canada in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, stated that discretionary
decisions made by immigration officers should be given considerable respect.
The Court decided that the standard of review applicable to Immigration
officers’ decisions on humanitarian and compassionate grounds was the one of
reasonableness simpliciter. On that issue, Justice Claire L’Heureux-Dubé
said the following:
[51] As stated earlier,
the legislation and Regulations delegate considerable discretion to the
Minister in deciding whether an exemption should be granted based upon
humanitarian and compassionate considerations. The Regulations state that
"[t]he Minister is ... authorized to" grant an exemption or otherwise
facilitate the admission to Canada of any person "where the Minister is
satisfied that" this should be done "owing to the existence of
compassionate or humanitarian considerations". This language signals an
intention to leave considerable choice to the Minister on the question of
whether to grant an H & C application.
(…)
[59] …The decision- maker
here is the Minister of Citizenship and Immigration or his or her delegate. The
fact that the formal decision-maker is the Minister is a factor militating in
favour of deference. The Minister has some expertise relative to courts in
immigration matters, particularly with respect to when exemptions should be given
from the requirements that normally apply.
(…)
[62] …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… I conclude, weighing all these factors, that the
appropriate standard of review is reasonableness simpliciter.
(Emphasis of the Court.)
[17]
The standard of reasonableness simpliciter
has been described as a standard more deferential than that of correctness, but
less deferential than that of patent unreasonableness. In Canada (Director
of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1
S.C.R. 748, Justice Frank Iacobucci indicated, at pages 778 and 779, that the
standard of reasonableness simpliciter is similar to that of “clearly
wrong” and that the “clearly wrong test” should be used as a guide by the
Courts when applying the standard of reasonableness simpliciter:
[56] I conclude that the
third standard should be whether the decision of the Tribunal is
unreasonable. This test is to be distinguished from the most
deferential standard of review, which requires courts to consider whether a
tribunal's decision is patently unreasonable. An unreasonable
decision is one that, in the main, is not supported by any reasons that can
stand up to a somewhat probing examination. Accordingly, a court reviewing a
conclusion on the reasonableness standard must look to see whether any reasons
support it…
(…)
[60] Even as a matter of
semantics, the closeness of the "clearly wrong" test to the standard
of reasonableness simpliciter is obvious. It is true that many things
are wrong that are not unreasonable; but when "clearly" is added to
"wrong", the meaning is brought much nearer to that of
"unreasonable". Consequently, the clearly wrong test represents a
striking out from the correctness test in the direction of deference. But the
clearly wrong test does not go so far as the standard of patent
unreasonableness. For if many things are wrong that are not unreasonable, then
many things are clearly wrong that are not patently unreasonable (on the assumption
that "clearly" and "patently" are close synonyms). It
follows, then, that the clearly wrong test, like the standard of reasonableness
simpliciter, falls on the continuum between correctness and the standard
of patent unreasonableness. Because the clearly wrong test is familiar to
Canadian judges, it may serve as a guide to them in applying the standard of
reasonableness simpliciter.
(Emphasis of the Court.)
ANALYSIS
1) The
H&C decision is well-founded
[18]
The Applicant takes issue with the
Officer’s conclusions, submitting that the Officer misapplied the principles
with respect to an H&C application and the risks involved in this
application. Furthermore, the Applicant contends that the Officer failed to
take into consideration all the evidence.
[19]
It is trite law that a panel is
presumed to have considered all of the evidence before it and that the
assessment of weight to be given is a matter within its discretion and
expertise. (Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.), [1992] F.C.J. No. 946
(QL); Huang v. (Minister of Employment and Immigration), (1993) 66
F.T.R. 178, [1994] F.C.J. No. 901 (QL); Randhawa v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 606 (QL).)
[20]
The Officer listed all the factors
mentioned by the Applicant in support of his H&C application, including the
persecution, the danger of torture and the risks alleged in this application.
[21]
The Officer dealt with the risks
factors in the present H&C application. The Officer did not close his mind
on the risks factor during his analysis of the H&C application.
[22]
It is clear that the Officer had
in mind the complete situation of the Applicant when drawing his conclusions
with respect to the Applicant’s H&C application.
[23]
The risks mentioned by the Applicant
in his submissions were duly and properly examined in the context of an H&C
application, in light of the proper principles: whether the Applicant would
suffer unusual and undeserved or disproportionate hardship to obtain a permanent
resident visa from outside Canada.
[24]
Moreover, the Respondent submits
that the Officer noticed that in his H&C application the Applicant had not
given details or explanations concerning the risks factors. The Officer acted
fairly by considering the evidence presented in support of the PRRA application
in order to shed more light with respect to those risks.
[25]
The fact that the Officer is the
same person who studied the PRRA application did not prevent him from making a
finding with respect to the alleged persecution and risks if the Applicant was
to return to Pakistan to apply for permanent residence.
[26]
The Officer was entitled to rely,
in considering the evidence, on the negative decision of the IRB, confirmed by
the Federal Court.
[27]
In his memorandum, the Applicant
submits that the Officer erred in failing to consider certain specific
exhibits.
[28]
This allegation is unfounded.
[29]
It is for the Officer to assess
and give weight to the evidence before him.
[15] Despite the able
efforts made by applicant's counsel to demonstrate that the officer's
conclusion is unreasonable, the documentary evidence is not unequivocal.
Questions of weight and credibility to be given to the evidence in risk
assessments are entirely within the discretion of the PRRA Officer and, normally,
the Court should not substitute its analysis for that of the Officer (Maple
Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Ferroequus Railway Co. v.
Canadian National Railway Co., [2003] F.C.J. No. 1773 at para. 14
(F.C.A.) (QL); Khan v. Canada (Minister of Citizenship and Immigration),
[2002] F.C.J. No. 974 at para. 4 (T.D.) (QL)).
(…)
[17]... It is sufficient to
find here that there is documentary evidence supporting the Officer's
conclusion. Although there may exist documentary evidence that presents a
somewhat differing position, I am not ready here to accept that the failure to
mention specifically such evidence alters the Officer's general conclusion that
the applicant would not face a personalized risk of persecution.
(Emphasis of the Court.)
(Sidhu v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 30 (QL).)
[30]
The Officer understood and was
alert to the humanitarian and compassionate factors invoked by the Applicant.
Namely, the Officer balanced these factors in the Applicant’s case and
concluded that no excessive hardships or difficulties would result for the Applicant
by filing an application for permanent residence in the usual manner, i.e.
outside Canada. His conclusions are based on the evidence and are
reasonable, despite the fact that the Applicant disagrees with the Officer.
2) The Officer acted in conformity with the
principles of natural justice
[31]
In addition, contrary to the
allegation of the Applicant, the Officer did consider the Applicant’s specific
exhibits, specified as pertinent to the H&C and did appreciate the weight
to be given to those exhibits.
[32]
The Officer admitted the Applicant’s
specific exhibits in regard to the H&C and then appreciated their weight.
[33]
The Officer properly exercised his
jurisdiction and explained his concerns with respect to those exhibits.
[34]
The Officer was under no
obligation to contact the Applicant and advise him with his concerns with
respect to the authenticity of the exhibits.
[35]
It was the responsibility of the Applicant
to provide the necessary evidence in support of his application and to ensure
the quality of the exhibits produced. As stated, in Baker, above, the Applicant
has had the opportunity to produce full and complete written documentation in
relation to his H&C application and had the assistance of counsel.
[36]
No violation of the requirements
of procedural fairness in this case was demonstrated.
[37]
In the case of Owusu v. Canada
(Minister of Citizenship and Immigration), 2004 FCA 38, [2004] F.C.J. No. 158 (QL), where the Federal Court of
Appeal stated:
[8] H & C applicants
have no right or legitimate expectation that they will be interviewed. And,
since applicants have the onus of establishing the facts on which their claim
rests, they omit pertinent information from their written submissions at their
peril. In our view, Mr. Owusu's H & C application did not adequately raise
the impact of his potential deportation on the best interests of his children
so as to require the officer to consider them.
[38]
In conclusion, in response to the Applicant’s
argument on procedural fairness, an analysis of a similar situation but in a
different context is examined in light of an excerpt from the decision rendered
by Justice Blais in Majerby above:
1. Did the Immigration officer have a duty
to disclose the analysis of the risk of return which he made personally and to
give the plaintiff an opportunity to make comments before reaching a final
decision on the immigrant visa exemption application?
…
[7] No, the Immigration officer did not have a duty to disclose
the analysis of the risk of return and give the plaintiff an opportunity to
make comments before reaching a final decision on the immigrant visa exemption
application.
[8] The plaintiff submitted that the Immigration officer failed
in his duty of fairness and rendered an unreasonable decision. The plaintiff
relied entirely on Haghighi v. Canada (Minister of Citizenship
and Immigration), [2000] 4 F.C. 407 (F.C.A.).
[9] In Haghighi, supra, the Court concluded that before
rendering his decision the Immigration officer contravened the fairness
obligation by not telling the plaintiff the content of the risk assessment by
the review officer and by not giving him a reasonable opportunity to try to
identify errors or omissions in that assessment.
[10] Haghighi, supra may be distinguished from the case at
bar on three grounds. First, the Federal Court of Appeal held that the
Immigration officer had a duty to disclose to the plaintiff a report which was
prepared by a third party, namely a post-claim determination officer (PCDO),
with which she agreed, and that she should have given him an opportunity to
make corrections to that report. No report was filed by a third party in the
case at bar. The analysis of the risk of return was made by an Immigration
officer alone and is part of the final decision.
…
[12] Further, in Siavashi v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No. 1132 (F.C.T.D.), McKeown J. stated that
it was not usual to give the parties reasons in order to get their comments
before the decision itself was rendered:
[para 10] I cannot agree with this analysis since the Baker case, [1999]
2 S.C.R. 817, specifically provides that the summary document constitutes the
reasons. It is not normal to provide reasons to the parties for comments before
the issuance of the decision. The failure to disclose the summary report would
only cause a problem if new facts were included in the summary which were not
known to the Applicant. This is not the situation in this case.
[13] I entirely concur in that reasoning. Accepting the
plaintiff's argument in the case at bar would amount to requiring
administrative decision-makers to provide a draft of their decisions to
plaintiffs before making a final decision, which would be ridiculous.
(Reference is also made to: Shelliah,
above.)
[39]
For all the above-mentioned
reasons, the Applicant has failed to establish that the conclusions reached by
the Officer warrant the intervention of this Court.
CONCLUSION
[40]
The documents filed by the
Applicant in support of his application for leave and for judicial review do
not disclose any serious ground that allows this Court to intervene in order to
set aside the Officer’s decision.
JUDGMENT
THIS
COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
Email this Content