Date: 20080215
Docket: IMM-659-07
Citation: 2008 FC 197
Ottawa, Ontario, February 15,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
BHUPINDER
SINGH KHUN KHUN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is the second judicial review of the attempts by the Applicant to obtain a
favourable H&C decision.
II. BACKGROUND
[2]
The
Applicant is a citizen of India and is of the Sikh faith. He made a
refugee claim in the U.K. which was rejected. He then came to Canada in 1997
where he made another refugee claim which was rejected. He then submitted an
H&C application. This H&C application was rejected in January 2006 but
was quashed in October 2006.
[3]
When
the Applicant came to Canada, he set up a transportation company with a
business partner. The business has survived and the Applicant divides his time
between Ontario and Quebec – he has
ties to the Sikh community in both provinces.
[4]
In
assessing the H&C application, the Officer considered the Applicant’s
efforts to integrate and to be self-sufficient. These efforts were described as
“very commendable” and were “expected and not extraordinary”. The Officer
concluded that there was no evidence that the business would fail if the
Applicant left and the Officer recognized that the Applicant had opened the
business when his immigration status was uncertain.
[5]
The
Officer noted that the Applicant had tried to circumvent removal by providing
contradictory answers to questions about his primary documents, thereby
lengthening the process. The Officer also reviewed these documents and
explained why they were considered deficient.
[6]
In
the end, the Officer concluded that the Applicant’s establishment in Canada was not
strong and that he had deliberately prolonged his stay by circumventing the
removal process. From this the Officer concluded that the Applicant would not
face unusual, undeserved or disproportionate hardship if he had to apply for
permanent residence from outside Canada.
III. ANALYSIS
[7]
The
Applicant takes umbrage at the Officer’s use of the words “expected and not
extraordinary” in the context of his financial independence. The Applicant
suggests that the Officer imposed a new standard on H&C applications.
[8]
There
is no merit in this suggestion. The Officer was simply acknowledging that it
would be expected that a person living in Canada would try to
earn a living. Justice Blais in the first decision noted that this behaviour is
what anyone would do. Justice Blais did not find that the Applicant had proven
“establishment” or otherwise qualified for an H&C exemption. He held that
the official in that case had not examined the file adequately – a criticism
which cannot be levelled in this case.
[9]
The
Applicant also complained that there had been a breach of natural justice,
particularly with respect to not having an opportunity to address concerns
about his identity documents. There is no basis for this argument.
[10]
The
issues concerning the identity documents were well-known to the Applicant and
he must have (or ought to have) anticipated that the Officer would examine this
issue. It was the Applicant’s obligation to address these concerns; he had an
opportunity to address the issues which he did not do satisfactorily.
[11]
Therefore,
on the issue of “establishment”, the Officer’s decision is in accordance with
the applicable standard of review of reasonableness. As to the matter of
procedural fairness, the Officer’s actions were correct.
IV. CONCLUSION
[12]
Therefore,
this judicial review is dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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