Date: 20080425
Docket: IMM-4084-07
Citation: 2008 FC 532
Ottawa, Ontario, April 25,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
BAKIR
GAZLAT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a Humanitarian and Compassionate
(H&C) decision, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), in which Immigration
Officer Barriero (the Officer) determined that there was insufficient evidence
that applying for permanent residence from outside of Canada would cause the
applicant to experience hardships that are undue, undeserved or
disproportionate.
ISSUES
[2]
The
applicant suggests that several issues should be decided in the present case;
however, I would simply reframe the issue as follows: did the Officer commit a
reviewable error based on the evidence before her?
[3]
The
respondent raises a second issue: should the application for judicial review be
dismissed on the ground that the applicant does not come before the Court with
clean hands? I will address both issues, beginning with the latter.
[4]
For
the following reasons, the application for judicial review shall be dismissed.
FACTS
[5]
The
applicant is a citizen of Jordan, born February 14, 1978. He entered Canada on December
24, 2000, and made a claim for refugee protection. The claim was denied by the
Immigration and Refugee Board on June 24, 2002.
[6]
The
applicant made a first application for permanent residence on H&C grounds
on May 24, 2003, which was denied March 22, 2005. Leave to the Federal Court
was denied on April 7, 2005.
[7]
The
applicant completed the PRRA process in which it was determined that he would
not be at risk if returned to Jordan. The applicant applied to the Court for
a stay of removal, which was denied. The applicant ignored the Court order and
did not present himself for removal. On September 16, 2005 a warrant was issued
for his arrest, which remains open to this day.
[8]
The
applicant went underground to avoid arrest and removal, and applied for
permanent residence on H&C grounds a second time. The decision of the
Officer regarding the second H&C application is at issue in the case at
bar.
DECISION UNDER REVIEW
[9]
The
applicant’s application for consideration on H&C grounds was rejected by
letter, dated September 21, 2007. The letter and Field Operations Support
System (FOSS) notes form the decision under review. The Officer provided the
following reasons in support of her decision:
a) The Officer
found that there was insufficient evidence that the applicant remained in Canada because of
circumstances beyond his control. She noted the fact that the applicant ignored
the removal order and remained in Canada illegally.
b) The Officer
determined that the conditions in Jordan alleged by the
applicant, namely that it is a “war prone environment” with “widespread
terrorist activities”, are faced by the general population. Because the
applicant did not present any elements of personalized risk, the Officer
declined to forward the case for a risk opinion.
c) The Officer
considered several factors relating to the applicant’s establishment in Canada. She
considered the applicant’s employment as a cook in a Middle Eastern restaurant,
as well as his savings, salary, investment in a Canadian corporation, volunteer
work, relatives, language skills and letters of support.
d) The Officer
noted the applicant remained in Canada in violation of the immigration laws of
the country, and that he purchased shares in the business in January 2005, when
he knew his status in Canada was tenuous. She noted the absence of
sufficient evidence supporting his allegation that his departure from Canada would
negatively affect his investment.
e) The Officer
found that the applicant’s skill as a cook was transferable, and that he was
employed in Jordan for 11 years
prior to his departure. The Officer credited the applicant for his volunteer
work. She noted that she was not satisfied that the loss of employment or
volunteering opportunities in Canada would cause the applicant undue,
undeserved or disproportionate hardship.
f)
The
Officer acknowledged the presence of the applicant’s aunts and cousins in Canada, but
determined that there was insufficient evidence to support the applicant’s
claim that his parents and seven siblings were no longer living in Jordan. She found
it reasonable that the applicant would be able to locate some of his family
members if he returned.
g) The Officer
noted that the applicant had significant savings and would be able to secure
accommodation in Jordan.
h) The Officer
considered a medical letter from a Dr. H. Obaji attesting to the applicant’s
complaints of vomiting, heart burn, epigastric pain and insomnia for which the
letter stated there was “no specific diagnosis”. The letter further stated that
the applicant was scheduled to attend an appointment for psychological
counselling for anxiety and depression. The Officer wrote that there was
insufficient evidence to support the fact that the applicant attended the
appointment, or whether a specific diagnosis resulted from the process of
psychological counselling. The Officer further rejected the submission from
applicant’s counsel stating that the applicant is “psychologically disturbed”
and that his “mental condition is highly vulnerable”, on the ground that
counsel is not qualified to arrive at such a conclusion.
i)
The
Officer concluded by restating the fact that insufficient evidence was
presented to demonstrate that the applicant remained in Canada because of
circumstances beyond his control. She found that the applicant did not
demonstrate that sufficient H&C grounds exist to warrant an exemption from
the requirements of the Act, and that he provided insufficient evidence that he
would experience undue, unusual or disproportionate hardships.
ANALYSIS
Standard of Review
[10]
This
Court has previously held that the review of H&C decisions should be
afforded considerable deference, and that the applicable standard was
reasonableness simpliciter (Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817).
[11]
Following
the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, review of H&C decisions should continue to be subject to
deference by the Court, and are reviewable on the newly articulated standard of
reasonableness (Dunsmuir, at paragraphs 47, 55, 57, 62, and 64).
[12]
For
a decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, at paragraph 47).
Applicant does not come
to the Court with clean hands
[13]
The
respondent submits that the application for judicial review should be dismissed
without entertainment of the merits because the applicant has not come to this
Court with clean hands. The respondent submits that the applicant has sworn a
false affidavit. The respondent argues that the omission from the applicant’s affidavit of
his failure
to appear for his removal, while claiming to be a law abiding individual during
his time in Canada, constitutes a
misrepresentation. The respondent notes that a warrant was issued for the
applicant’s arrest on September 16, 2005, which remains active.
[14]
The
respondent refers the Court to the decision of the Supreme Court of Canada in Homex
Realty and Development Co. v. Wyoming (Village), [1980] 2 S.C.R. 1011, in
which Justice Estey, writing for the majority stated:
… The principles upon which certiorari,
and now the modern order in judicial review, have been issued have long
included the principle of disentitlement where a court, because of the conduct
of the applicant, will decline the grant of the discretionary remedy.
[15]
The
principle that the Court may exercise its discretion to dismiss an application
because the applicant does not have clean hands has been applied in recent
cases, specifically where an applicant evaded immigration authorities or an
arrest warrant in order to delay or avoid removal (E.L.D. v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1475, [2005] F.C.J. No.
1812 at paragraphs 48 to 57; Lima v. Canada (Minister of Citizenship and
Immigration), 2007 FC 383, [2007] F.C.J. No. 530) at paragraphs 16 and 17).
[16]
I
agree with the respondent’s submission that the applicant’s disregard for
Canadian immigrations and law enforcement authorities, as well as for the order
of this Court dismissing the stay of removal, demonstrate that the applicant
does not come to the Court with clean hands.
[17]
However,
the Federal Court of Appeal determined in Thanabalasingham v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 14, [2006] F.C.J. No. 20, that though
an applicant does not have clean hands, an application for judicial review may
not be dismissed automatically on that ground. Rather the Court must assess
certain factors in order to strike a balance between the need to prevent abuse
of the judicial process and the need to protect an applicant’s rights. Writing
for the Federal Court of Appeal, Justice Evans opined:
[9] In my view, the jurisprudence
cited by the Minister does not support the proposition advanced in paragraph 23
of counsel's memorandum of fact and law that, "where it appears that an
applicant has not come to the Court with clean hands, the Court must initially
determine whether in fact the party has unclean hands, and if that is proven,
the Court must refuse to hear or grant the application on its merits."
Rather, the case law suggests that, if satisfied that an applicant has lied, or
is otherwise guilty of misconduct, a reviewing court may dismiss the
application without proceeding to determine the merits or, even though having
found reviewable error, decline to grant relief.
[10] In exercising its discretion, the
Court should attempt to strike a balance between, on the one hand, maintaining
the integrity of and preventing the abuse of judicial and administrative
processes, and, on the other, the public interest in ensuring the lawful
conduct of government and the protection of fundamental human rights. The
factors to be taken into account in this exercise include: the seriousness of
the applicant's misconduct and the extent to which it undermines the proceeding
in question, the need to deter others from similar conduct, the nature of the
alleged administrative unlawfulness and the apparent strength of the case, the
importance of the individual rights affected and the likely impact upon the
applicant if the administrative action impugned is allowed to stand.
[18]
It
is my opinion that the balance of the above mentioned factors supports the
exercise of discretion to dismiss the application in this case; however, in
case I am wrong, I will examine the application on its merits.
No reviewable error
[19]
The
applicant’s argument raises only general grounds upon which he alleges the
decision should be reviewed. It should be noted that the applicant submits that
the Officer fettered her discretion and breached principles of procedural
fairness; however, these allegations are made without reference to the
decision, and are therefore without merit.
[20]
The
applicant argues that the Officer erred in her assessment of hardship, and by
her failure to make further inquiries to obtain more evidence from the
applicant.
[21]
I
find that the Officer’s assessment of hardship was reasonable. She correctly
ascertained that the hardship which the applicant might experience upon removal
will not result from circumstances beyond his control. The Officer’s conclusion
rested upon a thorough evaluation of the applicant’s circumstances, as well as
the fact that his presence in Canada is a result of his disregard for Canadian
laws.
[22]
The
respondent contends that for hardship to be undue, undeserved or
disproportionate, it must be fore than mere inconvenience or predictable costs
associated with leaving the country; that he must sell assets, leave a job or
his family is a consequence of the risk the applicant took by remaining in
Canada without legal status (see Irimie v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1906, at paragraphs 12 and
17, cited with approval in Akinbowale v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1221, [2007] F.C.J. No. 1613).
[23]
The
applicant also argues that the Officer had a duty to make further inquiries for
additional evidence.
[24]
The
applicant’s argument is unfounded. The duty of the Officer is to consider the
evidence before her, which she did in a justified, transparent and intelligible
manner. It is trite law that the onus lies on the applicant to bring forward
sufficient evidence to establish his claim (Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] F.C.J. No. 158
(F.C.A.)). Paragraph 5.26 of the Immigration Manual IP 5 further supports the
duty of the applicant to present any evidence that might support his claim:
5.26 Onus on applicant
Officers do not have to elicit
information on H&C factors and are not required to satisfy applicants that
such grounds do not exist. The onus is on applicants to put forth any H&C
factors that they feel exist in their case.
Although officers are not expected to
delve into areas that are not presented, officers should attempt to clarify
possible H&C grounds if these are not well articulated by the applicants.
[25]
It
is my opinion that the Officer’s decision is eminently reasonable. The
arguments submitted by the applicant seek to have this Court reweigh the
evidence before the decision maker. This is not the role of the Court.
[26]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application is
dismissed. No question is certified.
“Michel
Beaudry”
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