Date: 20080522
Docket: IMM-2448-07
Citation: 2008 FC 646
Ottawa, Ontario, May 22, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
NAZIR AHMAD,
ZARINA NAZIR, and
ALI HUSSNAIN,
ASAD HUSSNAIN,
AMINA NAZIR,
QASIM HUSSNAIN, and
SALMAN HUSSNAIN,
by their litigation
guardian,
NAZIR AHMAD
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Nazir Ahmad ,
his wife Zarina Nazir, and their children Ali, Asad, Amna, Qasim and Salman,
are citizens of Pakistan, from Lahore in the province of Punjab. They seek
judicial review of the decision of an officer that refused their application,
made on humanitarian and compassionate grounds, for permanent residence in Canada.
[2] The
application for judicial review is dismissed because the applicants failed to
establish that the officer erred in fact or in law. Further, the applicants
have not established that they were denied natural justice or fairness through
the alleged incompetence of their immigration consultant, who prepared and
submitted their humanitarian and compassionate application.
Background
[3] On
January 7, 2003, after a lengthy sojourn in the United States during which they
did not seek protection, the applicants arrived in Canada and claimed refugee
protection. Mr. Ahmad claimed to have been an active member of the Shia Muslim
community in Pakistan who was targeted and threatened by the Sipah-e-Sahaba
(SSP). On June 29, 2004, the applicants' claims for protection were rejected
by the Refugee Protection Division of the Immigration and Refugee Board
(Board). The Board found that the applicants lacked credibility. Leave for
judicial review of that decision was denied by the Court.
[4] Following
the negative decision of the Board, the applicants applied for a pre-removal
risk assessment (PRRA). On May 3, 2005, the PRRA was determined to be
negative.
[5] On
September 29, 2004, the applicants applied for permanent residence on
humanitarian and compassionate grounds. Updated information and submissions in
support of their application were provided by the applicants on April 22, 2005,
and April 6, 2007. On May 30, 2007, the application was refused.
The Officer’s Decision
[6] When
making her decision, the officer considered three principal factors:
·
the risk faced by the applicants upon return to Lahore, Pakistan;
·
the applicants’ degree of establishment in Canada; and
·
the best interests of the children.
[7] In
refusing the application, the officer made a number of findings:
- The officer noted that the Board
had found the applicants to be incredible and their fears not to be
well-founded. The officer also noted that the applicants’ PRRA had been
rejected. After reviewing the documentary evidence, the officer concluded
that Mr. Ahmad was not a prominent Shia figure in the eyes of the SSP
and therefore not at risk to be targeted. In reaching this decision, the
officer gave little weight to statements and affidavits that were
submitted to establish that Mr. Ahmad was active in the Shia community and
targeted by the SSP. The officer also concluded that Mr. Ahmad’s
behaviour was not consistent with that of a person under constant threat
of attack by the SSP. The officer further concluded that the steps taken
by the government of Pakistan had been reasonably effective in addressing
the threat of violent attacks.
- The officer noted that the
applicants had been living in Canada for approximately four years and that
they had maintained a “good civil record” during that time. The officer
also noted that Mr. Ahmad had taken steps to establish a business and was
working to support his family. However, the officer did indicate that
there was no evidence to indicate that the applicants owned property (or
other significant assets) in Canada, which would impede their return to Pakistan,
or that Mrs. Nazir had taken steps to secure work or become integrated
into the community. The officer also pointed out that the applicants were
without family ties in Canada, but did have “significant” ties in Pakistan.
- The officer noted that the
children were early into their academic careers and that each was
described as speaking Punjabi. While the officer acknowledged that the
children’s studies would be disrupted if they returned to Pakistan, the
officer was of the view that the change in location and language of
instruction would be overcome by the children.
[8] The
officer acknowledged that there were a number of positive aspects to the
applicants’ humanitarian and compassionate application. However, on the evidence
provided by the applicants, the officer concluded that the hardships arising
from the failure to grant an exemption would not be unusual and undeserved or
disproportionate.
The Issues
[9] The
applicants raise the following issues on judicial review:
(1)
Whether the officer erred in:
a)
assessing the risk faced by the applicants in Pakistan;
b)
rejecting the corroborative documentary evidence provided by the
applicants;
c)
ignoring the evidence;
d)
assessing the best interests of the children; and
e)
applying an arbitrary standard for assessing the applicants’ degree of
establishment in Canada.
(2)
Whether the duty of fairness owed to the applicants was breached by the
conduct of their immigration consultant who prepared and submitted their
humanitarian and compassionate application.
The Standard of Review
[10] Since
the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, determining the appropriate standard of review
involves two steps. First, the Court must ascertain whether the jurisprudence
has already satisfactorily determined the degree of deference to be accorded to
the particular type of question at issue. Second, if that initial inquiry
proves unsuccessful, the Court must consider the relevant standard of review
factors. Those factors include: (i) the presence or absence of a privative
clause; (ii) the purpose of the decision-maker in question, as determined by
its enabling legislation; (iii) the nature of the question at issue; and (iv) the
relative expertise of the decision-maker. See: Dunsmuir at paragraphs
57, 62, and 64.
[11] The
appropriate standard of review for a humanitarian and compassionate decision as
a whole had previously been held to be reasonableness simpliciter. See:
Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at paragraphs 57 to 62. Given the discretionary nature of
a humanitarian and compassionate decision and its factual intensity, the
deferential standard of reasonableness is appropriate. See: Dunsmuir at
paragraphs 51 and 53.
[12] As
to what review on the reasonableness standard entails, the Supreme Court was
express in Dunsmuir, at paragraph 48, that the collapse of the patent
unreasonableness standard of review and the move toward a single standard of
reasonableness was not an invitation to more intrusive scrutiny by the Court.
At paragraph 49, the majority cautioned that:
Deference in the context of the reasonableness
standard therefore implies that courts will give due consideration to the
determinations of decision makers. As Mullan explains, a policy of deference
"recognizes the reality that, in many instances, those working day to day
in the implementation of frequently complex administrative schemes have or will
develop a considerable degree of expertise or field sensitivity to the
imperatives and nuances of the legislative regime": D. J. Mullan,
"Establishing the Standard of Review: The Struggle for Complexity?"
(2004), 17 C.J.A.L.P. 59, at p. 93. In short,
deference requires respect for the legislative choices to leave some matters in
the hands of administrative decision makers, for the processes and
determinations that draw on particular expertise and experiences, and for the
different roles of the courts and administrative bodies within the Canadian
constitutional system.
[13] Review
on the reasonableness standard requires the Court to inquire into the qualities
that make a decision reasonable, which include both the process and the
outcome. Reasonableness is concerned principally with the existence of
justification, transparency, and intelligibility in the decision-making
process. It is also concerned with whether the decision falls within the range
of acceptable outcomes that are defensible in fact and in law. See: Dunsmuir
at paragraph 47.
[14] The
final issue raised by the applicants concerns whether the duty of fairness was
breached. Matters of procedural fairness have been held to be reviewable on the
standard of correctness. It is for the Court to determine whether an
administrative decision-maker has adhered to the principles of procedural
fairness. No deference is due. See: Canadian Union of Public Employees v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100. This continues
to be the case. See: Dunsmuir at paragraphs 129 and 151.
Application of the Standard
of Review to the Officer's Decision
[15] I
deal in turn with each of the five errors the officer is said to have
committed.
a. Did the officer err
in assessing the risk faced by the applicants in Pakistan?
[16] The
officer is said to have engaged in a risk analysis that was appropriate for a
refugee or PRRA claim, but inappropriate for a humanitarian and compassionate
application. In consequence, the applicants assert that the officer failed to
consider risk as an element of hardship.
[17] In
my view, the officer properly assessed the risk faced by the applicants in
Pakistan and did not err by applying the wrong legal test for assessing risk in
the context of a humanitarian and compassionate application. I reach this
conclusion because at the outset of that portion of her reasons entitled
Decision and Rationale, the officer properly set out the test of unusual and
undeserved or disproportionate hardship. The officer returned to this test
when setting out her conclusion.
[18] Further,
as the Court has previously written, an officer's decision cannot be assessed
in a vacuum. Regard must be given to the submissions that were placed before
the officer. An officer cannot be faulted where, as in the present case, an
applicant’s submissions invite consideration of the very matters that the
officer addresses.
[19] In
oral argument, counsel for the applicants also pointed to some material in the
country condition documentation that contradicted facts set out in the
officer's decision. For example, while the officer quoted one document as
stating that sectarian terror attacks continued to decline for the second year
in a row, another document stated that the level of sectarian violence remained
unchanged. I am not persuaded that any such errors were material to the
officer’s decision.
b. Did the officer err
by rejecting corroborative documentary evidence?
[20] Mr.
Ahmad provided a number of documents, including:
·
a letter from a lawyer who said that Mr. Ahmad had consulted him
about threats he had received from the SSP (although the letter also indicated
that Mr. Ahmad was a member of the SSP);
·
affidavits or statements from three individuals who confirmed
that Mr. Ahmad was active in the Shia community and had received threats
from the SSP;
·
two medical reports detailing injuries Mr. Ahmad received in 1984
and 1998; and
·
a letter from a cleric who confirmed Mr. Ahmad's prior problems
with the SSP and Mr. Ahmad's prominence in the Shia community.
[21] The
officer gave no weight to the lawyer's letter because it identified Mr. Ahmad
as a member of the very organization he fears. The other documents were
rejected by the officer for reasons that included a failure to demonstrate
first-hand knowledge of the matters recounted and a lack of detail in the
information provided.
[22] The
applicants, while acknowledging that the lawyer’s letter was problematic, argue
that the officer ought not to have rejected the documentation, "mostly for
lack of detail."
[23] In
my view, the officer committed no reviewable error. She did not ignore the
corroborative evidence, but rather gave reasonable reasons for giving little or
no weight to the documents. Having read each document, I conclude that the
officer could reasonably choose to give the documents little weight because, in
each case, the writer either failed to demonstrate any first-hand knowledge of
what he recounted or provided information lacking in detail. No document
provided sufficient information about Mr. Ahmad's activities to plausibly or
credibly explain why he was targeted by the SSP.
c. Did the officer
ignore evidence?
[24] The
applicants argue that the officer ignored some evidence and selectively relied
on other evidence relating to sectarian violence in Pakistan. The applicants
further argue that the officer focused on a beating Mr. Ahmad received in 1984
and then relied on the passage of time to conclude that he was no longer of
interest to the SSP. This is said to ignore the basis of Mr. Ahmad's
claim. Mr. Ahmad says that he was not targeted because of the initial attack;
he was attacked because of his continued participation in the Shia community.
[25] Again,
I have not been persuaded that the officer so erred.
[26] The
officer reviewed the documentary evidence and concluded that "the
objective documentary evidence does not persuade me that Punjab Province and Lahore
in particular are prone to attacks. That said terrorists can strike anywhere.
However, I note that the Government of Pakistan seems to have taken a course of
action against these threats that has been reasonably effective." There
was evidence before the officer to support that conclusion, and I do not find a
sufficient weight of conflicting evidence from which I can conclude that the
officer ignored evidence.
[27] I
have also not been persuaded that the officer ignored the fact that Mr. Ahmad's
claim was based upon his continued participation in the Shia community. The
officer wrote:
The male applicant’s first run in
with the SSP was in 1984. He would have been sixteen (16) years old at the
time. Age alone would not preclude him from being prominent, but I find there
is insufficient objective evidence to establish he projected a profile that
would attract the SSP. I am not persuaded that he was in a position to provide
financially and religiously to the community to a degree that he personally
attracted the attention of the SSP. The applicant left Pakistan in 1988. I am
not persuaded that the applicant would be considered “a prominent” Shia figure
in the eyes of the SSP today.
[28] This
demonstrates a proper appreciation of the basis of Mr. Ahmad's claim.
d. Did the officer err
in assessing the best interests of the children?
[29] The
applicants acknowledge that they did not provide documentation on the children
"or make extensive submissions about their interests."
Notwithstanding, the applicants say that the officer erred by conducting a
narrow assessment of the children's best interests. As set out in their
memorandum of argument, the applicants argue that:
[The officer’s] focus was on the
children’s ability to speak in their parents’ mother tongue and how advanced
there were in their education. The only ‘risk’ factors she considered in
relation to the children was child trafficking and sexual exploitation. There
were other obvious factors which the officer ought to have considered, given
her statutory obligation to consider the children’s best interests. One
significant factor is the ongoing religious violence in Pakistan against
minority religious groups, including the Shia. These children have lived in Canada
for close to five years. They have grown up in a tolerant community, where
religious violence is rare. This officer failed entirely to consider the
impact on them of having to return to a country which is rife with religious
violence and in which they are a minority.
[30] It
is settled law that the best interests of children affected by a humanitarian
and compassionate application are an important factor to be considered, but
they are not determinative. See: Legault v. Canada (Minister of Citizenship
and Immigration), [2002] 4 F.C. 358 (C.A.). In considering a humanitarian
and compassionate application, the officer must undertake a careful and
sympathetic assessment of the children’s interests. See: Hawthorne
v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.).
[31] However,
an applicant for humanitarian and compassionate relief must carefully set out
the basis of his or her claim. In Owusu v. Canada (Minister of
Citizenship and Immigration), [2004] 2 F.C.R. 635 (C.A.), Justice
Evans explained the obligations of a claimant and an officer in the following
way:
5 An immigration officer considering an
H & C application must be "alert, alive and sensitive" to, and must
not "minimize", the best interests of children who may be adversely
affected by a parent's deportation: Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
paragraph 75. However, this duty only arises when it is sufficiently clear
from the material submitted to the decision maker that an application relies on
this factor, at least in part. Moreover, an applicant has the burden of
adducing proof of any claim on which the H & C application relies. Hence,
if an applicant provides no evidence to support the claim, the officer may
conclude that it is baseless. [emphasis added]
[32] In
the present case, the applicants’ original humanitarian and compassionate
submissions were six pages in length. The submissions related solely to Mr. Ahmad's
fear of the SSP. While the submissions did request an exemption for Mr. Ahmad
and his “family”, no specific mention was made of his wife or children. They
were simply listed as being in Canada on the accompanying IMM 5001 forms. Mr.
Ahmad's updated submissions again centered on his fear of the SSP, although in
one sentence he stated "[m]y children are well[-]settled in school and are
doing very well."
[33] Faced
with that submission, and no supporting documentation with respect to the children,
the officer wrote:
I have taken into consideration
the best interests of the children. The applicants submit that the children
are settled in Canada. I have considered how a disruption to the children’s
studies may impact them. I note the children are all in the early years of
their academic careers. The applicants indicate that Punjabi is spoken at home
and all the children are listed as speaking Punjabi. I am not persuaded that a
change in the location and language of instruction would be difficult to
overcome.
[34] When
reviewing the general country conditions documentation, the officer wrote:
The documentary evidence
indicates respect for human rights was generally poor in Pakistan. However, I
note that the Province of Punjab was highlighted favourably in a number of
areas, i.e. policing and education initiatives, as well as having functioning
oversight bodies. The documentary evidence reports on several circumstances
that place children at risk (i.e. trafficking, sexual exploitation, violence in
the home, underage labour) however in the case at hand I am persuaded that
these risks are mitigated by the presence of the children’s parents.
[35] On
the material before the officer, it was not at all clear that the applicants
relied upon the best interests of the children as a factor in support of their
humanitarian and compassionate application. Notwithstanding, the officer did
not ignore the children's interests, but directed her mind to the degree of
hardship they would face if the children required to leave Canada and returned
to Pakistan.
[36] The
applicants do not point to any factual error in the officer's analysis, but
instead argue that the analysis was too narrow. The applicants say that the
officer should have considered the discrimination the applicants' now
eight-year-old daughter would face in Pakistan.
[37] In
my view, this submission is not consistent with the fact that it is the
applicants who had the burden of specifying that their application was based,
at least in part, upon the best interests of the children and the burden of
adducing proof of any claim on which their humanitarian and compassionate
application was based. It was incumbent upon the applicants to raise, and
support with evidence, any specific issue a family member would face that was
said to give rise not just to hardship, but to hardship which is unusual and
undeserved or disproportionate.
[38] Because
the applicants failed to directly raise the best interests of the children as a
basis of their humanitarian and compassionate application, and because they
failed to raise any specific factors relating to the children, I find no error
in the officer's treatment of the best interests of the children.
[39] To
the extent that the applicants also argue that the officer should have
considered the sectarian violence in Pakistan as a factor affecting the best
interests of the children, this was considered in the context of the officer's
assessment of general country conditions.
e. Did the officer err
by applying an arbitrary standard for assessing the applicants' degree of
establishment in Canada?
[40] The
applicants submit that the officer erred in finding that their establishment in
Canada was not exceptional. Rather than counting all of the positive factors
present, the applicants say that the officer discounted and minimized them.
According to the applicants, there is nothing in the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act), that requires them to show
that their establishment was exceptional in order to be granted an exemption on
humanitarian and compassionate grounds.
[41] The
applicants further argue that this introduces a subjective element into the
officer’s decision: who decides what degree of establishment is normally
expected? The assessment should not be rooted in comparison with others, say
the applicants, but in the context of their own humanitarian and compassionate
grounds. Finally, the applicants argue that this form of assessment overlooks
the concept of disproportionate hardship.
[42] It
is a fundamental principle of the Act that those who wish to obtain status as a
permanent resident in Canada must apply for such status from outside of Canada.
This is made clear in subsections 11(1) and 20(1) of the Act, and section 6 of
the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations).
[43] However,
in order to provide flexibility, and to recognize that there may be cases where
an exemption from that requirement is appropriate, the Minister is given
discretion to exempt a foreign national from any obligation under the Act. That
discretion is found in subsection 25(1) of the Act, which provides:
|
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.
|
[44] Neither
the Act nor the Regulations specify what constitutes humanitarian and
compassionate grounds. To promote fairness and consistency in the exercise of
the discretion conferred by subsection 25(1) of the Act, administrative
guidelines are provided to the officers designated to exercise this discretion.
For applications made from within Canada, the applicable
guidelines are found in Chapter 5 of the Inland Processing Manual (IP 5).
[45] The
guidelines applicable under the predecessor legislation to subsection 25(1) of
the Act were referred to and relied upon by the Supreme Court of Canada in Baker at
paragraphs 16 and 17. There, the Court wrote:
16 Immigration officers who make H & C decisions are provided
with a set of guidelines, contained in chapter 9 of the Immigration
Manual: Examination and Enforcement. The guidelines
constitute instructions to immigration officers about how to exercise the
discretion delegated to them. These guidelines are also available to the
public.
[...]
17 The guidelines also set out the bases upon which the
discretion conferred by s. 114(2) and the Regulations should be exercised.
Two different types of criteria that may lead to a positive s. 114(2) decision
are outlined — public policy considerations and humanitarian and compassionate
grounds. Immigration officers are instructed, under guideline 9.07, to assure
themselves, first, whether a public policy consideration is present, and if
there is none, whether humanitarian and compassionate circumstances exist.
[…] Guideline 9.07 states that humanitarian and compassionate grounds will exist
if "unusual, undeserved or disproportionate hardship would be caused to
the person seeking consideration if he or she had to leave Canada". [emphasis
added]
[46] The
guidelines now found in IP 5 explain the objective served by subsection 25(1)
of the Act in the following terms:
The
purpose of H&C discretion is to allow flexibility to approve deserving
cases not anticipated in the legislation. Use of this discretion should not be
seen as conflicting with other parts of the Act or Regulations but rather as a
complementary provision enhancing the attainment of the objectives of the Act.
It is not an appeal mechanism.
[47] As to
the balance to be struck between discretion and consistency, section 2.1 of IP
5 instructs:
The
legislation does not provide any explanation or guidance about what constitutes
humanitarian and compassionate grounds. Delegated persons have full authority
to make this decision. At the same time, to be fair to clients and to avoid
just criticism, there must be as much consistency as possible in the use of
this discretion.
As
much guidance as possible is given to assist officers in striking a balance
between the two seemingly contradictory aspects of discretion and consistency.
However, the discretion of the decision-maker takes precedence over guidance
when decisions are made.
[48] Other
relevant guidance is provided in sections 6.5 through 6.8 and section 11.2 of
IP 5. They are as follows:
6.5 Humanitarian
and compassionate decision
A
positive H&C decision is an exceptional response to a particular set of
circumstances. An H&C decision is more complex and more subjective than
most other immigration decisions because officers use their discretion to
assess the applicant's personal circumstances.
Applicants
must satisfy the decision-maker that their personal circumstances are such that
they would face unusual, undeserved, or disproportionate hardship if required
to apply for a permanent resident visa from outside Canada.
6.6
Humanitarian and compassionate
grounds
Applicants
making an application under A25(1) are requesting processing in Canada
due to compassionate or humanitarian considerations. Section A25(1)
provides the flexibility to approve deserving cases for processing within Canada,
the circumstances of which were not anticipated in the legislation.
6.7
Unusual and undeserved hardship
Unusual and undeserved hardship is:
• the hardship (of having to apply for a
permanent resident visa from outside of Canada) that the applicant would face should be, in most
cases, unusual, in other words, a hardship not anticipated by the Act or
Regulations; and
• the hardship (of having to apply for a
permanent resident visa from outside Canada) that the applicant would face should be, in most
cases, the result of circumstances beyond the person's control.
6.8
Disproportionate hardship
Humanitarian
and compassionate grounds may exist in cases that would not meet the
"unusual and undeserved" criteria but where the hardship (of having
to apply for a permanent resident visa from outside of Canada) would
have a disproportionate impact on the applicant due to their personal
circumstances.
[…]
11.2 Assessing the applicant’s degree of establishment in Canada
The
applicant's degree of establishment in Canada may be a factor to consider in
certain situations, particularly when evaluating some case types such as:
• parents/grandparents not sponsored;
• separation of parents and children (outside the family class);
• de facto family members;
• prolonged inability to leave Canada has led to establishment;
• family violence;
• former Canadian citizens; and
• other cases.
The degree
of the applicant’s establishment in Canada may include such questions as:
• Does the applicant have a history of stable employment?
• Is there a pattern of sound financial management?
• Has the applicant integrated into the community through involvement in community
organizations, voluntary services or other activities?
• Has the applicant undertaken any professional, linguistic or other
study that show integration into Canadian society?
• Do the applicant and family members have a good civil record in Canada
(e.g., no interventions by police or other authorities for child or spouse
abuse, criminal charges)?
[49] From this, I take that a humanitarian and
compassionate decision is not a comparative exercise between applicants because,
as subsection 25(1) of the Act instructs, it is the personal circumstances of
the applicant that are to be examined. That said, I agree with Justice
Pelletier's comments in Irimie v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1906 (QL) at paragraph 12, that "the hardship which would trigger the exercise of
discretion on humanitarian and compassionate grounds should be something other
than that which is inherent in being asked to leave after one has been in place
for a period of time. Thus, the fact that one would be leaving behind friends,
perhaps family, employment or a residence would not necessarily be enough to
justify the exercise of discretion." It is only in that objective sense
that one assesses whether the hardship an applicant faces is something other
than that which is inherent in having to leave a life that he or she has established
in Canada. Put another way, I accept the submission of the Minister
that the definition of hardship in the context of an application for permanent
residence on humanitarian and compassionate grounds necessitates a comparison
in that an officer must first consider what is usual in order to determine what
would be unusual. Contrary to the argument of the applicants, this does not
introduce a subjective question which involves comparisons between an applicant
and others, nor does it ignore the concept of disproportionate hardship.
[50] In reaching her decision, the officer
considered relevant factors and did not ignore evidence or consider irrelevant
matters. The officer exercised her discretion in a manner that was consistent
with the guidelines contained in IP 5 and the jurisprudence of the Court. Her
conclusion that the evidence before her did not satisfy the criteria for
granting exceptional relief was not unreasonable.
Was the duty
of fairness breached by the conduct of the applicants' representative?
[51] The
applicants submit that the humanitarian and compassionate process was unfair
because they were poorly represented and misadvised by an unregistered
immigration consultant, Sayed Mohmoud Ali of Mahmoud Associates. This
consultant is said to have prepared and submitted the humanitarian and
compassionate application under Mr. Ahmad's name.
[52] The
applicants note that the consultant included no information regarding the
children and no information regarding a psychological report that had been
prepared for Mrs. Nazir. While the applicants acknowledge that the Court has yet
to consider whether unscrupulous representation by a consultant may result in a
decision being quashed, they rely upon the decision of Jeffrey v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 789 (QL), to
argue that a similar approach ought to be taken in this case. In Jeffrey,
the Court wrote at paragraph 9:
As stated by Justice Max M. Teitelbaum in Shirvan v. Canada (Minister of Citizenship and Immigration), 2005 FC 1509, [2005] F.C.J. No. 1864 (QL) the
test for incompetent counsel is very high. The party making the allegation
of incompetence must show substantial prejudice to the individual and that
prejudice must flow from the actions or inaction of the incompetent counsel. It
must be shown that there is a reasonable probability that, but for the
counsel's unprofessional errors, the result of the proceeding would be
different. [emphasis added]
[53] In
my view, the applicants have failed to establish that, but for the alleged
inadequacies of their consultant, the result of their humanitarian and
compassionate application would have been different.
[54] I
have carefully reviewed the affidavits of Mr. Ahmad and Mrs. Nazir and the
"new evidence" exhibited to Mrs. Nazir’s affidavit. That evidence
consists of a psychological report from Dr. Pilowsky, the children's school
records, and various letters of support. While the documents speak to the
sympathy naturally felt for the applicants, the material does not persuade me
that there is a reasonable probability that the result of the humanitarian and
compassionate application would have been different, but for the nature and
content of the submissions prepared by the applicants' consultant. Put
directly, the new material would, in my view, not likely have affected the
outcome had it been placed before the officer.
Conclusion
[55] For
these reasons, the application for judicial review will be dismissed.
[56] Counsel
for the applicants proposed certification of two questions:
Question One: In light of
the Supreme Court of Canada’s judgment in Baker v. M.C.I., (1999) S.C.J.
No. 39 and the requirement in s. 25(1) of the Immigration & Refugee
Protection Act that the determination of humanitarian and compassionate
applications require the “taking into account the best interests of a child
directly affected” by the decision, does fairness impose a duty on the
immigration officer to inquire about the child’s best interests, beyond what is
submitted by the applicant?
Question Two: Is it an
unreasonable limitation or fetter on the exercise of the humanitarian and
compassionate discretion under s. 25 of the IRPA for an officer to
discount establishment which does not go beyond that which is naturally
expected of the person.
[57] The
Minister opposes certification of either question.
[58] Neither
question will be certified.
[59] As
to the first question, the officer in the present case did inquire about the
best interests of the children beyond that which was submitted by the
applicants. Further, in my view, this question is effectively answered by the
decision of the Federal Court of Appeal in Owusu.
[60] With
respect to the second question, I accept the submission of counsel for the
Minister that the approach taken by the officer in this case is in accord with
the existing jurisprudence. I also find it to be in accord with the
ministerial guidelines contained in IP 5. As the officer's approach is
consistent with both the jurisprudence and the ministerial guidelines, I do not
find a serious question of general importance is raised.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
“Eleanor R. Dawson”
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