Date: 20080625
Docket: IMM-4508-07
Citation: 2008 FC 808
Toronto, Ontario, June 25, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SYED FAHAD RAZZAK and
SHAZIA IDREES
Applicants
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act) for judicial
review of the decision of a pre-removal risk assessment officer (the officer)
dated September 28, 2007, wherein the officer denied the applicants’ H&C
application.
[2]
The
applicants requested that the decision be set aside and the matter referred
back to a new officer for redetermination.
I. Background
[3]
Syed
Fahad Razzak (principal applicant) and his wife, Shazia Idrees (collectively
the applicants) are citizens of Pakistan. The principal
applicant was born and raised in Karachi, Pakistan. He alleged
that in 1998, he was attacked, kidnapped and beaten by members of the Mohajir
Quami Movement Haquiqui (MQM-H) because of his family’s strong ties to the
Pakistan People’s Party (PPP). Because of this incident, the applicant left Pakistan in August
1998 and travelled to the United States. While in the United
States, the principal applicant was visited in 2000 by his now wife; they had
previously met in Pakistan. In July 2002, it appears that the principal
applicant’s wife told her family, who lived in New York at the time,
that she wanted to marry the principal applicant. The applicants submitted that
the family opposed the union, and consequently detained and beat the principal
applicant’s wife. The applicants then fled to California.
[4]
On
January
3, 2003,
the applicants travelled to Canada and made an application
for refugee status at the port of entry in Fort Erie, Ontario. In a
decision dated August 25, 2003, the applicants’ refugee application was
rejected. Leave to appeal the decision was denied on November 28,
2003.
The applicants then submitted pre-removal risk assessment (PRRA) and humanitarian
and compassionate (H&C) applications. These applications were considered by
the same officer, albeit separately. In a decision dated September 27, 2007,
the applicants’ PRRA application was refused and leave for judicial review was
dismissed by this Court on January 22, 2008. In a decision dated September 28,
2007, the applicants’ H&C application was also refused. This is the
judicial review of the officer’s negative H&C decision.
[5]
The
applicants have two Canadian born children.
II. Officer’s Decision
[6]
The
officer began the decision by recapping the parties’ submissions and previous
immigration proceedings under the following headings:
a. Spousal
family or personal relationship that would create hardship if severed?
b. Children of
the applicants in Canada?
c. Degree of
establishment demonstrated since January 3, 2003.
d. Establishment,
ties or residency in any other country?
e. Hardship or
sanctions upon return to Country of Origin?
i.
Applicant’s
submission of risk
ii.
Refugee
Protection Division Findings
iii.
Research
of Current Country Conditions
[7]
The
officer then provided an analysis of the evidence under a section entitled
“Rationale”. The officer first considered the submission that the applicants
would face hardship if forced to return to Pakistan because of
the wife’s family’s unwillingness to accept the marriage. The officer noted
that while a letter from Mr. Ahmed (the applicants’ neighbour in Windsor) stated that
both families were unhappy about the marriage, the principal applicant
nonetheless indicated that he was close to his brother in Canada. The officer
also stated that it had been five years since the couple came together and that
they had not submitted any details as to how they have been threatened since
the previous incident, or why their family would still be interested in harming
either one of them.
[8]
With
regards to the risk to the principal applicant from the MQM-H, the officer
stated that the evidence on the record “did not support that the applicant
would be of interest to members of the MQM-H after being out of the country
since 1998.” The officer further found that the evidence did not support that
the applicants would be at risk in Pakistan such that it
constituted a hardship that was unusual, undeserved or disproportionate.
[9]
With
regards to establishment in Canada, the officer acknowledged that some degree
of establishment had been made being that the applicants had received the
benefit of the refugee process. The officer also acknowledged the applicants’
good civil record. The officer considered the principal applicant’s submission
that he is involved in the community, but stated that there was no further
evidence provided aside from a letter from a friend in Windsor.
[10]
As
to the best interest of the applicants’ two Canadian born children, the officer
noted that the children have relatives in Canada, but stated that the
information did not demonstrate that the children had developed a particular
relationship with any of the relatives in Canada such that
harm would arise if severed. The officer also acknowledged that the children
were not yet of school age and that the information did not inform that they
would be either physically or emotionally harmed if they went with their
parents to Pakistan.
[11]
And
finally, the officer noted that based on past experiences the applicants had
demonstrated an ability to adapt to new locales. The officer also stated that
return to Pakistan was feasible
and that the skills acquired by the family in Canada were
transferable.
[12]
In
refusing the application, the officer concluded:
I have reviewed the factors individually
as well as cumulatively. The thought of leaving Canada and the friends and family that they
have here is upsetting however, the hardship of having to apply outside of the
country is not, in my opinion, unusual, undeserved or disproportionate and not
anticipated by the legislation.
III. Issues
[13]
The
applicants submitted the following issues for consideration:
a. Did the
officer err in law in failing to properly consider the rights of the children
directly affected, as required by section 25 of the Act and the Supreme Court’s
decision in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817?
b. Did the
officer err in law by failing to apply the proper test in determining the
existence of humanitarian and compassionate reasons to grant the application
for permanent residence pursuant to section 25 of the Act?
c. Did the
officer breach the principles of procedural fairness by failing to provide the
applicants with proper reasons for the decision?
d. Did the
officer err in law in failing to properly consider the risk that would be
faced by the applicants if they were returned to their country of nationality?
[14]
I
would rephrase the issues as follows:
a. What is the
appropriate standard of review?
b. Did the officer
err in considering the best interests of the children?
c. Did the
officer err in considering the risk to the applicants in returning to Pakistan?
d. Did the
officer breach procedural fairness in failing to provide adequate reasons for
the decision?
e. Did the officer
err in the considering the availability of the state of Pakistan to protect
the applicants?
IV. Applicants’ Submissions
[15]
The
applicants submitted that the officer failed to properly consider the rights of
the children directly affected. It was submitted that while the officer did
consider the best interests of the children, the consideration was wholly
inadequate. The applicants argued that the officer completely failed to
consider the effect of the current socio-political situation in Pakistan. The
applicants acknowledged that the best interest of the children is not
determinative, but submitted that it is an error of law to conduct an
inadequate consideration of it. The decision maker must be alert, alive and
sensitive to the rights of the children, particularly when those children are
Canadian (Kimotho v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1004). It was further submitted
that the officer was under a duty to obtain further information concerning the
best interest of the Canadian children (Del Cid v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 416).
[16]
The
applicants argued that the officer erred in law in failing to apply the proper
legal test in determining whether the applicants faced a risk in returning to Pakistan. It was
submitted that the officer applied the more stringent test for risk as per
sections 96 and 97 of the Act and that this was a reviewable error (Melchor v.
Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1600). The applicants
further submitted that there was no necessity for the officer to conduct an
analysis of state protection as such an analysis is found in sections 96 and
97, not section 25 of the Act.
[17]
The
applicants also submitted that the officer breached procedural fairness in
failing to provide the applicants with proper reasons for the decision. It was
submitted that the reasons provided by the officer contained no real insight
into the decision maker’s reasoning process. Reasons are inadequate when they
consist of a review of the facts and then state a conclusion without any
analysis (Adu v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 693).
[18]
And
finally, the applicants submitted that the officer failed to conduct a
contextual analysis of state protection and as such did not consider Pakistan’s real
capacity to protect its citizens. It was submitted that the jurisprudence is
fairly specific that the protection offered by a state, even a democratic one,
must be effective and real, not just theoretical.
V. Respondent’s Submissions
[19]
The
respondent submitted that in H&C applications, the onus is on the
applicants to demonstrate that they would face unusual and undeserved or
disproportionate hardship by having to apply for permanent residence status
from outside of Canada (Arumugam v. Canada (Minister of Citizenship
and Immigration), [2001] F.C.J. No. 1360; Owusu v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 94). The respondent
also submitted that in order to successfully attack a negative decision, an
applicant must show that the officer’s decision was unreasonable because they
erred in law, acted in bad faith, or proceeded on an incorrect principle (Tartchinska
v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 373 (T.D.); Baker, above; Bandzar v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 772
(T.D.); Ogunfowora v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 456 (T.D.)). With regards to the
appropriate standard of review, the respondent submitted that H&C decisions
are reviewable on a standard of reasonableness. Accordingly, if the impugned
decision is based on reasons that can withstand a somewhat probing examination,
the Court is not empowered to alter that decision.
[20]
The
respondent submitted that the officer adequately considered the best interests
of the children. The respondent argued that given the lack of evidence provided
by the applicants as to the best interest of their children, the officer’s
decision was reasonable. If the applicants fail to adequately raise the impact
of deportation on their children, the officer is not required to consider it (Owusu
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38). Moreover, there is no duty
on the officer to explore facts which the applicants do not raise or to remedy
any deficiencies in the applicants’ submissions (Gallardo v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 45; Baisie v. Canada (Minister of
Citizenship and Immigration), 2004 FC 953). It was submitted
that given the lack of information and documentation provided by the applicants
on the issue of best interests of the children, the officer’s assessment was
adequate.
[21]
With
regards to the alleged risk faced by the applicants, the respondent submitted
that once again the onus is on the applicants to raise the risk factor and make
their case. The officer must decide the issue based on the evidence before the
officer as there is no obligation to seek additional evidence (Selliah v.
Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1134). It was submitted
that the officer considered the documentary evidence on Pakistan,
specifically the political situation, and concluded that there was adequate
state protection available to the applicants. The officer also reasonably found
that the evidence did not indicate that the principal applicant was still at
risk from the MQM-H being that he left Pakistan in 1998 and
had provided no evidence that there was a continued threat. With respect to the
situation of women in Pakistan, the officer considered
improvements in the law and once again found that there was a lack of evidence
to support that the applicants were still at risk of harm at the hands of their
family. The respondent submitted that the officer’s findings on the applicants’
alleged fear were reasonable given the lack of evidence presented by the
applicants in support of their claim.
VI. Applicant’s Reply
[22]
The
applicants replied that the fact that the children in question may also have
Pakistani citizenship should have no bearing on this judicial review as they
are first and foremost Canadian citizens. The applicants also provided a
response to the respondent’s submissions on the appropriate standard of review.
It was submitted that the appropriate standard of review for questions of law
is correctness, whereas overall decisions by immigration officers are
reviewable on a standard of reasonableness (Pushpanathan v. Canada
(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
VII. Analysis and Decision
A. Issue 1
(1) What is the appropriate
standard of review?
[23]
The
officer’s findings on the best interests of the children directly affected by
the decision are reviewable on a standard of reasonableness (Baker, above).
The officer’s findings on whether the applicants would be at risk in Pakistan such that it
would cause a hardship that was unusual, undeserved or disproportionate and
whether the state could protect the applicants are also reviewable on a standard
of reasonableness. The adequacy of the officer’s reasons is a question of
procedural fairness and is reviewable on a standard of correctness (C.U.P.E.
v. Ontario (Minister of Labour), [2003]
1 S.C.R. 539.
B. Issue 2
(2) Did the officer err in
considering the best interests of the children?
[24]
The
applicants submitted that the officer’s consideration of the best interests of
the children was inadequate and incomplete and that the officer should have
approached the applicants for more information. The relevant portion of the
officer’s decision reads as follows:
The applicant submits that it is in the
best interest of the Canadian born children to remain in Canada. While I note that the
children have relatives in Canada the information before me
does not demonstrate that children [sic] have developed a particular
relationship with any of the relatives that would cause them harm if it were
severed. The children are not yet of school age. The information before me does
not inform that it would be physically or emotionally harmful for them to go to
Pakistan with their parents.
[25]
With
regards to the applicants’ submission that based on the reasoning in Del Cid,
above the officer should have requested further information, I believe that
the present case can be distinguished from that case. In Del Cid, above
the officer made a finding that the information presented by the applicants was
insufficient to assess the best interest of the children (Del Cid, above
at paragraph 30). The same cannot be said of the decision before this Court;
the officer in the present case made no such finding.
[26]
As
to the applicants’ submission that the officer erred by not considering whether
the socio-political situation in Pakistan would cause harm to the
children, the applicants have failed to convince me of this. Firstly, the
officer did consider the socio-political situation in Pakistan and
secondly, the applicants presented no evidence that there was a specific harm
to the children based on the socio-political situation in Pakistan. And finally,
with regards to the adequacy of the officer’s consideration of the best
interest of the children, I am satisfied that it was adequate. The officer
clearly considered all the evidence on the record and came to a reasonable
finding. I would not allow the judicial review on this ground.
C. Issue 3
(3) Did the officer err in
considering the risk to the applicants in returning to Pakistan?
[27]
The
applicants argued that the officer erred in law in applying the more onerous
test for risk as per section 96 and 97 of the Act. I see no merit to this
argument. In considering the risk to the applicants in returning to Pakistan,
the officer stated that “the evidence [did] not support that the applicants
would be at risk in Pakistan such that it would cause a hardship that was
unusual, undeserved or disproportionate.” It is clear from this statement that
the officer applied the correct standard for the section 25 analysis. I would
not allow the judicial review on this ground.
D. Issue 4
(4) Did the officer breach
procedural fairness in failing to provide adequate reasons for the decision?
[28]
The
applicants submitted that the officer’s reasons were inadequate as they merely
listed the evidence and then rendered a decision without providing insight into
the analysis undertaken. In making this submission, the applicants relied on Adu,
above. While I accept the principal in Adu, above as articulated
by the applicants, I disagree that the reasons in the present case are
comparable to the reasons provided by the decision maker in Adu, above.
While the officer did begin the decision by summarizing the applicants’
submissions, the officer went on to provide a section entitled “Rationale”
wherein the officer provided the analysis of the evidence.
[29]
For
instance, with regards to the risk from the applicants’ family, the officer
clearly took issue with the lack of evidence submitted by the applicants as to
how they have been threatened by their family since their arrival in Canada and
as to why they still fear harm from the family. Moreover, the officer also
found that the evidence did not support that the applicants would be targeted
by MQM-H. With regards to the best interest of the children, the officer
acknowledged that they had relatives in Canada, but found
that the information did not indicate that the children would be physically or
emotionally harmed if they were taken with their parents to Pakistan. In my
opinion, it is clear from the reasons provided that the officer rendered a
negative decision because of a lack of supporting evidence to convince the
officer otherwise. The burden is on the applicants to provide sufficient
evidence to convince the officer that an exemption under the Act is warranted.
I am satisfied that the reasons provided were adequate and as such, would not
allow the judicial review on this ground.
E. Issue 5
(5) Did
the officer err in considering the availability of the state of Pakistan to protect
the applicants?
[30]
The
applicants submitted that the officer erred in assessing state protection and
in finding that there was adequate state protection for the applicants in Pakistan. In my
opinion, the applicants have misunderstood the officer’s consideration of the
current country conditions in Pakistan. The officer considered
the documentary evidence in order to understand whether the applicants would be
at risk in Pakistan such that
they would be subject to unusual, undeserved or disproportionate hardship in
having to return there and apply for permanent residence. This is not similar
to a state protection finding in a refugee case. I see nothing unreasonable
with the officer’s consideration of the country conditions in Pakistan. I would not
allow the judicial review on this ground.
[31]
The
application for judicial review is therefore dismissed.
[32]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“John A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
|
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.
|
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