Docket: IMM-1989-16
Citation:
2016 FC 1350
Ottawa, Ontario, December 7, 2016
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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JOGINDER SINGH
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Application
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA]. The Applicant [Mr. Singh], seeks to set aside the decision
of a Senior Immigration Officer [Officer], dated April 13, 2016 [Decision],
which refused his application for permanent residence on humanitarian and
compassionate grounds. For the reasons that follow, the application is
dismissed.
II.
Overview
[2]
Mr. Singh is a national of India who came to Canada
on May 6, 2009, on a temporary resident visa and received a work permit as a cabinetmaker.
His status and work permit were renewed several times. His most recent work
permit expired November 28, 2014. He applied for permanent resident status on
July 13, 2016, under subsection 25(1) of the IRPA on the grounds of his
establishment in Canada and the best interests of his two children in India.
His wife, parents and siblings also live in India.
[3]
In rejecting the application, the Officer
considered Mr. Singh’s establishment in Canada, the potential hardship in India
that he raised and the best interests of his children. The Officer acknowledged
Mr. Singh was gainfully employed until November 2014. He had also saved $10,000
and volunteered his time at his Gurdwara. The Officer noted, however, that Mr.
Singh provided insufficient evidence of how he had supported himself since
November 2014 and how his connections to his community would be affected if he were
required to leave Canada.
[4]
Mr. Singh submitted to the Officer that he would
be “a misfit” in India and would be “devastated” should he have to leave Canada. He also said
that he would be unable to find employment in India. The Officer acknowledged
that Mr. Singh would experience a period of adjustment on return to India, but
was satisfied that it would not be significant enough to warrant a humanitarian
and compassionate exemption. The Officer remarked that Mr. Singh’s family members
in India would provide love and support during any period of readjustment. The Officer
rejected Mr. Singh’s claims that he would be unable to find employment in
India, as his significant work experience before he left India coupled with the
work experience he has gained in Canada and his improved comprehension of
English, would help him find employment in India.
[5]
The Officer considered the best interests of Mr.
Singh’s children. Mr. Singh had submitted that his children were waiting to be
reunited with him in Canada and his inability to find employment in India would
cause his children extreme hardship. The Officer determined that there was not
sufficient evidence that the children would be affected if Mr. Singh was
refused permanent residence, particularly given their current life in India,
his prior work experience in India and the fact that Mr. Singh has not been
employed in Canada since November 2014.
III.
Issues and Positions of the Parties
[6]
Counsel for Mr. Singh argued that the issues
are: (1) whether the Officer erred with respect to her analysis of
establishment; and (2) whether she erred with respect to her overall subsection
25(1) analysis.
[7]
The standard of review for a decision made by an
officer under subsection 25(1) of the IRPA is reasonableness: Kanthasamy
v Canada (Citizenship and Immigration), 2015 SCC 61 at para 44. A decision is
reasonable if the decision-making process is justified, transparent and
intelligible and if the resulting decision falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law:
Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir].
[8]
Counsel for Mr. Singh argues that two paragraphs
of the reasons deal with the issue of establishment and one paragraph deals
with the best interests of the child. She says there is no real analysis in the
paragraphs, just a series of statements and conclusions. Counsel also submits
that the reasons are so deficient that the Decision is not reasonable. Relying
on Dunsmuir, she says a lack of proper reasons is a lack of process
which leads to a decision that is not justified, intelligible or transparent.
[9]
Counsel for the Respondent asks the Court to
keep in mind the basic principle that a humanitarian and compassionate
exemption is exceptional relief—the process is not meant to be an alternative
to the normal immigration streams. She also argues that the Officer’s reasons
simply respond to the factors put before her by Mr. Singh’s consultant, which
is not improper. She submits there were no exceptional circumstances identified
on Mr. Singh’s behalf.
IV.
Analysis
A.
Mr. Singh’s Establishment in Canada
[10]
Counsel for Mr. Singh relies on Lauture v
Canada (Citizenship and Immigration), 2015 FC 336 [Lauture] to argue
that the Officer inappropriately discounted disruption to his life in Canada by
examining whether he could create a similar level of establishment in India. She
points to jurisprudence where an applicant’s establishment in Canada was improperly
used as evidence that the applicant could re-create their level of
establishment after removal from Canada. Counsel submits the proper analysis is
set out in Lauture and in Sebbe v The Minister of Citizenship and
Immigration, 2012 FC 813 [Sebbe], where Mr. Justice Zinn held at
paragraph 21 that:
. . . what is required is an analysis and assessment of the degree
of establishment of these applicants and how it weighs in favour of granting an
exemption. . . . The Officer must also examine whether the disruption of that
establishment weighs in favour of granting the exemption.
[11]
However, unlike Lauture and Sebbe,
the reason the Officer considered Mr. Singh’s ability to establish himself in
India was not to use his establishment in Canada against him. The analysis was
in direct response to Mr. Singh’s submission that he would be devastated and unable
to find work in India and, as a result, his children would suffer.
[12]
I also note that Lauture, Sebbe and other
similar cases addressing this argument dealt with applicants who had an
exceptional or very high level of establishment in Canada. In Lauture
the officer had found that the applicants’ “engagement
in society is remarkable.” That is not the case with Mr. Singh. He has
been in Canada for seven years, trying to build a life so he could bring his
family, who have remained in India, to Canada. He has done well although he has
not been employed since late November 2014. The submissions made to the Officer
include the request that she exercise her discretion to grant the application “so that [Mr. Singh] can build his future and live happily
into this land of opportunities”. There are also submissions about disruption
to his life in that he has sleepless nights and is anxious and worried at the
prospect of being required to return to India. Mr. Singh is said to be a young
and promising candidate who wants to get reunited with his family. The Officer
found that while Mr. Singh has demonstrated a degree of establishment in Canada
it is not to such a degree that he would face hardship if he was not granted a
humanitarian and compassionate exemption.
[13]
In Kanthasamy, the Supreme Court
re-established what is important when considering the exercise of discretion
under subsection 25(1) of the IRPA. Madam Justice Abella found, at
paragraph 25, that what warrants relief will vary depending on the facts and
context of the case. She said, “officers must
substantively consider and weigh all the relevant facts and factors
before them” [emphasis in original]. In this case, the Respondent
stresses that the Officer did respond to and consider the factors put before
her by Mr. Singh’s consultant. They simply were not sufficient to move his case
to the exceptional category warranting humanitarian and compassionate relief.
[14]
Overall, the submissions made to the Officer by
Mr. Singh’s consultant stressed what an asset he would be to Canada and that he
has worked diligently to prove his merit trying to build a new future for
himself and his family. Very little was put forward to substantiate Mr. Singh’s
claim that he would be “devastated” and “a reverse decision will affect Mr. Singh and his family
psychologically, financially, emotionally and socially” if he were to be
returned to India. The Officer looked at this allegation of hardship and found
that Mr. Singh’s significant family connections in India, including his spouse,
two children, parents and siblings, would be able to help him readjust to life
in India if the need arose. The Officer also found his prior work experience in
India and his newly acquired skills including his improved English would help
him find employment in India.
[15]
It is well recognized that a certain degree of
hardship is inherent when being asked to leave after being in Canada for a
period of time; that is not necessarily enough to justify the exercise of
discretion under subsection 25(1): Ahmad v Canada (Citizenship and
Immigration), 2008 FC 646 at para 49. The reasons provided by the Officer
for finding Mr. Singh’s assertions insufficient are clear. Mr. Singh put
forward no evidence regarding the absence of employment prospects in India. At
the same time, he has family support in India to assist with his
re-integration. Mr. Singh did submit a letter from his former employer in
Canada which indicated he would “prefer to re-hire him
in the future, if he gets his Permanent Residency in Canada.” There was
no evidence of whether he even attempted to find work in India before declaring
that he would be unable to do so. As he was relying on that statement to grant
him humanitarian and compassionate relief, the lack of any evidence in support
was fatal.
B.
Was the Officer’s Overall Subsection 25(1)
Analysis in Error?
[16]
Mr. Singh has submitted that the Officer did not
provide adequate reasons. He alleges a series of statements were followed by conclusions
with no analysis. My review of the Decision shows that the Officer did provide
reasons for each conclusion. The reasons simply follow the conclusion rather
than precede it. For example, after the Officer said there was not sufficient
evidence that the best interests of the children would be affected by the
outcome of the application, she noted the children currently attend school in
India, live with their mother and have family close by and that Mr. Singh
provided no other details to show how their interests would be affected.
[17]
Counsel for Mr. Singh also argues that the
Officer’s analysis was deficient because it often baldly asserted that there
was insufficient evidence to substantiate each allegation. A boilerplate
approach to humanitarian and compassionate reasons has been rejected in Velazquez
Sanchez v Canada (Citizenship and Immigration), 2012 FC 1009 at paragraph
19 [Velazquez Sanchez]. Counsel does not merely argue that this absence
of analysis makes the Decision unreasonable. Rather she argues that
insufficient reasons when rejecting a humanitarian and compassionate
application is a fundamental breach of natural justice and can itself give
grounds to overturn that decision.
[18]
Such a view is contrary to the holding in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 [Newfoundland Nurses]. In that case, the Supreme Court found that
where procedural fairness imposes a duty on a decision-maker to give reasons,
the inadequacy of those reasons is not a breach of natural justice. Instead,
the sufficiency of the reasons forms a part of the reasonableness standard of
review.
[19]
Counsel for Mr. Singh argues, in effect, that Newfoundland
Nurses has been overturned or distinguished by Velazquez Sanchez, a
decision that came out later. In her memorandum, she argues that “the principles of [Newfoundland Nurses], are simply
not applicable in the context of [humanitarian and compassionate] applications
in particular, and immigration law in general,” and that this view is
buttressed by Komolafe v Canada (Citizenship and Immigration), 2013 FC
431 [Komolafe].
[20]
The Minister submits that counsel for Mr. Singh
put forward this precise argument in Momtaz v Canada (Citizenship and
Immigration), 2015 FC 362 [Momtaz], where it was considered and
rejected by this Court. Counsel for Mr. Singh in reply says Mr. Justice Russell
in Momtaz concluded that ultimately, everything depends on the
particular decision under review.
[21]
Counsel for Mr. Singh did make the same
arguments in Momtaz regarding Velazquez Sanchez and Newfoundland
Nurses. In Momtaz, the only issue before the Court was
whether the decision failed to provide adequate reasons. Mr. Justice Russell in
his analysis pointed out that Velazquez Sanchez is not inconsistent with
Newfoundland Nurses as the record before the Court on judicial review of
a humanitarian and compassionate decision is sufficient to allow the Court to
exercise its review function. The Court receives the decision and reasons, the
submissions and documentary evidence that were submitted in support of the
application and any other evidence the decision-maker considered. Mr. Justice
Russell also noted that Newfoundland Nurses has been applied many times
by this Court in reviewing humanitarian and compassionate decisions.
[22]
Mr. Singh’s reliance on Komolafe, is misplaced.
It does not apply to these facts. Mr. Justice Rennie in Komolafe was
considering a decision that was simply a form letter with no contemporaneous
notes to explain the reasoning process for issuing the letter. In finding the
decision to be unreasonable, Mr. Justice Rennie indicated that Newfoundland Nurses
did not allow a Court to provide reasons that were not given nor to guess what
findings might have been made by the tribunal. Rather, Newfoundland Nurses
allows a court to “connect the dots” where the
direction of a decision is readily apparent. However, where there are no dots,
the Court should not speculate as to what a tribunal might have been thinking. In
my view, the reasons provided by the Officer in Mr. Singh’s case discuss and
substantiate the conclusions, connecting the dots. Given the lack of evidence
submitted by Mr. Singh to support his application, the Officer would have had
to speculate in order to find support for his various statements.
[23]
I have carefully reviewed the Decision. While it
is brief, it addresses each of the areas put forward in Mr. Singh’s submissions
to the Officer. Overall, the Officer determined there was not sufficient
evidence submitted to enable her to draw the conclusions sought by Mr. Singh. For
example, the Officer found that Mr. Singh failed to show how his connections to
his community in Canada would be affected if he had to leave Canada. Nor did he
submit evidence of how he had supported himself since November 2014. That was
important as Mr. Singh alleged that his children would suffer because he would
not be able to find work in India. The Officer noted he had provided “insufficient information with respect to how his
unemployment status in Canada has affected his children’s best interest.”
[24]
Regarding the best interest of the children, the
Officer found that the only information in the application about Mr. Singh’s children
was that they attended school in India, lived with their mother and had
extended family close by. Mr. Singh provided no details as to how his
children’s interests would be affected if he was returned to India other than
his claim that he would not be able to find employment. The Officer examined
that submission and rejected it for the reasons already mentioned.
V.
Conclusion
[25]
The analysis by the Officer responds directly to
the original submissions made on Mr. Singh’s behalf by his consultant. In
large part, those submissions revolved around his being a “promising candidate who wants to be reunited with his
family” and his objective of making a “new and
worthwhile life for himself and his family” in Canada. The submissions
did not address what it was about Mr. Singh’s application that would justify
the exceptional relief he sought under subsection 25(1). A review of the record
shows that the Officer considered and analyzed the submissions made by Mr.
Singh. It is not for the Officer to guess what other factors might exist to
support Mr. Singh’s application.
[26]
There is enough detail in the Decision to
understand how and why the Officer arrived at the conclusion that a humanitarian
and compassionate exemption was not warranted. In that respect, the process was
intelligible, justified and transparent. While Mr. Singh would have preferred a
different outcome, the outcome falls within the range of possible, acceptable
outcomes defensible on the facts before the Officer and the law which has
evolved under subsection 25(1) of the IRPA. The Decision is reasonable.
[27]
The application is dismissed.
[28]
Neither party suggested a serious question of
general importance for certification and one does not exist on these facts.
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