Docket: IMM-1637-17
Citation:
2017 FC 1150
Ottawa, Ontario, December 14, 2017
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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JASKARAN SINGH
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JASKIRAN KAUR
BAINS
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Applicants
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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.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of
the decision of an immigration officer in Immigration, Refugees and Citizenship
Canada’s Case Processing Centre Mississauga [Officer], dated March 28,
2017 [Decision], which refused the Male Applicant’s application for
permanent residence on humanitarian and compassionate [H&C] grounds.
II.
BACKGROUND
[2]
The Applicants are a husband and wife who reside
in Canada. They married in July 2015. The Female Applicant, Jaskiran Kaur Bains,
is a Canadian citizen and the Male Applicant, Jaskaran Singh, arrived in
Canada from India as a student in 2011. After their marriage, the Female
Applicant sponsored the Male Applicant for permanent residence in Canada
in the Spouse or Common-Law Partner in Canada Class.
[3]
In 2014, the Male Applicant was convicted
of impaired driving under s 253(1)(a) of the Criminal Code, RSC 1985, c
C-46 [Criminal Code]. The Applicants became aware that the Male Applicant
could be inadmissible to Canada on grounds of criminality when his application
for a work permit was refused in June 2016. The Applicants therefore applied to
the Minister for consideration on H&C grounds.
III.
DECISION UNDER REVIEW
[4]
The Decision begins by laying out the provisions
of the Act applicable to the Applicants’ application and determining that the Male Applicant
is inadmissible to Canada on the grounds of criminality. The Male Applicant’s
conviction under s 253(1)(a) of the Criminal Code is an indictable
offence. Therefore, he is inadmissible under s 36(2)(a) of the Act.
[5]
The Decision also refuses the Applicants’
request for review of their application on H&C grounds under s 25(1) of the
Act because the Officer was not satisfied that there are exceptional
circumstances that would justify granting permanent residence.
[6]
While the Male Applicant’s completion of
two rehabilitation programs is considered favourable, and the Officer accepts
that this carries “great weight” in a rehabilitation
application, the Officer did not consider completion of the programs sufficient
to warrant an exemption from the Act on their own. The Officer was satisfied
that the Male Applicant does not pose a risk and is unlikely to reoffend,
but finds that the Applicants have not explained why this is an exceptional
situation requiring an exemption.
[7]
The Officer finds that it would be feasible for
the Applicants to reintegrate into Indian society. The Officer has no concerns
over the genuineness of the Applicants’ relationship but notes that both
Applicants were born in India and that the Male Applicant’s parents still
live there. The Officer is satisfied that the Male Applicant’s knowledge
of Indian language and culture means that he “would not
be returning to an unfamiliar place, culture or language.”
[8]
From the information submitted as part of the
Applicants’ application, the Officer suspects that the Male Applicant was
working in Canada without proper authorization and concludes that he has “little regard for immigration laws and regulations.”
The Officer bases this conclusion on the Applicants’ submission of a T4 for the
2015 tax year. The Male Applicant lacked a valid work permit after June 6,
2016 when a permit was refused because of his inadmissibility to Canada. The
Officer finds that the Male Applicant’s alleged ability to find employment
in Canada despite lacking proper employment status, is evidence of his
adaptability in foreign countries.
[9]
The Officer notes that the Male Applicant was
issued a temporary resident permit on March 4, 2017. Since the permit is valid
until February 28, 2020, the Officer states that the Male Applicant will
not be required to leave Canada immediately and can apply for rehabilitation or
a records suspension of his criminal conviction.
[10]
Since the Male Applicant is inadmissible
under s 36(2)(a) of the Act, and the Officer finds insufficient H&C grounds
to overcome that inadmissibility, the Officer refused the application for
permanent residence.
IV.
ISSUES
[11]
The Applicants raise the following issues in
this application:
1. Does the Decision unreasonably disregard evidence or engage in
speculation?
2. Did the Officer’s failure to allow the Applicants an opportunity to
respond to his concerns breach the duty of fairness?
3. Does the Decision fail to consider the objectives of the Act when
finding that the Applicants could live in India?
V.
STANDARD OF REVIEW
[12]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir], held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[13]
The standard of review applied to the consideration
of H&C grounds is reasonableness. See Kisana v Canada (Citizenship and
Immigration), 2009 FCA 189 at para 18; Morales v Canada (Citizenship and
Immigration), 2012 FC 164 at para 17.
[14]
The second issue raised by the Applicants,
however, is a question of procedural fairness. Questions of procedural fairness
are reviewed under the correctness standard. See Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa].
[15]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at para 47, and Khosa,
above, at para 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[16]
The following provisions of the Act are
applicable in this application:
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Objectives
— immigration
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Objet en
matière d’immigration
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3 (1) The
objectives of this Act with respect to immigration are
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3 (1) En
matière d’immigration, la présente loi a pour objet :
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…
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…
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(d) to see
that families are reunited in Canada;
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d) de veiller
à la réunification des familles au Canada;
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…
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…
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Humanitarian
and compassionate considerations — request of foreign national
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Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
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25 (1)
Subject to subsection (1.2), the Minister must, on request of a foreign
national in Canada who applies for permanent resident status and who is
inadmissible — other than under section 34, 35 or 37 — or who does not meet
the requirements of this Act, and may, on request of a foreign national
outside Canada — other than a foreign national who is inadmissible under
section 34, 35 or 37 — who applies for a permanent resident visa, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
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25 (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire — sauf si c’est en raison d’un cas visé aux
articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit
de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de
résident permanent, étudier le cas de cet étranger; il peut lui octroyer le
statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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…
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Criminality
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Criminalité
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36 (2) A
foreign national is inadmissible on grounds of criminality for
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(2)
Emportent, sauf pour le résident permanent, interdiction de territoire pour
criminalité les faits suivants :
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(a) having
been convicted in Canada of an offence under an Act of Parliament punishable
by way of indictment, or of two offences under any Act of Parliament not
arising out of a single occurrence;
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a) être
déclaré coupable au Canada d’une infraction à une loi fédérale punissable par
mise en accusation ou de deux infractions à toute loi fédérale qui ne
découlent pas des mêmes faits;
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…
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VII.
ARGUMENT
A.
Applicants
[17]
The Applicants submit that the Decision ignores
evidence and engages in baseless speculation. The Applicants take issue with
four findings made by the Officer that they say ignore their submissions and
are based upon mistaken assumptions. The finding that the Applicants could
return to India together because they were born there and speak the language
ignores that the Female Applicant has lived in Canada since infancy, has no
knowledge of Indian life, and does not speak the language. The finding that the
Applicants would not suffer hardship if separated ignores the fact that they
have recently purchased a house together, are financially interdependent, and
are trying to have a child. The Officer’s finding that the Male Applicant had
worked illegally in Canada was incorrect as he had a study permit that allowed
him to work. And the finding that the Male Applicant could find work in
India ignores that his caste position and minority religion make obtaining good
employment difficult.
[18]
In Dhudwal v Canada (Citizenship and
Immigration), 2016 FC 1124, Justice Harrington held that a decision based
on “innuendo and speculation” was unreasonable
because nothing in the record justified the decision-maker’s inferences. The
Applicants say that the Decision engages in similar conjecture when the Officer
speculates erroneously rather than assessing the Applicants’ evidence at face
value. See also Guzman v Canada (Public Safety and Emergency Preparedness),
2009 FC 899 at para 31; Paulino v Canada (Citizenship and Immigration),
2010 FC 542.
[19]
The Applicants submit that the Officer denied
them procedural fairness by refusing their application because of concerns over
the veracity of the Applicants’ evidence without providing them a chance to
respond to those concerns. They say that the Officer calls into question the Male Applicant’s
evidence that it would be a significant hardship for the Applicants to separate
if the Male Applicant returns to India. Permanent resident applicants are
owed a meaningful opportunity to respond “where the
credibility, accuracy or genuine nature of information submitted by the
applicant in support of their application is the basis of the visa officer’s
concern”: Hassani v Canada (Citizenship and Immigration), 2006 FC
1283 at para 24. See also Salman v Canada (Citizenship and Immigration),
2007 FC 877 at para 12; Olorunshola v Canada (Citizenship and Immigration),
2007 FC 1056 at paras 33-34; John v Canada (Minister of Citizenship and
Immigration), 2003 FCT 257.
[20]
The Applicants also say that the Decision
ignores a primary objective of the Act when the Officer finds that the
Applicants could return to India and live together there. Subsection 3(d) of
the Act states that one of its objectives is “to see
that families are reunited in Canada.” The Applicants submit that Sun
v Canada (Citizenship and Immigration), 2012 FC 206 at para 25, establishes
that failure to consider this objective may render a decision unreasonable. The
Applicants point out that they live in Canada, that the Female Applicant is a
Canadian citizen, and that it is the Officer’s role to assess immigration to
Canada, not India.
[21]
In reply to the Respondent’s submission that the
Male Applicant does not require exceptional relief under s 25(1) of the
Act, the Applicants say that the Male Applicant is not eligible for a
record suspension or pardon, or rehabilitation, because five years have not
passed since his conviction in May of 2014. It is the Male Applicant’s
inability to seek these alternative reliefs that led to the Applicants’ request
for consideration of H&C grounds.
[22]
The Applicants therefore request an order
remitting the Decision back for redetermination by a different immigration
officer.
B.
Respondent
[23]
The Respondent submits that the Officer’s
determinative finding is that the Male Applicant has other options for
pursuing permanent residence under the Act and the Immigration and Refugee
Protection Regulations, SOR/2002-227, and does not need to rely on
exceptional H&C relief. Invoking s 25(1) of the Act is an exceptional
measure, and is not meant to be an alternate means of applying for permanent
residence status in Canada. See Marteli Medina v Canada (Citizenship and
Immigration), 2010 FC 504 at para 54; Mikhno v Canada (Citizenship and
Immigration), 2010 FC 386 at para 25; Barrak v Canada (Citizenship and
Immigration), 2008 FC 962 at para 27. The Respondent says that the
Applicants have not explained why the Male Applicant is unable to apply
for rehabilitation or a records suspension while in Canada on his temporary
resident permit. Therefore, the Applicants’ case does not require an exemption
under s 25(1) of the Act.
[24]
The Respondent therefore requests that the
application for judicial review be dismissed.
VIII.
ANALYSIS
[25]
The Applicants are right to point out that the
Officer makes an error of fact when he says that the Male Applicant was “working without authorization.” The evidence is clear
that the Male Applicant had been working legally in Canada because his
study permit allowed him to work.
[26]
In their H&C application, the Applicants
emphasized their situation in Canada and presented little to establish that,
apart from leaving Canada, they would face additional hardship in India. For
example, the Male Applicant now explains in his affidavit before me that
his wife has been living in Canada since she was six years old, has no
knowledge of life in India, and does not speak the language. This information,
however, was not provided in the H&C submissions where the Applicants
merely said that “Ms. Bains also works and has family
in Canada that she would be denied from seeing if she had to live abroad with
Mr. Singh.” It was never alleged that she did not know the language and
the culture in India, and would face any hardship there other than the hardship
of having to leave Canada, where she has grown up, and where her family continues
to reside. However, if the Decision is read with care, it is apparent that the
Officer is not saying that the Female Applicant knows the language and the
culture in India. He is saying that the Male Applicant does: “I also note you have knowledge of the culture and language
which would assist you in your return to your country of nationality.”
The word “your” here refers to the Male Applicant
as it does when the Officer says “your parents are
currently residing there.” This is clear because the Decision is
addressed to Jaskaran Singh who is the Male Applicant and not both
Applicants.
[27]
A great deal of what the Officer says about the
hardships the Applicants might face in India is a function of the lack of
evidence and submissions of the Applicants themselves. Their submissions are
focused upon their establishment in Canada and the hardships of leaving Canada
behind, but an H&C assessment also requires an officer to consider what
applicants will face in the country to which they will return.
[28]
I do accept, however, that the Officer’s
finding, based upon the false assumption that the Applicant had no right to
work in Canada appears to be of some significance for the Decision because the
Officer says that “[t]his leads me to believe that you
were working without authorization. Given this information it appears you
have little regard for immigration laws and regulations” [emphasis
added]. The record before me suggests that the Male Applicant has been
meticulous when it comes to “immigration laws and
regulations.” But is this mistake and the Applicants’ allegations of
speculation sufficient to render this Decision unreasonable?
[29]
I think not because, although the Officer
provides some assessment of the usual H&C factors such as establishment and
hardship, the real basis of the Decision is that the Male Applicant does
not require, and is not entitled to, H&C relief at this point in his
advance towards permanent residence.
[30]
When addressing the hardship factors, the
Officer says that “[b]ased on these factors I am not in
[sic] the opinion that it would be difficult for you or your spouse to
establish yourselves in India if you chose [sic] to leave”
[emphasis added].
[31]
The clear implication here is that neither the Male Applicant
or the Female Applicant need to leave Canada, and this factor is picked up
later in the Decision when the Officer makes the following points:
You have recently been issued a Temporary
resident permit on 2017/03/04 which is valid until 2020/02/28. Given this
information, if you were to be refused, you would not be required to leave
Canada immediately. You have sufficient Temporary resident status in Canada to
allow you to apply for rehabilitation in accordance with immigration
regulations, or an applicable records suspension.
I note the purpose of the H&C process is
not to bypass the selection process to enter Canada as a permanent resident but
instead it arises in exceptional cases which cannot be managed by the current
Immigration and Refugee Protection Act and Regulations. I do not find there are
exceptional circumstances in this case, and therefore I am denying your H&C
request submitted to overcome your criminal inadmissibility to Canada.
[32]
In other words, the hardship factors associated
with leaving Canada and the impact upon the Female Applicant and their family
plans do not arise in this case because the Male Applicant has not been
asked to leave Canada, and may never have to do so. In fact, notwithstanding
his criminal conviction and his temporary inability to apply for permanent
residence, the Male Applicant has been granted a three-year permit to
remain in Canada. So, notwithstanding his criminal conviction which prevented
his sponsorship for permanent residence, the system has already provided the
means for the Male Applicant to overcome this problem in the form of a
temporary resident permit of maximum duration that will allow him to continue
his life in Canada and allow him “to apply for
rehabilitation in accordance with immigration regulations, or an applicable
records suspension.” In other words, there is nothing to suggest that
the Male Applicant will not, if he follows the available process, be able
to achieve his permanent residence objectives at some time in the future. The Male Applicant
obviously has concerns about the uncertainty that is inherent in this process
and would like to allay his anxiety now by obtaining an H&C exemption.
However, it was the Male Applicant’s own criminal conduct that has led to
a period of uncertainty while the system takes its course.
[33]
The Officer also provides considerable
assurance: “I am satisfied you are not a risk and are
unlikely to re-offend.” And there is also the reassurance that the Male Applicant
has been granted a three-year temporary resident permit that will carry him
forward to February 28, 2020. He cannot seek rehabilitation until May 2020, but
there will be options available to him in February 2020 to remain in Canada to
pursue rehabilitation and permanent residence. At the worst, he can re-apply
for H&C relief again if need be and, provided he continues in the ways he
says he will in this application, his case will be considerably stronger and,
if he is not satisfied, he can come to this Court for relief.
[34]
I don’t think it can be said that the Officer
has been unreasonable in denying the request for H&C relief at this
juncture in the Male Applicant’s progress on the basis that such relief is
exceptional and should not be used “to bypass the
selection process to enter Canada as a permanent resident,” even though
that process, because of the Male Applicant’s criminal activity, has been
rendered more complex than it would otherwise have been. There is, as yet,
nothing to suggest that the Male Applicant’s goal of permanent residence “cannot be managed by the current Immigration and Refugee
Protection Act and Regulations.”
[35]
The Applicants also argue that the Officer
should have convoked an interview to deal with credibility concerns. I see
nothing in the Decision to suggest that the Officer had any credibility concerns.
Even if I were to accept that the Officer relied upon speculation, this does
not raise credibility concerns. And, in any event, credibility concerns had
nothing to do with the basis of the Decision described above.
[36]
Finally, the Applicants argue that “in finding the Applicants could return to India together and
live there… the Officer disregarded one of the primary objectives of the Act,
which is to reunite families in Canada.”
[37]
I think it is clear from the Decision that the
Officer found that a refusal of the H&C application did not mean that the
Applicants would have to return to India. Any concerns in this regard can be
raised in the future, if and when the Male Applicant is required to return
to India.
[38]
Counsel concur that there is no question for
certification and the Court agrees.
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