Docket: IMM-1937-17
Citation:
2017 FC 1164
Ottawa, Ontario, December 18, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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KULJEET BISLA
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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
[1]
Mr. Bisla [the Applicant] came to Canada from India
in 2001 at the age of 14. In 2015 he was convicted of sexual interference with
a person under the age of 16, and was sentenced to a term of imprisonment and
probation. Following this, he was found inadmissible to Canada for serious
criminality and was issued a removal order. Judicial review of that removal
order was dismissed (Bisla v Canada (Citizenship and Immigration), 2016
FC 1059 [Bisla]). Subsequently, the Applicant unsuccessfully sought to
avoid being removed from Canada on humanitarian and compassionate [H&C] grounds.
On April 7, 2017 his H&C application was denied.
[2]
In this review of the H&C decision, the
Applicant argues that the H&C Officer [the Officer] failed to properly
assess the hardship he will face in India because of his intellectual
disability and his concomitant economic and psychological dependence on his
family in Canada.
[3]
For the reasons that follow this judicial review
is dismissed. The Officer reasonably considered the evidence and the issues raised
by the Applicant.
I.
Decision Under Review
[4]
In the H&C decision, the Officer takes note
of the Applicant’s establishment in Canada including his employment and
involvement in cultural events. The Officer assigned positive weight to these
factors. However, the Officer assigned significant negative weight to the
Applicant’s offence of sexual touching of a minor, which began when the minor
was five. The victimization took place over a period of five years.
[5]
With respect to his intellectual disability, the
Officer noted that the sentencing judge commented on a psychological report
used at his criminal trial. However, that report was not provided to the
Officer in support of his H&C application, and at any rate, the judge found
that the Applicant realized what he did was wrong.
[6]
On his H&C Application, the Applicant did
provide a letter from a medical doctor which states “Kuljeet
[the Applicant] has an intellectual disability and is unable to comprehend his
situation. He is not capable of understanding what he is charged with.” The
Officer put little weight on this letter.
[7]
With respect to the country conditions in India,
the Applicant argued that he would not be able to survive in India because he
relies on his family support as a result of his intellectual disability. The
Officer noted that despite the claim of an intellectual disability, the Applicant
had not made use of the Person With Disabilities services offered in British
Columbia. The Officer reasoned that if the Applicant’s disability was as severe
as alleged, he would have sought out these services.
[8]
The Officer noted that while the Applicant did
not finish high school, there was no evidence provided as to why, and no evidence
was provided that high school officials were aware of his disability. The
Officer concluded that insufficient evidence had been provided to demonstrate
that the claimed disability was so severe as to cause significant limitations
in the Applicant’s ability to function in daily life or that it would impair
his ability to reintegrate in India. The Officer noted that the Applicant currently
lives independently from his parents in a separate area of his parents’ home. Further,
the Officer noted that the Applicant’s sister, who resides in India, could
provide support.
[9]
Finally, on the factor of adverse conditions,
the Officer concluded that there was no evidence that the Applicant’s “mild cognitive defects” would be noticeable such that
he would be subject to discrimination in India.
II.
Standard of Review
[10]
The standard of review for an H&C
application is reasonableness (Kisana v Canada (Citizenship and Immigration),
2009 FCA 189 at para 18).
III.
Issue
[11]
The only issue on this judicial review is if the
decision of the Officer is reasonable.
IV.
Analysis
A.
Is the Officer’s decision reasonable?
[12]
The Applicant argues that the Officer failed to
properly consider his intellectual disability and the fact that because he is
entirely dependent upon his family for emotional and financial support, he will
not be able to survive in India.
[13]
The Applicant also argues that the Officer
failed to consider the objectives of s.3 (1)(d) of the Immigration and
Refugee Protection Act [IRPA] which is to reunite families in Canada. He
argues that separation of the family in this case is grounds for a positive
decision in keeping with the Guidelines IP-5 [Guidelines].
[14]
Overall, H&C relief is exceptional and the
Applicant has the evidentiary burden (Owusu v Canada (Minister of Citizenship
and Immigration), 2004 FCA 38 at para 5).
[15]
H&C considerations are not based upon
sympathetic factors but rather require the Officer to balance all relevant positive
and negative factors (Kanthasamy v Canada (Citizenship and Immigration),
2015 SCC 61 at para 33). Here, the Officer considered each of the grounds
raised by the Applicant. His establishment was given some positive weight but
the criminal offence was given serious consideration and weighed heavily
against the Applicant.
[16]
The Officer considered the evidence with respect
to the Applicant’s mental health. The Officer notes the comments of the sentencing
judge but also notes that the full psychological report which was considered in
the criminal trial was not provided as part of the H&C application. Moreover,
the psychological report offered at the Applicant’s trial appears not to have
made a formal diagnosis, and at any rate, the Applicant was fit to stand trial and
knew what he did was wrong.
[17]
On the H&C application the Applicant relied
upon a one paragraph letter from his family doctor. The Officer determined that
this letter did not demonstrate that the Applicant suffered from a diagnosed
disability which would impact his ability to integrate in India. The Officer
was entitled to assign little weight to the mental health arguments.
[18]
With respect to s.3 (1)(d) of the IRPA, which
sets a guiding principle of reunification of family members in Canada, the
Officer clearly considered the benefits to the Applicant of remaining in
Canada. He notes the Applicant’s long time residence in Canada and that a
return to India will cause him “disruption and anxiety.”
However, this hardship was balanced against all other elements of the
application. The Applicant cannot ask the Court to reweigh this factor (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59).
[19]
Further, the Applicant argues that the Officer
did not apply the discretion outlined in Guidelines IP-5 which note that “separations of persons in such a genuine dependent
relationship may be grounds for a positive assessment.” The Applicant
argues that the Officer failed to consider this principle in the Guidelines in
relation to his separation from his parents.
[20]
However, the Guidelines do not bind the
decision-maker (Canada (Citizenship and Immigration) v Thamotharem, 2007
FCA 198 at para 66; Whitely v Canada (Citizenship and Immigration), 2015
FC 476 at para 12). They simply guide the discretion which the Officer
exercises under s.25 of the IRPA. Accordingly, the Guidelines contain permissive
language: “Separation of persons in such a genuine
dependent relationship may be grounds for a positive assessment”
(emphasis added).
[21]
Most importantly, the Officer in substance
considered the factors listed in the Guidelines respecting familial ties and
the consequences of separation. This formed a large part of the analysis. The
Applicant, again, simply asks that these factors be reweighed on judicial
review.
[22]
Finally, the Applicant argues that the Officer
ignored a stay of removal order issued by Justice Phelan, after the Applicant
was found inadmissible for serious criminality. The stay order noted the
Applicant’s reduced cognitive capabilities. However, the Officer specifically
noted the Applicant’s “mild cognitive defects.”
Moreover, the stay decision is interim, and is not a full consideration of the
Applicant’s circumstances, especially when the Applicant’s judicial review of
the removal order was finally decided by this Court in Bisla.
[23]
Overall, on judicial review, an applicant must
point to specific errors. Those errors must go beyond a simple reweighing of
the evidence, or a re-arguing of the merits of the H&C application (Leung
v Canada (Citizenship and Immigration), 2017 FC 636 at para 34). Here, the Applicant
seeks a rehearing on the arguments made in his H&C application. That is not
the role of this Court on judicial review.
[24]
The Officer noted the positive factor of the
Applicant’s establishment and appropriately weighed that positive finding
against the Applicant’s negative factors and the Officer considered the
evidence provided. The Officer’s decision is reasonable.
[25]
Therefore this judicial review is dismissed.
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