Docket: IMM-15787-23
Citation: 2024 FC 1947
Toronto, Ontario, December 3, 2024
PRESENT: Madam Justice Pallotta
BETWEEN: |
BINDER SINGH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The applicant, Mr. Singh, seeks judicial review of an immigration officer’s (Officer) decision that refused his application for permanent residence made from within Canada. The Officer was not satisfied that humanitarian and compassionate (H&C) considerations warranted an exemption, under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], from the legislative requirement that he apply from outside of Canada and from his inadmissibility for serious criminality. Mr. Singh does not challenge the Officer’s refusal to grant an alternative request for a temporary residence permit under IRPA section 24.
[2] Mr. Singh’s immigration history is somewhat complex. For the purposes of this judicial review, it is sufficient to note the following.
[3] Mr. Singh arrived in Canada in 2014 and sought refugee protection as Binder Singh, born May 16, 1979, alleging a risk of harm in India due to threats from a former co-worker and corrupt police officers. The Minister of Citizenship and Immigration intervened to present evidence that had not been disclosed—including that Mr. Singh previously lived in the United States of America for many years, in 1998 he was charged with criminal sexual contact of a minor and sentenced to probation for lewdness as a juvenile offender under the identity Ravinder Singh, born May 17, 1981, he had been detained by US immigration authorities and escaped in July 1997 and again in November 1998 to avoid being deported, and he was deported from the US to India in 2007. Mr. Singh then amended the name and date of birth on his refugee protection claim to Ravinder Singh, born May 17, 1981.
[4] The Refugee Protection Division (RPD) refused Mr. Singh’s claim for protection on two grounds: (i) he was excluded from refugee protection pursuant to Article 1F(b) of the United Nations Convention Relating to the Status of Refugees [Refugee Convention] for having committed a serious, non-political crime, and (ii) his claim had no credible basis. The RPD’s decision was set aside on judicial review for the reason that, once the RPD had decided Mr. Singh was excluded from refugee protection, it should not have gone on to find that his refugee claim had no credible basis—a finding that foreclosed an appeal to the Refugee Appeal Division (RAD). On redetermination, the RPD found that Mr. Singh is Binder Singh, born May 16, 1979, and that he is excluded from refugee protection pursuant to Article 1F(b) of the Refugee Convention. The RAD dismissed Mr. Singh’s appeal and this Court denied his application for leave to review the RAD’s decision.
[5] Mr. Singh filed an application for permanent residence from within Canada, which was refused in 2022 and remitted for redetermination on consent of the parties. The November 27, 2023 redetermination decision is the subject of this application for judicial review.
[6] Mr. Singh’s application for an H&C exemption was based on his establishment in Canada, the best interests of his two minor children in India, and hardship in India related to risk from the alleged agents of harm as well as economic and medical hardship. The Officer issued a procedural fairness letter asking for information about Mr. Singh’s conviction and inviting him to respond to concerns that he is inadmissible to Canada. As part of his response, Mr. Singh provided records relating to his US conviction.
[7] The Officer refused Mr. Singh’s H&C application.
[8] The Officer considered the evidence of identity, including Indian and Canadian government documents identifying Mr. Singh as Binder Singh born May 16, 1979. The Officer also noted that, despite maintaining that his true identity is Ravinder Singh born May 17, 1981, Mr. Singh applied for permanent residence as Binder Singh born May 16, 1979. The Officer found that Mr. Singh is Binder Singh born May 16, 1979.
[9] Mr. Singh’s identity was important to inadmissibility. If Mr. Singh had received a youth sentence in Canada, he would not be inadmissible by reason of IRPA subparagraph 36(3)(e)(iii). However, Mr. Singh had been tried in the US as a juvenile because he provided an incorrect identity to the authorities. The US criminal records Mr. Singh provided in response to the procedural fairness letter indicated that he was convicted in a New Jersey juvenile court for violating section 2C:14-2B of the applicable criminal statute, which corresponds to an offence of sexual assault, victim less than 13 years, defendant more than four years older, second degree. The Officer found that, based on Mr. Singh’s true age at the time of the offence, he would be inadmissible to Canada pursuant to paragraph 36(1)(b) of the IRPA if convicted of the equivalent Canadian offence as an adult.
[10] The Officer declined to grant Mr. Singh an exemption from his inadmissibility. While Mr. Singh was young at the time of the offence and it appeared to be an isolated incident, the offence was serious and he had misrepresented his identity.
[11] The Officer afforded the conviction strong negative weight in the assessment of H&C factors. The Officer gave positive weight to Mr. Singh’s establishment in Canada and the best interests of his minor children who live in India with their mother and depend on him financially. The Officer gave little weight to considerations relating to a third child living in the US, who is not a minor. The Officer also gave little weight to hardship in India based on risk from the agents of harm and the alleged economic and medical hardship. Mr. Singh had not established the agents of harm would have the means and ability to track him, and the Officer found he would be able to avoid them by moving outside his home state. While Mr. Singh might not be able to work in his home state, he had not established he would be unable to relocate and find work in another state, or that he would be unable to access treatment for his medical conditions.
[12] Overall, while some factors were afforded positive weight, the Officer was not satisfied that Mr. Singh’s circumstances afforded sufficient H&C grounds to warrant an exemption from IRPA’s requirements.
[13] Mr. Singh alleges the Officer’s decision was unreasonable. He challenges multiple aspects of the H&C decision and contends the Officer’s multiple reviewable errors, alone or together, warrant setting aside the decision. Mr. Singh states the Officer:
found him inadmissible based on a deficient equivalency assessment—relying entirely on an opinion from the US Criminality Evaluation Service (UCES) of Immigration, Refugees and Citizenship Canada that was itself deficient, without conducting a proper comparison of the essential elements of the US and Canadian offences according to the test in Hill v Canada (MEI), [1987] FCJ No. 47 (FCA) [Hill]—and the deficient assessment then unreasonably skewed the Officer’s weighing of H&C factors; in the alternative, the Officer unreasonably assessed the request for an exemption from criminal inadmissibility, fixating on inadmissibility as an overriding consideration to the exclusion of all other relevant factors (Sultana v Canada (Citizenship and Immigration), 2009 FC 533 at paras 30-31, Henson v Canada (Citizenship and Immigration), 2018 FC 1218 at paras 37-38) even though the Officer agreed he was rehabilitated and poses no danger to the public;
failed to give appropriate weight to the essential services he performed during the pandemic, and unreasonably distinguished Mohammed v Canada (Citizenship and Immigration), 2022 FC 1 (at paras 40-45) on the basis that trucking services were of lesser value than healthcare services;
was insufficiently alert, alive, and sensitive to his children’s best interests, including by questioning the assumption that children are better off in Canada, claiming to know better than a parent what is best for their children (particularly since his actions were consistent with his opinion that remaining in Canada to support his children financially was in their best interests), repeatedly equating basic needs with best interests and looking only at whether basic needs were met (Williams v Canada (Citizenship and Immigration), 2012 FC 166 at para 64, Sebbe v Canada (Citizenship and Immigration), 2012 FC 813 at para 16) and dismissing concerns of gender-based discrimination and violence when assessing his daughter’s best interests on the basis that her risk was generalized and not extraordinary, apparently importing an IRPA section 97 requirement into an H&C assessment (Diabate v Canada (Citizenship and Immigration), 2013 FC 129 at paras 32-36), which is particularly inappropriate when assessing a child’s best interests; and
erred in assessing the hardship he would face in India based on risk from the agents of harm (which had not been assessed previously), health concerns, and poor socioeconomic conditions; the Officer failed to explain why the agents of harm are no longer interested in him, found he could obtain state protection or relocate when this was contrary to the evidence, failed to consider the hardship associated with obtaining state protection or relocating, relied on extrinsic evidence about healthcare services in India without affording an opportunity to respond, and misstated a statistic about the availability of financial support for such services.
[14] The parties agree that an officer’s decision to refuse an H&C exemption is reviewable on a standard of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]; see also Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paras 42-45. Reasonableness is a deferential but robust standard of review: Vavilov at paras 12-13, 75 and 85. In applying the reasonableness standard, the reviewing court determines whether the decision bears the hallmarks of reasonableness—justification, transparency, and intelligibility: Vavilov at para 99. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain the decision maker: Vavilov at para 85.
[15] For the reasons below, Mr. Singh has not established that the Officer’s decision was unreasonable.
[16] Beginning with inadmissibility, Mr. Singh states the Officer failed to engage in the complex analysis of comparing the elements of the US offence to an offence in Canada’s Criminal Code, RSC, 1985, c C-46 [CCC]; instead, the Officer merely set out the text of the US and Canadian offences and added no further analysis before adopting a UCES opinion, which was itself deficient, to find him inadmissible. Relying on Zeon v. Canada (Minister of Citizenship and Immigration), 2005 FC 1338 and Kharchi v Canada (Minister of Citizenship and Immigration), 2006 FC 1160, Mr. Singh contends that the Officer’s failure to do the required analysis is reason alone to quash the decision.
[17] Contrary to Mr. Singh’s argument, the Officer did not simply adopt a UCES opinion without any analysis. The Officer considered the information Mr. Singh provided in response to the procedural fairness letter, including the US criminal records. In addition to the analysis provided by two UCES reports, the Officer considered the transcript of the RPD hearing, the RAD’s analysis, and a comparison of the US charge with sections 271 and 273.1 of the 1999 version of the CCC.
[18] I am not persuaded that the Officer failed to do a Hill equivalency analysis. Mr. Singh does not explain precisely what aspect of the Hill analysis the Officer omitted or what more the Officer was required to do. He does not allege that the Officer equated the wrong US and Canadian statutory offences, or point to a distinction between them that the Officer failed to consider. I agree with the respondent that the Officer’s equivalency analysis was in line with the third approach from Hill—using a combination of comparing the wording of the applicable US and Canadian offences and evidence of the facts of the conviction to determine equivalence.
[19] As noted above, the Officer found that Mr. Singh had been tried in the US as a minor because he provided an incorrect identity to the authorities. If convicted as an adult, the Officer found Mr. Singh would have been inadmissible to Canada pursuant to paragraph 36(1)(b) of the IRPA:
After carefully reviewing all the above information and taking my own conclusion above in relation to his identity, the applicant chooses to use the name most convenient to him when required. I find the applicant’s true age at the time of commission of the offence was indeed 19 years, I conclude that the applicant would be inadmissible pursuant to paragraph 36(1)(b) of IRPA.
I find that the [US] offence of Sexual Assault equates to section 271 of the 1999 version of the CCC in conjunction with 273.1(1). This is an indictable offence where the maximum sentence did not exceed 10 years which would have rendered subject inadmissible pursuant to A36(1)(b).
[20] Equivalency determinations are factual determinations that are entitled to deference on review: Ali v. Canada (Citizenship and Immigration), 2021 FC 1419 at paras 19-20. Mr. Singh disagrees with the Officer’s conclusion, but he has not established a reviewable error with the Officer’s inadmissibility analysis.
[21] Turning to the exemption request, Mr. Singh states the Officer was fixated on inadmissibility and effectively fettered their discretion by using the fact of his criminal conviction and consequent inadmissibility to deny an exemption from inadmissibility, contrary to Sultana. I disagree. The Officer did not refuse an exemption from inadmissibility because of Mr. Singh’s inadmissibility. The Officer reasonably considered Mr. Singh’s arguments that he is rehabilitated and poses no risk of reoffending, and that rehabilitation should weigh in favour of his exemption request. The Officer noted that Mr. Singh had no criminal record in Canada or India, he had been young at the time of the US offence and it appeared to be an isolated incident, and he had admitted guilt and shown remorse. The Officer gave these factors positive weight but reasonably concluded that they were outweighed by the seriousness of the offence, Mr. Singh’s misrepresentation of his identity, and his continued insistence that he was 17 at the time of the offence and had been properly tried and sentenced as a minor.
[22] There is no merit to Mr. Singh’s argument that the Officer was fixated on inadmissibility to the exclusion of all other positive H&C factors. I agree with the respondent that the Officer considered each of the H&C factors and weighed them globally. The inadmissibility finding was not an overriding factor in the global assessment of whether an H&C exemption was warranted, and Sultana is distinguishable on that basis.
[23] Similarly, there is no merit to Mr. Singh’s argument that the Officer unreasonably minimized his essential services work as a truck driver during the COVID-19 pandemic. I agree with the respondent that the Officer gave Mr. Singh due credit for his work. The Officer gave the pandemic work positive weight but reasonably found that it did not warrant the same degree of positive weight as the applicant’s work in Mohammed.
[24] Mr. Singh has not established that the Officer was insufficiently alert, alive, and sensitive to his children’s best interests. I agree with the respondent that Mr. Singh’s arguments do not rise above a disagreement with the Officer’s findings, and furthermore, they are based on mischaracterizations of the Officer’s findings.
[25] The Officer did not question the assumption that children are better off in Canada, claim to know the children’s interests better than a parent, or equate basic needs with best interests. The Officer accepted that Mr. Singh was supporting his children financially with income earned in Canada, including by paying for private school, and agreed that Mr. Singh was entitled to choose to remain apart from his family to support them provided he acted within the constraints of his immigration status and the law. While Mr. Singh claimed he would not be able to support his family in India, the Officer noted he was doing so before he came to Canada. The Officer acknowledged that Mr. Singh might not be able to provide the same standard of living for his children by working in India but found he had not shown this would impact their best interests. For example, he had not provided sufficient evidence to show that his children would be unable to continue with their schooling, and he failed to demonstrate how their interests would be impacted by lack of access to private school. Nonetheless, the Officer found, based on the country condition evidence, that the children’s best interests would be negatively impacted by a lowered standard of living, and the Officer afforded positive weight to the children’s best interests in the overall assessment of H&C factors.
[26] Mr. Singh alleges that the Officer unreasonably rejected his submission that it would be best for his daughter to leave India due to pervasive discrimination and violence against women and girls. However, Mr. Singh did not make a submission that it was in his daughter’s best interest to leave India for this reason. Rather, his H&C submissions stated that his daughter is able to overcome the disadvantages faced by girls and women in India—such as discrimination and violence—due to the financial support that he provides from Canada. His submissions about his children leaving India were that, if he is granted permanent residence, he could sponsor his children to Canada so they will benefit from an increased standard of living.
[27] Mr. Singh argues that the Officer wrongly imported an IRPA section 97 requirement—a requirement to show that the circumstances an individual will face are not generally faced by others in their country of origin—into the H&C assessment of his daughter’s best interests. Mr. Singh also argues that the Officer required the harm to the daughter to be “extraordinary”
. I am not persuaded that the Officer did either. The Officer gave the country condition evidence related to gender some weight, albeit little weight, in assessing the daughter’s interests.
[28] When the Officer’s reasons are read in context, including Mr. Singh’s submissions, I am not persuaded that the Officer committed a reviewable error in assessing the children’s best interests. Mr. Singh’s submissions about his children’s best interests centred on the financial support he provides from Canada and the impact that a loss or reduction of financial support would have. In my view, the Officer addressed the submissions by finding that Mr. Singh had failed to meet his onus. The Officer acknowledged that if he is returned to India, Mr. Singh might not be able to provide the same standard of living for his children; however, the Officer reasonably found he had provided little information to show the impact a reduced standard of living would have on his children’s best interests.
[29] Finally, I am not persuaded that the Officer committed a reviewable error in assessing the hardship Mr. Singh alleged he would face if removed to India.
[30] The Officer assessed Mr. Singh’s arguments and evidence relating to the risk of harm from his former co-worker and the corrupt police officer, and reasonably found he had failed to meet his onus. It was Mr. Singh’s onus to show that the agents of harm had the motivation and the means to locate and harm him. The Officer considered Mr. Singh’s submissions and the record, noted that there was little information explaining why he would still be targeted, and explained why, even if the agents of harm are motivated to look for him, Mr. Singh had not established they would have the means and ability to track him. The Officer reasonably found that Mr. Singh had not established he would face obstacles that would prevent him from relocating and concluded that he could move outside his home state, if necessary.
[31] Similarly, it was Mr. Singh’s onus to show he would not be able to access necessary medical care in India, and the Officer reasonably found he had not met his onus. While the Officer misstated a statistic about the availability of financial support for medical care (stating that the state of Punjab provides financial protection to 75% of the population when the statistic is 65%), Mr. Singh has not established that the error was material to the main finding about access to care. Reasonableness review is not a line-by-line treasure hunt for error: Vavilov at para 102.
[32] Mr. Singh adds that the Officer breached procedural fairness by relying on extrinsic evidence about healthcare services in India without providing an opportunity to respond. I find the Officer did not breach procedural fairness. Mr. Singh had asserted that he would not be able afford private healthcare services in India. The Officer correctly noted that it was Mr. Singh’s onus to show he would not be able to access any needed treatments or medications in India, and reasonably found he had not done so. The Officer noted the country condition evidence for India indicating that there are public and private healthcare services, and also referred to information on publicly available government websites related to insurance and financial assistance to help pay for healthcare services. This was general information from a reliable source that did not conflict with the limited information Mr. Singh had provided. The Officer was not required to provide an opportunity for Mr. Singh to supplement his application, and I find the Officer was not required to afford an opportunity to respond to the government website information.
[33] In conclusion, Mr. Singh has not established that the Officer committed one or more reviewable errors that render the decision unreasonable or procedurally unfair. As Mr. Singh has not established a basis for interfering with the Officer’s decision, I must dismiss this application.
[34] The parties did not propose a question for certification and there is no question of importance to certify.
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