Date: 20050808
Docket: IMM-6881-04
Citation: 2005 FC 1067
BETWEEN:
LAKHWINDER SINGH DHILLON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of an officer in the Respondent's Ministry whereby the Applicant's application for leave to apply for permanent residence from within Canada on humanitarian and compassionate grounds was denied. The decision under review is dated the 20th of July, 2004.
BACKGROUND
[2] The Applicant is a citizen of India. His application to come to Canada as a permanent resident, filed outside Canada, was refused on the 21st of May, 1998. Nonetheless, he arrived in Canada, without status, on the 21st of October, 1999. A conditional departure order was issued against him.
[3] On the 4th of January, 2000, the Applicant was found eligible to file a Convention refugee claim in Canada. He filed a Convention refugee claim which was denied on the 13th of December, 2000. In the result, the conditional departure order issued against him became effective.
[4] On the 10th of January, 2001, the Applicant sought leave and judicial review in respect of the Convention refugee decision. Leave was granted and the judicial review was granted with the result that the Applicant's Convention refugee claim was referred back for redetermination. Once again, his Convention refugee claim was denied. Also once again, he sought leave and judicial review of the second negative Convention refugee decision. This time, his leave application was denied.
[5] In the meantime, on the 30th of May, 2002, the Applicant filed an application for leave to apply for permanent residence from within Canada on humanitarian and compassionate grounds. It is the decision on that application that is here under review. In support of his application, counsel for the Applicant pointed to his successful establishment in Canada, his close family ties here and his fear of returning to India. The Applicant had a good employment record, and strong support from his employer and his colleagues at work. He was actively involved in his community. His parents and sister were well established in Canada.
[6] While it was acknowledged that the Applicant's wife and three children remained in India, it was pointed out on his behalf that he alleged he fled India to protect his wife and children and that he feared that if he were to return to India, he would put his family in jeopardy. Since coming to Canada, he had regularly sent money to India to help support his wife and children.
[7] The Applicant's surviving birth family, consisting of his mother, father and sister is in Canada. The Applicant is the sole surviving son of his parents, his older brother having been killed by the police in India. His application was supported by a letter from his father alleging emotional attachment that would lead to hardship if the Applicant were required to return to India.
THE DECISION UNDER REVIEW
[8] While the decision under review is reflected in a letter that provides very little if any indication of the basis for the decision, it is supported by "Notes to File", dated essentially simultaneously with the date of the decision under review, that provide a rationale for the decision[1].
[9] With respect to fear of return to India and associated risk, the Officer writes:
The client submitted an H & C Application for Permanent Residence based on establishment, close family ties and fear of returning to India, stating, if he did, it would place his family in jeopardy. Client also states he fears he will be killed just like his brother, who was allegedly linked with the militants, was killed in 1987. The file was sent for a risk opinion. After assessment was completed, the client received a negative risk opinion.
I have reviewed Pre-Removal Officer Lee's risk opinion and find it reasonable. The client has not stated any subsequent, additional risk factors other than what has already been addressed. I am not satisfied that sufficient evidence exists to conclude otherwise.
It was not in dispute that the Applicant was provided with an opportunity to review the risk opinion on which the Officer relied and to respond thereto. The Applicant, through counsel, availed himself of that opportunity.
[10] With regard to "family ties" and "emotional dependence", the Officer writes:
Counsel also states that the client is the only living son and that it is Sikh culture that the son is responsible for the care and well being of his parents. In addressing this concern, I have considered the undertaking of support submitted by the client's sibling, who sponsored the parents as Family Class in 1995. An undertaking places the financial obligation to support the parents on the sponsor. Furthermore, it was the client's parents who chose to emigrate from India leaving their only son there.
It is acknowledged that even though the client has family ties in Canada, his ties outside of Canada are stronger.
[11] With regard to establishment and integration into the community in which the Applicant lives in Canada, the Officer writes:
I have considered and acknowledged that the client has demonstrated some success in Canada through employment at Canada Alloy Steel as a grinder and working as a truck driver for a few months, at his own registered business named APG Dhillon Trucking, which is incorporated under Industry Canada. He was then re-hired by Canada Alloy Steel. He has also demonstrated some integration in the community through volunteer work with the Golden Triangle Sikh Association, his temple, and by studying English, however, I am not satisfied that the client's establishment is sufficient to warrant an exemption from the permanent resident visa requirements as stated in [subsection 11(1)] of the Immigration and Refugee Protection Act, when reviewing the client's file in it's [sic] entirety.
The Officer filed her affidavit on this application for judicial review. At paragraph 7 of her affidavit, the Officer attests:
In rendering a decision, I considered each of the submissions made by the Applicant in support of his application: the alleged risk to him in India, his family ties in Canada, his degree of establishment in Canada, and the submission that he is a de facto family member.
[12] The Officer was cross-examined on her affidavit. More will be said about the cross-examination later in these reasons.
THE ISSUES
[13] In the Applicant's memorandum of fact and law, only one issue arising on this application for judicial review was identified. It was stated in the following terms:
Did the Officer err in law because she failed to properly consider all the evidence and all of the circumstances and because her reasons failed to properly disclose the basis for her conclusions.
In a further memorandum of fact and law filed on behalf of the Applicant, the following more explicit issues were identified as "additional" to the foregoing:
- Is the decision patently unreasonable given the Officer's failure to understand the guidelines she was bound to apply in assessing hardship?
- Did the Officer err in law by failing to provide adequate reasons for her conclusion that the Applicant would not suffer undue hardship?
- Did the Officer err in law by failing to consider the best interests of the Applicant's children in India?
- Did the Officer err in law by considering irrelevant factors?
THE DECISION MAKING FRAMEWORK.
[14] The decision here under review was made under the broad authority of subsection 25(1) of the Immigration and Refugee Protection Act[2]. That subsection reads as follows:
| 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. |
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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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[15] Officers are assisted in making decisions under subsection 25(1) of the Act by guidelines issued by the Minister. Those guidelines provide in part as follows:
Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain a permanent resident visa from outside of Canada would be:
(I) unusual and undeserved or
(ii) disproportionate.
Applicants may present whatever facts they believe are relevant:
...
A positive H & C decision is an exceptional response to a particular set of circumstances. An H & C decision is more complex and more subjective than most other immigration decisions because officers use their discretion to assess the applicant's personal circumstances.
...
Unusual and undeserved hardship is:
· the hardship [of having to apply for a permanent resident visa from outside of Canada] that the applicant would face should he, in most cases, unusual, in other words, a hardship not anticipated by the Act or Regulations; and
· the hardship [of having to apply for a permanent resident visa from outside Canada] that the applicant would face should be, in most cases, the result of circumstances beyond the person's control.
...
Humanitarian and compassionate grounds may exist in cases that would not meet the "unusual and undeserved" criteria but where the hardship (of having to apply for a permanent resident visa from outside of Canada) would have a disproportionate impact on the applicant due to their personal circumstances.
[16] In Baker v. Canada (Minister of Citizenship and Immigration)[3], Madam Justice L'Heureux-Dubé commented on the Guidelines in the following terms, at paragraph 72:
... as described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.
ANALYSIS
a) Standard of Review
[17] The Respondent submits that, given the nature of the humanitarian and compassionate inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister albeit that such responsibility is delegated to an officer, and the considerable discretion evidenced by both the language of subsection 25(1) of the Act and the Ministerial guidelines, considerable deference should be accorded to decisions made by officers exercising the delegated function of making humanitarian and compassionate decisions. Thus, the Respondent urges, the standard of review for such decisions is reasonableness simpliciter. For this proposition, the Respondent cites the Baker decision, supra. Counsel for the Applicant does not dispute the foregoing assertion. I adopt the submission on behalf of the Respondent.
[18] The foregoing does not apply to the issue of adequacy of reasons. That issue is to be determined on its merits without reference to the concept of standard of review.
b) Failure to Properly Consider All of the Evidence and All of the Circumstances Relevant to the Application
[19] In this regard, Counsel for the Applicant urges that the officer, in particular, failed to give effective consideration to the evidence before her regarding the strong emotional co-dependency between the Applicant and his father by reason of the fact that the Applicant is the sole surviving male child of his parents by reason of the death in India of the Applicant's brother.
[20] I reject this argument. The Officer indeed gave consideration to the evidence before her regarding this co-dependency, including the letter from the Applicant's father, but chose to weigh that evidence to the dissatisfaction of the Applicant. In effect, the Officer chose to prefer the evidence that the Applicant's parents chose to come to Canada under the sponsorship of their daughter, thus leaving their sole surviving son in India, over the evidence that was before the Officer that the Applicant's parents, in particular his father, are heavily reliant on the Applicant in accordance with tradition. I am satisfied that this weighing of the evidence was reasonably open to the Officer, in particular having regard to the very substantial discretion vested in her.
[21] The issue of "adequacy" or "inadequacy" of reasons is incorporated within the issue question raised in the Applicant's memorandum of fact and law but is more directly raised in the Applicant's further memorandum. It will be dealt with later in these reasons.
c) Failure on the Part of the Officer to Fully Understand the Relevant Ministerial Guidelines
[22] Counsel for the Applicant urged that the officer, on cross-examination on her affidavit, failed to provide effective responses to questions regarding the interpretation of "unusual hardship", "undeserved hardship" and "disproportionate hardship" as used in the Ministerial guidelines. Counsel herself acknowledged at question 24 in the transcript of examination of the officer that she knew "... the terms are not really very well defined." Indeed, they are not "well defined". I am satisfied that the Officer was consistently correct in emphasizing that the terms are not absolute, that the relative weight to be given to the evidence bearing on the various terms is at the discretion of the officer applying them to the facts of a given application, and that it is the officer himself or herself who is left with the responsibility of determining their application, once again on the facts of each individual application, and the relative weight to be given to them. I have great sympathy for the position taken by the officer under cross-examination and find that she made no reviewable error by failing to understand the guidelines and applying them on the facts of this application.
d) Adequacy of Reasons
[23] Counsel for the Applicant cited Via Rail Canada Inc. v. National Transportation Agency et al[4] where Justice Sexton, on behalf of the Court, wrote at paragraphs 17 to 19:
The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the decision maker on the relevant factors and evidence. In the words of the Supreme Court of Canada:
Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision.
Reasons also provide the parties with the assurance that their representations have been considered.
In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine whether the decision maker erred and thereby render him or her accountable to that body. This is particularly important when the decision is subject to a deferential standard of review.
[citation omitted]
The brief passage cited by Justice Sexton is drawn from the Baker decision, supra. Again, in Baker, it is made clear that the notes of an officer, such as the notes underlying the decision here under review, constitute the officer's "reasons".
[24] The responsibility of officers for decisions such as that here under review is an onerous one. Here, it was not incumbent on the officer to compare her evaluation of the evidence before her against the test she was required to apply against other decisions she or others might have made. Rather, the onus on her was simply to demonstrate by her reasons that she had taken into account all of the evidence before her and had not taken into account irrelevant factors. It was not incumbent upon her to seek out additional evidence that might have influenced her decision. The onus on an application such as that which was before the officer is on the Applicant. I am satisfied that the officer's reasons were adequate. It is irrelevant that another person, such as the Applicant or his counsel, might have assessed the evidence differently.
e) Failure to Consider the Best Interests of the Applicant's Children in India
[25] Counsel for the Applicant noted that in the Baker supra decision, the Supreme Court of Canada held that an officer considering a humanitarian and compassionate grounds application must be "alert, alive and sensitive" to the best interests of a child or children whose interests are at issue and where an officer minimizes or ignores the interests of such a child, his or her decision is unreasonable. Counsel further noted that subsection 25(1) of the Immigration and Refugee Protection Act, supra, does not limit the scope of the "best interests" consideration to children born in Canada or physically present in Canada. For this latter proposition, counsel cited my decision in Owusu v. Canada (Minister of Citizenship and Immigration)[5].
[26] On the evidence that was before the officer, I am satisfied that she was "alert, alive and sensitive" to the best interests of the Applicant's children in India. She noted that the Applicant provided financial support to his wife and children in India. On cross-examination on her affidavit, she noted that there was no evidence before her as to how that financial support was expended in India and that there was no evidence that it was essential to providing for the basic needs of the children. Further, she noted that the Applicant's presence in Canada dictated that the Applicant was in no position to provide either emotional or physical support for his children. In the result, I am satisfied that her conclusion that the interest in the Applicant being with his family in India was greater than the interests served by his presence in Canada with his parents represented no reviewable error. As earlier indicated, the onus on an application such as that here under review is on the applicant who, on the record that was before the officer, provided no evidence that the financial support he provided to his wife and children in India was essential or even central to their survival and that he would be unable to provide equivalent financial support through employment in India.
f) Consideration of Irrelevant Factors
[27] Counsel for the Applicant urged that the officer considered irrelevant factors in arriving at the decision here under review, in particular, the Applicant's immigration history and the negative decision on his Convention refugee claim in Canada and the Applicant's parents' choice to leave India under the sponsorship of their daughter when they first came to Canada, with the result that the Applicant, their sole surviving son who remained in India, was lost to them as a support. With great respect, I am not satisfied that either of the foregoing considerations taken into account by the officer, was an irrelevant consideration. The first went to the issue of risk to the Applicant if he were required to return to India and the second went to the issue of "emotional dependence" on the part of the Applicant's parents. Both of these issues were raised on behalf of the Applicant in the material before the officer.
g) Emotional Dependence
[28] Finally, counsel for the Respondent urged that this issue, that is to say, the emotional dependence of the Applicant's parents on the Applicant here in Canada was not raised in specific terms on behalf of the Applicant on this application for judicial review. Counsel for the Applicant, in reply submissions, urged that the issue "... was clearly stated both implicitly and explicitly" in submissions. I am satisfied that the issue was at least "implicit" in submissions notwithstanding that it was not directly stated as a separate issue. Equally, I am satisfied that it is acknowledged, and disposed of against the interests of the Applicant, in the foregoing analysis.
CONCLUSION
[29] For the foregoing reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A QUESTION
[30] These reasons will be circulated without an accompanying Order. Counsel will have ten (10) days from the date of these reasons to consider the issue of certification of a question, to consult with one another and thereafter to provide any submissions that they consider appropriate. Following the time provided, the Court will take into account any submissions received and will issue an Order disposing of this matter, with or without certification of a question, at the Court's discretion.
"Frederick E. Gibson"
____________________________
J.F.C.
Ottawa, Ontario
August 8, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6881-04
STYLE OF CAUSE:
LAKHWINDER SINGH DHILLON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JULY 7, 2005
REASONS FOR ORDER BY: GIBSON, J.
DATED: AUGUST 8, 2005
APPEARANCES:
Ms. Leigh Salsberg For Applicant
Ms Sharon Stewart Guthrie For Respondent
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario For Applicant
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario For Respondent