PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
JASMATIE DHARAMRAJ
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision by an immigration officer, dated September 7, 2005, which refused to grant the applicants an exemption on humanitarian and compassionate (H & C) grounds to permit inland processing of their permanent residence application.
[2] The applicants seek an order quashing the decision and remitting the matter for re-determination by a different immigration officer.
Background
[3] The applicants, Dharamraj and Jasmatie Dharamraj, are husband and wife. In February 2002, they left their country of nationality, Guyana, and came to Canada as visitors. They stayed with their Canadian-citizen daughter Ms. Premsukh who resides in Winnipeg with her husband and their two young children. The applicants have two other grown children: a son in Winnipeg and a daughter in the United States. The applicants have no immediate family in Guyana.
[4] The applicants applied for refugee protection in October 2002, alleging that as citizens of Guyana of Indian descent, they are at risk of violence in Guyana. They believe that they are targeted by bandits who assume that they are wealthy as they have immediate family overseas. The applicants' refugee claim was refused on May 20, 2003. An application for leave to seek judicial review of that decision was dismissed by the Federal Court on October 8, 2003.
[5] The applicants submitted an H & C application in October 2003. The grounds of their application are: (1) they are at risk of being victimized by criminals if they return to Guyana; and (2) two of their three children reside in Canada, including their daughter, Ms. Premsukh, who is suffering depression and anxiety over her two previous miscarriages and is in need of the applicants' emotional support and assistance. Their application was supported by a sponsorship from Ms. Premsukh and her husband.
[6] In addition, the applicants made an application for a Pre-Removal Risk Assessment (PRRA) in July 2004. In support of their application, they submitted a medical report dated August 23, 2003 which tentatively diagnosed them as having generalized anxiety disorder based on their symptoms and fears of returning to Guyana. They also submitted articles concerning violence in Guyana. A negative PRRA decision was rendered on June 3, 2005.
[7] On September 7, 2005, an immigration officer refused the H & C application. This is the judicial review of that decision.
Reasons for the Negative H & C Decision
[8] The immigration officer considered the applicants' desire to remain in Canada to support their daughter, the risk that the applicants would face if they were to return to Guyana, the applicants' degree of establishment in Canada, and whether there were children directly affected by the application.
[9] First, the immigration officer was satisfied that the applicants' desire to help their daughter cope with the loss of miscarriage is genuine. However, the miscarriages occurred in February 2002 and May 2003, which is over two years ago. The officer stated that the applicants have been in Canada during that time and thus have been available to assist their daughter for two years.
[10] Second, the immigration officer noted that two risk decisions have been rendered, one by the Immigration and Refugee Board (IRB), and one by a PRRA officer. The officer stated that as the applicants have not submitted significant new risk information, she would adopt the negative risk decisions of the IRB and the PRRA officer.
[11] Third, the immigration officer accepted that the applicants had taken some steps to establish themselves in Canada, and would probably become well established if they were in Canada for a longer period of time. The officer found that at the present time, the applicants have a limited degree of establishment in Canada.
[12] Finally, the immigration officer noted that the applicants have no dependent children who will be directly affected by the application. The officer noted that the applicants' daughter, Ms. Premsukh, has two young children of her own, who have two parents in Canada to support them.
[13] After weighing these factors, the immigration officer was not satisfied that there was sufficient hardship to warrant a visa exemption in this case.
Issues
[14] In their memorandum of argument, the applicants submitted the following issues for consideration:
1. Is the officer's assessment of hardship inadequate in that the officer ignored relevant evidence, misconstrued evidence or made unreasonable findings of fact concerning the applicants' need to stay in Canada?
2. Did the officer err in failing to consider the risk factors in her assessment of the H & C
application?
3. Did the officer breach the duty of procedural fairness by failing to follow the
procedure outlined in the immigration manual, which required that the H & C application be referred to a PRRA officer for a decision if the officer could not make a favourable decision based solely on non-risk factors?
Applicants' Submissions
[15] The applicants submitted that the evidence established that the applicants' daughter had a persisting need for her parents' emotional and psychological support, and that undue hardship would result if they were to be separated from her. The officer had before her a letter dated July 22, 2005, from a physician, Dr. Koh, who indicated that Ms. Premsukh continues to suffer from depression and anxiety stemming from her miscarriages, she is having difficulty coping with her two young children, and she would benefit from her parents' assistance. The applicants submitted that the officer did not adequately assess the hardship in this case as the officer did not consider the need for the applicants' continued presence in Canada. The officer focused instead on an irrelevant factor, specifically, the two years that the applicants had to assist their daughter following her miscarriages. The applicants submitted that the officer ought to have deferred to the opinion of Dr. Koh rather than substitute her own opinion with respect to the amount of emotional support that was required in the circumstances.
[16] The applicants submitted that the risk considerations relevant to an H & C application fall below the higher threshold applicable in the context of a refugee claim or a PRRA application. Therefore, it was not open to the officer to simply adopt the risk decisions of the Board or the PRRA officer. It was submitted that the officer erred in not conducting her own assessment of the risk factors (see Pinter v. Canada(Minister of Citizenship and Immigration), 2005 FC 296 at paragraphs 2 and 5). Further, the applicants submitted that the officer breached the duty of procedural fairness by failing to follow the immigration manual procedures requiring the officer to refer the H & C application to the PRRA unit, or at least, to undertake a separate assessment of the risk factors. It was submitted that there is a reasonable expectation that the immigration guidelines will be followed (see Hernandez v. Canada(Minister of Citizenship and Immigration), 2005 FC 429 at paragraph 67).
Respondent's Submissions
[17] The respondent submitted that the officer considered the applicants' submissions regarding the need for continued family support for their daughter, and the officer even requested further information from the applicants regarding that need prior to making her decision. The only evidence provided by the applicants in support of the ongoing need of their adult daughter consisted of a note from Dr. Koh, dated August 13, 2003, indicating that the applicants' daughter had miscarriages in 2002 and 2003 and would benefit from family support; a letter from Dr. Menticoglou, dated November 7, 2003, indicating that the applicants' daughter was going through a high-risk pregnancy and would require her parents' assistance for the duration of her pregnancy and following delivery; and, in response to the officer's request for further information, a letter from Dr. Koh dated July 22, 2005, indicating that the applicants' daughter would benefit from her parents' ongoing support. The respondent submitted that two of these three letters were written over two years ago, and the most recent letter presents virtually no evidence of a continuing need for the applicants' presence in Canada. It was submitted that the letters do not indicate that the applicants or their daughter will suffer hardship that would be unusual, undeserved or disproportionate if the applicants were required to make their application for permanent residence from outside of Canada.
[18] The respondent submitted that the officer examined all the medical evidence before her and did not substitute her own opinion for the medical expert's opinion. It was submitted that the officer could decide what weight should be afforded the expert opinion.
[19] The respondent submitted that the officer properly considered the risk factors. The respondent submitted that in the decision of Pinter, above, relied upon by the applicants, the immigration officer explicitly stated that she was not required to deal with the risk factors. By contrast, in the present application, the officer stated in her reasons that she would "adopt the negative risk decisions made by the IRB and the PRRA officer". It was submitted that the officer considered the evidence before her, including the previous risk assessments, and she came to the same conclusion as reached by the IRB and PRRA officer. The respondent submitted that the officer was entitled to adopt the factual risk conclusions in a PRRA decision in deciding the H & C application, so long as she applied those facts to the test of unusual, undeserved or disproportionate hardship. It was submitted that the officer did not adopt the analysis of the IRB and PRRA officer.
[20] The respondent submitted that the immigration guidelines are not binding upon the Minister or his delegates. Therefore, the failure to follow the guidelines is not a reviewable error in and of itself. The respondent pointed out that changes to the immigration guidelines were made on June 9, 2005. It was submitted that the immigration officer properly carried out her decision-making function with reference to the guidelines as they read at the date of the application. It was submitted that provided that the duty of fairness is respected, there is no expectation that the officer must follow a specific procedure.
Analysis and Decision
[21] Standard of Review
The appropriate standard of review for a decision of an immigration officer on an H & C application is reasonableness simpliciter (see Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 857 to 858).
[22] I propose to deal with issue 2 raised by the applicants, which is:
Did the officer err in failing to consider the risk factors in her assessment of the H & C application?
The risk faced by an applicant in his or her country of nationality is one of the factors to be considered by an immigration officer in assessing an H & C application. In Pinter v. Canada (Minister of Citizenship and Immigration), 2005 FC 296, Chief Justice Lutfy determined that the officer erred in her consideration of the risk factors on an H & C application, as she had closed her mind to the risk factors given that there was already a negative PRRA decision. Chief Justice Lutfy stated in his decision:
[1] The Pinter family, the spouses and their three young children, are failed refugee claimants. They are citizens of Hungary. Mrs. Pinter is of Roma descent. The family's refugee claim was based on the fear of persecution resulting from their Roma ethnicity.
[2] In explaining her rationale for her refusal of the Pinters' request for permanent residence within Canada, the immigration officer noted:
I have not dealt with the risk factors of the applications since they were reviewed by the Pre-Removal Risk Assessment officer who determined the family would not be at risk if they were returned to Hungary. The risk identified in the Humanitarian and Compassionate application is identical to the risk identified in the PRRA application.
Contrary to the immigration officer's suggestion, there is a difference between the assessment of risk factors in an application for humanitarian and compassionate consideration and one for protection from removal.
[3] In an application for humanitarian and compassionate consideration under section 25 of the Immigration and Refugee Protection Act (IRPA), the applicant's burden is to satisfy the decision-maker that there would be unusual and undeserved or disproportionate hardship to obtain a permanent resident visa from outside Canada.
[4] In a pre-removal risk assessment under sections 97, 112 and 113 of the IRPA, protection may be afforded to a person who, upon removal from Canada to their country of nationality, would be subject to a risk to their life or to a risk of cruel and unusual treatment.
[5] In my view, it was an error in law for the immigration officer to have concluded that she was not required to deal with risk factors in her assessment of the humanitarian and compassionate application. She should not have closed her mind to risk factors even though a valid negative pre-removal risk assessment may have been made. There may well be risk considerations which are relevant to an application for permanent residence from within Canada which fall well below the higher threshold of risk to life or cruel and unusual punishment.
[6] By stating that the risk identified in one is identical to the risk identified in the other, the immigration officer could not have had an open mind to all considerations that she had to take into account in making a proper evaluation of an application under section 25 of the IRPA.
[7] It is on the basis of this error in law that the applicants' application for judicial review will be granted. . . .
[23] The officer's reference to risk in the present application is contained in the following paragraph:
The applicants have indicated a fear of returning to Guyana in their applications. Two risk decisions have been rendered on these applications - one by the IRB, and one by a PRRA officer. The applicants have not submitted significant new risk information that was not considered in these previous risk decisions, therefore, I adopt the negative risk decisions made by the IRB and the PRRA officer.
[24] There is no dispute that there is a higher burden on the applicants to establish risk for the purposes of a PRRA than there is for H & C purposes. Consequently, there may be circumstances where risk would be relevant for an H & C application but not for a PRRA application.
[25] In the present case, the officer merely adopted the assessment of risk made by the IRB and the PRRA officer without further analysis for the purpose of the H & C application. In my opinion, the officer made an unreasonable decision because she did not consider the risk factors in the context of the H & C application.
[26] Because of my finding on this issue, I need not address the other issues raised by the applicants.
[27] The application for judicial review is therefore allowed and the matter is referred to a different officer for re-determination.
[28] Neither party wished to submit a serious question of general importance for my consideration for certification.
JUDGMENT
[29] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different officer for re-determination.
ANNEX
An H & C application is permitted under subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which provides:
| 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. |
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. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5909-05
STYLE OF CAUSE: DHARAMRAJ and
JASMATIE DHARAMRAJ
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
APPEARANCES:
| Patricia Maia |
|
| Dayna S. Anderson
|
SOLICITORS OF RECORD:
| Zaifman & Associates Winnipeg, Manitoba |
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |