Date: 20040204
Docket: IMM-6526-02
Citation: 2004 FC 187
BETWEEN:
AMARJIT SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
MACTAVISH J.
[1] Amarjit Singh is a thirty-nine year old citizen of India, and an unsuccessful refugee claimant. After failing to persuade the Immigration and Refugee Board (IRB) that he had a well-founded fear of persecution in his home state, Mr. Singh filed an application for a Humanitarian and Compassionate (H & C) exemption. This too was denied. Mr. Singh now seeks judicial review of the decision denying him an H & C exemption.
Background
[2] Mr. Singh came to Canada on December 16, 1990 and made a refugee claim immediately upon his arrival. Mr. Singh claimed to have a well-founded fear of persecution because of his religion, his political opinion and his membership in a particular social group. Specifically, Mr. Singh alleged that he would be imprisoned or killed by the Indian police because of his perceived involvement with the Khalistan Commando Force.
[3] On December 4, 1991, the IRB determined that Mr. Singh was not a Convention refugee. His application for leave to appeal this decision was dismissed.
[4] When Mr. Singh failed to appear for an interview with immigration authorities in 1994, a warrant for his arrest was issued. Mr. Singh alleges that he did not receive notice to appear for the interview. Mr. Singh was arrested in July of 1998, and he was subsequently released on payment of a bond.
[5] In July of 1999, Mr. Singh was interviewed by immigration authorities in order to prepare an application for a travel document for his return to India.
[6] Mr. Singh submitted an application for an H & C exemption in February of 2000. The basis for the application was Mr. Singh's assertion that it would be psychologically difficult for him to return India where he had been persecuted. Mr. Singh alleged that he had experienced feelings of frequent sadness, crying spells, hopelessness and loss of energy, as well as heart palpitations, shaking, nightmares, and difficulty sleeping, all of which were associated with his fear of returning to India. In support of his application, Mr. Singh filed a report from a psychologist which states that he suffered from post-traumatic anxiety and depression.
[7] Mr. Singh asserted that he was well-established in Canada, having been in the country for nine years. He further stated that he had a history of stable employment, sound financial management, integration into the community, and professional and linguistic study in Canada, as well as a good civil record.
[8] On July 23, 2002, Mr. Singh was interviewed by a representative of Citizenship and Immigration Canada. He was told that he could apply for a Pre-Removal Risk Assessment (PRRA) and he did so. Although the PRRA decision is dated November 1, 2002, Mr. Singh says that he was only advised on January 13, 2002 that his PRRA application had been unsuccessful.
[9] In the meantime, on December 4, 2002, an immigration officer wrote Mr. Singh advising that his H & C application had been denied. Mr. Singh was not provided with the reasons for this decision until January 16th, 2003, in the form of a letter dated January 14, 2003.
[10] On January 20, 2003, Mr. Singh was told that he was going to be removed from Canada on February 19, 2003. On February 6, 2003, this Court stayed Mr. Singh's removal, pending the outcome of this application.
The H & C Decision
[11] The immigration officer makes the following observations in her decision:
· Mr. Singh entered Canada in December 1990 using a forged British passport, escorted by an agent;
· he was determined not to be a Convention refugee in 1991 and his appeal of this decision was denied;
· Mr. Singh's application under DROC (Deferred Removal Orders Class) was refused in March 1995;
· Mr. Singh is deemed to be under a deportation order; and
· Mr. Singh was arrested and released on a peace bond in 1998 with terms and conditions.
[12] The immigration officer then goes on to note that:
· Mr. Singh is married with no children, he left his parents and four siblings behind in India and has no close relatives in Canada;
· the psychological report gives the professional opinion that Mr. Singh is suffering from post-traumatic anxiety - the officer notes that Mr. Singh attended one session with the Psychologist, and that there was no follow-up or referral for ongoing treatment;
· the IRB addressed Mr. Singh's fear of return to his country at length, and concluded otherwise;
· the PRRA rendered a negative decision;
· Revenue Canada assessments for 1997, 1998, 1999 and 2001 were noted, along with the observation that Mr. Singh's work permit expired in 1995, and that he had been engaged in unauthorized employment contrary to the terms of his bond; and
· Mr. Singh had entered Canada on a forged passport, and that the officer was not satisfied with his true identity
[13] The immigration officer concluded that there were insufficient H & C grounds to warrant granting the application for exemption, as Mr. Singh would suffer no unusual, undeserved, or disproportionate hardship if he was required to leave Canada and return to India, where he had a wife and family.
Issues
[14] Mr. Singh raises four issues on this application:
1) Did the immigration officer err by ignoring and misinterpreting evidence?
2) Did the immigration officer take into account irrelevant matters in reaching her decision?
3) Did the immigration officer err in dismissing the H & C application because she found that Mr. Singh was not well-established, ignoring relevant and ample evidence of establishment? and
4) Did the immigration officer breach the duty of fairness by failing to disclose the risk assessment documents relied upon to Mr. Singh, and by depriving him of the opportunity to respond to the assessment prior to reaching her decision?
Standard of Review
[15] The standard of review governing decisions of immigration officers in relation to H & C applications is reasonableness simpliciter. (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817)
[16] In Canada (Director of Investigation and Research) v. Southam Inc., [1997 1 S.C.R. 748, Iacobucci J. described an unreasonable decision as one:
... that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
[17] With this understanding of the standard of review, I turn now to the issues raised by Mr. Singh.
Analysis
Issue 1: Did the immigration officer err by ignoring and misinterpreting evidence?
[18] Mr. Singh argues that the immigration officer minimized the importance of the psychological report submitted with his H & C application. He further contends that the immigration officer misconstrued the reasons of the IRB when she found that the Board had concluded that Mr. Singh did not have a subjective fear of persecution in his home state. Finally, Mr. Singh says that the immigration officer fettered her discretion when she relied on decisions of the IRB and the risk assessment officer.
[19] I am not persuaded that the immigration officer committed a reviewable error in relation to her treatment of the psychological report. The immigration officer considered the record carefully. She was alive to, and aware of the risks to Mr. Singh's psychological and physical well-being. I cannot say that her conclusions in this regard were unreasonable.
[20] Insofar as the officer's reliance on the conclusions of the IRB is concerned, a review of the Board's decision discloses that Mr. Singh's refugee claim was refused because the Board found that Mr. Singh had a valid internal flight alternative. The Board made no finding as to the bona fides of Mr. Singh's subjective fear of persecution. Thus it appears that the immigration officer did misconstrue the evidence before her in this regard.
[21] Given my conclusion that there are other reasons for setting aside the immigration officer's decision, I do not need to consider whether this error, by itself, was sufficiently material to warrant the Court's intervention.
[22] The question of the officer's reliance on the risk assessment will be addressed when I deal with issue 4.
Issue 2: Did the immigration officer take into account irrelevant matters in reaching
her decision?
[23] Mr. Singh submits that the immigration officer committed a reversible error when she considered Mr. Singh's lack of identity documents at this stage in the H & C process. According to Mr. Singh, this is an irrelevant consideration during the assessment as to whether sufficient H & C considerations exist to warrant an exemption. Consideration of the identity issue should have been reserved to the second phase of the process dealing with the admissibility of the applicant.
[24] Given that the immigration officer was in receipt of the PRRA assessment, Mr. Singh says that this error is all the more egregious as the immigration officer should have been aware that Mr. Singh's identity would have had to have already been satisfactorily established.
[25] Once again, I am not persuaded that the immigration officer acted unreasonably in considering issues relating to Mr. Singh's identity. While the identity of an applicant will be a central issue in the admissibility phase of the process, it does not mean that it is necessarily irrelevant at the first stage. The Ministerial guidelines governing H & C applications mandate that immigration officer should consider an application in light of all of the information known to the Department. In my view, it was not unreasonable for the immigration officer to do so.
Issue 3: Did the immigration officer err in dismissing the H & C application because she found that Mr. Singh was not well-established, ignoring relevant and ample evidence of establishment?
[26] Mr. Singh submits that the immigration officer ignored ample evidence of his establishment in Canada. He refers to the general establishment guidelines that should be assessed on such an application (6.2 of Chapter IP 5 of the Inland Processing Manual), and explains how he says he meets each criteria. By concluding that he was not sufficiently established, Mr. Singh submits that the officer must have ignored relevant information, and therefore erred in law.
[27] Given the deferential standard of review afforded to decisions of H & C officers, I am not persuaded that intervention is warranted in this regard. The officer was entitled to weigh the evidence before her. Although Mr. Singh pointed to factors that may have suggested a different result, the officer's decision was open to her on the evidence. In particular, the officer noted that (1) Mr. Singh is married and his wife and siblings all live in India; (2) neither Mr. Singh's wife nor his immediate family have experienced any difficulties with the Indian authorities in his absence; (3) Mr. Singh attended only one session with the psychologist; and (4) Mr. Singh worked after his work permit had expired and was therefore in breach of the terms of his bond. It was not unreasonable for the officer to have arrived at the decision that she did on the basis of all of these factors.
Issue 4: Did the immigration officer breach the duty of fairness by failing to disclose the risk assessment documents relied upon to Mr. Singh, and by depriving him of the opportunity to respond to the assessment prior to reaching her decision?
[28] It is common ground that Mr. Singh was not provided with a copy of the negative PRRA report until after the decision had been made with respect to his H & C application.
[29] Mr. Singh submits that the immigration officer breached the duty of fairness owed to him by failing to disclose the risk analysis report to him for comment. The immigration officer referred to the negative PRRA report as one of the factors that she considered in reaching her decision to reject Mr. Singh's H & C application. Mr. Singh relies on the decision of the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 as authority for the proposition that the failure of an immigration officer to provide an H & C applicant with a copy of a risk assessment, and to allow the applicant the opportunity to respond to the findings therein, prior to rendering a decision for landing on H & C grounds, constitutes a breach of procedural fairness.
[30] The respondent submits that there was no obligation on the immigration officer to give Mr. Singh the opportunity to comment on the findings of the PRRA officer prior to delivering her decision, since there is no indication that the immigration officer relied on the PRRA decision. The respondent contends that the immigration officer did her own, independent, assessment of risk, and referred to the PRRA decision only as chronological or background information.
[31] I am of the view that the failure of the immigration officer to provide Mr. Singh with a copy of the PRRA, and to give him the opportunity to comment on the findings of the risk assessment, in advance of making her decision on his H & C application was unfair to Mr. Singh. As a result, the decision of the immigration officer should be set aside.
[32] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada concluded that H & C applicants are owed more than a minimal level of procedural fairness. Considering a number of factors, including the exceptionally serious ramifications that negative H & C decisions can have for an applicant, the Court observed:
Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.
[33] In Haghighi, the Federal Court of Appeal was asked to determine whether, in cases where an H & C claim is based, at least in part, on a fear of persecution in an applicant's country of origin, an immigration officer is required to disclose a negative risk assessment report received from another officer to the applicant, and to provide the applicant with an opportunity to respond to the assessment before the final H & C decision is made.
[34] In responding to this question, Justice Evans noted that immigration officers are likely to give "decisive weight" to the opinions of risk assessment officers, as a result of their relative expertise in assessing risk. Justice Evans also pointed out that if an applicant is not given the opportunity to respond to the risk assessment, the influence that submissions made by the applicant may have on the decision-maker is likely to be greatly diminished by the risk report. He concluded by stating:
In my opinion, the duty of fairness requires that inland applicants for H & C landing under subsection 114(2) be fully informed of the content of the PCDO's risk assessment report, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant.
[35] I do not accept the submission of the respondent that the immigration officer did her own independent assessment of risk, and referred to the PRRA decision only as chronological or background information. Read in the context of the reasons as a whole, it is clear that the negative PRRA decision was one of several factors that the officer considered in reaching her determination that Mr. Singh's H & C application would fail. Given the influential nature of risk assessments, fairness required that Mr. Singh be afforded the opportunity to comment on the PRRA report prior to a decision being made with respect to his H & C application.
[36] For these reasons, the decision of the immigration officer refusing Mr. Singh's H & C application should be set aside, and the matter remitted to a different immigration officer for reconsideration.
Certification
[37] Neither party has suggested a question for certification, and accordingly none will be certified.
ORDER
1. The decision of the immigration officer is set aside, and Mr. Singh's application for an H & C exemption is remitted to a different immigration officer for reconsideration; and
2. No serious question of general importance is certified.
"Anne L. Mactavish"
Judge
OTTAWA
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20040204
Docket: IMM-6526-02
BETWEEN:
AMARJIT SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6526-02
STYLE OF CAUSE:
AMARJIT SINGH v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 28, 2004
ORDER AND REASONS FOR ORDER:
Mactavish J.
DATED: February 4, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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David Gormon Barrister and Solicitor Toronto, Ontario |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |