Ottawa, Ontario, June 14, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ALEKSANDAR TOROMANOSKI
and
EMERGENCY PREPAREDNESS and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review brought by two brothers, Ivan Toromanoski and
Aleksandar Toromanoski, from companion Humanitarian and Compassionate (H & C) decisions. They had each previously made refugee claims which were dismissed by the Immigration and Refugee Board (Board) on June 24, 2003. An application for leave from that decision was dismissed by this Court on October 16, 2003. The Applicants have also each had the benefit of two separate Pre-Removal Risk Assessments (PRRA) none of which were successful. The Applicants have remained in Canada since August 2005 under the protection of a stay Order rendered by this Court on August 22, 2005.
Background
[2] The Applicants came to Canada from Macedonia in 2001 as visitors. When the political and military situation in Macedonia deteriorated, they elected to stay in Canada and, to that end, they pursued their claims to refugee protection. Those claims to protection were based on the risk that they would be prosecuted in Macedonia for evading compulsory military service and because they were in jeopardy from a blood feud. Those claims were rejected by the Board and later in the context of the above-noted risk assessments.
[3] The Applicants’ claims to H & C relief were not unexpectedly focussed on their establishment in Canada since their arrival six years ago. Their connections to Canada have, indeed, been admirable and include the successful pursuit of post-secondary studies and the maintenance of gainful and steady employment. They have both made considerable gains in learning English and in integrating into Canadian society. They also have a close relationship with family living here albeit that their parents continue to live in Macedonia. It was largely on the strength of these considerations that H & C relief was sought but, at the same time, the Applicants’ continued to rely upon the risk issues that had earlier been the focus of their refugee and risk assessment applications.
The H & C Decisions
[4] The H & C decisions contain a reasonable summary of the Applicants’ immigration histories and the evidence bearing on the issue of their establishment in Canada. The H & C Officer (Officer) invited the Applicants to update their claims shortly before the decisions were rendered and they responded by providing additional references and current financial, employment and academic records.
[5] After acknowledging their commendable efforts to become established in Canada, the Officer found that the Applicants had not met the burden of showing that the negative effects of a return to Macedonia were unusual and disproportionate. The degree of establishment they had obtained was noted to be no more than what could be reasonably expected by persons taking full advantage of the available immigration processes. The Officer also observed that the Applicants’ academic and language skills would serve them well in Macedonia and that options remained open to them to return to Canada either on student visas or through other existing immigration programs. The Officer considered the risk issues that had been the subject of the earlier reviews and came to the same conclusion, that is, that the Applicants would not be at risk in Macedonia.
Issues
[6] (a) What is the appropriate standard of review for the issues raised in this application?
(b) Did the Officer err in his consideration or interpretation of the available evidence?
Analysis
[7] The arguments advanced on behalf of the Applicants were concerned with the Officer’s treatment and assessment of the evidence under consideration. The issues raised in this case bring it within the standard of review analysis in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 where the Court held at para. 62:
62 These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather [page 858] than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[8] The Applicants’ primary challenge to the H & C decisions was based on a concern that the Officer failed to consider a number of documents which were submitted to supplement their original applications. Although there are a couple of obvious factual errors in one decision relating to academic standing and current employment, it is clear from a reading of the decision that the Officer did consider the documents which the Applicants had tendered. The decisions refer to that package of material as having been received and reviewed and one decision also incorporates some of the content of those documents. For instance, in the case of Aleksandar Toromanoski the decision accurately identifies his current employer which is information that was contained within the supplemental submission. The factual errors that are apparent in the decision concerning Ivan Toromanoski involve matters that would not have influenced the final decision (ie. a higher grade average and a failure to note the name of his current employer). In the result, I do not accept that the Officer committed any reviewable error in the assessment of the Applicants’ supplemental submission.
[9] The remainder of the Applicants’ criticisms of the H & C decisions are directed at the role of the Officer in weighing and interpreting the evidence. Certainly, there is no indication that the Officer overlooked material evidence or drew any unreasonable inferences. In addition, the decision properly identifies the legal test for the granting of H & C relief.
[10] At the end of the day, the Officer found that the Applicants’ connections to Canada – as laudable as they were – were insufficient to justify their landing in Canada outside of regular immigration channels. That was a reasonable conclusion to draw from the evidence and it is not one that the Court can set aside given the significant deference that is owed to such administrative decisions. Although another more favourable decision might have been made on this record, it is not for the Court to substitute another view in the absence of any errors of law or material errors of fact.
[11] Accordingly, this application for judicial review is dismissed.
[12] Although the Applicants’ indicated that they had no interest in pursuing further judicial recourse, I will allow them five days to submit a question to the Court for a possible appeal should they now wish to do so.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2627-06
STYLE OF CAUSE: IVAN TOROMANOSKI ET AL
v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS ET AL
PLACE OF HEARING: TORONTO, ONTARIO
APPEARANCES:
Ivan Toromanoski FOR THE APPLICANT
Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ivan Toromanoski FOR THE APPLICANT
Mississauga, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario