Date: 20040531
Docket: IMM-4899-03
Citation: 2004 FC 785
OTTAWA, Ontario, this 31st day of May 2004
PRESENT: THE HONOURABLE MR. JUSTICE PHELAN
BETWEEN:
UUDO KLAIS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant bases his judicial review on whether the Respondent properly denied his Humanitarian and Compassionate ("H & C") Application. The issues raised include the effect and reliance placed on government policies and the proper assessment of the loss of a business establishment and of an intimate relationship as a grounds of "hardship" justifying exemption from applying for permanent residence from outside Canada.
Background
[2] Mr. Klais is a citizen of Estonia who arrived as a visitor to Canada in July 1998. He claimed refugee status which was denied and for which leave for judicial review was also denied.
[3] He was issued a conditional removal order under the previous Immigration Act. During the intervening period to the date of his latest application to remain in Canada he became the owner of his own fashion studio currently employing four people and has invested in excess of $200,000 in his business. He has also more recently developed a same sex relationship.
[4] Mr. Klais filed an application for consideration on humanitarian and compassionate grounds based upon his business and claimed qualification under the "establishment guidelines". He also claimed that he was in a same sex relationship and further that he feared persecution by the Estonian Nazi Party if he were returned to his home country.
[5] He also filed a Pre-Removal Risk Assessment application based on this fear. That application was denied , his judicial review was denied and is the subject of separate reasons in IMM-9756-03.
[6] The H & C application was denied based on the Immigration Officer's conclusion that he would not suffer "undue, disproportionate and undeserved hardship" if he were to apply for permanent residence from outside Canada.
[7] The Officer made the following findings in respect of his ties to this country and to Estonia, his same sex relationship and his level of establishment in Canada:
Subject's level of establishment in Canada is acknowledged. The issue at hand however has to do with the level of hardship which would be experienced by the subject if asked to leave Canada and apply from outside. The fact that subject is able to establish himself in Canada does not preclude him from the normal processing requirements (i.e. applying for and obtaining permanent residence before coming to Canada). I note that the subject established his business while he was aware that he was under a removal order and the consequences of that order.
I acknowledge that subject's stated fear of returning to Estonia and the hardship that it poses. This case was referred to a PRRA Officer for an expert opinion. I am in agreement with that Officer's opinion. I note also that the subject had received negative decisions from both the Refugee Board and the PDRCC Officer.
Issues
[8] The Applicant raises the following grounds:
a) Failure of the Officer to assess the case in accordance with the departmental guidelines particularly on the issue of the Applicant's establishment in Canada.
b) Failure to disclose the basis for the decision.
c) Failure to assess the impact of removal on the Applicant.
Analysis
Issue 1 - Guidelines
[9] While the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 considered the importance of guidelines, nothing in that decision departs from the principle that guidelines are a "rule of thumb" which cannot be applied automatically so as to fetter discretion . See: Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722.
[10] I know of no authority for the argument advanced by the Applicant that an immigration officer must refer to the relevant guidelines in the decision of a H & C application. None was cited.
[11] A review of the decision confirms that the Officer did consider the length of time the Applicant was in Canada, his business, his investment, his skills, abilities and initiative as well as his other links to Canada. However the degree of establishment is not determinative of an H & C application. I can find no reviewable error on this issue.
Issue 2 - Adequacy of Reasons
[12] The Applicant complains that the Officer did not answer his own question about what level of hardship the Applicant would experience. On that basis and the failure to properly analyse the issue of "establishment", the Applicant says that the reasons are insufficient.
[13] With respect, that argument does not take into account the whole of the reasons and relies on snippets of the reasons to stitch together an argument that the reasons are insufficient.
[14] The Officer acknowledged all the elements of hardship but simply concluded that they did not, individually or cumulatively rise to the level justifying exemption from the normal processing requirements.
[15] The Applicant placed considerable reliance on the fact that he had established a business and therefore the loss, and consequently the hardship, was greater than situations where some other applicant is merely losing a job as an employee.
[16] To suggest that his lost value of the business is a ground for exemption because that loss is greater than losing a mere job, is to ignore that those losing a job may have families to support and that there is not one law for the wealthy and another for the poor.
[17] The Officer also considered the hardship arising from separation from the Applicant's same sex partner. The Officer expressed concern for the depth of that relationship prompting a perfectly reasonable inquiry as to evidence of a divorce from his Estonian wife. There is nothing improper in this line of inquiry.
[18] The Applicant's partner's own evidence raises the issue of the nature and depth of the relationship and concludes with a hope that the relationship might develop into something of permanence. It is obvious that any such relationship is at an early stage and there is no evidence of permanence or likely permanence.
[19] It was open to the Officer to reach the conclusions she did with respect to the hardship of separation on the Applicant and his partner.
[20] On the basis of the above conclusions, I find that the Officer committed no reviewable error.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. The application for judicial review is dismissed.
2. No question will be certified.
(s) "Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-4899-03
STYLE OF CAUSE: Uudo Klais v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Phelan
DATED: May 31, 2004
APPEARANCES:
Mr. Lorne WaldmanFOR THE APPLICANT
Mr. Marcel LaroucheFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Waldman & AssociatesFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada