Federal Court Decisions

 

 

 

 

Date: 20070508

Docket: IMM-2834-06

Citation: 2007 FC 498

Ottawa, Ontario, May 8, 2007

PRESENT:     The Honourable Mr. Justice Beaudry

 

 

BETWEEN:

ANN SANDRASEGARA

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of an Immigration Officer (the Officer) dated April 24, 2006, refusing the applicant’s application for permanent residence on humanitarian and compassionate (H & C) grounds pursuant to subsection 25(1) of the Act.

 

 

 

ISSUE

[2]               Did the Officer commit a reviewable error in determining that there were insufficient humanitarian and compassionate grounds to approve the applicant’s application?

 

[3]               The response to this question is negative. The present application for judicial review will therefore be dismissed.

 

BACKGROUND

[4]               This is the story of a dynamic, industrious and independent young Tamil woman from northern Sri Lanka who fled her homeland with her family in June 1994, when she was only sixteen years old. The family was granted refugee status in France, where she obtained a ten-year Carte de Resident in October 1994.

 

[5]               At age 19, the applicant left France on December 22, 1996 and arrived in Canada at Mirabel Airport, where she claimed refugee status. Her refugee claim was deemed not credible on October 4, 2000. On October 30, 2000, she submitted and H & C application, which was refused on February 10, 2003. The applicant submitted a second H & C application on August 26, 2003, which was not granted on April 24, 2006, as a result of which, the applicant brings the present application of leave for judicial review.

 

DECISION UNDER REVIEW

[6]               The officer reviewed the circumstances of the applicant’s H & C application and decided that an exemption would not be granted for the following reasons:

a)      the choice to leave France, after having lived in this safe haven for two years with her immediate family was the applicant’s choice;

b)       the fact that the refugee process in Canada took so long is not an unusual circumstance nor is it unusual for a refugee claimant under similar circumstances to integrate the community during such an interval. In this regard, the applicant has taken courses, attended church and done volunteer work while holding down steady employment since her arrival in Canada. Also, she has made some investments and is highly regarded not only by her employer but by those with whom she has interacted on a regular basis;

c)      the degree of integration is not significant such that the applicant or her employer would suffer undue and undeserved or disproportionate hardship should she be required to make her application for permanent residence from abroad and more notably from France, where the self-serving letter of the applicant’s mother does not confirm that the applicant is unable to return to that country; or from Sri Lanka, where she is a citizen;

d)      the negative PRRA assessment when compared with the applicant’s stated risk does not support the claim that the applicant would be subjected to a personalized risk upon returning to Sri Lanka. The applicant did not rebut this finding in her further submissions;

e)      the applicant is a mature, independent and responsible young woman who has exemplified stellar qualities during her life in Canada, qualities which can only stand her in good stead as she resettles in Sri Lanka and do not warrant an exemption from making her application through the normal channels; and

f)        the fact that the applicant would no doubt need to adjust to life in Sri Lanka, and would not be with her immediate family in Sri Lanka is not a factor to grant an H & C application. Indeed, the applicant has lived in Canada away from her immediate family and with no ties to her many extended blood relations who reside in Canada and that without undue hardship.

 

[7]               Having thus no personalized risk and having demonstrated tremendous courage in settling in Canada, the Officer was not satisfied that she would suffer undue, undeserved nor disproportionate hardship to go through the normal channels to obtain permanent residence status in Canada.

 

RELEVANT LEGISLATION

[8]               The H & C provisions for immigration to Canada are set out in subsection 25(1) of the Act, which states as follows:

 

[9]               The parties draw the Court’s attention to the following provisions of the Immigration Manual, Chapter IP05, 11.2, regarding factors the Officer may consider when assessing the applicant’s degree of establishment in Canada. It is reproduced in its entirety below:

 

[10]           The distinction between the PRRA risk assessment and that required under an H & C evaluation is also discussed in the Immigration Manual, Chapter IP05, 13.6, as follows:

 

 

ANALYSIS

Standard of review

[11]           This Court has followed the principles set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and held that the standard of review for H & C decisions is reasonableness simpliciter.  More notably, in Agot v. Canada (Minister of Citizenship and Immigration), 2003 FCT 436, [2003] F.C.J. No. 607 (F.C.) (QL) Justice Carolyn Layden-Stevenson wrote at paragraph 8:

It is useful to review some of the established principles regarding H&C applications. The decision of the ministerial delegate with respect to an H&C application is a discretionary one: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). The standard of review applicable to such decisions is that of reasonableness simpliciter: Baker. The onus, on an application for an H&C exemption, is on the applicant: Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 94, [2003] F.C.J. No. 139 per Gibson J. citing Prasad v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 91 (F.C.T.D.) and Patel v. Canada (Minister of Citizenship and Immigration) (1997), 36 Imm.L.R. (2d) 175 (F.C.T.D.). The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (Legault). The ministerial guidelines are not law and the Minister and her agents are not bound by them, but they are accessible to the public and the Supreme Court has qualified them as being of great assistance to the court: Legault. An H&C decision must be supported by reasons: Baker. It is inappropriate to require administrative officers to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.).

 

[12]           In the present matter, the applicant advances four main arguments against the Officer’s decision, which are discussed under the following subheadings:

 

i)          Hardship in returning to Sri Lanka

[13]           The applicant states that the Officer ignored relevant facts about the likely hardship she would face upon returning to Sri Lanka, a country that is anything but like Canada, such that she could resettle there with ease. The PRRA Officer did recognize that there is an ongoing armed conflict between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE). While the applicant does not face a personalized risk, she is a young Tamil woman who would be vulnerable particularly in light of the fact that she left there at age 16 and would return without the support and presence of her immediate family.

 

[14]           In addition, the applicant argues that the Officer erred in law in treating the PRRA assessment as determinative of the issue of hardship, by simply adopting the PRRA risk assessment in the H & C risk evaluation. This is contrary to section 13.6 of the guidelines, Immigration Manual Chapter IP05, which specifically highlight the distinction that ought to be made between these two types of risk assessments.

 

[15]           The respondent submits that the Officer did not err in finding that the applicant did not face a personalized risk or undue hardship in Sri Lanka. It is merely coincidental that these findings are identical to the PRRA Officer’s conclusions. Both officers recognized that women in Sri Lanka are especially vulnerable however, “there are a number of institutions that assist women if their rights are infringed upon.” Moreover, the Officer did not simply adopt the PRRA findings in this regard but was sensitive to the applicant’s specific circumstances, as evidenced by the following passage from the decision:

[…] Subject is a mature, responsible and certainly independent young woman, fine qualities that can help her to resettle in Sri Lanka as efficiently as she has done here in Canada and perhaps even better given her citizenship status, her determination and her experience.

 

 

[16]           A careful reading of the decision and the PRRA analysis reveals that there was no confusion or error in the two risk assessments. The H & C finding that there was no personalized risk was not a mere adoption of the conclusions of the PRRA evaluation. The fact that both assessments arrived at similar conclusions does not undermine the validity of these findings particularly when the applicant chose not to contest such findings of lack of personalized risk when the opportunity presented itself for further submissions. That is why I am not convinced by the arguments advanced by the applicant that the Officer erred in law in this regard. Based on the material evidence, the conclusions of the Officer were not unreasonable.

 

            ii)         No significant establishment

[17]           The Officer recognized the evidence in support of the applicant’s establishment in Canada, yet concluded that none of this amounted to a significant degree of establishment to warrant the granting of an H & C application. This, the applicant argues is contrary to the list of questions to guide H & C Officers as set out in section 11.2 of Chapter IP05 of the Immigration Manual. The applicant cites the five questions that would weigh in favour of the applicant’s establishment in Canada. This makes it even more egregious that the Officer provides no explanation in her reasons for her findings in this regard.

 

[18]           However, the IP05 section 11.2 sets out a two-part process to guide H & C Officers in their assessment of the degree of establishment in Canada. In the first part, the section sets out the situations in which establishment may arise as a factor to consider.  These include the following:

The applicant's degree of establishment in Canada may be a factor to consider in certain situations, particularly when evaluating some case types such as:

• parents/grandparents not sponsored;

• separation of parents and children (outside the family class);

• de facto family members;

• prolonged inability to leave Canada has led to establishment;

• family violence;

• former Canadian citizens; and

• other cases.

 

[19]           It is only once the first part is established that the Officer may go on to consider the second part which consists of the five questions highlighted by the applicant. The respondent points out that the applicant does not fall in any of the above-mentioned categories and hence the Officer did not err in not providing reasons with respect to the five questions highlighted by the applicant.

 

[20]           I share the respondent’s view as set out by this Court that establishment in Canada only comes into play when one of the categories are clearly identifiable and when it comes about because of reasons that are not within the applicant’s control. I agree also that this is not the case here. The applicant’s presence in Canada was by choice. The delay in the administration of her H & C application is not inordinate or unusual such that the applicant is prejudiced by this. Indeed the applicant did not object to the delay in the processing of her file, which favoured her ability to settle in Canada.

 

[21]            Finally, I share the respondent’s view that these ministerial guidelines are but that, guidelines, which as Justice Robert Décary noted in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, are neither mandatory nor exhaustive. They serve to provide some rationality and consistency in the application of the provisions of the Act, as set out in this particular instance, in subsection 25(1). I do not therefore find that the decision of the Officer with respect to the degree of establishment of the applicant in Canada was unreasonable.

 

 

            iii)        Misapprehension of positive characteristics

[22]           The applicant argues that the Officer used all the applicant’s laudable qualities against her and this was not only unreasonable but also perverse. Instead of accepting that the applicant has done well in Canada, the officer reasoned that the applicant can summon up the same formidable qualities to face and overcome the initial resettlement adjustments that would undoubtedly await her in Sri Lanka. The applicant does not face a personalized risk upon returning to Sri Lanka.

 

[23]           The applicant is inviting this Court to reweigh the evidence and arrive at a different conclusion. That is an untenable proposition. While I may not agree with the findings of the Officer I have to admit that the decision is based on findings of fact and from which the conclusions are perfectly reasonable based on the material evidence.

 

iv)        Return to France

[24]           The Officer rejected the applicant’s mother’s letter as self-serving and without concrete proof that the applicant cannot return to France should she so desire. The applicant argues that this is unreasonable because the Officer had under consideration the applicant’s French travel document, which expired in 1997 and the applicant’s permanent residence card, which expired on October 25, 2004 but chose to ignore these two documents.

 

[25]           However, the Officer did not ignore the applicant’s French identity documents. Neither document indicates that the applicant has forever extinguished her right of return to France. Rather than a self-serving letter, the applicant could have provided concrete proof in this regard, such as the French legislative authorities regarding the expiration of French residency.  I note also that the reasons expressed in the applicants affidavit as to the reasons why the mother's letter was sought was not in front of the H & C’s Officer.

 

[26]           I agree that it was reasonably open to the Officer to come to the conclusions arrived at. Moreover, the applicant left France voluntarily after having lived there in asylum from Sri Lanka for two years. Given these circumstances, the Officer’s decision was not unreasonable.

 

[27]            The parties did not submit questions for certification and none arise here.

 

JUDGMENT

 

THIS COURT ORDERS that:

1. The application for judicial review is dismissed.
2. No question is certified.

 

 « Michel Beaudry »

 

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-2834-06

 

STYLE OF CAUSE:                          ANN SANDRASEGARA and

                                                            MINISTER OF CITIZENSHIP AND                                                                                              IMMIGRATION

                                                           

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      May 3, 2007

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Beaudry J.

 

DATED:                                             May 8, 2007

 

 

 

APPEARANCES:

 

Hadayt Nazami                                                                         FOR APPLICANT

                                                                                               

 

Sharon Stuart Guthrie                                                               FOR RESPONDENT

                                                                                               

SOLICITORS OF RECORD:

 

Jackman & Associates                                                              FOR APPLICANT

Toronto, Ontario

 

John Sims, Q.C.                                                                       FOR RESPONDENT

Deputy Attorney General of Canada

Toronto, Ontario