Federal Court Decisions

Date: 20050601

Docket: IMM-4002-04

Citation: 2005 FC 793

Ottawa, Ontario, this 1st day of June, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

MARTIN EZEKIEL PASCAL

Applicant

- and -

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]    This is an application for judicial review of a decision of an immigration officer (the "officer"), made on March 25, 2004 , wherein it was determined that there were insufficient humanitarian and compassionate ("H & C") and public policy grounds to warrant processing the applicant's permanent residence application from within Canada and to permit an exemption from subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").

[2]    The applicant requested that the Court review and set aside the decision of the officer that the applicant is not to receive an exemption to apply from within Canada for permanent resident status pursuant to humanitarian and compassionate considerations.

Background

[3]    The applicant, Martin Ezekiel Pascal (the "applicant") is a citizen of Grenada who entered Canada on October 8, 1999. He subsequently made a claim for refugee status. His claim was denied in November 2001.

[4]    The applicant submitted an H & C application in January 2002. That was denied on January 14, 2003. He filed a second H & C application on January 30, 2003.

[5]    On February 4, 2004, the applicant was invited to update the information regarding his H & C application. The applicant's updated H & C application and supporting information was received on March 3, 2004.

[6]    On March 25, 2004, the officer reviewed the applicant's H & C application and refused it that same day.

[7]    This is the judicial review of that decision.

Reasons of the Officer

[8]    The officer stated at page 5 of the record:

DECISION AND RATIONALE

The applicant's 4 children currently reside in Trinidad with their mother. Information is not before me to show that the applicant is supporting these children or that they are being abused by their step father in Trinidad. The applicant has been away from these children for over 4 years now and the applicant has not evidenced how he has maintained a relationship with them.

Information is not before me to show that the applicant will be unable to pursue a similar career in Grenada. Counsel states that he is a skilled brick mason and also a commercial driver. It would be reasonable to state that these skills may be in demand in most countries and that he may benefit from his Canadian training and experience. Counsel also adds that the applicant has over 17 years experience in his particular field.

I note that the applicant has suffered an injury in Canada, and also note that the treatment which he is receiving is successful. Information is not before me to show that the applicant will be unable to obtain this treatment in Grenada.

The applicant has some savings in Canada as demonstrated by his bank book. This savings should be helpful in his reintegration process in Grenada.

Subject lived in Grenada and in Trinidad for most of his adult life. He should be familiar with the local customs and procedures and it is reasonable to expect that he should be able to reintegrate with minimal difficulty.

Subject's ability to become establish [sic] in Canada does not preclude him from applying for an immigrant visa from outside Canada in the normal manner. I am not satisfied that his length of time spent in Canada was due to his inability to leave Canada, nor was it as a result of civil unrest or a civil war in his country.

After considering all the evidence presented, I am not satisfied that subject will experience hardship which is unusual, undeserved and disproportionate if she [sic] is asked to leave Canada and apply for an immigrant visa from outside Canada in the normal manner. Request for a waiver of s.s. 11(1) of IRPA is refused.

D. Jonas

Issues

[9]    The applicant framed the issues as follows:

1.          Did the officer ignore evidence in the applicant's application which formed the basis of the request for humanitarian and compassionate consideration?

2.          Did the officer err by finding that the applicant would not face any hardship if he were to return to Grenada to process his application?

3.          Did the officer err by basing his findings on irrelevant considerations?

[10]                        The respondent framed the issue as follows:

Was the officer's assessment that insufficient H & C grounds existed to warrant special relief on the applicant's behalf reasonable?

Applicant's Submissions

[11]                        The applicant submitted that there are certain guidelines that officers must follow with respect to their discretion pursuant to H & C applications.

[12]                        The officer in this case failed to act fairly. The reasons disclosed that the application was not properly examined, nor were the reasons relied upon by the officer considered in the context of the guidelines. The officer's failure to address the genuineness of the applicant's fear of return to Grenada before determining that he would not face any personal risk, is a reviewable error of law.

[13]                        The applicant submitted that the guidelines provide that requests for visa exemptions should be examined by the decision maker who is alert to the hardship the negative decision would impose upon the applicant or close family members.

[14]                        The officer fettered his discretion by taking into account irrelevant evidence as it related to the merits of the application before him. The applicant had provided the officer with evidence as it related to his employment, social and emotional ties to Canada and his fear of return to Grenada. The applicant alleged that he had included submissions from his immigration consultant that outlined the hardship he would be subjected to if he was forced to return to Grenada.

[15]                        While the officer was free to deny the application based on the information before him, he should not have done so on the basis of unsupported allegations that the applicant faced no risk upon returning to Grenada. Further, the officer failed to provide the applicant with an opportunity to respond to any of his concerns.

[16]                        The applicant further submitted that the officer's statement that ". . . I am not satisfied that subject will experience hardship which is unusual, undeserved and disproportionate if she is asked to leave Canada . . .", despite the applicant being male, is indicative of the officer giving the application only a cursory review.

[17]                        The applicant submitted that the officer also failed to refer to the issue of the applicant's establishment in Canada.

Respondent's Submissions

[18]                        The respondent submitted that the appropriate standard of review of an H & C decision is reasonableness simpliciter (see Lee v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 507).

[19]                        The respondent submitted that an H & C review is highly discretionary. The onus is on the applicant to satisfy the officer that his personal circumstances are such that "unusual and undeserved or disproportionate hardship would result if he is required to leave Canada and apply for a visa in the normal manner. The officer weighed the totality of the evidence and reasonably concluded that there were insufficient H & C grounds to warrant an exemption from applying for a visa from outside Canada. The applicant asked this Court to reweigh the alleged hardship he perceived he would have to endure if he is required to return to Grenada for landing.

[20]                        The respondent submitted that the applicant has submitted that the officer fettered his discretion by taking into account irrelevant considerations but has not indicated what those alleged considerations were.

[21]                        The respondent further submitted that the applicant's H & C application was based upon his establishment in Canada, an injury that occurred while in Canada and the treatment required for same, and the situation of his children in Trinidad. He made no mention of any danger to his life or personal risk upon return to Canada. None of the documents filed in support of the H & C application relate to any alleged danger to the applicant's life or personal risk upon return to Grenada.

[22]                        The respondent submitted that as to the alleged submission from the immigration consultant, (i) they are contained in an undated letter, (ii) the applicant provided no evidence (for example proof of service) that the submissions were submitted at all, (iii) the officer confirmed that the undated letter did not form part of his file and did not form part of the submissions that were before him for his consideration, and (iv) the applicant informed Etobicoke CIC that his counsel was Clement Edwards at Clem's Paralegal, not Cheryl B. Smith at Mavaacs Consulting. As the applicant failed to present any evidence of an alleged danger to his life or of a personal risk upon return to Grenada, the officer did not err in his assessment of the application.

[23]                        The respondent submitted that the officer was well aware of the applicant's gender and confirmed that the reference to "she" in the last paragraph of the decision and rationale section of the H & C report was simply a typographical error. The officer properly reviewed and considered all of the material that was before him.

Relevant Statutory Provisions

[24]                        Sections 11 and 25 of IRPA state in part as follows:

11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 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.

11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi. 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.