Ottawa, Ontario, November 9, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Pannu has lived in Canada since 1988, when she moved here from India. After a series of events I will recount below, both of Ms. Pannu’s previous two sponsors were declared inadmissible and deported. She has lived here without status since December 1998, when her work permit expired. In December 2004, Ms. Pannu made her third humanitarian and compassionate application (H&C), hoping to have her application for permanent residence processed in Canada. The immigration officer, Courtnay Petschulat, refused her application in a decision dated November 29, 2005. This is a judicial review of that decision.
FACTS
[2] Ms. Pannu was born in India on February 20, 1965. She married her first husband, a Canadian permanent resident, in India by arranged marriage on March 16, 1986. Her husband, Iqbal Saroya, sponsored her for permanent residence. She was originally declared medically inadmissible, because she suffered from heart disease. However, she was granted a Minister’s Permit under section 114 of the former Immigration Act on August 15, 1988.
[3] However, by the time she arrived in Vancouver in 1988, Mr. Saroya was serving a prison sentence in Toronto for attempted murder. Ms. Pannu moved in with Mr. Saroya’s relatives while he served his sentence. He was paroled in 1991, and thereafter spent his days with his family and his nights in a halfway house as mandated by his parole. Then, he was convicted of three other crimes in 1992 while on parole: aggravated assault, possession of a weapon and assault causing bodily harm. Ms. Pannu continued to live with Mr. Saroya’s family while he served his second sentence.
[4] In 1991, Ms. Pannu had heart surgery in Canada. Mr. Saroya was deported to India in 1995. The couple’s divorce was effective May 16, 1996. Mr. Saroya’s mother apparently convinced him not to contest Ms. Pannu’s divorce application.
[5] From here, Ms. Pannu made several claims to the immigration authorities:
1. H&C Application #1: Ms. Pannu applied for landing on humanitarian and compassionate grounds in 1995. It was denied, and she was instructed to leave Canada by January 13, 1996, when her Minister’s Permit was set to expire.
2. Refugee Claim: She then claimed Convention refugee status in August 1996, arguing Mr. Saroya would find and kill her if she returned to India. She also argued she could not rely on police protection in India, as she risked being raped by them because she was a single woman. The IRB’s Convention and Refugee Determination Division (CRDD) rejected her refugee claim, in a decision dated May 6, 1998. The CRDD panel found there was no nexus between Ms. Pannu’s circumstances and either the Convention refugee definition or the Gender Guidelines. It also found her claims about Mr. Saroya’s threats were contrived for the purpose of her refugee claim.
3. Post-Refugee Claim Review (PDRCC Review): Ms. Pannu argued Mr. Saroya would kill her if she returned to India, and the police would be helpless to protect her as a single woman. This was rejected in September 1999.
[6] Before the PDRCC Review was released, however, Ms. Pannu had met and married her second husband. In October, 1998, she moved from Toronto to British Columbia. On June 27, 1999, she married Guriqbal Singh Pannu, a landed immigrant. He applied to sponsor her for permanent residence on July 17, 1999. Ms. Pannu was granted inland sponsorship the following August. On October 20, 2000, the couple’s daughter Gurneet Kaur Pannu was born.
[7] But Mr. Pannu was subsequently found inadmissible to Canada. He had lied on his application to immigrate, claiming he was the dependent son of a woman who was not his mother. His mother had died in 1987. Mr. Pannu was ordered deported from Canada on September 12, 2001. Ms. Pannu was included in the removal order, and thereafter made another series of claims:
4. Appeal to the Immigration Appeal Division – with Mr. Pannu: The couple appealed the removal order under paragraph 70(1)(b) of the old Immigration Act. That paragraph gave the Board’s Immigration Appeal Division the authority to quash or stay a removal order under its equitable jurisdiction. The Board could consider foreign hardship a permanent resident might face if removed from Canada. Their appeal was dismissed, in a decision dated April 26, 2002.
5. H&C Application and PRRA – with Mr. Pannu: The couple made an H&C application in June, 2002, and applied for a PRRA in June, 2003. Both were refused in January 2004. The couple signed a separation agreement on December 22, 2004.
6. Judicial Review of Negative PRRA Decision – with Mr. Pannu: The couple’s application for judicial review was rejected on November 26, 2004.
7. Refugee Claim #2 – Ms. Pannu only: Ms. Pannu claimed Convention refugee status again on November 12, 2003. Her claim was refused on October 21, 2004, for credibility reasons.
8. H&C Application #3 – Ms. Pannu only: Ms. Pannu made a third H&C application under subsection 25(1) of the IRPA on December 24, 2004. It was refused on November 29, 2005. That is the decision under review in this hearing.
THE IMPUGNED DECISION
[8] While the officer accepted that Ms. Pannu had established herself in Canada to a certain extent, she found “it [was] of a level that is naturally expected of her” (Applicant’s Record, page 9). She also noted that Ms. Pannu’s parents and siblings lived in India, she was not currently employed, and was not self-supporting in Canada. Therefore, she concluded severing ties would not have a harsh enough impact to justify invoking the H&C exemption.
[9] The officer then looked at the Applicant’s various allegations. With respect to risk/hardship, the officer referred to the negative PRRA decision against Ms. Pannu and her second husband (rejected in 2004). The PRRA officer had found the couple had an internal flight alternative available in New Delhi. However, Ms. Pannu claimed that option only existed for the couple. Now that they had separated, Ms. Pannu argued New Delhi was no longer an alternative.
[10] The officer decided Mr. Saroya’s criminal record on its own was not sufficient evidence that he would harm Ms. Pannu if she returned to India. The officer found that none of Mr. Saroya’s convictions involved any harm to Ms. Pannu, and there was no evidence of domestic abuse aside from her own statements and letters from her relatives. The officer found no independent, persuasive evidence that Mr. Saroya had tried to contact Ms. Pannu since their divorce in 1996.
[11] The officer agreed the status of women in India was “not ideal” (Applicant’s Record, page 10). However, evidence about battered women in India was not helpful, as the officer had concluded Ms. Pannu was not a battered woman. The officer disagreed that it was reasonable to infer that Mr. Saroya would locate and harm Ms. Pannu, solely because of his violent history.
[12] The officer also referred to a letter submitted by Ms. Pannu’s father, and found it was not supported by the evidence. In the letter Ms. Pannu’s father informed her that Mr. Saroya had been to his house asking when she might return to India. He wrote her life would be in danger if she returned, and also said she and her daughter would not be able to rely on him for shelter or support in India (Certified Tribunal Record, pages 39-40). The officer assigned little weight to that letter, because it did not come from a disinterested party. The officer also concluded this letter was inconsistent with evidence in her H&C application – specifically, that she had lived with her father before coming to Canada in 1988, and was still in contact with her parents in India.
[13] Overall, the officer was not convinced the alleged hardship would amount to unusual and undeserved or disproportionate hardship.
[14] Regarding the best interests of the child, the officer stated this was an important – but not determinative – factor in the decision. The officer concluded there was no evidence Gurneet’s basic amenities could not be met in India. At her age (she turned six October 20, 2006), she had the ability to adapt. She had attended pre-school at the Khalsa School in Surrey, spoke Punjabi and attended the Canadian Singh Sabha Gurdwara Society with her mother. Finally, the officer noted Gurneet’s extensive family in India, and concluded (Applicant’s Record, page 11):
I have reviewed the country conditions in India and I find that the applicant has failed to establish that a personal and direct serious harm exists to her and her daughter. I also find that the applicant has not established that the general hardships o[f] relocating and resettling to another country would have a significant negative impact to her daughter that would amount to unusual or undeserved or disproportionate hardship.
APPLICANT’S SUBMISSIONS
[15] Ms. Pannu argues the officer did not give any weight to her establishment in Canada. She also claims the officer ignored relevant evidence when concluding she would not face risk if returned to India. Specifically, she disputes the officer’s conclusion that she will be able to rely on her parents for support in India. She claims that despite living with them before coming to Canada, and despite maintaining contact with them, her parents will treat her differently now that she is a divorced woman. In that respect, she claims the officer ignored the evidence that was submitted relating to the treatment of divorced women in India.
[16] Ms. Pannu claims the officer ignored the psychologist’s report, and provided insufficient reasons for dismissing her father’s letter. She also claims the officer applied the wrong test in evaluating the H&C application. She argues the officer used the test appropriate in a PRRA application, that is, whether the claimant faces a risk to life or cruel and unusual punishment, rather than the appropriate test of whether the claimant faces unusual and undeserved or disproportionate hardship.
[17] She also argues the officer incorporated the wrong test when assessing the best interests of her daughter. She cites Arulraj v. Canada (Minister of Citizenship and Immigration), 2006 FC 529 for the principle that it was an error to incorporate the H&C test of “unusual, undeserved or disproportionate” hardship when assessing Gurneet’s best interests. In Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, Mr. Justice Robert Décary wrote at paragraph 9: “…that the concept of ‘undeserved hardship’ is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship.”
[18] Finally, Ms. Pannu submits the officer ought to have considered her potential medical inadmissibility when assessing both her H&C submissions and her daughter’s best interests.
RESPONDENT’S SUBMISSIONS
[19] The Minister argues that interfering with the officer’s decision would require re-assessing the weight she gave various pieces of evidence in Ms. Pannu’s H&C application. He counters Ms. Pannu’s argument that the officer ignored any evidence provided. Rather, he argues, she simply determined sufficient H&C grounds did not exist for Ms. Pannu’s claim to succeed.
[20] Regarding Ms. Pannu’s level of establishment, the Minister argues the officer explicitly considered factors in Ms. Pannu’s favour – but concluded they were not strong enough to create hardship. That was a discretionary decision she was entitled to make.
[21] Regarding the alleged risk or hardship in India, the Minister submits the officer considered both Ms. Pannu’s status as a divorced woman, and her allegations of abuse by Mr. Saroya. She was entitled to conclude there was insufficient evidence to make any finding of abuse, or future risk. Specifically, there was no evidence Mr. Saroya had made any attempts to contact her directly since their divorce.
[22] With respect to the psychological report, the Minister submits it merely contains a recitation of what Ms. Pannu told the psychologist. As the burden to refer to a particular piece of evidence depends on its relevance, the officer made no error by ignoring it.
[23] The Minister claims Ms. Pannu is making the same arguments that failed in all her previous applications. He writes: “Her allegation of risk has not improved with time and this was demonstrated by the lack of objective corroborative evidence. The PRRA Officer’s reasoning was not unreasonable” (Respondent’s Record, page 11).
[24] The Minister argues Ms. Pannu is placing form over substance by claiming the officer applied the wrong test when considering the best interests of her daughter. Overall, he submits the officer acted reasonably by being alert, alive and sensitive to the likely degree of hardship Gurneet would face in India.
[25] Finally, regarding her arguments about medical inadmissibility, the Minister submits Ms. Pannu provided no evidence about her medical condition in her H&C application. Accordingly, the officer had no foundation on which to base any conclusion.
ISSUES
This application for judicial review essentially raises two issues:
1. What is the appropriate standard of review?
2. Did the officer adequately consider all of the relevant factors in the H&C decision?
ANALYSIS
[26] Subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) requires foreign nationals to apply for visas before they arrive in Canada. By submitting an H&C application, Ms. Pannu asked for an exemption from subsection 11(1). Under subsection 25(1) of the IRPA, applicants can apply for visas within Canada, provided they can establish sufficient humanitarian and compassionate or public policy grounds to justify using the exemption. It is widely understood that invoking 25(1) is an exceptional measure, and not simply an alternate means of applying for permanent resident status to Canada.
[27] There is no disagreement between the parties that the appropriate standard of review is reasonableness, pursuant to Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Accordingly, this Court will not interfere with the H&C decision unless it discloses no line of analysis which could reasonably lead the officer from the evidence to the conclusion she reached (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at paragraphs 48-49; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56).
[28] In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, Justice La Forest most accurately described the respective roles of the legislature, the executive and the judiciary in the context of immigration. He wrote (at paragraph 38):
This standard appropriately reflects the different obligations of Parliament, the Minister and the reviewing court. Parliament’s task is to establish the criteria and procedures governing deportation, within the limits of the Constitution. The Minister’s task is to make a decision that conforms to Parliament’s criteria and procedures as well as the Constitution. The court’s task, if called upon to review the Minister’s decision, is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament’s legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold his decision. It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion.
[29] Before turning to the substance of the Applicant’s claims, it bears repeating that the relief under section 25 of the IRPA is an exceptional remedy dependent on the Minister’s discretion. An applicant is not entitled to a particular outcome, even if there are compelling humanitarian and compassionate considerations at play. The Minister can balance humanitarian and compassionate considerations against public interest reasons that might exist for refusing to grant an exceptional remedy. The person making an H&C application has the onus to bring any relevant evidence to the officer’s attention and to satisfy the officer that, in his or her personal circumstances, the requirement to obtain a visa from outside Canada in the normal manner would cause unusual and undeserved or disproportionate hardship. The fact that Canada is a more desirable place to live than the country of removal is not determinative of an H&C application (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 at paragraphs 14-20; Serda v. Canada (Minister of Citizenship and Immigration), 2006 FC 356 at paragraphs 20-23; Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38).
[30] Regarding her establishment in Canada, Ms. Pannu argues that the officer’s assessment was unreasonable because she did not give adequate credit for the length of Ms. Pannu’s time in Canada, previous employment, ties to the Sikh community and significant ties to Canada as a result of her child being born here. But having carefully reviewed the officer’s reasons, I am of the view that she did take all of these factors into consideration. Her assessment was that Ms. Pannu had established herself to a certain extent in Canada, but not beyond what would normally be expected of a person having resided in the country for eighteen years. She noted that she does not appear to have close family members in Canada as her parents and sibling reside in India, and that she is currently unemployed. Though that is not her fault (she has had no work permit since 1999), and despite the fact that she cannot be blamed for the breakdown of her two marriages, the officer found that severing her community and employment ties in Canada would not have a significant negative impact that would justify an exemption under humanitarian and compassionate considerations. This is a conclusion that she could legitimately draw from the evidence submitted to her, and I am unable to find it was unreasonable to so conclude. In any event, it must be remembered that the degree of establishment is only one of the factors to be taken into consideration to determine if an applicant would suffer undue, undeserved or disproportionate hardship if returned to his or her country of origin.
[31] Ms. Pannu argues the officer erred by ignoring a psychologist’s report documenting threats and abuse by her first husband, Mr. Saroya. She also claims the officer did not provide sufficient reasons to explain why she discounted a letter from Ms. Pannu’s father. But having reviewed the reasons of the officer, I am of the view that these claims are ill founded. First of all, the psychologist’s report was simply a recitation of Ms. Pannu’s submission. It could not be considered probative evidence of spousal abuse, as it was essentially hearsay. Therefore, the officer did not have a duty to refer to it explicitly. As the Federal Court of Appeal stated in Ozdemir v. Canada (Minister of Citizenship and Immigration), 2001 FCA 331, at paragraph 9, “Decision-makers are not bound to explain why they did not accept every item of evidence before them. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based.”
[32] As for the letter from Ms. Pannu’s father, the officer did refer to it but found that it was self-serving. The officer found the letter was inconsistent with the fact that Mr. Saroya had made no attempts in the last 15 years to contact Ms. Pannu directly, and that there is no indication the relationship included any history of domestic violence. This conclusion does not strike me as being unreasonable.
[33] Ms. Pannu has alleged the same risk of return to India at the hands of Mr. Saroya since 1996 when she made her refugee claim which was refused. This allegation was also made in her 2002 H&C and PRRA applications and it was an allegation made before the Board in her second husband’s appeal of the removal order. In that appeal, the Board found that Ms. Pannu’s evidence - specifically, regarding her alleged past abuse - was not credible and not consistent with her own evidence and that of the other witnesses. As the Minister has argued, her allegation of risk has not improved with time and this was demonstrated by the lack of objective corroborative evidence.
[34] Ms. Pannu also submits that the officer did not turn her eyes to her newfound status as a divorced woman, and to the evidence of the treatment of divorced women in India. But a careful reading of the decision shows that the officer did take that factor into consideration. Indeed, she wrote (Applicant’s Record, page 10): “The Applicant has provided a separation agreement and a Writ of Summons and Statement of Claim in respect to a divorce from her marriage to Ms. Pannu. I will therefore consider the hardships that she may face if she returns to India alone with her daughter.”
[35] While it is true that the bulk of the officer’s reasons were dedicated to Ms. Pannu’s abuse allegations, this should come as no surprise. Most of Ms. Pannu’s submissions were also dedicated to supporting her claims of abuse. The officer also found that Ms. Pannu’s allegation that her father will not offer any support to her daughter and grand-daughter upon their return to India was not borne out by the facts or the evidence. She noted, in particular, that according to her H&C application, the Applicant resided in her father’s home prior to her arrival in Canada and appears to be in contact with her parents. Again, this was not an unreasonable conclusion to come to.
[36] Ms. Pannu’s counsel also contended that the officer applied the wrong test when it assessed whether the Applicant had provided sufficient humanitarian and compassionate grounds. He focused his argument on the last paragraph of her reasons, where she wrote:
I have considered all information regarding this application as a whole. Having reviewed and considered the grounds the applicant has forwarded, I am not satisfied that sufficient humanitarian and compassionate grounds exist to approve this exemption request. A request for humanitarian and compassionate consideration is not in place to serve as an alternative stream for immigration to Canada. I am satisfied that the applicant would be able to apply to immigrate to Canada through the standard overseas procedures without requiring an exemption from the usual requirements without putting her at risk to life or risk to her personal security.
[37] I do not think that the reference in the last sentence to the risk to life of personal security is proof that the officer applied the wrong test. First of all, the officer could certainly adopt the factual conclusions in her PRRA decision to the analysis she was making in the H&C application (Liyanage v. Canada (Minister of Citizenship and Immigration), 2005 FC 1045 at paragraph 41). Second, it is clear from a contextual reading of this paragraph that she was coming to the conclusion that the Applicant would not suffer unusual and undeserving, or disproportionate hardship since there was no objective evidence of personal risk. Not only did the officer correctly set out the H&C test at the very beginning of her reasons, but she also concluded her discussion of the Applicant ’s allegations of risk and hardship in the following way:
With the evidence before me, I find that the applicant has not provided sufficient persuasive evidence to establish that she faces a personalized risk to her life or a risk to the security of the person from her ex-husband if returned to India. Similarly, I find that the applicant has not provided sufficient probative evidence to establish the hardships associated with returning to India amounts to unusual and undeserved or disproportionate hardship.
[38] As a result, I am convinced that the officer applied the correct test in assessing the Applicant’s H&C application. The same conclusion applies with respect to her comments about the best interests of the child. Ms. Pannu argues the immigration officer wrongly applied the concept of “undeserved hardship” in this case, and she relies for that purpose of the following excerpt of the officer’s decision:
I also find that the applicant has not established that the general hardships of relocating and resettling to another country would have a significant negative impact to her daughter that would amount to unusual and undeserved or disproportionate hardship. [Emphasis added]
[39] It is well established that the immigration officer was required to assess the potential hardship to Ms. Pannu and her child if she or they had to return to India to apply for permanent residence to Canada (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). In making this assessment, the officer was required to be “alert, alive and sensitive” to the best interests of the child. However, the officer was not required to treat the best interests of the children as an overriding or determinative factor in the analysis of whether an exemption from the normal statutory requirements was justified in the circumstances. As Mr. Justice Décary mentioned in Legault, above, at paragraph 12:
In short, the immigration officer must be “alert, alive and sensitive” (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any “refoulement” of a parent illegally residing in Canada…
[40] I agree with the Minister that the Applicant’s argument places form over substance. It is true that the officer did not identify and enumerate the best interests of Gurneet separately from determining the degree of hardship Gurneet would face if she went to India with her mother. But as Mr. Justice Décary said in Hawthorne, above, at paragraph 4, these are really two aspects of a single analysis:
The “best interests of the child” are determined by considering the benefit to the child of the parent’s non-removal from Canada as well as the hardship the child would suffer from either her parent’s removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
[41] In essence, what really matters are not the words the officer used, but whether the officer was actually alert, alive and sensitive to Gurneet’s best interests. While noting that Ms. Pannu would have a choice as to whether she would return to India with Gurneet, she chose to focus on the most probable scenario - that of Ms. Pannu leaving with her child. She then determined that if Gurneet were to return to India, she would adapt to India given that she speaks Punjabi and has been attending pre-school at the Khalsa School in Surrey and has been exposed to Punjabi culture through the Sikh community in Surrey. This was not an unreasonable finding.
[42] Finally, Ms. Pannu has argued the officer erred by failing to consider that Ms. Pannu may be deemed medically inadmissible if forced to apply for permanent residence from India. I agree with the Minister that it is unfair to critique the officer for failing to decide an issue for which the claimant provided no evidence in her application. Even if the officer had wanted to assess Ms. Pannu’s medical condition, she would have had nothing to guide her decision.
[43] I am therefore of the view, for all the above reasons, that this application for judicial review should be dismissed. No question was suggested for certification, and none will therefore be certified.
JUDGMENT
THIS COURT ORDERS THAT this application for judicial review should be dismissed. No question was suggested for certification, and none will therefore be certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1975-06
STYLE OF CAUSE: Baljit Kaur Pannu v. Minister of Citizenship & Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 1st, 2006
REASONS FOR JUDGMENT
and JUDGMENT : de Montigny J.
DATED: November 9, 2006
APPEARANCES:
Christopher Elgin FOR THE APPLICANT
Helen Park FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR THE APPLICANT
Barrister & Solicitor
Vancouver, BC
John H. Sims, Q.C.
Attorney General of Canada FOR THE RESPONDENT