Singh v. Canada (Minister of Citizenship and
Immigration)
Between
Singh, Aman (a.k.a. Amanjot Kooner), Applicant, and
The Minister of Citizenship and Immigration, Respondent
Singh, Aman (a.k.a. Amanjot Kooner), Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No.
1163
2013 FC 1075
Docket: IMM-1502-13
Federal Court
Montréal, Quebec
Shore J.
Heard:, October 23, 2013.
Judgment: october 24, 2013
Docket: IMM-1502-13
Federal Court
Montréal, Quebec
Shore J.
Heard:, October 23, 2013.
Judgment: october 24, 2013
(42 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
SHORE J.:--
Overview
1 Fraud
is fraud and misrepresentation is misrepresentation. The Applicant is the
recipient of his parents' acts as well as his very own in respect of illegal
acts to Canada's immigration legislation (reference is made to the Federal
Court of Appeal decision, penned by Justice Robert Décary, in Canada (Minister of Citizenship and Immigration) v Legault,2002 FCA 125, [2002] 4 F.C. 358).
Introduction
2 The
Applicant seeks a judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] of a decision
of an Immigration Officer, dated November 6, 2012, refusing the Applicant's
application for permanent residence on humanitarian and compassionate grounds
[H&C] pursuant to section 25 of the IRPA.
Background
3 The
Applicant, Mr. Amanjot Kooner, is a citizen of India, born in Jalandhar in
1986.
4 The
Applicant arrived to Canada with his parents on June 23, 2000. On July 8, 2000,
both of his parents made refugee claims using false identities, presenting
themselves as widowers. They also sought refugee status for the Applicant under
the name "Aman Singh".
5 On
May 23, 2001, the Applicant and his mother were granted refugee status. Two
years later, the Applicant's father's refugee claim was refused.
6 The
Applicant's mother proceeded to marry his father in a fictitious wedding
ceremony in order to sponsor him.
7 In
2003, an anonymous letter was submitted to Immigration Canada revealing the
family's true story. Immigration Canada began an investigation.
8 In
2007, the Applicant was confronted by immigration authorities regarding his
family's immigration scheme.
9 On
October 18, 2010, the Applicant and his mother's refugee status were vacated by
the Refugee Protection Division of the Immigration and Refugee Board, thereby
nullifying their permanent resident status. The Applicant's mother's sponsorship
application for his father was consequently refused.
10 On
March 2, 2011, the Applicant filed his H&C application.
11 On
January 18, 2012, the Applicant filed an application for a Pre-Removal Risk
Assessment [PRRA].
12 On
March 3, 2012, the Applicant married a Canadian citizen named Navdeep Saini. It
is noted by the Court that a letter appears in the file emanating from a Ms.
Sonia Archambault which specified that the Applicant started dating her on
January 23, 2011. Interestingly, however, as part of his H&C application,
the Applicant, himself, submitted this letter, dated three
days later (January 26, 2011), from this woman, Ms.
Sonia Archambault, which states that she and the Applicant are in a loving and
happy relationship, and are planning to get together in the near future.
13 On
November 6, 2012, the Officer refused the Applicant's H&C and PRRA
applications.
Decision under Review
14 In
her decision, the Officer assessed the allegations raised by the Applicant
regarding his establishment in Canada and the hardship he would face if
returned to his country of origin.
15 With
regard to his establishment, the Officer recognized that the Applicant had
demonstrated a considerable degree of social and economic establishment in
Canada; however, the Officer found that these factors alone could not
constitute sufficient H&C grounds to merit an exemption of the requirements
of the IRPA. The Officer noted
that the Applicant's establishment had been acquired entirely under false pretences.
This was a significant factor that the Officer determined seriously negated the
degree of establishment of the Applicant in Canada.
16 The
Officer also concluded that the Applicant had not provided any evidence to
demonstrate that he would suffer unusual and undeserved or disproportionate
hardship if required to return to India. She noted that relocation and severing
ties with family and employment was a hardship faced by many people forced to
leave Canada, and was not unusual and undeserved or disproportionate, in and of
itself.
17 The
Officer also found that there was insufficient evidence on file to determine
how the adverse conditions in the Applicant's country of origin would cause him
unusual and underserved or disproportionate hardship.
18 Based
on these factors, the Officer rejected the Applicant's H&C application.
Issues
19
Did the Officer fail to
properly assess the Applicant's establishment in Canada?
Did the Officer err in
assessing the hardship the Applicant would face if returned to India?
Relevant Legislative
Provisions
20 The
following legislative provision of the IRPA is relevant:
· 25. (1) Subject to subsection (1.2), the
Minister must, on request of a foreign national in Canada who applies for
permanent resident status and who is inadmissible -- other than under section
34, 35 or 37 -- or who does not meet the requirements of this Act, and may, on
request of a foreign national outside Canada -- other than a foreign national
who is inadmissible under section 34, 35 or 37 -- who applies for a permanent
resident visa, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
* * *
· 25. (1) Sous réserve du paragraphe (1.2), le
ministre doit, sur demande d'un étranger se trouvant au Canada qui demande le
statut de résident permanent et qui soit est interdit de territoire -- sauf si
c'est en raison d'un cas visé aux articles 34, 35 ou 37 --, soit ne se conforme
pas à la présente loi, et peut, sur demande d'un étranger se trouvant hors du
Canada -- sauf s'il est interdit de territoire au titre des articles 34, 35 ou
37 -- qui demande un visa de résident permanent, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou
partie des critères et obligations applicables, s'il estime que des
considérations d'ordre humanitaire relatives à l'étranger le justifient, compte
tenu de l'intérêt supérieur de l'enfant directement touché.
Position of the Parties
21 The
Applicant submits that the Officer did not give enough weight to the presence
of his spouse and sponsorship application in Canada, his degree of establishment
and the disproportionate hardship he would face upon removal. The Applicant
also submits that the Officer gave excessive importance to his
misrepresentation, which he contends he should not be held responsible for as
he was a minor at the time he arrived to Canada.
22 The
Respondent submits that the Applicant's arguments merely reflect his
disagreement with the Officer's assessment of his establishment in Canada and
does not demonstrate that the Officer's decision is unreasonable.
23 The
Respondent affirms that the Officer took into account the positive
establishment factors of the Applicant, but when balanced with other factors,
did not justify granting him an exemption to the law.
24 The
Respondent also submits that the Officer reasonably concluded that the country
conditions in India would not be unusual and undeserved or disproportionate in
the Applicant's particular circumstances. The Applicant provided no evidence to
demonstrate how he would be personally affected by the adverse conditions in
India. Moreover, the Respondent notes that the Applicant would be returning to
India with valid travel documents and he did not have the profile of a person
who would typically be at risk of harm upon re-entry.
Analysis
Standard of Review
25 The
standard of review applicable to a decision relating to an H&C application
is that of reasonableness (Ramirezv Canada (Minister of
Citizenship and Immigration), 2006 FC 1404, 304 FTR
136; Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA 189, [2010] 1 F.C.R. 360).
26 A
heavy burden rests on an applicant to satisfy the Court that a decision under
section 25 requires its intervention (Mikhno v Canada
(Minister of Citizenship and Immigration), 2010 FC 386;
Cuthbert v Canada (Minister of Citizenship and
Immigration), 2012 FC 470, 408 FTR 173).
Did the Officer fail to
properly assess the Applicant's establishment in Canada?
27 The
Court is of the view that the Officer's assessment of the Applicant's
establishment is reasonable. The Officer considered all of the positive factors
of the Applicant's H&C application, including his establishment; however,
these factors were simply found to be insufficient to outweigh the significant
negative factor of the Applicant's misrepresentation with regard to his
identity. The Applicant in this case, as in the case of Moore
v Canada (Minister of Citizenship and Immigration),
2011 FC 550, did not come to the Court with clean hands. He and his parents
used a false identity to support their refugee claim when they arrived in
Canada. The Applicant's real identity has still not been clearly or
definitively established by Canadian authorities.
28 As
stated in Moore, above, an
applicant's misrepresentation on a central element such as identity can be
taken into account by an officer when rendering a decision. This position has
been reaffirmed by this Court in a number of decisions, including Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, 309 DLR (4th) 411 (at para 64), Ebebe v Canada (Minister of Citizenship and Immigration), 2009 FC 936 (at para 21) and Legault, above. In Legault,
Justice Décary summarized the law on this point:
· [19] In short, the Immigration Act and the Canadian
immigration policy are founded on the idea that whoever comes to Canada with
the intention of settlingmust be of good faith and
comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to
falsifying the immigration plan and policy and gives himself priority over
those who do respect the requirements of the Act. The
Minister, who is responsible for the application of the
policy and the Act, is definitely authorised to refuse
the exception requested by a person who has established the existence of
humanitarian and compassionate grounds, if he believes, for example, that the
circumstances surrounding his entry and stay in Canada discredit him or create
a precedent susceptible of encouraging illegal entry in Canada. ... [Emphasis added].
29 In
Shallow v Canada (Minister of Citizenship and
Immigration), 2012 FC 749, 410 FTR 314 this Court
further found:
· [8] ... merely managing to evade deportation
for a lengthy period of time through various procedures
and protections available through the immigration process ought not to enhance an applicant's "right" to remain in
Canada on H&C grounds. In this case, the
Applicants' stay in Canada was of their own choosing. They could have returned
to St. Vincent at any time and chose not to.
· [9] For this factor [establishment] to weigh in favour of an
applicant, much more than simple residence in Canada must be demonstrated. And,
it must always be remembered that the focus is on the
hardship to the Applicants on applying for permanent
residence from their country of origin as is required by s. 11 of the Immigration and Refugee Protection Act, SC
2001, c 27. Unless the establishment in Canada is both
exceptional in nature and not of the applicant's own choosing, this will not normally be a factor that
weighs in favour of the applicants. At best, this
factor will usually be neutral. On this question, the Officer did not err.
[Emphasis added].
30 Contrary
to the Applicant's position, the Officer was entitled to give little or no
weight to the Applicant's degree of establishment in Canada as he
misrepresented himself to gain entry in order to remain in Canada.
31 It
is important to note that, although the Applicant was a minor (age 13) when he
first arrived to Canada, he continued to mislead Canadian authorities well into
his adulthood. The Court cannot accept the Applicant's argument that his
decision to remain in Canada illegally was exceptional and not of his own choosing simply because his entry into Canada was orchestrated by his
parents in his youth. Once the Applicant reached the age of majority, the
decision to remain illegally in Canada became reasonably within his control. The Applicant chose to
continue living in Canada, knowing he was without legal status. There is no
evidence that he has taken any steps to rectify this situation (Certified
Tribunal Record [CTR] at p 7).
32 The
Court, therefore, finds that the Officer's decision to give more weight to the
Applicant's misrepresentation over other elements was completely reasonable.
Her reasons were transparent, justifiable and intelligible and well within the
range of acceptable outcomes based on the limited evidence before her. It is
not for this Court to re-weigh that evidence simply because the Applicant is
unsatisfied with the weight that was given to it (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration)
(1998), 157 FTR 35).
33 The
Court agrees with the Applicant that establishment is an important factor that
must be considered in an H&C application; however, it is not the
determining factor, nor does it outweigh all other factors (Irimie v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1906 at para 20 (QL/Lexis) (Fed TD)).
Did the Officer err in
assessing the hardship the Applicant would face if returned to India?
34 Section
25 of the IRPA is an exceptional
provision. It allows an exemption only where an applicant can prove that he or
she would face unusual and undeserved or disproportionate hardship if he or she
was required to file an application for permanent residence from his or her country
of origin. In the H&C context, it is the applicant who has the burden of
providing evidence to establish such hardship.
35 In
the present case, there is no doubt that the refusal of the Applicant's H&C
application will cause him some degree of hardship; however, given the
circumstances of the Applicant's presence in Canada and the limited evidence
provided regarding the hardship he would endure if returned to India, the Court
does not find that the Officer erred in determining that his removal from
Canada would not cause unusual and undeserved or disproportionate hardship.
36 A
stated in Irimie, above, it must
be remembered that the H&C process is not designed
to eliminate all hardship; it is designed to provide relief from unusual and undeserved or
disproportionate hardship. This Court has repeatedly
declared that leaving behind friends, family, employment or a residence is not
necessarily enough to justify the exercise of discretion by an officer (Irimie, above, at para 12; reference is also
made to Mayburov v Canada (Minister of Citizenship and
Immigration) (2000), 183 FTR 280, [2000] F.C.J. No. 953
(QL/Lexis) (FCTD)).
37 Based
on the evidence before her, the Officer acted reasonably in concluding that the
Applicant's situation was no different than that which is inherent of being
asked to leave one's environment after a long period of time. The Officer
recognized that the Applicant would be leaving behind his loved ones and his
employment; however, she did not consider these circumstances would bring
hardship that would be enough to justify the exercise of her discretion. The Applicant provided no evidence to demonstrate how his personal
circumstances would lead to such hardship.
38 The
Court also finds that the Officer reasonably concluded that the Applicant would
not suffer unusual and undeserved or disproportionate hardship in India. Again,
the onus was on the Applicant to substantiate his allegations with respect to
the hardship he would personally face and to demonstrate how the country's
conditions would cause such hardship. Without any evidence allowing her to
"gauge the conditions that exist in India and their
possible and particular impact on [the Applicant]"
(CTR at p 8) [emphasis added], the Officer could not be expected to identify an
unusual or disproportionate hardship in the Applicant's circumstance.
39 Contrary
to the Applicant's allegation on this point, the Officer did use the correct
standard to assess the Applicant's hardship. This Court has previously
addressed similar allegations in the context of an H&C application in Webb v Canada (Minister of Citizenship and Immigration), 2012 FC 1060, 417 FTR 306 and found:
· [17] ... A determination of disproportionate hardship requires the
evaluation of personal circumstances. The officer was simply not convinced that
the general conditions of St. Vincent and the Grenadines would constitute
unusual and undeserved or disproportionate hardship.
That was a finding reasonably open to the officer on the evidence. She found
that the applicant produced insufficient evidence that
he would be personally affected by the conditions. This
does not demonstrate that the officer applied the incorrect test. [Emphasis
added].
(Reference is also made to Tarafder
v Canada (Minister of Citizenship and Immigration),
2013 FC 817)
40 In
the present case, it is clear that the Officer carefully examined the
documentary evidence on the general conditions in India; she found that it had
human rights problems, widespread corruption and impunity, an overburdened
judiciary and continuing military insurgency; however, due to a lack of
evidence, the Officer could not satisfy herself that these conditions applied
to the Applicant personally or that the hardship relating to the country
conditions would be unusual and underserved or disproportionate in his
particular circumstances (CTR at p 8).
41 In
light of the foregoing, the Court finds that the Officer did not commit a
reviewable error. The hardship resulting from prospective risk in India was
appropriately dealt with by the Officer and supported by the evidence. The
Applicant did not raise any substantive arguments as to how the country
conditions in India would cause him personally unusual and undeserved or
disproportionate hardship.
Conclusion
42 For
all of the above reasons, the Applicant's application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS that the
Applicant's application for judicial review be dismissed with no question of
general importance for certification.
SHORE J.
No comments:
Post a Comment