2014 FC, 2014 FC 1226

Date: 20141217 Docket: IMM-5053-13 Citation: 2014 FC 1226 Toronto, Ontario, December 17, 2014 PRESENT: The Honourable Mr. Justice Diner BETWEEN: RAJWINDER SINGH JHABAR AND PARMINDER KAUR JHABAR Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I.

Overview [ 1 ] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ], of the decision of a Senior Immigration Officer [Officer] of Citizenship and Immigration Canada [CIC] refusing the Applicants’ application for humanitarian and compassion [H&C] consideration. II. Facts [ 2 ] Rajwinder Singh Jhabar and Parminder Jhabar [the Applicants] are citizens of India who came to Canada in 2000 and made a refugee claim, which was denied in 2001. In 2004, the Applicants made an H&C application. Their application was denied in 2012.

The Respondent consented to sending the decision back for re-determination, which re-determination resulted in a negative H&C decision on July 4, 2013 [the Decision]. That is the Decision now under review. III. Decision [ 3 ] The Officer found that the Applicants had not established that they would face unusual and undeserved or disproportionate hardship if they returned to India.

She considered: the hardship due to risk upon return to India; family or personal relationships in Canada that would create hardship if severed; degree of establishment in Canada; medical issues; and establishment, ties or residency in India. IV. Issue [ 4 ] The sole issue in this matter is whether the Decision was reasonable. V. Relevant Provisions [ 5 ]

Section 25 of IRPA is attached below as Appendix A. VI. Standard of Review [ 6 ] The parties agree, as do I, that the standard of review for an H&C decision is reasonableness: Qiu v MCI , 2012 FC 859 at para 8 . [ 7 ] When reviewing a decision on the standard of reasonableness, the Court is concerned with “the existence of justification, transparency and intelligibility within the decision-making process” and with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ( Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 ). VII.

Parties’ Submissions [ 8 ] The Applicants argue that the decision was unreasonable given their establishment in Canada and the resultant hardship of leaving, after the many years of working and forming strong roots in Canada, which was a natural byproduct of the long delays of CIC processing their H&C application, as well as other applications through which they have sought permanent residency in this country.

[9] The Respondent counters that the Decision was reasonable. H&Cs are exceptional and discretionary permanent residencyapplications. The Applicants did not meet the high threshold to establish that the hardship they would face in returning to India wasunusual and undeserved, or disproportionate (Irimie v MCI (2000), (FC), 10 Imm LR (3d) 206 at paras 12, 17, 26;Mayburov v MCI (2000), (FC), 183 FTR 280 at para 7; Lee v MCI, 2001 FCT 7 at para 14; Owusu v Canada, 2004FCA 38 at paras 5, 10).

For example, they did not provide evidence to support that either they would or their three adult children docurrently face hardship in India as a result of lack of employment opportunities or limited access to basic services, nor evidence that thefemale Applicant’s health would suffer or that she would be unable to afford the required medication in India. A. Submissions on Establishment [10] The Applicants submit that it was unreasonable for the Officer to dismiss their extensive evidence of establishment on thebasis that (

i) it was no more than would be expected of any refugee claimant (Raudales v MCI, 2003 FCT 385; Jamrich v MCI, 2003 FCT804; Amer v MCI, 2009 FC 713 at paras 13-14) and (ii) the Applicants knew ever since their refugee claims were denied that removalwas a possibility.

The Minister controls the speed with which H&C applications are determined, and it is unrealistic to expect claimantsto put their lives on hold while awaiting final decisions: Paterson v MCI, [2000] FCJ No 139; Sebbe v MCI, 2012 FC 813 at para 23. [11] The Respondent submits the converse, namely that the Officer did not dismiss the positive evidence of establishment solelyon the grounds that the Applicants knew that removal was a possibility. Rather, the Officer’s conclusion on establishment was on thebasis of both this factor and the evidence available to her.

This is the proper test to be applied in assessing degree of establishment (Qiu,above). B. Submissions on Hardship [12] The Applicants submit that the Officer erred in her assessment of hardship. First, since their 13 years of establishment wasunreasonably dismissed, it follows that the Officer failed to reasonably assess their hardship if removed. Second, it was an error todiscount evidence of hardship in India on the grounds that the conditions of poverty, lack of jobs, etc. are conditions faced by the generalpopulation (Diabate v MCI, 2013 FC 129 at paras 32-33; Shah v MCI, 2011 FC 1269 at para 73).

Third, the Officer failed to take intoaccount the Applicants’ age when considering their employability in India. [13] The Respondent rejects these arguments, stating that the Officer reasonably considered the Applicants’ evidence andappropriately concluded that they had not demonstrated unusual and undeserved or disproportionate hardship.

While the Officer may nothave noted the Applicants’ age, she did reasonably consider their employability, as she noted that the principal Applicant had been apartner in a shipping company and transport business, that the skills acquired by the Applicants in Canada could serve to broaden theiremployment prospects, and that they would have the support and assistance of family in India. VIII. Analysis A. Establishment [14] A proper assessment of establishment in Canada is essential to a proper H&C determination: See Hamam v MCI, 2011 FC1296 at para 52; Raudales, above, at para 19.

While the H&C process is not designed to eliminate hardship, but to provide relief fromunusual and undeserved or disproportionate hardship, evidence of establishment is still a significant factor that must be properlyconsidered and weighed in an H&C analysis: Hamam at para 54. [15] In Raudales, as in this case, the officer found that since the refugee process takes several years to run its course, a certain levelof establishment would be expected.

The officer in that case went on to say that the applicant had established himself as any studentwould, but that he had not remained in Canada for so long or established such strong ties that it would be unreasonable for him to returnto Honduras.

The court held that the finding was contrary to the overwhelming weight of evidence put forward, and that absent a properassessment of establishment, a proper determination could not be made: Raudales at paras 18-19. [16] In reviewing the Officer’s assessment of establishment, the question I must answer is whether the Officer properly consideredwhether the evidence before her was sufficient to warrant an exemption, or whether she simply listed the positive evidence ofestablishment and then, without any analysis, concluded that the Applicants would not face unusual and undeserved, or disproportionatehardship solely on the basis that such a level of establishment would be expected of anyone who had been in Canada for a period ofyears: See Hamam, above, at paras 55-56; Ramaischrand v MCI, 2011 FC 441 at para 10; Singh v MCI, 2009 FC 1062 at para 11;Jamrich, above, at para 28; Rincon v MCI, 2014 FC 194 at para 42; Singh v MCI, 2012 FC 612 at paras 9-10; Amer v MCI, 2009 FC 713at paras 11-13. [17] It is clear that the Officer in this case considered the evidence of establishment submitted by the Applicants.

The Officeracknowledged that: the Applicants had lived in the same community for 13 years; they had relatives in Canada and friendships in theirlocal community; several of their neighbours and friends from India had resettled in Canada; they had been members, volunteers, andfinancial contributors at their Sikh temple; the principal Applicant had worked full time for the same employer for over 10 years; thefemale Applicant was steadily employed; the Applicants had a good civic record; and they had filed their taxes every year. [18] Where the Officer has considered the relevant factors, it will be rare for this Court to intervene, as the range of acceptableoutcomes is quite large and it is not this Court’s role to re-weigh the factors: Diabate, above, at para 29. [19] The Officer balanced the above factors against the fact that the Applicants had family in India and had acquired skills inCanada that could improve their employability in India.

Therefore, even though the Officer noted that “a certain degree of establishmentis expected of refugee claimants as they receive due process in the Canadian immigration system” and that “the applicants knew, or

ought to have known, that removal from Canada was a possibility following their negative IRB decision in 2001” (Decision, p 4), sheclearly considered the evidence submitted by the Applicants against the test of unusual and undeserved or disproportionate hardship.

Forthis reason, this case is distinguishable from Raudales, Jamrich, and Amer, in which the officers did not analyze the Applicants’ personalcircumstances in reaching their conclusions on establishment. [20] While I acknowledge that it will not be easy for the Applicants to leave their community and employment in Canada, Iconclude that the Officer took into account all the relevant circumstances and exercised her discretion reasonably.

As this Court hasfound in the past, leaving behind friends, family, employment, or a home is not necessarily enough to justify the exercise of H&Cdiscretion: Irimie v MCI, (FC), [2000] FCJ No 1906 at para 12; Lopez v MCI, 2012 FC 696 at para 15.

(1) Hardship [21] The Applicants have made three separate submissions to support their argument that the Officer’s hardship analysis wasunreasonable. I will deal with each in turn. [22] First, the Applicant’s argument that since the 13 years of establishment was unreasonably dismissed, it follows that theOfficer’s assessment of their hardship was unreasonable, fails as I found above that the assessment of establishment was reasonable.

Inany case, establishment is not determinative of an H&C application. [23] Second, I cannot agree with the Applicants that the Officer in this case discounted the evidence of hardship in India on theground that the conditions of poverty, lack of jobs, etc. are conditions faced by the general population. The Applicant is quite right that itis improper to import a requirement of “personalization” from the

section 97 analysis into an H&C, as this would frustrate the purpose ofsection 25: See Diabate, above, at paras 32-36; Hamam, above, at paras 43-45. H&C applicants are not required to show that the risks orconditions in their home country are not faced by the general population.

As Justice Gleason wrote at paragraph 36 of Diabate: [T]he frame of analysis for H&C consideration has to be that of the individual him or herself, which involves consideration of whetherthe hardship of leaving Canada and returning to the country of origin would be undue, undeserved or disproportionate. [24] However, H&C applicants are required to show that the adverse country conditions would have a direct negative impact onthem, such that that the conditions in their country of origin would affect them or that living in conditions where such hardships couldhappen to them is itself an unusual and undeserved or disproportionate hardship: Kanthasamy v MCI, 2014 FCA 113 at para 76; Vuktilajv MCI, 2014 FC 188 at para 36. [25] Thus, the Officer in this case did not err in her assessment of the Applicants’ hardship in returning to India.

She referred to thecorrect test where she wrote: “In the context of the H&C application, the issue is whether the hardships associated with the risks cited areunusual and undeserved or disproportionate, should the applicants return to India” (Decision, p 3). She also properly noted that theApplicants had not provided evidence to support that they or their three adult children in India faced a lack of employment opportunitiesor limited access to basic services in India (Decision, p 3).

As the Applicants failed to provide sufficient evidence that they would beaffected by the conditions in India, including lack of work and health care, the Officer reasonably found that the Applicants had notestablished that they would face these hardships: Owusu v MCI, 2004 FCA 38 at para 5. [26] Third, I disagree with the Applicants’ contention that the Officer’s failure to consider the Applicants’ ages made the Decisionunreasonable. As the Respondent points out, the Officer considered several other factors with respect to the Applicants’ potential forfinding employment in India.

Interfering on this basis would amount to a re-weighing of the evidence considered by the Officer. IX. Conclusion [27] For the reasons above, this application for judicial review is dismissed. This case does not raise a serious question of generalimportance warranting certification. JUDGMENT THIS COURT’S JUDGMENT is that this application is dismissed. There are no certified questions. "Alan Diner" Judge ANNEX A

Immigration and Refugee Protection Act (SC 2001, c 27)

Section 25 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.

Loi sur l’immigration et la protection des réfugiés (LC 2001, ch 27)

Article 25 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 resident 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 resident 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 considerations d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5053-13 STYLE OF CAUSE: RAJWINDER SINGH JHABAR AND PARMINDER KAUR JHABAR v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: december 3, 2014 JUDGMENT AND REASONS: DINER J.

DATED: December 17, 2014 APPEARANCES : Clare Crummy For The ApplicantS Neeta Logsetty For The Respondent SOLICITORS OF RECORD : Waldman & Associates Toronto, Ontario For The ApplicantS William F. Pentney Deputy Attorney General of Canada For The Respondent