Federal Court Decisions

Date: 20000718

Docket: IMM-3531-99

TORONTO, Ontario, Tuesday, the 18^th day of July, 2000

PRESENT:      The Honourable Madam Justice Reed

BETWEEN:

     MOHAN SINGH

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     ORDER

     For the reasons issued today the application is dismissed.

    

                

     "B.Reed"

                                     J.F.C.C.

    

Date: 20000718

Docket: IMM-3531-99

BETWEEN:

    

     MOHAN SINGH

     Applicant

     - and -

     THE MINISTER OF

     CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

REED J.

[1]      These reasons relate to the judicial review of a decision of a Senior Immigration Officer, refusing the applicant"s application that he be allowed to apply for permanent residence from within Canada because humanitarian and compassionate grounds exist.

[2]      Counsel for the applicant argues that the officer failed to properly assess the applicant"s evidence of establishment in Canada and the risk he would face if returned to India.

[3]      It is clear from the record that the officer fully assessed the evidence before her with respect to the applicant"s alleged establishment in Canada. The main point of disagreement between the applicant and the respondent is whether the officer failed to properly assess the risk the applicant would face if he were returned to India.

[4]      The officer"s notes indicate that no risk assessment had been done and that risk was not a factor in this case. At the same time, the notes show that the officer did assess the risk the applicant would face. In response to questions on whether a risk assessment was required, the officer wrote:

Yes. Subject states he has problems in India due to his son. The police have harassed subject"s son over the years, and arrested him because he was politically active in India. On his sons"s last arrest, the police took him and he has not been seen since. The police continued to harass subject and took money from him and he was harassed at his workplace.

     ....

This case is not being sent for a risk assessment because subject advised me during the interview that he provided all the same information when he pursued his refugee claim. That refugee claim was rejected.

In assessing the applicant"s degree of establishment, the officer"s notes read:

Subject states he will face too much hardship if returned to India. His own livelihood has been ruined by the police in India and there is nothing to return to. As well, the fate of his son is unknown and he has now been missing for four years. Subject does not want to return to India and fears for his future.

Counsel, on behalf of subject stated that this activity is common-place in India. Everything has been ruined including a factory he owned and ran for twenty-two years. As well, counsel stated it would be very difficult for him to re-establish himself as he has been in Canada three years; speaks English; has no criminal record and would face undue hardship if returned to India.

The officer"s recommendation of May 29, 1999, reads:

After careful consideration of the information provided at interview on 04 February 1999, and subsequent to the interview, additional information provided by counsel, which included subject"s Personal Information Form as well as an affidavid [sic] of Navkiran Singh, I am not satisfied subject would face undue, undeserved or disproportionate hardship if returned to India.

Subject entered Canada on 06 February 1996 and has remained in Canada ever since. He has now been away from his family for a period of three years.

I submit that it would not cause severe hardship in subject to return to India after an absence of three years.

Subject"s main purpose for coming to Canada was to escape political problems experienced by both himself and his son, who has now disappeared. I note that subject provided this information to the refugee board and I accept their opinion. I also read the Personal Information Form subject provided.

[5]      While the officer referred to the CRDD"s decision, she also considered the "new" evidence that had been submitted by the applicant (while "new", it was not in substance much different from that before the CRDD).

[6]      Counsel for the applicant referred to the guidelines that are provided to the immigration officers by the respondent, entitled Immigrant Applications in Canada Made on Humanitarian and Compassionate (H & C) Grounds. Those guidelines read in part:

8.8 Personalized risk

Positive consideration may be warranted for persons who would face an objectively identifiable personalized risk if removed from Canada. The risk may be to the applicant"s life or it may involve severe sanctions such as unwarranted imprisonment or inhumane treatment such as torture. There are varying degrees of risk. Generally, the risk should be greater than a mere possibility and yet may be less than a "balance of probabilities".

PERSONALIZED RISK
First of all
"      Review the application and consider all the information presented by the applicant. When the application is based largely on risk factors, send the application for review by a PCDO, who will provide an opinion about the risks faced by the applicant.	%      The PCDO will consider all aspects of risk as put forth by the applicant and take into account the standards set out in the Charter and international human rights treaties (e.g. International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the American Declaration on the Rights and Duties of Man ). The PCDO may also consider, but is not limited to, reports from international organizations on country conditions, news clippings and evidence of torture or abuse such as medical reports.
"      Review and consider all information available on the client.	%      Such as previous immigration applications, refugee claims, PDRCC determinations, etc.
"      Once a risk opinion has been obtained from the PCDO, consider it along with all other relevant information.	%      Note that the risk opinion and factors relevant to an H & C decision are not necessarily one and the same. A negative risk assessment does not automatically mean a negative H & C decision. The PCDO opinion is one factor to consider in light of all the circumstances of the individual case. Remember, in all cases, that the H & C decision must be your own.
Then consider
"      Any other factors that you believe to be relevant to your H & C decision.

[7]      I do not understand the guidelines to require an immigration officer to refer every application in which an applicant alleges he will be at risk to the PCDO for determination. Those guidelines must be read as allowing the officer discretion to determine when the risk alleged is serious enough to require such review. The guidelines themselves instruct referral to the PCDO only when the application is "based largely on risk factors".

[8]      I cannot conclude that the officer in this case fettered her discretion by relying on the CRDD decision, or in not sending the application to the PCDO for a risk assessment. The officer"s decision was a reasonable one.

"B. Reed"

J.F.C.C.

Toronto, Ontario

July 18, 2000

---

FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                  IMM-3531-99

STYLE OF CAUSE:              MOHAN SINGH

                     - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

DATE OF HEARING:          MONDAY, JULY 17, 2000

PLACE OF HEARING:          TORONTO, ONTARIO

REASONS FOR ORDER BY:      REED J.

                        

DATED:                  TUESDAY, JULY 18 , 2000

APPEARANCES BY:           Jaswinder Gill

                        

For the Applicant

                     David Tyndale

For the Respondent

SOLICITORS OF RECORD:      Jaswinder Gill

                     Barrister & Solicitor

                     Waldman & Associates

                     281 Eglinton Avenue East

                     Toronto, Ontario

                     M4P 1L3

                    

For the Applicant

                        

                     Morris Rosenberg

                     Deputy Attorney General of Canada

                             For the Respondent

                     FEDERAL COURT OF CANADA

                                 Date: 20000718

                        

         Docket: IMM-3531-99

                     BETWEEN:

MOHAN SINGH

Applicant

                     - and -

                     THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION

Respondent

                    

REASONS FOR ORDER