Date: 19990429
Docket: IMM-2725-98
BETWEEN:
RAKESH GAUTAM
NIRMAL DEVI GAUTAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.
A. INTRODUCTION
[1] Rakesh Gautam and Nirmal Devi Gautam are married. Mr. Gautam is in his early fifties and Ms. Gautam is a few years younger. Both are citizens of India who entered Canada in 1994 to claim refugee status.
[2] The basis of their claim was that, although Hindus by religion, they had supported the Sikhs and the movement for an independent Khalistan. As a result, Mr. Gautam was arrested, interrogated and beaten by the police in India; he stated that if he was required to return to India, he would fear for his life by reason of his political opinions and activities.
[3] The Refugee Division rejected the claim in 1996. The applicants were subsequently held to be ineligible to remain in Canada under subsection 53(1) of the Immigration Act, R.S.C. 1985 c. I-2 as members of the post-determination refugee claimants in Canada class, presumably because there was found to be insufficient reason to believe that their lives or freedom would be threatened in India by reason of political opinion.
[4] The applicants then applied unsuccessfully for landing in Canada on humanitarian and compassionate grounds under subsection 114(2) of the Immigration Act. Counsel advised the Court that the applicants have since been removed from Canada, but have persisted with this application for judicial review of the negative subsection 114(2) decision in an attempt to facilitate their return.
B. THE DECISION UNDER REVIEW
[5] In the written submissions made in support of their subsection 114(2) application, it was urged that the application should receive favourable consideration because Mr. Gautam has
| A stable work history, length of time in Canada, the family's ongoing community involvement, and the level of integration into Canadian society. |
[6] The letter than briefly recapitulated the bases of the previous unsuccessful claims without either relying on any significant new evidence or change of circumstances, or alleging that the applicants would suffer some sanction in India as a result of their political activities that was perhaps less serious than that required for a successful refugee or post-determination claim. The remainder of the letter is devoted to an elaboration of the aspects of the applicants' lives in Canada adverted to in the passage quoted in the previous paragraph, although the writer also states in the conclusion:
| Moreover, Mr. Gautam continues to have a fear, which I would submit is well-founded, of being persecuted if he were forced to return to India. |
[7] The officer rejected their subsection 114(2) claim on the ground that the Gautams had not demonstrated sufficient humanitarian and compassionate grounds to justify a positive decision: first, they have been in Canada a relatively short time and have not shown "exceptionally good evidence of establishment"; second, they would not face undue hardship if they were required to return to India. Noting that the applicants' refugee and post-determination claims had been rejected, the officer concluded: "It appears that this is a case of economic betterment only."
C. ISSUES AND ANALYSIS
[8] Counsel attacked on two grounds the legality of the officer's rejection of the applicants' subsection 114(2) claim. First, without examining the evidence for herself, the officer based her finding that the applicants would suffer no hardship in India on the rejection of their unsuccessful claims before the Refugee Division and the post-determination claims officer. Second, in rejecting their claims because the applicants had not shown "exceptionally good evidence of establishment" in Canada, the officer erred in law by setting an unduly high establishment standard that applicants must meet in order to receive a favourable decision on a subsection 114(2) application.
[9] Before examining these arguments, I should emphasize the highly discretionary and residual nature of subsection 114(2), and the consequently heavy burden that an applicant must discharge in order to satisfy the Court that a rejection of a claim under this provision was unlawful.
[10] While the grounds on which courts normally review the exercise of statutory discretion apply to decisions made under subsection 114(2), the subjective nature of the decisions to be made, and the fact that they do not involve the determination of claimants' legal rights, inevitably make it difficult for applicants to establish that an officer has taken into account a factor that is legally irrelevant to the exercise of the discretion or failed to take into account one that must be considered, acted for some improper purpose, unlawfully failed to exercise the discretion or rendered a decision that is otherwise patently unreasonable.
[11] Similarly, while the duty of fairness applies to the decision-making process under subsection 114(2), its content is at the low end of the spectrum, for much the same reasons that decisions are difficult to impugn successfully on substantive grounds: Shah v. Canada (Minister of Employment and Immigration) (1994), 170 NR 238 (F.C.A.).
[12] It will be recalled that subsection 114(2) provides that a person may be exempted from a requirement of the regulations, or his or her admission to Canada otherwise facilitated,
| When the Minister is satisfied that the person should be exempted from that regulation or that person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
[13] The broad discretion conferred by this provision has not been limited by the enactment of a statutory definition of the term "compassionate or humanitarian considerations". However, in order to reduce inconsistencies among decision-makers and to provide assistance for claimants when making their submissions, Immigration Canada has published Guidelines that structure the exercise of discretion under subsection 114(2).
[14] As the Guidelines themselves make clear, they are neither legally binding, nor exhaustive of the facts that an officer may take into account when discharging the legal obligation of considering the entirety of a claim by reference to the statutory standard, "the existence of compassionate or humanitarian considerations."
[15] Conversely, the Guidelines do not directly create any legal entitlement in claimants who believe that they have satisfied them, although the rejection of a claim may be set aside as an abuse of discretion if it is based either on a patently unreasonable interpretation or application of an applicable provision in the Guidelines, or on a provision that was clearly not relevant.
[16] IE 9.07 of the Immigration Manual deals with claims based on humanitarian and compassionate grounds under subsection 114(2). An indication of the narrow scope attributed to it by the Department can be seen in the following two sentences in paragraph 2 of IE 9.07.
| Humanitarian and compassionate grounds exist when unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada. |
| The fact that the person is self-sufficient in Canada will not normally constitute grounds for a positive recommendation on humanitarian grounds... There must be other factors such that refusal of the request would be unusually harsh. |
| (emphasis added) |
| Issue 1: Did the officer err in law by basing her conclusion that the applicants would not be subjected to sanctions in India on the rejection of the applicants' refugee and post-determination claims? |
[17] Counsel for the applicants was content at the hearing to rely on the written submissions that he had made on this issue. He had argued that the officer had fettered her discretion by failing to conduct an independent assessment of the risk that the applicants were likely to face if required to return to India. Alternatively, it might be said, by basing her decision on the earlier claims the officer had failed to discharge that aspect of the duty of procedural fairness that requires a decision-maker to investigate a claim with reasonable thoroughness.
[18] This argument cannot succeed on the facts of this case. First, in the written submissions made to the officer the applicants based their claim on the ground on which they had relied before the Refugee Division and the PCDO. It was quite appropriate for the officer to rely on the rejection of the other claims in rejecting the subsection 114(2) claim, in the absence of either additional evidence, or a submission that on their return to India the applicants would be subject to unduly harsh sanctions, even if not satisfying the refugee definition or the risk assessment criterion under section 53 (threat to life or freedom for reasons of, inter alia, political opinion).
[19] Second, it would seem from the officer's notes that in fact she did not base her finding that it was safe for the applicants to return to India solely on the previous decisions. Thus, she noted that the applicants' family, including their sons, had continued to live in their home town. The officer concluded that, on the basis of a complete review of the written submissions and the statements made at the interview, the applicants were seeking to remain in Canada "for economic betterment only."
[20] No doubt it would have been preferable if the officer had expressly reconsidered the applicants' allegations of fear by reference to the more flexible criteria of the Guidelines respecting subsection 114(2), namely "severe sanctions", or "unduly harsh or inhumane treatment". However, as I have already noted, officers are subject to a minimal standard of procedural fairness when considering subsection 114(2) applications, and I am unable to conclude that the officer in this case failed to give to the applicants' claim the level of scrutiny to which they were in law entitled.
| Issue 2: Did the officer err in law in rejecting the claim because the applicants had failed to show "exceptionally good evidence of establishment"? |
[21] Counsel submitted that the officer had set the establishment hurdle too high, and had thus erred in law. He relied on IE 9.06 of the Guidelines ("Public Policy Situations"), and in particular paragraph 3, which provides that illegal de facto residents may be considered for landing from within Canada who are so established that they have their residence here, and not abroad. IE 9.15 provides more specific guidance on establishment for the purpose of assessing a claim to be landed as an illegal de facto resident.
[22] I do not find this argument persuasive. First, the Gautams did not ask to be considered for landing as illegal de facto residents, but by virtue of humanitarian and compassionate considerations, and so the establishment Guidelines on which counsel for the applicants relied did not apply to their claim.
[23] Second, as persons who had previously come to the attention of the immigration authorities by virtue of their refugee and post-determination claims, the applicants clearly fell outside the definition of illegal de facto residents contained in paragraph 3 of IE 9.06.
[24] Third, to the extent that the officer was obliged to consider the degree to which the applicants had become established in Canada, it was reasonable for her to consider this factor in the context of the claim as a whole, including any unusual hardship that they would face in India, and the presence of family members in Canada. Finding that the applicants faced neither undue hardship in India, nor had family members in Canada, the officer was entitled to require a higher standard of establishment in Canada before finding that there were sufficient humanitarian and compassionate grounds for making a favourable disposition of their claim.
[25] Indeed, the phrase to which counsel took exception, "exceptionally good evidence of establishment", is found in IE 9.15, paragraph 3(d) where, in the context of establishment and illegal de facto residents, it is said:
| Persons without close family ties will have to show exceptionally good evidence of establishment and long term financial stability before being approved. |
| (emphasis added) |
Even if this paragraph is directly applicable only to long term illegal residence claims, it illustrates the propriety of the approach taken by the officer in the present case.
D. CONCLUSION
[26] For these reasons the application for judicial review is dismissed.
"John M. Evans"
Judge
TORONTO, ONTARIO
April 29, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2725-98
| STYLE OF CAUSE: RAKESH GAUTAM |
NIRMAL DEVI GAUTAM
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: TUESDAY, APRIL 27, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: EVANS, J.
DATED: THURSDAY, APRIL 29, 1999
APPEARANCES: Mr. Jaswinder Gill
For the Applicants
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. E.,
Toronto, Ontario
M4P 1L3
For the Applicants
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990429
Docket: IMM-2725-98
Between:
| RAKESH GAUTAM |
NIRMAL DEVI GAUTAM
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER