Singh et al. v. Canada (Minister of Citizenship and Immigration), (2009) 340 F.T.R. 29 (FC)

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: December 16, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 340 F.T.R. 29 (FC);2009 FC 11

Singh v. Can. (M.C.I.) (2009), 340 F.T.R. 29 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2009] F.T.R. TBEd. JA.027

Manjit Singh, Ravinder Kaur, Muskan Singh et Samaninder Singh (demanderesse) v. Le Ministre de la Citoyenneté et de l'Immigration (défenderesse)

(IMM-1753-08; 2009 CF 11; 2009 FC 11)

Indexed As: Singh et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Shore, J.

January 7, 2009.

Summary:

The applicants applied for judicial review of an immigration officer's decision refusing to exempt the applicants from the obligation to first obtain a visa from outside Canada when filing an application for permanent residence on humanitarian and compassionate grounds.

The Federal Court dismissed the application.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - The applicants arrived in Canada and were denied refugee status - They applied for permanent residence based on humanitarian and compassionate considerations under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) - An immigration officer refused to exempt the applicants from the obligation to first obtain a visa from outside Canada and dismissed the application - The applicants applied for judicial review, asserting that the immigration officer erred by failing to take into account that the principal applicant's son, who was nine years old, was a citizen of the United States and not India, like the other applicants - The Federal Court dismissed the application - It was true that the officer did not mention this fact, but it did not necessarily make the decision invalid - To obtain an exemption, the applicants had to prove that they would face unusual, undeserved or disproportionate hardship if they were required to file their respective applications for permanent residence from outside the country - The applicants had not established or even argued that (a) their son could not accompany them to India; (b) he could not obtain Indian citizenship; and (c) he would not be entitled to an education in India - Since these issues were not raised before the officer, he could not be faulted for not having considered them - See paragraphs 22 to 30.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - The applicants arrived in Canada and were denied refugee status - They applied for permanent residence based on humanitarian and compassionate considerations under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) - An immigration officer refused to exempt the applicants from the obligation to first obtain a visa from outside Canada and dismissed the application - The applicants applied for judicial review, asserting that s. 25(1) of the IRPA did not limit the Minister's discretion, who could grant an exemption "if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations" - The applicants asserted that Chapter IP5 of the guidelines of the Department of Citizenship and Immigration dealt with disproportionate, unusual or undeserved hardship in the case of applications made from outside Canada and that the immigration officer made his decision strictly from this point of view - Accordingly, the applicants argued that the officer's discretion was fettered by the guidelines - The Federal Court dismissed the application - The issue on judicial review was whether the decision was a reasonable application of the general language of s. 25(1) - Moreover, the criterion of "unusual, undeserved or disproportionate hardship" or "difficultés inhabituelles et injustifiées ou excessive" had now been adopted by this court in its decisions on s. 25(1), which meant that these terms were more than mere guidelines - See paragraphs 31 to 38.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - The applicants arrived in Canada and were denied refugee status - They applied for permanent residence based on humanitarian and compassionate considerations under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) - An immigration officer refused to exempt the applicants from the obligation to first obtain a visa from outside Canada and dismissed the application - The applicants applied for judicial review, asserting that the officer failed to consider the applicants' degree of establishment in Canada - The Federal Court dismissed the application - The ties an applicant had allegedly developed in Canada were not sufficient in themselves to justify exempting the applicant from the requirement to obtain an immigrant visa from outside Canada - See paragraphs 49 to 52.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - The applicants arrived in Canada and were denied refugee status - They applied for permanent residence based on humanitarian and compassionate considerations under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) - An immigration officer refused to exempt the applicants from the obligation to first obtain a visa from outside Canada and dismissed the application - The applicants applied for judicial review, asserting that the officer failed to consider the applicants' degree of establishment in Canada - The officer was not satisfied that the applicants were established to a degree that would constitute undeserved or disproportionate hardship if they were to leave Canada - The applicants further asserted that the degree of establishment in Canada was considered incorrectly, since their prolonged stay in Canada (four years) was not due to fault or negligence on their part - The Federal Court dismissed the application - Individuals who, like the applicants, had no legal right to remain in Canada but had done so absent circumstances beyond their control should not be rewarded for accumulating time in Canada - See paragraphs 53 to 56.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - The applicants arrived in Canada and were denied refugee status - They applied for permanent residence based on humanitarian and compassionate considerations under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) - An immigration officer refused to exempt the applicants from the obligation to first obtain a visa from outside Canada and dismissed the application - The applicants applied for judicial review, asserting that the officer failed to consider the applicants' degree of establishment in Canada - The officer was not satisfied that the applicants were established to a degree that would constitute undeserved or disproportionate hardship if they were to leave Canada - The applicants disputed the lawfulness of the connection the officer made between their degree of establishment in Canada and the criterion of the hardship they would face if they were required to file their respective applications for permanent residence from outside the country, which had to be unusual, undeserved or disproportionate - The Federal Court dismissed the application - The connection made by the officer was entirely consistent with the decision of the court - The degree of attachment was relevant to the issue of whether the hardship flowing from having to leave Canada was unusual or disproportionate - See paragraphs 57 to 60.

Cases Noticed:

Doumbouya v. Canada (Minister of Citizenship and Immigration) (2007), 325 F.T.R. 186; 2007 FC 1186, refd to. [para. 1].

Akinbowale v. Canada (Minister of Citizenship and Immigration) (2007), 320 F.T.R. 100; 2007 FC 1221, refd to. [para. 2].

Djerroud v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 664; 160 A.C.W.S.(3d) 881; 2007 FC 981, refd to. [para. 2].

Mutanda v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 649; 148 A.C.W.S.(3d) 977; 2005 FC 1101, refd to. [para. 15].

Egbejule v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 503; 140 A.C.W.S.(3d) 363; 2005 FC 851, refd to. [para. 15].

Aguilar Espino et al. v. Canada (Minister of Citizenship and Immigration) (2008), 373 N.R. 397; 164 A.C.W.S.(3d) 680; 2008 FCA 77, refd to. [para. 16].

Quiroa et al. v. Canada (Minister of Citizenship and Immigration) (2007), 312 F.T.R. 262; 2007 FC 495, refd to. [para. 17].

Serda et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 209; 146 A.C.W.S.(3d) 1057; 2006 FC 356, refd to. [para. 19].

Barzegaran v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 465; 2008 FC 681, refd to. [para. 21].

Zambrano et al. v. Canada (Minister of Citizenship and Immigration) (2008), 326 F.T.R. 174; 2008 FC 481, refd to. [para. 21].

Tozzi v. Canada (Attorney General), [2007] F.T.R. Uned. 994; 2007 FC 825, refd to. [para. 29].

Sabadao v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 333; 158 A.C.W.S.(3d) 457; 2007 FC 623, refd to. [para. 29].

Comstock v. Public Service Alliance of Canada et al. (2007), 310 F.T.R. 277; 2007 FC 335, refd to. [para. 29].

334156 Alberta Ltd. v. Minister of National Revenue (2006), 300 F.T.R. 74; 2006 FC 1133, refd to. [para. 29].

Hussain v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 425; 149 A.C.W.S.(3d) 303; 2006 FC 719, refd to. [para. 29].

Ahmad et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 743; 140 A.C.W.S.(3d) 540; 2004 FC 1268, refd to. [para. 29].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195; 316 N.R. 299; 2004 FCA 49, refd to. [para. 34].

Thamotharem v. Canada (Minister of Citizenship and Immigration) (2007), 366 N.R. 301; 158 A.C.W.S.(3d) 972; 2007 FCA 198, refd to. [para. 34].

Duplessis v. Canada (Minister of Citizenship and Immigration), 2006 FC 1190, refd to. [para. 36].

Tshidind v. Canada (Minister of Citizenship and Immigration) (2006), 291 F.T.R. 156; 2006 FC 561, refd to. [para. 37].

Liniewska v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 624; 152 A.C.W.S.(3d) 500; 2006 FC 591, refd to. [para. 38].

Diaz Ruiz et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 255; 147 A.C.W.S.(3d) 1050; 2006 FC 465, refd to. [para. 38].

Kawtharani v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 99; 146 A.C.W.S.(3d) 338; 2006 FC 162, refd to. [para. 38].

Pashulya v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 143; 2004 FC 1275, refd to. [para. 38].

Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; 288 N.R. 174; 2002 FCA 125, refd to. [para. 38].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 38].

Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al., [1994] 2 F.C. 247; 164 N.R. 342 (F.C.A.), refd to. [para. 45].

Uddin v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 624; 116 A.C.W.S.(3d) 930; 2002 FCT 937, refd to. [para. 52].

Klais v. Canada (Minister of Citizenship and Immigration) (2004), 131 A.C.W.S.(3d) 731; 2004 FC 785, refd to. [para. 52].

Lee v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 259; 138 A.C.W.S.(3d) 350; 2005 FC 413, refd to. [para. 52].

Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 597; 101 A.C.W.S.(3d) 995 (T.D.), refd to. [para. 60].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1) [para. 13].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 97 [para. 43].

Counsel:

Michel Le Brun, for the applicants;

Michel Pépin, for the respondent.

Solicitors of Record:

Michel Le Brun, Montreal, Quebec, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on December 16, 2008, at Montreal, Quebec, by Shore, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on January 7, 2009.