JUDGMENT AND REASONS

I. Overview

[1] The Applicant, Mr. Oyeyiola, is seeking a judicial review of the rejection of his permanent resident application on humanitarian and compassionate grounds (H&C). I dismiss his application for the following reasons.

[2] The Applicant is a citizen of Nigeria who sought an exemption from the ordinary requirements of the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA] on H&C grounds. He based his application on the hardship he would face in Nigeria, primarily as a bisexual man, and on his degree of establishment in Canada.

[3] The Applicant arrived in Canada and made a refugee claim in 2018. The basis of the Applicant’s claim was his sexual orientation as a bisexual man, and as such he would face a serious possibility of persecution in Nigeria. Both the RPD and the RAD rejected his claim because they found him not to be credible. In other words, they found that the Applicant had not established that he was a bisexual man. The Federal Court dismissed the judicial review of the RAD’s decision.

[4] On hardship, the Applicant had argued that not only would he face hardship in Nigeria as a bisexual man who was outed, he was also divorced, had been out of the country for a long time, and would therefore not have sufficient connections left in the country. His longtime absence would make it difficult to find work, find a place to live and to make social connections. He made this argument while his H&C application stated that he had three sons, his mother and siblings in the country.

[5] On his establishment in Canada, the Applicant submitted that he was gainfully employed, paid taxes, had meaningful community support, including at his church, and had formed friendships.

II. Issues and Standard of Review

[6] The only issue before me is whether the Officer’s decision was reasonable.

[7] Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at paras 12-13 and 15 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21, at paras 8, 63 [Mason].

[8] I have started by reading the reasons of the decision-maker in conjunction with the record that was before them holistically and contextually. As the reviewing judge, I have focused on the decision-maker’s reasoning process (Vavilov at paras 83–84, 87). I have not considered whether the decision-maker’s decision was correct, or what I would do if I were deciding the matter itself: Vavilov, at para 83; Canada (Justice) v DV, 2022 FCA 181 at paras 15, 23. It is not this Court’s role to reweigh the evidence: Vavilov at para 125.

[9] A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision-maker (See Vavilov at paras 85, 91–97, 103, 105–106, 194; Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 at paras 2, 28–33, 61; Mason at paras 8, 59–61, 66). For a decision to be unreasonable, the applicant must establish that the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention.

III. Legislative Overview

[10] Section 25(1) of IRPA governs foreign nationals’ requests for H&C applications:

IV. Analysis

A. The Officer’s decision is reasonable

[11] H&C applications are exceptional in the sense that an applicant requests the Minister to exercise Ministerial discretion to relieve them from requirements in the IRPA. The Supreme Court of Canada confirmed that the purpose of this H&C discretion is “to offer equitable relief in circumstances that ‘would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another” (Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 at paras 13, 21, citing Chirwa v Canada (Minister of Citizenship and Immigration), (1970) 4 IAC 338, p 350).

[12] The purpose of humanitarian and compassionate discretion is to “mitigate the rigidity of the law in an appropriate case,” and no limited set of factors warrants relief (Kanthasamy at para 19). As such, I agree with my colleague, Madam Justice Sadrehashemi in Tuyebekova v Canada (Citizenship and Immigration), 2022 FC 1677 at para 11 [Tuyebekova]:

The factors warranting relief will vary depending on the circumstances, but ‘officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them” (Kanthasamy at para 25 citing Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paras 74-75 [Baker]).

[13] The Applicant bears the burden of establishing that an H&C exemption is warranted (Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 at para 45). Like with other H&C cases that turn on the facts, context matters. As part of the context, here are the undisputed facts before the Officer:

• 1)The Applicant’s allegations on his sexual orientation were tested by a robust administrative process before two divisions of the IRB, the RPD and the RAD. Both found him not to be a bisexual man. The Officer accepted the IRB’s fact finding that he was not bisexual and therefore faced no risk in Nigeria;

• 2)The Applicant has been living and working in Canada. He has friends and is part of his church community. His employer provides him with accommodation, and he is generally respected and appreciated in his work. If he leaves Canada, he will lose his Canadian job and will likely earn less in Nigeria. The officer accepted these facts and found that the country conditions in Nigeria are not the same as in Canada;

• 3)The Applicant is divorced and as such, his former life has changed. While the Applicant argued at judicial review that he has no family left in Canada, the record showed that he had his children, mother and two siblings in the country;

[14] The Applicant had presented his sexual orientation as a bisexual man as a relevant fact to the hardship he faced in Nigeria. However, the IRB rejected this fact. Without new and credible evidence, the Officer could reasonably rely on the IRB’s robust fact-finding process. The RPD and the RAD concluded after a full hearing and an appeal that the Applicant was not bisexual. The Federal Court upheld the RAD decision. At the judicial review hearing, counsel for the Applicant conceded that the Officer’s conclusion was not unreasonable.

[15] The Officer fully engaged with the remaining hardship factors. First, the Applicant’s establishment makes it undesirable for him to relocate to Nigeria, where life is not the same for him. Second, as a divorced man, he does not return to his former life. However, the factors the Applicant noted were all the natural and inevitable consequences of the law. The evidence before the Officer did not point to a disproportionate hardship (Kanthasamy). It was therefore reasonable for the Officer to find that they did not meet the higher threshold for H&C relief for the Officer to exercise their discretion. The Officer’s reasons were responsive to the evidence before them.

[16] The Applicant argues that he is well-established in Canada and that the Officer failed to appreciate the extent to which he would give up that establishment by having to return to Nigeria. As stated before, the Officer agreed that the Applicant is well-established and considered his central submissions on establishment, but found that the hardship he would suffer on leaving Canada is neither undue nor disproportionate. The Officer’s global assessment showed a clear chain of reasoning on why with no undue hardship, the Applicant’s establishment was insufficient to grant him an exemption. The Applicant disagrees and would like this Court to reweigh evidence, which is not its role on judicial review (Vavilov at para 125).

[17] On the remaining facts (all facts, except on the allegations of sexual orientation) the issues related to the Applicant’s establishment in Canada, and hardship on removal, were therefore not issues concerning rejecting the underlying facts, but of determining the weight to be afforded to each fact. This evaluative exercise falls squarely within the Officer’s discretion as a decision-maker (Evans v Canada (Citizenship and Immigration), 2021 FC 733 at para 56; Egugonwu v Canada (Citizenship and Immigration), 2020 FC 231 at para 75).

[18] I find that the Officer thoroughly assessed the Applicant’s evidence and arguments. They gave positive weight to the Applicant’s establishment, employment and community connection. They concluded that there were negative factors where they thought the evidence grounded such findings. For example, the Officer noted that the Applicant’s ability to be established was due to their illegal entry to Canada, which was a negative factor for them. While this factor was not determinative, assessing and weighing the relevant evidence is the very essence of the Officer’s reasonable exercise of their discretion.

[19] Ultimately, the Officer acknowledged that the hardship issues the Applicant raised are consistent with the inevitable consequences of immigration and do not amount to conditions necessary to evoke an exception to the rule. Their chain of reasoning was clear and justified why the Applicant’s affiliations were insufficient to overcome the legal burden established by section 25 of IRPA.

V. Conclusion

[20] The Officer’s decision engages with the relevant evidence and the Applicant’s arguments and exhibits the requisite degree of justification, intelligibility, and transparency. The application for judicial review is therefore dismissed.

[21] Neither party proposed a question for certification. I agree that none arises.

JUDGMENT IN IMM-8125-24

THIS COURT’S JUDGMENT is that

1. The Judicial Review is dismissed.

2. There is no question to be certified.

FEDERAL COURT

SOLICITORS OF RECORD

WRITTEN SUBMISSIONS BY:

SOLICITORS OF RECORD: