Date: 20061220
Docket: IMM-1460-06
Citation: 2006 FC 1515
BETWEEN:
BALLA DAVID DIARRA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1]
This is an application for judicial review of a decision of
an officer of Citizenship and Immigration Canada (CIC), dated March 3, 2006, who rejected the application for
permanent residence in Canada based on humanitarian and compassionate considerations filed by the
applicant on August 18, 2003.
[2]
The
applicant, Balla David Diarra, 22 years of age, was born in the district of
Kati, near Bamako,
Mali. He was born
out of wedlock. The applicant lived with his mother until the age of seven and
then with his uncle and aunt. He alleges that his aunt abused him physically and
psychologically.
[3]
The
applicant arrived in Canada on September 5, 2001, and claimed refugee
protection because of his membership in a particular social group, namely,
illegitimate children in Mali. The claim was rejected on September 12, 2002 (when he was
17 years old), because of the reasonable possibility of an internal flight
alternative in the cities of Mopti or Segou in Mali.
[4]
On
August 18, 2003, the applicant made an application for permanent residence in Canada based on
humanitarian and compassionate considerations.
[5]
On
March
3, 2006,
the immigration officer rejected this application. That decision is the subject
of the present application for judicial review.
I. Standard of review
[6]
It
is well established that such a request for an exemption for special relief is
purely discretionary. Thus, the applicable standard of review is reasonableness
simpliciter. This standard was expounded by Mr. Justice Iacobucci
in Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R.
748, as follows, at pages 776 and 777:
. . . An unreasonable decision is one that, in the main, is
not supported by any reasons that can stand up to a somewhat probing
examination. Accordingly, a court reviewing a conclusion on the
reasonableness standard must look to see whether any reasons support it.
The defect, if there is one, could presumably be in the evidentiary foundation
itself or in the logical process by which conclusions are sought to be drawn
from it . . . .
[7]
Using
a pragmatic and functional approach, the Supreme Court ruled in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, that the
discretionary power granted to the immigration officer must be considered with
a certain degree of deference:
[51] As stated earlier, the legislation and Regulations delegate
considerable discretion to the Minister in deciding whether an exemption should
be granted based upon humanitarian and compassionate
considerations. The Regulations state that “[t]he Minister is .
. . authorized to” grant an exemption or otherwise facilitate the admission
to Canada of any person “where the Minister is satisfied
that” this should be done “owing to the existence of compassionate or
humanitarian considerations”. This language signals an intention to leave
considerable choice to the Minister on the question of whether to grant an H
& C application.
. . .
[59] The second factor is the expertise of the
decision-maker. The decision- maker here is the Minister of Citizenship
and Immigration or his or her delegate. The fact that the formal
decision-maker is the Minister is a factor militating in favour of
deference. The Minister has some expertise relative to courts in
immigration matters, particularly with respect to when exemptions should be given
from the requirements that normally apply.
. . .
[62] These factors must be balanced to arrive at the
appropriate standard of review. I conclude that considerable deference
should be accorded to immigration officers exercising the powers conferred by
the legislation, given the fact-specific nature of the inquiry, its role within
the statutory scheme as an exception, the fact that the decision-maker is the
Minister, and the considerable discretion evidenced by the statutory
language. Yet the absence of a privative clause, the explicit
contemplation of judicial review by the Federal Court – Trial Division and the
Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should
not be as deferential as “patent unreasonableness”. I conclude, weighing
all these factors, that the appropriate standard of review is reasonableness simpliciter.
II. Legislative context
[8]
The
decision that the applicant is seeking to have set aside was rendered under
subsection 25(1) of the Immigration and Refugee Protection Act,
S.C. (2001), c. 27 (the Act), formerly subsection 114(2).
[9]
However,
this provision is a discretionary exception. As noted by Mr. Justice Iacobucci
in Chieu v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 84:
[64] . . . an application to the Minister under s. 114(2)
is essentially a plea to the executive branch for special consideration which
is not even explicitly envisioned by the Act. . . .
[10] Applying for
an immigrant visa from outside of Canada is a requirement under
subsection 11(1) of the Act, and the granting of an exemption under
section 25 of the Act is an exceptional process. Subsection 25(1) of the Act
specifies that the Minister may grant permanent resident status or an exemption
from an obligation under the Act if he is satisfied there are humanitarian and
compassionate considerations or public policy considerations warranting such a
decision:
|
25. (1) The Minister shall, upon
request of a foreign national who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligation of this Act 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.
|
25. 1) Le ministre doit, sur
demande d’un étranger interdit de territoire ou qui ne se conforme pas à la
présente loi, et peut, de sa propre initiative, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger – compte tenu de
l’intérêt supérieur de l’enfant directement touché – ou l’intérêt public le
justifient.
|
[11] In my
opinion, the decision made by the CIC immigration officer is not unreasonable.
She relied on the evidence submitted by the applicant as at the time she
rendered her decision. In addition, this decision is not based strictly on the
lack of a passport and other required documents. The officer also made a
detailed analysis of the file and determined that there were no humanitarian
and compassionate considerations which would justify exempting the applicant
from the statutory obligation of applying for an immigrant visa before coming
to Canada.
III. The applicant’s identity
documents
A. New evidence
[12] It appears
that the applicant intended to update his file by submitting identity documents
before this Court, such as his passport, which were not before the immigration
officer when the decision was rendered. It is trite law that in an application
for judicial review, this Court can only consider the evidence which was before
the immigration officer at the time the application was made (Herrada v.
Minister of Citizenship and Immigration), 2006 FC 1003, at paragraphs 27
and 28). Therefore, these documents cannot be considered for the purposes of
this application for judicial review.
B.The passport
application
[13] In my
opinion, in this case, the immigration officer was entitled to require the
applicant’s passport as proof of identity. First of all, as specified in
paragraphs 50(1)(a) and (b) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations), a foreign national
seeking permanent residence in Canada must hold a passport or a travel
document issued by the country of which he or she is a citizen or a national.
In this case, the respondent notes that the immigration officer had explained
to the applicant that she could not accept a copy of a birth certificate and a
school identity book because of the requirements set out in subsection 50(1) of
the Regulations. In addition, the immigration officer advised the applicant on
several occasions of the importance of submitting identity documents for the
processing of his file.
[14] In Vairamuthu
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1557
(T.D.) (QL), the Court ruled that evidence of identity is an essential element
to be considered in deciding an application for permanent residence on
humanitarian and compassionate considerations, as specified in the Act and
Regulations, and the immigration officer cannot waive this requirement.
Therefore, the immigration officer did not err in invoking the lack of evidence
of the applicant’s identity in rejecting his application, and considering the
warnings given to the applicant, she did not in any way infringe the principles
of natural justice or procedural fairness.
[15] Finally, it
is important to note that an immigration officer is not bound by the previous
decisions of the Refugee Protection Division. It is up to that officer to
assess and dispose of an application by relying on the evidence submitted to
him or her and by taking into consideration the requirements specified in the
Act and Regulations. This Court must uphold the immigration officer’s decision
unless it is unreasonable, which is not the case here.
IV. Assessment of the
relevant factors by the officer
[16] As stated at
paragraphs 29 and 30 in Herrada, supra, the examination of an
application under subsection 25(1) of the Act involves two distinct
assessments. For the purposes of the first assessment, the decision-maker must
determine if the applicant has satisfied him or her that an exemption from the
requirement to apply for permanent residence from abroad is justified. An
exemption is justified when an applicant shows that personal circumstances are
such that he or she would sustain unusual and undeserved or disproportionate
hardship if he or she were required to apply for permanent residence from
outside of Canada.
[17] The second
assessment involves determining whether the applicant is eligible for permanent
residence in Canada.
[18] In the case
at bar, the applicant alleges that the immigration officer erred in not
considering certain factors when studying his application for residence, such
as (1) sponsorship by Mamadou L. Sow, (2) his educational and professional
background; (3) the fact that his half-sister and nephews are in Canada; and
(4) letters of support from community organizations and from his employer in
Canada. However, I am of the opinion that the grounds invoked by the applicant
do not constitute in themselves unusual and undeserved or disproportionate
hardship requiring an exception under the general scheme obliging every
foreigner to apply for permanent residence in Canada from abroad.
[19] Furthermore,
in this case, the applicant did not show that he would sustain unusual and
undeserved or disproportionate hardship if he were to make his application from
outside of Canada. It is up to
the applicant to raise and establish humanitarian and compassionate
considerations in support of his application, as has been decided by the
Federal Court of Appeal in Owusu v. Canada (Minister of Citizenship and
Immigration), [2004] 2 F.C.R. 635, at paragraph 8:
. . . And, since
applicants have the onus of establishing the facts on which their claim rests,
they omit pertinent information from their written submissions at their peril.
In our view, Mr. Owusu’s H & C application did not adequately raise the
impact of his potential deportation on the best interests of his children so as
to require the officer to consider them.
[20] In my
opinion, the immigration officer weighed all the factors relevant to the applicant’s
application, including those invoked by him.
[21] In addition,
the officer considered the following points in her decision:
- the applicant’s alleged stutter is a
minor handicap and would improve as a result of treatment. In addition, the
evidence does not show that the applicant is still being treated and that
interrupting these treatments would cause significant harm to his physical and
mental health;
-
the
applicant’s fear of being sold as a child-slave was not accepted by the Refugee
Protection Division. Instead, the panel concluded that the applicant feared
mistreatment at the hands of his aunt, Jacqueline. Moreover, now that the
applicant is 22 years old, he cannot invoke this fear if he were to return to
his country of origin.
[22] Finally, the applicant’s
criticism of the assessment of the evidence made by the CIC immigration officer
is not valid. It is important to note that it is not up to the Court to
substitute itself for the CIC officer on this point (see for example Mann v.
Minister of Citizenship and Immigration, 2002 FCT 567):
[11] I wish to note the able submissions of counsel for the applicant and
the sympathy that, in my view, the applicant’s case attracts. The sympathy
evoked flows particularly from the length of time that the applicant has been
in Canada, the difficulties that he has encountered and, it would appear,
overcome while in Canada, his new relationship in Canada and the Canadian born
child of that relationship, and, what I conclude must be an obvious reality,
that the applicant is now closer to his relatives and
friends in Canada than he is likely to be to his family members in India,
particularly having regard to the length of time he has been absent from India
and the divorce proceedings that he has instituted in India. That being said,
I cannot conclude that the Immigration Officer ignored or misinterpreted
evidence before her, took into account irrelevant matters or failed to consider
the best interests of the applicant’s Canadian born child. I am satisfied that
the Immigration Officer’s notes, quoted earlier in these reasons, reflect
consideration of all of the factors placed before her by the applicant and that
she was bound to consider. That I might have weighed those factors differently
is not a basis on which I might grant this application for judicial review.
[23] Considering
the preceding, I am of the opinion that the conclusions of the CIC immigration
officer are not unreasonable; accordingly, this application for judicial review
is dismissed.
“Yvon
Pinard”
Ottawa, Ontario
December
20, 2006
Certified true translation
Michael Palles
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