Date: 20101112
Docket: IMM-6431-09
Citation:
2010 FC 1128
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, November 12, 2010
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
DAVID
MBAYA KABAMBA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review in
accordance with subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a
decision dated November 17, 2009, by a pre-removal risk
assessment officer (officer), rejecting the applicant’s request for a visa
exemption on humanitarian and compassionate (H&C) grounds.
[2]
Before
reviewing the merits of the applicant’s application, the Court must dispose of
the respondent’s preliminary objection on the admissibility of certain exhibits
attached to the applicant’s affidavit that were not before the officer at the
time the decision was made. This concerns, more specifically, the documents
appearing on the following pages of the applicant’s record: 16, 18‑22, 30-32,
34-35, 37-39, 75-81, 87-92, 94, 97, 99, 107-149.
[3]
These
documents refer to, among other things, a certain family relationship with a
journalist who was killed, the departure of some of the applicant’s children
from the Democratic Republic of the Congo (DRC), an explanation of the
applicant’s financial situation, a death certificate for a 25‑year‑old
child, letters of support for the applicants, etc.
[4]
It
is settled law in Lemiecha (Litigation guardian of) v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 1333 (F.C.T.D.) (QL), at paragraphs
3 and 4, that
judicial review of a decision by a federal board, commission or other tribunal
should proceed on the basis of the evidence that was before the decision-maker.
[5]
Given
the arguments of the parties, the Court allows the respondent’s objection and
states that it will not consider these documents.
[6]
The
application for judicial review will be dismissed for the following reasons.
[7]
The
applicant, a citizen of the DRC, fears returning to his country because he
alleges that he joined the Union pour la Démocratie et le Progrès Social
(UDPS), a political party opposing the regime of Joseph Kabila.
[8]
He
claims that his uncle, Bapuwa Mwamba, a journalist, was killed in 2006 after
writing an article further to attending a demonstration for democracy organized
by the UDPS with the applicant.
[9]
The
applicant’s refugee claim in Canada was rejected on July 26, 2007, by the
Refugee Protection Division (RPD), because it lacked
credible evidence of a family relationship with the journalist who was killed
and his membership in the UDPS party, and because he did not seek protection in
Belgium or the United States before arriving in Canada.
[10]
His
application for judicial review of the RPD decision was dismissed by the
Federal Court.
[11]
The
assessment and the weighing of evidence by a tribunal such as the RPD are
subject to the standard of reasonableness (Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[12]
In
the case under review, the applicant is arguing that the officer erred in
assessing his establishment in Canada, his children’s best interests and risk
in the context of his H&C application.
[13]
With
respect to the applicant’s establishment in Canada, the officer, despite finding
positive elements favouring the applicant, was unconvinced that requiring the
applicant to file his claim outside Canada would cause him unusual, undeserved
or disproportionate hardship.
[14]
The
reasons behind this finding are not unreasonable. The officer considered the
short period of time the applicant had spent in Canada and the reasonable efforts
expected of a person in a similar situation.
[15]
The
applicant argues that the officer was not attentive and sensitive to his
children’s best interests.
[16]
The
Court notes that the applicant’s children have never been with him in Canada.
[17]
The
officer took into consideration the departure of his three children from the
DRC to Namibia and the possibility of the applicant finding work in his field
and being able to support his family members if he returned to the DRC. The
Court is not convinced that the reasons indicated in this assessment can be
characterized as unreasonable.
[18]
Finally,
the applicant contests the officer’s decision in his risk assessment in the
context of the H&C application.
[19]
Before
finding that there were insufficient humanitarian and compassionate reasons to warrant
an exemption, the officer focussed on analyzing the documentary evidence on the
DRC, the temporary stay of removal to this country, the UDPS party, the RPD
decision and the applicant’s personal situation.
[20]
The
Court is of the opinion that the officer’s decision is not unreasonable given
the evidence before him.
[21]
No
question for certification was proposed and this application does not give rise
to any.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the
application for judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Janine
Anderson, Translator
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