Date: 20120620
Docket: IMM-8638-11
Citation: 2012 FC 793
Toronto, Ontario, June 20,
2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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CYNTHIA MOMODU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an
application for judicial review of the decision of an immigration officer,
dated October 17, 2011, refusing the applicant’s application for permanent
residence on humanitarian and compassionate [H&C] grounds under sub-section
25(1)
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the
Act].
[2]
The
applicant is a citizen of Nigeria. She arrived in Canada in April 2008 and claimed refugee protection,
alleging that the police wanted to imprison her because she refused to enter
into a marriage with a village chief that had been arranged by her uncle. The
Refugee Protection Division of the Immigration and Refugee Protection Board
[RPD] refused her claim on July 28, 2010, finding that her allegations were not
credible. An application for leave from that decision was denied by this Court
on December 10, 2010. She also had a failed PRRA (dated October 11, 2011),
where, according to counsel, leave was denied.
[3]
In
the decision under review, the officer found that the applicant did not
establish that her removal would result in undue hardship for the following
reasons. First, her establishment in Canada did not create any unusual, undeserved or
disproportionate hardship. Second, the officer rejected the applicant’s
allegations of risk as they were found not credible by the RPD. Third, the
officer found that the applicant had not established that she or her daughter
would face discrimination amounting to undue hardship if they were returned to Nigeria.
[4]
The
applicant argues that the officer applied the wrong test for assessing
hardship, alleging that the officer failed to properly evaluate the hardship to
both herself and her daughter if she is removed from Canada. She submits more
specifically in this regard that the officer did not appropriately consider the
best interests of the applicant’s three-year-old Canadian-born daughter, who
would face either remaining in Canada alone without a caregiver or be subject
to the risk of female genital mutilation [FGM] or of being forced into an
unwanted marriage in Nigeria if she were to return to Nigeria with her mother.
[5]
The
respondent, for its part, argues that the H&C exemption is an extraordinary
and discretionary remedy reserved for unusual, undeserved or disproportionate
hardship and that the applicant did not meet her onus of establishing such
hardship. The respondent submits that the officer applied the correct test, carefully
considered the evidence and reached a reasonable conclusion. The respondent argues
that the officer specifically addressed the interests of the applicant’s
daughter, including the risk of FGM, and found this risk to not be
substantiated. The respondent argues that the applicant’s submissions amount to
a request to re-weigh the evidence, which this Court ought not to do in an
application for judicial review.
[6]
The
standard of review applicable in this application for judicial review is that
of reasonableness, it being firmly settled that officers’ decisions on H&C
applications are discretionary and that the exercise of discretion by an
H&C officer warrants considerable discretion (Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 DLR (4th) 193 at
para 62; Prashad v Canada (Minister of Citizenship and Immigration),
2011 FC 1286 at para 26, 208 ACWS (3d) 387; Paz v Canada (Minister of
Citizenship and Immigration), 2009 FC 412 at paras 22-25, [2009] FCJ No 497).
[7]
For
the reasons set out below, I have concluded that the officer’s decision is
reasonable and therefore will be maintained.
[8]
The
test the officer enunciated contains no error. He held in this regard that the
burden of proof was on the applicant to establish that she would suffer undue,
undeserved or disproportionate hardship if she were required to apply for
permanent residence from outside Canada, as is the normal course. The officer
then quoted from Inland Processing Manual 5 of Citizenship and Immigration
Canada, entitled, “Immigration Applications in Canada made on Humanitarian and
Compassionate Grounds” [IP 5], which sets out guidelines to be applied by
immigration officers in the assessment of H&C permanent residence
applications. In summary, the sections quoted from IP 5 state that to be
“unusual”, hardship is generally not anticipated or addressed by the Act, to be
“undeserved”, hardship generally is the result of circumstances beyond an
applicant’s control and that circumstances that are not “unusual” or
“undeserved” may nonetheless warrant H&C consideration if requiring that
the applicant make a permanent residency application from abroad would have an
unreasonable impact on the applicant due to the applicant’s personal
circumstances. The foregoing has been recognized by the case law as the
appropriate guiding principles relevant to the exercise of discretion by an
H&C officer (see e.g. Diallo v Canada (Minister of Citizenship and Immigration), 2007 FC 1062 at paras
35-40, 317
FTR 179; Uberoi v Canada (Minister of Citizenship and Immigration), 2006
FC 1232 at para 18, 301 FTR 146; Hawthorne v Canada (Minister of Citizenship
and Immigration), 2001 FCT 1041, 2001 [2001] FCJ No 1441 at paras 5 and 9).
Thus, contrary to what the applicant asserts, the officer did not apply the
wrong test.
[9]
As
noted, the applicant’s contention in this application for judicial review is
that the officer’s findings on lack of undue hardship were unreasonable as they
ignored the evidence regarding the risk of FGM or being forced into marriage
that the applicant claims her daughter would face in Nigeria. The only evidence before
the officer on these risks, however, was the general country documentation.
There was simply nothing to tie the applicant or her daughter specifically to
these risks.
[10]
In
my view, the officer’s decision fairly reflects the country documentation that
was placed before him. That documentation establishes that Nigeria is a difficult country
in which to live: it is poor, there is ongoing violence and crime and there is
systemic discrimination against women. In addition, the risks alleged by the
applicant do find some basis in the general documentation regarding Nigeria in that there is
evidence of FGM and of girls being forced into marriages at young ages against
their will. The officer reviewed the general country documentation, noting
correctly that it establishes that forced marriages mainly occur in the north
amongst Muslim communities (Certified Tribunal Record [CTR] at pages 100 to
103) and that FGM is most common within certain ethnic communities (CTR at
pages 76 and 95). The applicant is Christian, from the South, and has not
claimed to be a member of the ethnic communities most at risk for FGM. Thus,
there is nothing in the general country documentation which would point to the
applicant's daughter being particularly at risk on these points.
[11]
More
importantly, though, the applicant's contention is that she is the sole
caregiver for the child. Thus, once returned to Nigeria, it would be
the applicant who would be making decisions regarding her daughter. As the
respondent rightly notes, this fact undercuts the applicant's claims of
hardship for her daughter. The applicant has provided no evidence to indicate
that anyone else would be involved in rearing the child in Nigeria or would in
any other way be influential in decisions about the child's welfare. This is
dispositive of this application.
[12]
It
is trite law that the burden is on an applicant in an H&C application to
file evidence to support his or her claims (see e.g. Kisana v Canada
(Minister of Citizenship and Immigration), 2009 FCA 189 at para 35, [2009]
FCJ No 713; Owusu v Canada (Minister of Citizenship
and Immigration), 2004
FCA 38 at para 8, [2004] 2 FCR 635; Zhou v Canada (Minister
of Citizenship and Immigration), 2012 FC 638 at para 18). In the absence
of any evidence from the applicant establishing any risk to her child, the
officer's determinations cannot be said to be unreasonable.
[13]
Accordingly,
this application for judicial review will be dismissed.
[14]
No
question for certification under section 74 of IRPA was presented and none
arises in this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question of general importance is certified; and
3.
There
is no order as to costs.
"Mary J.L. Gleason"
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