Date:
20120730
Docket:
IMM-8769-11
Citation:
2012 FC 943
Ottawa, Ontario, July 30, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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AZIZUL HAKIM CHOWDHURY
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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 a decision of Pre-Removal Risk
Assessment (PRRA) Officer Lisa Rae Devries (the Officer), dated March 3, 2010,
with an addendum dated May 24, 2011. The Officer refused the Applicant’s
request for permanent residence from within Canada based on humanitarian and
compassionate (H&C) grounds.
I. Facts
[2]
The
Applicant, Azizul Hakim Chowdhury, is a citizen of Bangladesh born on December 16, 1956.
He is deaf and mute. His wife and three children all remain in Bangladesh along with his seven siblings. The Applicant arrived in Canada on August 23, 2003 and claimed refugee protection, alleging persecution by the police and
several rival political parties who had forced him to draw political cartoons
insulting each other. His refugee claim was refused on January 20, 2005
after the Board found insufficient credible and reliable evidence that he was
at risk in Bangladesh and explicitly rejected the allegation that the Applicant
is being sought by either state authorities or political party officials. In
November 2006, he made an H&C application and, in February 2007, applied
for a PRRA.
[3]
The
H&C and the PRRA were refused on March 3 and 4, 2010 respectively. However,
they were inadvertently not disclosed to the Applicant, who made additional
submissions in both the H&C and the PRRA in October 2010. Those additional
submissions were considered in addenda dated May 24 and 31, 2011 and then both
final decisions were disclosed to the Applicant.
II. Decision
under Review
[4]
The
Officer considered the hardship resulting from the Applicant’s establishment in
Canada and the risk he faces in Bangladesh, but found that there was
insufficient evidence to warrant a positive decision.
[5]
The
Officer noted the negative refugee decision and referred to the PRRA analysis
before finding that the Applicant’s evidence was not sufficient to demonstrate
hardship if he must return to Bangladesh. The Officer also gave little weight
to letters from individuals in Canada and in Bangladesh that affirmed the risk
to the Applicant, as they all lacked first-hand knowledge of the risk.
[6]
The
Officer accepted that the Applicant is being treated for depression and trauma,
but found that there was insufficient evidence to show that these conditions
resulted from his fear of return. The Officer noted that the doctor’s
reference to a lack of support suggested that the doctor was not fully apprised
of the Applicant’s circumstances – specifically, his many family members in Bangladesh who could provide support.
[7]
The
Officer considered the evidence about country conditions in Bangladesh, but found that conditions were improving and that, despite some evidence of difficulties
faced by the disabled, there was insufficient evidence of hardship given the
Applicant’s personal circumstances and achievements before he left Bangladesh.
[8]
Turning
to his establishment in Canada, the Officer accepted that this was a positive
factor and commended the Applicant’s efforts to establish himself. However,
the Officer found that there was little objective evidence that his having to
leave Canada would cause unusual and undeserved or disproportionate hardship.
III. Issues
[9]
There
are two issues in this application: (1) whether the Officer applied the correct
legal test in the H&C when assessing the hardship that results from risk;
and (2) whether the Officer based the negative H&C decision on unreasonable
inferences.
IV. Standard of Review
[10]
The
first question is one of law that requires the correctness standard (see Kim
v Canada (Minister of Citizenship and Immigration), 2008 FC 632, [2008] FCJ
No 824 at para 24. The second relates to the Officer’s consideration of the
evidence and findings of fact and therefore requires deference (see Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
SCJ No 12 at para 46).
V. Analysis
[11]
The
Applicant submits that the Officer applied the wrong legal test in considering
his risk in the H&C decision. In support of this argument, he quotes
passages that refer to insufficient evidence of risk, as well as several cases
discussing the importance in H&C decisions of considering whether the risk
causes hardship.
[12]
The
Respondent submits that the Officer properly assessed the Applicant’s risk and
reasonably concluded that it did not amount to hardship. It also notes that
Applicant cannot merely rely on evidence of country conditions and must link
that evidence to the hardship they face, citing Lalane v Canada (Minister of
Citizenship and Immigration), 2009 FC 6, [2009] FCJ No 658 at para 38.
[13]
The
Applicant also submits that the Officer based the H&C decision on the
following unreasonable inferences: that his doctor was referring to family
support when he stated that insufficient support would be available in
Bangladesh, that his family would in fact be able to support him in Bangladesh,
and that his knowledge of American Sign Language would be of use in Bangladesh.
[14]
The
Respondent submits that these inferences were reasonably open to the Officer
and that the Officer’s conclusions are reasonable.
[15]
The
Applicant has not established that the Officer’s risk analysis is improper. Mere
references to the PRRA and the refugee decision are insufficient to show that
the Officer failed to consider whether the risk can lead to hardship. Although
the Applicant has quoted certain passages from the Officer’s decision that
mention risk, the majority of these references also mention the hardship that
could result from that risk. When read as a whole, the decision clearly
considered whether the risk the Applicant faces could lead to unusual and
undeserved or disproportionate hardship.
[16]
The
Applicant’s argument with respect to unreasonable inferences is entirely
without merit. The Officer’s inferences were not unreasonable given the
evidence in the record; in fact, the Applicant’s PRRA submissions specifically
relied on the support from his family to argue that he did not have an internal
flight alternative. Even if the Officer erred in making these inferences, the
error is inconsequential. The Applicant bore the burden of establishing that
H&C grounds existed to warrant an exception from the general requirements
of Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) and he
failed to provide sufficient evidence to do so. The decision is reasonable.
VI. Conclusion
[17]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
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