Date: 20091201
Docket: IMM-456-09
IMM-651-09
Citation: 2009 FC 1232
Ottawa, Ontario, December 1, 2009
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
ANA
YOLANDA MARTINEZ DE QUIJANO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant, a 48-year-old citizen of El Salvador, filed two applications for
judicial review, the first (IMM-651-09) from a decision denying her application
for a Pre-Removal Risk Assessment (PRRA), and the second (IMM-456-09) from a
decision denying her application for an exemption, for humanitarian and
compassionate (H&C) considerations, from the obligation to obtain a visa
outside Canada. These two decisions were made on the same day and by the
same immigration officer. Since the two applications raise essentially the same
issues, they were heard at the same time and are the subject of a single order
and set of reasons, which will be placed in both records.
I. Facts
[2]
Ana
Yolanda Martinez De Quijano became involved with the Farabundo Marti National
Liberation Front (FMLN) in 1978, when she was a student. The FMLN is a
political and military movement fighting for political change in El Salvador. After
waging a long guerrilla war, the movement became an authorized and legal
political party in 1992.
[3]
The
applicant participated in the FMLN’s activities in different ways. She
initially prepared posters, distributed tracts and did secretarial work during
meetings of senior FMLN leaders between 1978 and 1994.
[4]
After
leaving the movement, she held various jobs. Among those was a job
with the national police from January to March 2000. It was then that she
allegedly discovered that arms were being diverted, which she reported to her
superiors. Those superiors, who were FMLN members, told her to mind her own
business and that she was behaving like a traitor. She then resigned to go and
work in the private sector.
[5]
In
January 2003, the applicant claims that she again helped the FMLN voluntarily
by checking and auditing accounts for the election campaign. In the process,
she allegedly again discovered that funds were being diverted by the FMLN for
clandestine arms purchases. Compromising documents implicated Humberto
Centeno and Salvador Sanchez Ceren, two FMLN leaders. She then allegedly
confronted Mr.
Ceren, who threatened her and ordered her not to reveal anything. She therefore
resigned soon after that incident.
[6]
In
April 2003, the applicant alleges that she began receiving threats by telephone
and mail. She claims that she was harassed and threatened, some of her property
was destroyed, and bloody clothing was even thrown at her residence.
[6]
[7]
In
June 2003, she went to the Canadian embassy in Guatemala to obtain a permanent resident visa as a refugee
outside Canada, but without success.
[8]
She
then continued to receive threats, so that she decided to move in order to hide.
On February 5, 2004, she says that she was visited by Mr. Centeno. He allegedly
told her that he knew she had seen compromising documents, threatened her by
reminding her of [translation] “the
price of disobedience”, and asked her to resume working for the FMLN, which she
refused to do. Two days later, strangers entered through the roof of her house
and destroyed everything.
[8]
[9]
Subsequently,
she says that she was followed and threatened on several occasions. On July 29,
2004, two armed men attacked her at her home and raped her. She managed
nevertheless to get away by alerting the neighbours as the men were trying to
take her to another place to execute her.
[10]
On
August 5, 2004, she therefore decided to flee her country and went first to the
United States and then to Canada, where she filed her refugee claim on August 18, 2004.
[11]
On
January 17, 2007, the applicant was found not to be a Convention refugee or a person
in need of protection under paragraphs 1F(a) and (c) of the Convention. The
Board found that the applicant was complicit in human rights violations because
of her membership in the FMLN, an organization that had committed crimes
against peace, war crimes, crimes against humanity and acts contrary to the
purposes and principles of the United Nations. On September 24, 2007, the Court
dismissed the applicant’s application for judicial review and upheld the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (RPD), even though the applicant submitted that her involvement in the
FMLN had not been voluntary. On October 9, 2007, an inadmissibility report was issued
against the applicant under section 35(1)(a) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[12]
On
October 17, 2007, Ms. Quijano filed an H&C application for a permanent
residence visa. Since she was under effective removal, she also filed an
application for a Pre-Removal Risk Assessment (PRRA) on July 23, 2008. As
mentioned above, the immigration officer denied both applications on December
19, 2008.
II. Impugned Decisions
A. Decision
on the H&C Visa Application
[13]
The
officer noted first that the applicant’s claim that her involvement in the FMLN
was involuntary had to be rejected since a decision on that question had
already been made by the RPD and upheld by this Court. The findings of fact on
that question were therefore res judicata and could not be challenged
again.
[14]
The
immigration officer attached no credibility to the applicant’s allegations
based on her fear of the FMLN owing to contradictions, omissions and
implausibilities with respect to key elements of her narrative (i.e. the
discovery of compromising documents in February 2003 concerning a purported
arms purchase, the names of her persecutors, the period of collaboration with
the FMLN and the rape of July 29, 2004).
[15]
More
specifically, the officer relied on the following contradictions and omissions:
·
In
the account given in her Personal Information Form (PIF), the applicant alleged
that she feared the FMLN because of the discovery in February 2003 of
compromising documents on arms trafficking and mentioned the sexual assault of
July 29, 2004. Those facts were never mentioned before.
·
When
they applied for permanent residence from El Salvador as refugees outside Canada, the applicant and her
son (Angel Francisco Albanez Martinez) alleged that they feared the FMLN,
for which the applicant had allegedly stopped working in 1994. They made no
mention of the compromising documents on arms trafficking by the FMLN which the
applicant had allegedly discovered in February 2003.
·
On
August 18, 2004, in the interview conducted and in Schedule 1 filled out at the
port of entry, the applicant alleged that she feared the FMLN because of her
work for the police in 2000. She reported neither the discovery of the
compromising documents on arms trafficking in February 2003, nor the names of
her persecutors (Ceren and Centeno), nor the sexual assault she allegedly
suffered on July 29, 2004.
[16]
The
officer summarized her reasons for finding the applicant’s explanations
unsatisfactory as follows:
[translation]
Although I understand that some people
have difficulty verbalizing the full extent of their problems, it nevertheless
remains that the explanations of these omissions and contradictions are not
satisfactory for the following reasons:
1. The
applicant did not mention the story of the compromising documents in her written
application in June 2003, nor the names of her persecutors. There was then no
question of anyone overhearing her comments. Form IMM0008 which she filled out
stipulated that the information she provided was protected under the Privacy
Act.
2. Neither
she nor her son mentioned to the Canadian embassy that they feared that their
statements would be overheard through the door by people present in the waiting
room. The
applicant’s son was heard separately and would have had the opportunity to tell
the immigration officer that his mother’s statement could be overheard from the
waiting room.
3. After
that application was denied by the immigration officer, the applicant wrote the
embassy a letter, dated February 24, 2004, in which she asked that her case be
reconsidered. She reported new threats and a break-in at her residence. However, in that letter asking
that her case be reconsidered, she did not mention that the interview had taken
place under unfavourable conditions and did not take the opportunity to add
essential information about which she had remained silent during her interview
of September 10, 2003, that is, the names of her alleged persecutors, Ceren and
Centeno, and the story of the compromising documents, the source of all her
problems.
4. During
her interview at the port of entry, on August 18, 2004, the applicant stated
that it was the interpreter’s fault if it was not clear during her interview at
the Canadian embassy in El
Salvador that the alleged
threats came from the FMLN.
5. In
her personal information form, which she signed on September 13, 2004, the
applicant did not mention that during her interview at the Canadian embassy she
feared being overheard or that the conditions in which that interview was held
were unfavourable.
[17]
The
officer also relied on several implausibilities:
[translation]
If
the applicant had been sexually assaulted on July 29, 2004, it is
understandable that she was in too troubled a psychological state to discuss
this painful subject. However,
it is not plausible that she would mention all sorts of events involving the
FMLN to the immigration officer at the port of entry, but not the principal
source of those problems, namely the discovery of compromising documents in
February 2003.
The fact that she feared that her
statements were not confidential and that the FMLN would learn that she had claimed
refugee protection is not plausible, since she clearly identified the FMLN in
her deposition as the source of her persecution and was able to describe
specific events such as for example the break-in at her home.
What is also not plausible is that her
alleged persecutors did not act immediately after she discovered the documents
that compromised them. She says that she saw those papers in February 2003, or
just one month before the election. If the authors had suspected her of having
copies of those documents and were determined to shut her up, it is reasonable
to think that they would not have taken the risk that she would disclose them
just before the election and would have acted right away.
Furthermore, it makes no sense that Centeno
would show up at her place only a year after that important discovery and
especially that he would ask her to conduct audits for the FMLN so close to the
upcoming presidential election when she was considered, according to the
applicant’s statements, a traitor and a potential threat to the party.
[18]
Asked
during the PRRA hearing about those implausibilities, the applicant said that
her persecutors controlled her through threats. In my opinion, these statements
are not satisfactory and do not explain the implausibilities raised.
[19]
Finally,
the officer doubted the applicant’s allegations concerning her son, who
supposedly returned to live in El Salvador in January 2008 after having left
his country for Guatemala in February 2006. Ms. Quijano submitted that
her son had had to return to his country because he had been discovered in Guatemala and because
his father (who now lives in Canada) had told him that he could sponsor him if
he returned to El Salvador. Not only does the affidavit of the applicant’s
son not provide any details on the people who allegedly found him in Guatemala, but neither
the applicant nor her son was able to provide satisfactory explanations as to
why the FMLN would invest time and resources to track him down five years after
the events described by his mother. Moreover, the young man could have claimed
refugee protection in Guatemala if he really believed
that his life was threatened in El Salvador.
[20]
With
regard to the documentary evidence, the officer gave no probative weight to the
affidavits of the applicant’s son, the son’s friend and the applicant’s
brother, or to the anonymous letters and photos of graffiti filed in evidence. The
officer was of the opinion that all of that evidence was interested and was not
corroborated by credible testimony. As for the letter from the intending
physician produced by the applicant in support of her allegation that she had
been sexually assaulted, the officer gave it little weight since it had no letterhead
and did not indicate the name of the clinic where she was allegedly treated. Moreover,
the letter was addressed [translation] “To whom it may concern”.
The applicant says that she begged the woman doctor not to make a report to the
police, saying that she would do so herself later. Yet she was unable to
say why she requested such a certificate on the very day of the rape. The
officer also noted that the causes of that assault, allegedly connected with
the compromising documents, had not been credibly established owing to the applicant’s
contradictory testimony and the above-noted implausibilities and omissions.
[21]
The
officer then looked at the general situation in El Salvador. First, she pointed out
that the applicant never sought protection from the authorities in her country,
alleging that members of the FMLN had infiltrated the police. Yet the FMLN was
not the party in power, and the applicant could therefore have turned to the
government if she felt threatened by leaders of that party. The officer did not
deny that violence against women was real, but noted that some regions are more
affected than others and that the authorities are fighting this scourge to the
point where it is possible to live in certain regions that are less affected by
crime and where the police forces are effective and more concentrated. Relying
on the documentary evidence, the officer acknowledged that impunity, corruption
and street-gang violence remain ongoing problems and that urban violence
stemming from economic and social inequality is a major problem in El Salvador. She nevertheless
concluded that the authorities are taking concrete steps to eradicate
corruption within the national police and to give Salvadoran citizens access to
different complaint mechanisms in cases of abuse.
[22]
The
officer did not deny that the applicant suffers from psychological problems, as
attested by many practitioners and social workers working with her. While
sympathizing with the applicant’s symptoms of anxiety and depression, the
officer said that she was unable to conclude that those stemmed from the
alleged facts, given the contradictions, inconsistencies and omissions noted in
her narrative. She also noted that the applicant was able to hold a full-time
job and be involved socially in her community despite her psychological state. Lastly, based
on the documentation she consulted, the officer considered that the applicant
could receive the health care services she requires in El Salvador.
[23]
Having
regard to her establishment in Canada, the officer noted that Ms. Quijano had
no family ties in Canada, since all of her close relatives (including
her son) live in El Salvador. She has been working full-time since February 2007, has taken French
language courses and is involved in her community. The officer found, however,
that this was not sufficient to warrant granting an exemption, which is an
exceptional measure. The officer noted that the purpose of the application was
not to assess the applicant’s potential as a future immigrant, but to determine
the hardship she would face if she were to file her application in her country.
In that regard, the applicant is an educated person who has held several
executive positions in her country, and it is reasonable to think that she
could again support herself in El Salvador, especially since she can count on her entire family, which
is still living there. Accordingly, the officer determined that the
applicant had not discharged her burden of proving that she faced unusual,
undeserved or disproportionate hardship warranting the filing in Canada of her
application for permanent residence.
B. Decision
on the PRRA Application
[24]
The
officer’s decision regarding the PRRA application is in all respects similar to
her decision regarding the H&C application for permanent residence, certain
minor adjustments aside. Her analysis of the applicant’s credibility is the
same. In the main, she also reproduced the reasons she had grouped under the
heading [translation] “general
situation in the country” in the section she entitled [translation] “State Protection”. At most, she added the
following paragraph in her PRRA decision:
[translation]
The
courts have dealt many times with the concept of state protection. They have
held that the burden of proving the lack of state protection increases with the
degree of democracy in the country in question. The responsibility of providing
international protection is engaged only where national or state protection is
not available to the applicant. Therefore, absent a complete breakdown of the
state apparatus, there is reason to presume that a government is able to
protect its citizens and this presumption can be rebutted only through “clear
and convincing” evidence of the state’s inability to provide protection. In
addition, Zalzali set the standard of protection that a country must offer
its citizens : it must be “adequate, though not necessarily perfect”.
[25]
Relying
on the same documentary evidence considered in her decision regarding the H&C
application, the officer found that state protection, though not perfect, was
available to the applicant and existed in El Salvador. However,
the applicant made no effort to avail herself of that protection despite all
the state means at her disposal. Accordingly, the officer considered that she
had not discharged her burden of establishing, on a balance of probabilities,
the Salvadoran government’s inability to protect her.
II. ISSUES
[26]
These
two applications for judicial review raise essentially three issues:
1. Did
the officer err in her assessment of the applicant’s credibility?
2. Are
the officer’s findings regarding state protection unreasonable?
3. Did
the officer commit a reviewable error in finding that the applicant would not
face unusual, undeserved or disproportionate hardship owing to the widespread
violence in El Salvador and the mistreatment of women in that country?
III. ANALYSIS
[27]
The
parties agree that the officer’s findings concerning the applicant’s credibility
must be treated with great deference. These are findings of fact which are
within the purview of the officer’s expertise and regarding which this Court
will intervene only if it is determined that these findings were arbitrary,
unreasonable or made without regard to the evidence in the record.
[28]
This
also holds for the officer’s assessment of the risk to which the applicant
would be exposed if she returned to her country, and the hardship she would
face if she had to file an application for permanent residence from her country
of origin. These are determinations based essentially on an assessment of the
facts adduced in evidence, and their legal dimension is negligible: see Galdamez v.
Canada (Minister of Citizenship and Immigration), 2009 FC 334, [2009] F.C.J.
No. 395, at paragraph 10; Jakhu v. Canada (Minister of
Citizenship and Immigration), 2009 FC 159, [2009] F.C.J. No. 203, at
paragraph 21. The
officer’s findings on those questions must therefore also be reviewed deferentially
by this Court.
A. Credibility
[29]
With
respect to the applicant’s credibility, her counsel argued mainly that the officer
had not confronted Ms. Quijano regarding her failure to mention the
compromising documents that were allegedly at the root of her problems either
in the information provided in her permanent residence form in 2003 or in her request
for reconsideration in February 2004. Counsel for the applicant also faults the
officer for never asking her about the interpretation problems she allegedly
encountered at the Canadian embassy and for not giving her the opportunity to
explain why she had not mentioned in her Personal Information Form her fears of
being overheard during her interview at the embassy.
[30]
I
agree with the respondent’s argument that the officer was under no obligation
to confront the applicant with information she herself had provided; the information
on which the officer relied was not extrinsic to the record and the applicant
cannot plead ignorance of its content. Dealing with a similar argument in Azali v.
Canada (Minister of
Citizenship and Immigration), 2008 FC 517, [2008] F.C.J. No. 674, Justice Michel
Beaudry wrote:
24
Finally, the
applicants submit that they were not given the opportunity to respond to the
inconsistent versions of their employment history presented for the purpose of
the application presently under review, and the prior applications for
temporary resident visas. They argue that the Officer was required to confront
them with this discrepancy, and offer them the opportunity to disabuse him of
his concerns.
25
The respondent
submits that no basis exists for this argument. The respondent contends that
the duty of fairness was not breached, because the Officer did not rely on any
extrinsic evidence; rather, he relied on documents supplied by the applicants
themselves, the contents of which they cannot plead ignorance.
26
I agree with the
respondent. This is not a case where the Officer failed to confront the
applicants with extrinsic evidence; rather, he relied on information which was
not only known to the applicants, but supplied by them. Their duty of fairness
does not require that the applicants be confronted with information which they
themselves supplied. In Dasent v. Canada (Minister of Citizenship and
Immigration), [1995] 1 F.C. 720, at paragraphs 22 and 23, Justice Rothstein
(as he was then) emphasized that in determining what constitutes extrinsic
evidence, the relevant factor will be whether the evidence was known to the
applicant. In this case, there is no doubt that the other version of the
applicants’ employment history was known to them.
See also: Wang v. Canada (Minister of Citizenship and Immigration)
(1999), 173 F.T.R. 266.
[31]
Counsel
for the applicant also submitted that the implausibilities noted by the officer
did not meet the test established by the courts to arrive at such a finding. He
relied in particular on the comments of Justice Francis C. Muldoon in Valtchev
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776,
208 F.T.R. 267, that “plausibility findings should be made only in the clearest
of cases, i.e., if the facts as presented are outside the realm of what could
reasonably be expected, or where the documentary evidence demonstrates that the
events could not have happened in the manner asserted by the claimant” (at
paragraph 7).
[32]
However,
the Court is of the opinion that this is a situation where the applicant simply
disagrees with the conclusions drawn by the immigration officer. The officer
duly pinpointed the aspects of the applicant’s story that led her to make an
unfavourable credibility finding. There is no doubt that she was entitled to find
that the applicant’s story was not in harmony with the preponderance of the
probabilities which a reasonable and informed person would readily recognize as
credible and plausible: Muthiyansa v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 17, 103 A.C.W.S. (3d) 809; Alizadeh v.
Canada (Minister of Citizenship and Immigration) (1993), 38 A.C.W.S. (3d)
361, [1993] F.C.J. No. 11 (F.C.A.).
[33]
What
is more, the officer was not obliged to alert an applicant to her concerns about
weaknesses in her evidence that could give rise to implausibilities: see Farooq
v. Canada (Minister of Citizenship and Immigration), 2005 FC 867,
[2005] F.C.J. No. 1081; Sarker v. Canada (Minister of Citizenship and
Immigration) (1998), 150 F.T.R. 284.
[34]
As
for the affidavits of the applicant’s son, his friend and the applicant’s
brother, the officer was entitled to attach no probative value to them, on the
ground that this evidence was interested and was not corroborated by credible
testimony. These findings by the officer were in fact not challenged by the
applicant.
[35]
At
most, the applicant alleged that the officer had erred in not considering her
explanations regarding the absence of a seal on the letter from the attending
physician which she adduced, and in not alerting her to her concerns about that
letter. However, as already mentioned, the weight and probative value of
evidence are at the very heart of the officer’s expertise, and the mere
disagreement of the applicant with the assessment made of that evidence does
not warrant the Court’s intervention.
[36]
Moreover,
the officer could give little weight to the letter from the attending physician,
not only because it had no letterhead, address or telephone number of the
clinic and was addressed [translation] “To whom it may
concern”, but also because the causes of the assault were not credibly established
owing to the contradictions, omissions and implausibilities noted in the
applicant’s testimony. The fact that the applicant may have suffered
a sexual assault did not establish the truth of her account, the identity of
her assailants and the reasons that would have led them to commit this
violation of her physical integrity.
[37]
In
short, I am of the opinion that the officer’s reasons are intelligible and that
her assessment of the applicant’s credibility falls within a range of
“possible, acceptable outcomes which are defensible in respect of the facts and
law”: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, at
paragraph 47.
B. State
Protection
[38]
Counsel
for the applicant raised several arguments against the officer’s finding that
the Salvadoran state could offer the applicant its protection. First, he
submitted that she had not considered the particular risk faced by women in El Salvador, even though
she had assessed that risk in the context of her decision regarding the H&C
application. Yet, in counsel’s submission, the evidence shows that women are
exposed to a high risk of violence and discrimination, and it would be
unreasonable to think that minor changes in the country’s policy were likely to
result in greater protection for women. He submitted that El Salvador is still one
of the world’s most violent countries and that the government is still unable
to control organized crime.
[39]
Mr.
Shams also argued that the officer had erred in taking into account the fact
that the applicant had not turned to the Human Rights Commission, since the
mission of such an organization is not to protect citizens against criminal
offences. Lastly, he argued that it was unreasonable to demand that the
applicant request the aid of the police, insofar as she claims that the police
are infiltrated by members of the FMLN.
[40]
In
my opinion, these arguments cannot be accepted. Even assuming that the
applicant had been able to establish that she was personally targeted by the FMLN,
the officer’s conclusions regarding the availability of state protection are
reasonable and are based on the documentary evidence that was before her. Even though
that protection is not perfect, the officer could conclude, in the absence of
clear and convincing evidence to the contrary, that the state was able to
intervene to guarantee the safety of the applicant.
[41]
Contrary
to what Mr. Shams submits, the officer properly considered the documentary evidence
on the situation of women in El Salvador even if she did not
draw from it the conclusions that the applicant would have wished. She
considered that the government had set up different mechanisms to provide
better protection for its citizens. Although this is not necessarily the finding
that the Court would have made, that does not make it unreasonable. The officer
clearly examined the evidence that was before her and she did not base her decision
on an erroneous finding of fact that she made in a perverse or capricious
manner or without regard for the material before her.
[42]
It
is true that the applicant cannot be blamed for not seeking the aid of the
Human Rights Commission, whose mandate is not to protect citizens who fear for
their physical integrity. However, she ought at least to have given the
authorities of her country the opportunity to come to her aid: see Galdamez c.
Canada (Ministre de la Citoyenneté et de l’Immigration), 2009 CF 334,
[2009] F.C.J. No. 395, at paragraph 19; Paniagua v. Canada (Minister
of Citizenship and Immigration), 2008 FC 1085, [2008] F.C.J. No. 1350, at
paragraph 8; Velasquez v. Canada (Minister of Citizenship and Immigration),
2009 FC 109, [2009] F.C.J. No. 112, at paragraph 22. The subjective belief
that the police were infiltrated by her aggressors, particularly where that
conviction is based on no objective evidence, is not sufficient to rebut the
presumption that the state is able to protect its citizens, especially where
the state in question is democratic and making real efforts to combat
corruption and provide security. As Justice Judith A. Snider explained in Judge v.
Canada (Minister of
Citizenship and Immigration), 2004 FC 1089, at paragraphs 8 and 10:
[8]
The onus is on
the Applicant to lead evidence to rebut the presumption that adequate state
protection exists. The test is an objective one and involves the Applicant _showing
that [she] is physically prevented from seeking [her] government's aid or that
the government is in some way prevented from giving it_. (Canada (Minister
of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232
at 234 (F.C.A.)).
…
[10] In this case, it is clear that the Board heard
and understood the Applicant's testimony that she believed that the police were
in _cahoots_ with the people for whom she worked. This is a subjective belief;
as noted above, the test for whether state protection _might reasonably be
forthcoming_ is an objective one. It is not sufficient for the Applicant to simply
believe that she could not avail herself of state protection.
[43]
I am
therefore of the opinion that the officer’s finding that the applicant could
have availed herself of the protection of the authorities of her country was
not unreasonable. Although the situation in El Salvador is undoubtedly not
perfect and the crime rate there is high, the applicant nevertheless had a duty
to establish through clear and convincing evidence that she could not count on
the aid of the police: Carrillo v. Canada (Minister of Citizenship
and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399. By not taking any
steps to obtain that protection, she failed to discharge her onus of proof in
this regard.
C. Unusual, Undeserved
or Disproportionate Hardship
[44]
The
applicant relied on the documentary evidence of widespread crime and violence
in El
Salvador,
particularly toward women, to submit that she would face disproportionate
hardship if she were to make her application for permanent residence from her
country. She also submitted that the officer had erred in understating those
risks on the ground that there are safer places outside the capital and that
the state was making progress in improving the situation.
[45]
It
is important first of all to note that an application based on H&C
considerations is a response to an exceptional situation and cannot bypass the
rule that a visa application must be made from outside Canada, except
where that requirement would cause unusual, undeserved or disproportionate
hardship. The fact that the applicant works full-time, pays her taxes and is well‑liked
by her friends is therefore not sufficient to warrant granting her permanent
residence on that basis:
see Nazim v. Canada (Minister of Citizenship and Immigration),
2005 FC 125, [2005] F.C.J. No. 159; Uddin v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 937, [2002] F.C.J. No. 1222.
[46]
The
documentary evidence on the situation in a country cannot in and of itself
establish the existence of unusual or disproportionate hardship: Rahman v.
Canada (Minister of
Citizenship and Immigration), 2009 FC 138, [2009] F.C.J. No. 187; Nazaire
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 416, [2006] F.C.J. No. 596. Also,
there is no doubt that assessing the situation in an applicant’s country is an
eminently factual matter and as such must be treated very deferentially by this
Court: Bhango v. Canada (Minister of Citizenship and Immigration),
2001 FCT 882, [2001] F.C.J. No. 1268; Fernandopulle v. Canada (Minister
of Citizenship and Immigration), 2005 FCA 91, [2005] F.C.J. No. 412.
[47]
Having
consulted the documentary evidence that was before the officer, I cannot find
that her reading of that evidence is selective or unreasonable. Again, the
question is not whether the Court would reach the same conclusion, but rather
whether her decision is defensible in respect of the facts that were brought to
her attention. As it happens, I have no hesitation in finding that her
conclusion is perfectly defensible. Moreover, she was under no obligation, in
considering an H&C application, to specify the exact place where the
applicant could find refuge in her country.
[48]
For
all these reasons, I would therefore dismiss both applications for judicial
review filed by the applicant. The parties proposed no question for
certification and, in my opinion, this case raises none.
JUDGMENT
THE COURT
DISMISSES both
applications for judicial review filed by the applicant. No question is certified.
“Yves de Montigny”
Certified
true translation
Brian
McCordick, Translator
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