Date: 20090122
Docket: IMM-2207-08
IMM-2209-08
Citation: 2009
FC 61
Ottawa, Ontario, January 22, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
GIFTY
OBENG
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant seeks judicial
review of two decisions made the same day and by the same Pre-Removal Risk
Assessment (PRRA) Officer. In file number IMM-2209-08, it was found that the
applicant would not face more than a mere possibility of persecution and that she
would not likely face a risk of torture, or a risk to life, or of cruel and
unusual punishment, pursuant to sections 96 and 97 of the Immigration and
Refugee Protection Act (2001, c. 27) (IRPA). The officer also found, in
file number IMM-2207-08, that there were insufficient Humanitarian and
Compassionate (H&C) grounds to approve the applicant's request for an
exemption from the requirements of IRPA.
[2]
These two related
applications for judicial review have not been consolidated under Rule 105 of
the Federal Courts Rules (SOR/98-106) but were scheduled for hearing one
immediately following the other. These reasons will therefore serve for each of
the two proceedings and will be placed in each of the files.
I. Background
[3]
The applicant is a female citizen of Ghana, born
on August 16, 1978, in Accra. Ms. Obeng recounts that her family married her to
a man much older than she, who already had 4-5 spouses. During their marriage,
she says she was ill-treated by her husband and her husband’s son. She tried in
vain to get help from the police and her family. Her uncle, Mr. Mensah, eventually
helped her to flee the country.
[4]
Upon her arrival in Canada, on June 5, 2005, the
applicant filed a refugee claim on grounds of her fear of being persecuted as a
woman forced into marriage and subject to domestic abuse.
[5]
On November 30, 2005, the IRB denied the applicant
refugee status, finding that she lacked credibility. Her Application for Leave
and Judicial Review challenging the IRB decision was denied by Justice Kelen on
March 27, 2006.
[6]
The applicant has a valid deportation order
against her and the departure was scheduled for June 12, 2008. However, the
Federal Court granted the applicant’s Motion for Stay of Deportation on June 9,
2008.
II. The impugned decisions
A.
The PRRA
decision
[7]
On March 28, 2008, Officer Josée Bonin rendered
a pre-removal risk assessment (PRRA) decision.
[8]
First, the officer summarized the IRB’s
decision rejecting the applicant’s refugee claim because of numerous omissions,
contradictions, and inconsistencies in the oral and written evidence (i.e.,
lack of credibility in the applicant’s story).
[9]
The officer noted that a PRRA
application is not to be used as a revision of the IRB’s decision, and recalled
that the applicant’s application for judicial review of the IRB’s decision was
denied on March 27, 2006.
[10]
The officer undertook an analysis of
each letter filed by the applicant. After commenting on each of the letters the
officer concluded that many of the letters were from interested parties and
that they contained elements which the IRB considered to be not credible. The
reported facts were thus not corroborated by documentary evidence emanating
from neutral and objective sources. Moreover, the officer noticed that certain
facts mentioned in these letters did not corroborate the facts as reported by
the applicant. Consequently, the officer decided not to grant them probative
value.
[11]
The remaining letters, one from a
reverend and another from the Women Fellowship president were granted only a
little or no probative value. After having examined them attentively, the
officer noted that there were gaps such as the absence of a date, signature, or
precise details.
[12]
The officer continued the analysis with
the photographs and the documents submitted as proof of the applicant family
members’ deaths. In this respect, the officer recognized the possibility that
these members died, but concluded there was no evidence connecting these deaths
to the actions of the applicant’s husband.
[13]
On the basis of the subjective
evidence, the officer was of the opinion that the applicant failed to
establish:
- that her life and her safety are threatened
by a violent husband or his son;
- that she was forced into marriage and was
mistreated;
- that the deaths in the family are connected
to the situation of the applicant or that of her husband; and
- that she will be at risk if returned to her
country.
[14]
Since the applicant did not provide
sufficient documents of probative value, the officer was not convinced that she
should depart from the IRB conclusions. Thus, given the analysis of the IRB
concerning the alleged facts and the absence of evidence with probative value,
the officer was not satisfied that the applicant’s fears of being persecuted were
well founded, or that there was a risk of cruel and unusual treatment or
torture.
[15]
With respect to the objective evidence,
the officer evaluated the various documents on state protection in Ghana
submitted by the applicant and recognized that the current situation might be difficult
in certain circumstances and that violence towards women remains a problem in
Ghana. That being said, the officer determined that the applicant failed to
establish that she had serious reasons to believe that she would be subjected
to torture, or cruel and unusual treatment, or that she had a well founded fear
of persecution for one of the reasons enumerated in the Convention. She
therefore determined that she was neither a Convention refugee under s. 96 of
IRPA, nor a person in need of protection under s 97.
B. The H&C decision
[16]
On March 28, 2008, Officer Josée Bonin refused
the applicant an exemption from permanent resident visa requirements given the
insufficient H&C grounds.
[17]
While recognizing the applicant’s capacity to adapt to new
surroundings, the officer did not consider that the submitted reasons
(employment, friends, financial autonomy, command of the English language,
duration of the stay) were sufficient to grant an exemption. The officer stressed
that an exemption from visa requirements is an exceptional measure calling for
exceptional circumstances. She added that the applicant’s ties with Canada are
rather limited and that, on the other hand, the applicant has significant ties
with her country of origin given that her mother and brothers live there.
[18]
Before summarizing the applicant’s allegations and the IRB’s
conclusions, the officer recalled that within the framework of the application
for residence on H&C grounds, it is necessary to determine if the purported
risks would constitute objectively personalized risks for safety or life causing
unusual and unjustified or excessive difficulties. The officer reiterated her PRRA conclusions on risk
assessment in the H&C decision. She concluded that the applicant would not
be targeted as a woman or victim of domestic abuse and violence. She also found
that the applicant would not face a personalized risk if she were returned to
her country of origin.
[19]
Since the applicant did not provide sufficient documents of
probative value, the officer was not convinced that she should depart from the
IRB conclusions. Thus, given the analysis of the IRB concerning the alleged
facts and the absence of evidence with probative value, the officer was not
satisfied that the applicant would face unusual and unjustified or excessive
difficulties, because of her personal circumstances, if the applicant were to
apply for visa of permanent residence from outside Canada.
[20]
Considering that the applicant did not discharge her burden to
prove the existence of unusual, unjustified or excessive difficulties
justifying the approval of her application for permanent residence from within
Canada, and further considering that the applicant’s case presented insufficient
H&C factors, the officer therefore denied the applicant’s request for
exemption from permanent resident visa requirements based on H&C grounds.
III- Issues
[21]
The only
issue to be determined in this application for judicial review is whether the
decisions denying the PRRA application and refusing to grant the exemption from
permanent visa requirements are unreasonable or drawn without regard to the
evidence.
IV. Analysis
A. Standard of review
[22]
The Supreme Court of Canada recently held in Dunsmuir
that there are now only two standards of review: reasonableness and correctness.
The Supreme Court of Canada also stated that a standard of review analysis need
not be conducted in every instance where the standard of review applicable to
the particular question before the court is well-settled by past jurisprudence.
[23]
In Baker, it was held that the standard
of review applicable to an officer's decision of whether or not to grant an
exemption based on H&C
considerations was reasonableness simpliciter: Baker v. MCI, [1999] 2
S.C.R. 817. Given the discretionary nature of such a decision and
its factual underpinning, this Court has repeatedly confirmed that the
reasonableness standard is the appropriate one: see, for example, Zambrano
v. Canada (Minister of Citizenship and Immigration), 2008 FC 481.
[24]
Similarly, this Court has held repeatedly that
it should refrain from intervening in the PRRA Officer's analysis of the
evidence unless it can be conclusively shown that the officer has otherwise
ignored or arbitrarily discarded highly relevant evidence of risk: Da
Mota v.MCI, 2008 FC
386; Mahdi v. MCI,
2008 FC 1160.
[25]
The review on the standard of reasonableness
requires the Court to consider both the process of articulating reasons and the
outcomes. Reasonableness is "concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law": Dunsmuir v. New Brunswick, supra, at para.
47.
[26]
In assessing the reasonableness of factual
findings, the Court must also be guided by paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F-7, according to which relief will be granted
if the decision is perverse, capricious or not based on the evidence.
B. The PRRA decision
[27]
The role of the PRRA officer is to determine if
the applicant is subject to the risks spelled out in ss. 96 and 97 of the IRPA
and that arose since the IRB’s decision. Paragraph 113(a) of the Act
states that an applicant can file only evidence that arose after the refugee
claim has been rejected or evidence that was not reasonably available at the
time of the hearing. As Justice Shore wrote in Doumbouya v. Canada
(Minister of Citizenship and Immigration), 2007 FC 1187:
[36] The new evidence cannot be a mere repetition of the evidence
submitted to the RPD; the nature of the information it contains, its
significance for the case and the credibility of its source are all factors to
be taken into consideration in determining whether it can be considered new
evidence (Elezi, supra, paras. 39 and 41).
[37] The PRRA process is intended to assess new risk developments
between the IRB hearing and the scheduled removal date (Ould v. Canada
(Minister of Citizenship and Immigration), 2007 FC 83, [2007] F.C.J. No.
103 (QL), para. 19; Quiroga v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1306, [2006] F.C.J. No. 1640 (QL), para. 12; Klais
v. Canada (Minister of Citizenship and Immigration), 2004 FC 783, [2004]
F.C.J. No. 949 (QL), para. 14).
[38] When considering evidence from the standpoint of the new
evidence criterion, the PRRA officer must ask whether the information it
contains is significant or significantly different from the information
previously provided (Elezi, supra, para. 29; Raza v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1385, [2006] F.C.J. No.
1779 (QL), paras. 22-23.
[28]
Again, it is important to stress that the new
evidence must not only post-date the IRB decision, but must also relate to new
developments either in country conditions or in the applicant’s personal
circumstances: see Elezi, supra, at para. 27.
[29]
Here, as the officer noted, the applicant was
alleging the exact same risk that she had presented before the IRB and which
was deemed not credible because of the numerous omissions and inconsistencies
in the applicant’s story. The Officer rightly pointed out in her reasons that
she could not depart from the IRB’s conclusion unless the applicant presented
sufficient probative evidence to establish the alleged risks: see, for example,
Mikiani v. Canada (Minister of Citizenship and Immigration), 2007
FC 810, at paras. 14-15.
[30]
The only new element to the applicant’s story
was that her uncle and her father had allegedly died since her departure from
Ghana; she further alleged that her husband had something to do with those
deaths. But the applicant has not demonstrated that link, nor has she been
able to substantiate the alleged risk she would be facing on the basis of the
new evidence she submitted.
[31]
It is obvious that the officer considered and
commented on every document submitted by the applicant. The Officer was
entitled to award very little (or no) probative value to the letters written by
interested parties. Indeed, the evaluation of the evidence submitted comes
wholly within her jurisdiction, and should be considered with deference: Morales
Alba v. Canada (Minister of Citizenship and Immigration), 2007 FC
1116, at para. 36; Chakrabarty v. Canada (Minister of Citizenship and
Immigration), 2008 FC 695, at paras. 10-14; Chang v. Canada
(Minister of Citizenship and Immigration), 2006 FC 157, at para. 37.
[32]
In any event, I
agree with the respondent that not a single document was rejected solely
because it had been written by an interested party; it appears clear from the
Officer’s reasons that those documents from interested parties had other
fundamental flaws (not dated, not signed, etc.).
[33]
Following this analysis of the personal evidence
produced, the Officer concluded that the applicant had not demonstrated that
her life and safety would be threatened in Ghana; she had not established that
the deaths of her father and uncle were related to her husband; and she had not
demonstrated that she would face any personal risks if returned to Ghana. This
conclusion was reasonable, and based on the evidence. One can understand that
the applicant disagrees with the Officer’s conclusions, but this is not
sufficient to justify the intervention of this Court. Absent a showing that
the Officer has acted in a capricious or perverse manner or that she
disregarded the evidence, there is no reason for this Court to step in.
[34]
The applicant also
alleged that the Officer erred in her evaluation of her situation and did not pay
attention to the Gender Guidelines. This argument is ill-founded. Indeed, the
Officer did not comment on the applicant’s credibility in reaching her
decision, but rather on the lack of probative evidence.
[35]
Once again, I agree
with the respondent that the Officer was definitely aware of the applicant’s
situation, having examined all her allegations and all the evidence she
provided. There was no need for the Officer to refer specifically to the
Gender Guidelines: see Fernandez v. Canada (Minister of Citizenship
and Immigration), 2008 FC 232, at para. 6.
[36]
In any event, even if
we assume for the sake of argument that the Gender Guidelines were indeed
ignored, which is not the case, the Officer’s findings do not turn on the
applicant’s evidence in relation to gender-related issues. Therefore, specific
reference to the Guidelines would not have affected the overall assessment: Kais
v. Canada (Minister of Citizenship and Immigration), 2004 FC 785, at
paras. 9-10; Vargas v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1347, at para. 15.
[37]
Finally, the
applicant submitted that the Officer did not properly consider the objective
documentation on Ghana. Again, this argument must be discarded. While
recognizing that the evidence reveals that the situation in Ghana is not ideal,
the Officer found that the applicant had not met her burden to prove that she
would face a risk if returned to Ghana. This conclusion was reasonable and in
harmony with this Court’s caselaw. It is well established that general
documentation on a country does not in and of itself establish a personalized
risk: Canada (Minister of Citizenship and Immigration) v. Fouodji,
2005 FC 1237, at para. 20; Zeballos v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1206, at para. 6; Mathewa v. Canada
(Minister of Citizenship and Immigration), 2005 FC 914, at para. 10; Pannu
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1356, at
para. 37.
[38]
In the result, I am
of the view that the PRRA decision, when considered in its entirety and reviewed
according to the reasonableness standard, was not made in a perverse or
capricious manner or without having regard to the material before the Officer.
It is certainly a decision that falls “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law”, to quote from Dunsmuir, supra. Accordingly, the
application for judicial review in file IMM-2209-08 must be dismissed.
C. The H&C decision
[39]
In submitting an H&C application, the applicant was
requesting that the Minister exempt her from any obligation under IRPA or grant
permanent residence where the Minister is of the opinion that it is justified
by H&C considerations. It is trite law that a decision made on H&C
grounds is an exceptional measure and a discretionary one. It offers an
individual special and additional consideration for an exemption from Canadian
immigration laws that are otherwise universally applied: Legault v. MCI,
2002 FCA 125; Pannu v. MCI, 2006 FC 1356.
[40]
To be granted this exceptional remedy, the
applicant has the burden of establishing that sufficient H&C grounds exist
in her case, i.e. that the H&C factors present in her individual
circumstances are sufficient to warrant an exemption. The applicant must
establish that her personal situation is such that she would face unusual,
undeserved or disproportionate hardship if required to apply for a permanent
resident visa from outside Canada.
[41]
In the case at bar, the officer reviewed two
issues in her decision: the degree of establishment in Canada and links to
Canadian society as well as the allegations of personal risk.
[42]
With respect to the applicant’s degree of
establishment, the Officer noted that it was insufficient to cause hardship in
case she had to apply for a permanent resident visa from Ghana. The Officer
first noted that the applicant has no spouse, nor common law partner in
Canada. In fact, the applicant does not have any family member in Canada, and
has no children.
[43]
In addition, the Officer noted that the
applicant has been in Canada for less than three years. The applicant provided
documents establishing that she has occupied two jobs, the first one for a
period of eighteen (18) months, the second one for nine (9) months. The
applicant also provided the Officer with a letter from the Apostolic Church,
which mentions that the applicant is involved in the Church’s activities.
[44]
The Officer concluded that those elements (i.e.,
having a job in Canada, using the English language and being involved in a
Church’s activities) do not justify granting an exemption. The Officer
concluded that the applicant’s links to Canada are rather insignificant, and
that she still has strong bonds with Ghana, as her whole family lives there.
[45]
This conclusion was reasonable, and in
accordance with this Court’s caselaw. In any event, even if the applicant had
demonstrated that she integrates well into the Canadian society, this factor
alone is not sufficient to grant her an exemption:
The applicant has the onus of proving that the requirement to apply
for a visa from outside of Canada would amount to unusual, undue or
disproportionate hardship. The applicant assumed the risk of establishing
himself in Canada shile his immigration status was uncertain and knowing that
he could be required to leave. Now that he may be required to leave and apply
for landing from outside of Canada, given that he did assume this risk, the
applicant cannot now contend on the facts of this case, that the hardship is
unusual, undeserved or disproportionate.
Uddin v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 937, at para. 22 (F.C.). See also: Souici
v. Canada (Minister of Citizenship and Immigration), 2007 FC 66; Samaroo
v. Canada (Minister of Citizenship and Immigration), 2007 FC 292; Buio
v. Canada (Minister of Citizenship and Immigration), 2007 FC 157.
[46]
Therefore, it was reasonable for the Officer to
conclude that the applicant’s degree of establishment in Canada was
insufficient to cause hardship in case she had to apply for a permanent
resident visa from Ghana. This conclusion is reasonable and drawn with regard
to the evidence; as a result, the intervention of this Court is not justified.
[47]
The Officer then examined whether the alleged
risks could cause hardship. Applying the H&C standard of unusual, undeserved
or disproportionate hardship, the Officer repeated the risk analysis found in
her PRRA decision. Based on the lack of probative evidence, and for the
reasons already mentioned above, the Officer concluded that the applicant had
not demonstrated that she would face an objective and personalized risk to her
life or her security that would amount to unusual, undeserved or
disproportionate hardship were she returned to Ghana.
[48]
Bearing in mind the highly discretionary nature
of an H&C decision, I have not been persuaded that the Officer committed
any reviewable error that would warrant this Court’s intervention. As a
result, the application for judicial review in file IMM-2207-08 must also be
dismissed.
[49]
Counsel
for the applicant proposed a question for certification:
Question 1: Is it correct in law to reject evidence
from family members and other friends or acquaintances as being from
“interested parties” without other justification or to reject affidavits or
lawyers’ letters from the Third World without justification beyond speculative
doubts on the amount of details submitted? Is it necessary to justify the low
probative value given to these documents by the PRRA officers when there is no
serious evidence that contradicts them?
[50]
Counsel for the
respondent opposes certification of the question. I agree that the question has
already been addressed by the Federal Court in the case of Ray v. Canada
(MCI), 2006 FC 731, at para. 39 for the first portion of the question (at
least with respect to evidence emanating from “interested parties”) and by the
Federal Court of Appeal in the case Ozdemir v. Canada (MCI), 2001 FCA
331, at para. 9, for the second portion of the question. Consequently, I will
reject the proposed question. I would also add that the first part of the
question would not be determinative of the appeal being contemplated, as the
decision of the Officer to give little probative value to some documents does
not rest only on the source of those documents. As for the evidence coming
from lawyers of developing countries, it is an issue related to this specific
case only and it certainly does not transcend the interests of the parties to
the litigation.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the
application for judicial review is dismissed in files IMM-2207-08 and
IMM-2209-08. No question of general importance is certified.
"Yves
de Montigny"
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