Date: 20090212
Docket: IMM-2036-08
Citation: 2009 FC 138
Ottawa, Ontario, this 12th day of February
2009
Present: The Honourable Orville
Frenette
BETWEEN:
Ataure
RAHMAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of a Pre-Removal Risk
Assessment Officer (the “officer”) rendered on December 17, 2007, denying
an application for a waiver of the statutory requirement that the applicant
apply for permanent residence from outside Canada.
The Facts
[2]
The
applicant is a single male from Bangladesh who arrived in Canada on July 23,
2001.
[3]
His
mother, his three brothers and four sisters live in Bangladesh.
[4]
The
applicant claimed asylum upon arrival alleging he was a member of the
Bangladesh Nationalist Party (BNP) and was in danger of persecution by reason
of his political opinion and activities.
[5]
The
Immigration and Refugee Board (the “IRB”), in a decision of November 2002,
refused his claim for various reasons, inter alia:
(a)
Since
he left Bangladesh, the BNP was
elected and has held power since November 13, 2001 so he had no valid reason
for his fear;
(b)
He
was found not to be a credible claimant for the motives described in the
decision;
(c)
He
had not discharged the burden of proof required as to his identity;
(d)
His
story was a complete fabrication designed to deceive the tribunal;
(e)
His
actions were a case of immigration in disguise (Urbanek v. Canada (Minister of
Employment and Immigration) (1992), 17 Imm. L.R. (2d) 153 (F.C.A.)).
[6]
The
application for leave to obtain a judicial review of the IRB decision was
denied on April 24, 2003.
[7]
The
applicant presented a Pre-Removal Risk Assessment (PRRA) which was the object
of a negative decision on June 5, 2007.
[8]
The
application for leave against this decision was also denied on September 17,
2007.
[9]
The
applicant then applied for permanent residence in Canada based upon
Humanitarian and Compassionate (H&C) considerations from within Canada on July 6,
2006, which was denied. A reconsideration of this decision was agreed upon by
consent on October 15, 2007.
[10]
The
applicant’s recourse against the refusal was dismissed by Justice Lemieux on
September 17, 2007 because of “the failure of the applicant to file a second
PRRA assessment record […]”.
[11]
The
applicant was scheduled for departure on August 10, 2007, but he did not appear
for removal. On October 15, 2007, his H&C application was returned to
another officer for a decision.
[12]
The
applicant obtained a passport, valid for a period of six months, from the
Bangladesh High Commission in Ottawa on February 13, 2007.
The Impugned Decision
[13]
This
application seeks a reversal of the officer’s decision of December 17, 2007,
denying the applicant’s demand of a waiver of the statutory requirement that he
apply for permanent residence outside Canada.
The Legislation
[14]
Subsections
6(1) and 25(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27, (the “IRPA”) state:
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6.
(1) The Minister may designate any persons or class of persons as officers to
carry out any purpose of any provision of this Act, and shall specify the
powers and duties of the officers so designated.
25.
(1) The Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or on request of a foreign national outside
Canada, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
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6.
(1) Le ministre désigne, individuellement ou par catégorie, les personnes
qu’il charge, à titre d’agent, de l’application de tout ou partie des
dispositions de la présente loi et précise les attributions attachées à leurs
fonctions.
25.
(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
[15]
The
process to obtain such permission is highly discretionary (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, paragraph 6; Quiroa
v. Minister of Citizenship and Immigration, 2007 FC 495, paragraph 19; Doumbouya
v. Minister of Citizenship and Immigration, 2007 FC 1186, paragraph 6).
The Issues
[16]
The
applicant submits the issues are as follows:
(a)
Did
the assessing immigration officer err in finding that the applicant did not
face any personal risk?
(b)
Did
the immigration officer fetter his discretion?
(c)
Is
the officer’s treatment of the risks that have been personally suffered against
the applicant unreasonable?
[17]
In
my view, the only genuine issue is whether, in the circumstances, the officer’s
decision was unreasonable in assessing the personalized risk faced by the
applicant if returned to Bangladesh.
Analysis
(1) The Standard of Review
[18]
The
standard of review, according to the jurisprudence, for the assessment of facts
or mixed facts and law, is one of reasonableness (Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190).
[19]
In
particular, the standard of review for matters involving an H&C decision
was held to be reasonableness simpliciter in Baker, supra,
at paragraphs 57 to 62.
(2) Assessment
of Risk
[20]
The
applicant claims that the officer applied the wrong test and rendered the wrong
decision concerning the personalized risk he faced if returned to Bangladesh, a country
rife with violence, corruption and subject to major economic and political
problems. He invokes sections 96 and 97 of the IRPA by analogy:
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96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de
son
appartenance
à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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[21]
The
applicant alleges that the officer confounded the concepts of “personalized”
and “general” risks and thus failed to apply existing hardships to his situation.
[22]
The
respondent submits that the officer considered the “generalized risk”, as a
component of the personal situation of the applicant and a part of an H&C
application.
[23]
He
adds that it is insufficient to refer only to the country conditions in general
without linking such conditions to the personalized situation of the applicant.
[24]
The
respondent concludes that the applicant’s argumentation is inconsistent with
the letter and the intent of section 25 of the IRPA. To accept the applicant’s
interpretation would mean that almost all applications on ministerial exemption
presented by foreign nationals of countries having a very bad human rights
record would be automatically accepted. Such an interpretation is contrary to
the law and intention of Parliament and would create an absurdity.
[25]
The
situation described in this case shows the difficulty of analyzing personalized
risk in cases of generalized human rights violations, and war, political and
economic problems where every individual faces a personalized risk that is,
however, shared by most of the other citizens of that particular country.
[26]
The
applicant has the burden of presenting evidence establishing in his H&C
process that he or she would be subject to unusual, undeserved and
disproportionate personal hardships.
[27]
It
is insufficient to merely present evidence of generalized risk conditions of
which mostly all citizens of that particular country are subject to (Dreta
v. Minister of Citizenship and Immigration, 2005 FC 1239; Maichibi v Minister of
Citizenship and Immigration, 2008 FC 138 at paragraphs 23 to 25; Lalane
c. ministre de la Citoyenneté et de l’Immigration, 2009 CF 5, paragraphs 42
to 46).
[28]
Madam
Justice Danièle Tremblay-Lamer has recently considered how to define two
concepts of risk. She notes in her decision Prophète v. Minister of
Citizenship and Immigration, 2008 FC 331, 70 Imm. L.R. (3d) 128, the
following:
[15] Thus,
the present case raises the issue of the interpretation of the meaning of the
terms “personally” and “generally” as contained in s. 97(1) of the Act:
[…]
[16] The
test under s. 97 of the Act is distinct from the test under s. 96. As
Rouleau J. noted in Ahmad v. Canada (Minister of Citizenship and
Immigration), 2004 FC
808, [2004] F.C.J. No. 995 (QL), at para. 21, s. 97 “requires the Board to
apply a different criterion pertaining to the issue of whether the applicant’s
removal may or may not expose him personally to the risks and dangers referred
to in paragraphs 97(1)(a) and (b) of the Act” and must be
assessed with reference to the personal situation of the applicant. Moreover,
he indicated that the “assessment of the applicant’s fear must be made in
concreto, and not from an abstract and general perspective” (at para. 22).
[17] Accordingly,
documentary evidence which illustrates the systematic and generalized violation
of human rights in a given country will not be sufficient to ground a s. 97
claim absent proof that might link this general documentary evidence to the
applicant’s specific circumstances (Ould v. Canada (Minister of Citizenship
and Immigration), 2007 FC 83, [2007] F.C.J. No. 103 (QL), at para. 21; Jarada
v. Canada (Minster of Citizenship and Immigration), 2005 FC 409, [2005]
F.C.J. No. 506 (QL), at para. 28; Ahmad, supra, at para. 22).
[18] The
difficulty in analyzing personalized risk in situations of generalized human
rights violations, civil war, and failed states lies in determining the
dividing line between a risk that is “personalized” and one that is “general”.
Under these circumstances, the Court may be faced with an applicant who has
been targeted in the past and who may be targeted in the future but whose risk
situation is similar to a segment of the larger population. Thus, the Court is
faced with an individual who may have a personalized risk, but one that is
shared by many other individuals.
[19] Recently,
the term “generally” was interpreted in a manner that may include segments of
the larger population, as well as all residents or citizens of a given country.
[…]
[29]
Generalized
risks are one component of the “personalized risk” but it must be linked to the
personal situation of an applicant to become a “personalized risk” (i.e. the
other component of a “personalized risk”).
[30]
To
obtain a positive ministerial exemption pursuant to section 25 of the IRPA, an
applicant must prove the two other components before claiming “personalized
risk” justifies the exemption. Simply establishing general country conditions
of risk per se is insufficient.
[31]
Justice
Michel M. J. Shore in Maichibi v.
Minister of Citizenship and Immigration, 2008 FC 138, recently reiterated
this principle:
[12] With
respect to personalized risk and hardship, the officer noted that the Applicant’s
allegations were identical to those made before the IRB. Considering that the
IRB concluded that the Applicant’s story was devoid of credibility and that the
Applicant had not provided any evidence regarding his involvement in human
rights movements or that he would be sought by the authorities, the officer
determined that he could not revisit the IRB's factual and credibility
conclusions. As such, she concluded that the Applicant had not demonstrated
that he had a political profile that would cause him a personalized risk which
would equate to unusual and undeserved or disproportionate hardship should he
return to Nigeria.
[32]
Furthermore,
as Justice Michel Beaudry in Mooker v. Minister of Citizenship and
Immigration, 2008 FC 518, at paragraph 19 wrote:
The
line of cases relied upon by the applicants […] imposes upon H&C Officers
the requirement that the generalized risk of violence, or risks flowing from
discrimination, be considered according to the appropriate test. It does not go
so far as to require the Officer to conclude that discrimination and a risk of
generalized violence always constitute undue, undeserved or disproportionate
hardship.
[33]
The
H&C officer in the decision summarized and considered the evidence
presented by the applicant about the situation in Bangladesh showing incidents of
political violence, corruption, brutal murders of businessmen and family
members, explosion of bombs, crime, army and police excesses.
[34]
The
officer also considered “new evidence”, i.e. letters showing that the police
visited the family a few times and terrorists beat the applicant’s brother and
vandalized the family home searching for the applicant.
[35]
The
officer considered that notwithstanding the evidence of generalized risk, she
could not find that the applicant faced a personalized risk because he had not
provided sufficient persuasive and reliable evidence to prove the personalized
risk.
[36]
All
of these risks were considered previously in the IRB, the PRRA and H&C
decisions wherein it was found that the applicant was not a credible person.
Also, he did not come to this Court with clean hands having neglected to appear
on his removal on August 10, 2007.
[37]
His
story was considered by the IRB to be a “complete fabrication”. This
qualification must be considered when analyzing the applicant’s argumentation
since the officer ignored the finding of his lack of credibility.
[38]
I
note that the applicant himself indicates that he cannot go back to Bangladesh as he faces “. . . the
same risks that everyone else faces there (as one may note from the evidence
filed in this application), which makes life miserable and I face other risks
that were made directly against me; […]” (Applicant’s Record, page 9, paragraph
5).
[39]
As
noted by the respondent, “if the risks that the entire country faces” was the
exclusive component of the “personalized risk” that the H&C applicants have
to demonstrate, every foreign national from a country having very bad human
rights or poor climatic records would automatically qualify for a positive
ministerial exemption pursuant to section 25 of the IRPA. Such an interpretation
of section 25 of the IRPA is inconsistent with the scheme of the Act and its
regulations.
[40]
With
respect to the personalized risks, after analyzing the applicant’s submission,
including a letter from his brother that “states that the police have visited
the family home a few times in the last few months in search of the applicant”
and “that the cases against the applicant have been “revived” under the
emergency rules”, and despite the letter indicating that AL terrorists have
beaten the applicant’s brother, vandalized the family home and are searching
for the applicant, the officer notes “that there is no party in power at this
time. The information submitted does not denote that reports of vandalism or
attacks were filed with the authorities”. Moreover, he concludes that the
“applicant has not demonstrated that he would incur a personal risk to his life
or security as per Section 13 of the IP5 manual”.
[41]
I
find that, despite the self-serving letters claiming that the applicant is at
risk and recognizing the present country conditions, the applicant is at no
greater risk than any other Bangladeshi. Moreover, I do not find that the
officer erred in assessing the applicant’s personalized risk.
(3) Officer’s
Discretion
[42]
The
applicant argues that, should this Court find that indeed the officer correctly
applied the notion of “personalized risk” the officer has nonetheless fettered
her discretion in the case at bar by not including risks that the entire
country face when she was clearly requested to do so.
[43]
The
applicant notes that despite having specifically requested that an assessment
of the generalized country conditions be considered under the officer’s broad
discretion, she failed to demonstrate that she understood and/or used her
discretion in the proper sense.
[44]
This
argument must fail. I agree with the respondent in that if an officer was to
consider the generalized country conditions when assessing an H&C
application, the officer would exceed the discretion conferred to him at
section 25 of the IRPA.
[45]
This
Court has found that despite the existence of an unquestionable “generalized
risk to the entire population”, it does not in and of itself prevent an
application made on humanitarian and compassionate grounds from being denied.
[46]
In
short, the notion of “personalized risk” to an unusual or undeserved hardship
pursuant to section 25 of the IRPA involves that, notwithstanding the
seriousness of any given country’s conditions in general (i.e. the “generalized
risks”), the H&C applicant must always connect these general conditions
with his or her personalized situation in practical terms.
[47]
I
note that in the present case, the IRB did not believe that the applicant had
been targeted in the past. Moreover, it did not pertain to the H&C officer
to re-evaluate again or second-guess this final conclusion.
[48]
Recognizing
that the IRB has found the applicant to lack credibility coupled with his
failure to comply with his deportation order and considering the country to
which the applicant shall be removed, I find the officer properly exercised her
discretion and this Court’s intervention is not warranted.
(4) Personalized
Situation of Risk
[49]
Contrary
to what the applicant alleges in his submissions, the officer’s written reasons
clearly reveal that “the evidence submitted by the applicant was not conclusive
as to establish that indeed there were any risks […] personally made against
him”.
[50]
The
purported personal risk which was one the applicant would have faced before
2003 has never been established given that this part of the applicant’s story
was not found credible by the IRB.
[51]
Moreover,
the new evidence submitted does not demonstrate that there is any pending case
against the applicant or that he is charged for any offence in Bangladesh.
[52]
I
agree with the respondent that the applicant failed to establish that the
particular circumstances of his case were such that he would face unusual,
undeserved or disproportionate hardship if required to apply for a visa abroad.
Conclusion
[53]
Based
on the foregoing, this judicial review will be dismissed.
Certified Questions
[54]
During
the hearing, counsel for the applicant submitted the following questions for
certification to which counsel for the respondent objected:
1. In
the context of a H&C application where an officer finds that the applicant
shows the same risk that the general population faces, is it correct to say
that the applicant faces a personalized risk (a risk faced “personally” as
provided for in section 13 of CIC IP Manual 5)?
2. If
the answer to the above is “no”, does the officer nonetheless retain discretion
to consider those risks as hardship?
[55]
Section
74 of the IRPA states:
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74.
Judicial review is subject to the following provisions:
[…]
(d)
an appeal to the Federal Court of Appeal may be made only if, in rendering
judgment, the judge certifies that a serious question of general importance
is involved and states the question.
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74. Les règles suivantes
s’appliquent à la demande de contrôle judiciaire :
[…]
d)
le jugement consécutif au contrôle judiciaire n’est susceptible d’appel en
Cour d’appel fédérale que si le juge certifie que l’affaire soulève une
question grave de portée générale et énonce celle-ci.
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[56]
The
judicial interpretation of this section recognized that a certified question
must be of general importance and raise questions of law worth being decided by
a Court of Appeal (Gittens v. Minister of Public Safety and Emergency
Preparedness, 2008 FC 526; Denisov v. Minister of Citizenship and
Immigration, 2008 FC 550).
[57]
The
questions raised in the present case do not meet these criteria since they only
involve factual determination or mixed facts and law.
[58]
Therefore
no questions will be certified.
JUDGMENT
THIS COURT ORDERS:
1.
The
application for judicial review of the Pre-Removal Risk Assessment Officer’s
decision of December 17, 2007 denying a waiver to apply for permanent residence
from outside Canada is
dismissed.
2.
No
general question of importance is to be certified.
“Orville
Frenette”
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