Date: 20071126
Dockets: IMM-1817-07
IMM-1834-07
Citation: 2007 FC
1221
Ottawa, Ontario, November 26, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
Docket: IMM-1817-07
TEMITOPE J.
AKINBOWALE
OLAOTAN AKINBOWALE
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
- and -
Docket: IMM-1834-07
YETUNDE FOLASAD AKINBOWALE
OLAOTAN AKINBOWALE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
These are two applications
for judicial review pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated
February 15, 2007, rendered by the PRRA Officer J. Gullickson (the officer)
wherein he denied the applicants’ request for permanent residence on
humanitarian and compassionate grounds (H&C) filed from within Canada. Mr.
Temitope J. Akinbowale (the father) and his son Olaotan Akinbowale (the first
child) are the applicants in file number IMM-1817-07. The first child is also
an applicant in the file number IMM-1834-07, along with his mother, Yetunde
Folasad Akinbowale (the wife). The two applications were heard together. They
are based on the same set of facts and raise identical issues.
BACKGROUND
[2]
On January
24, 2000, the father arrived in Canada
and requested refugee protection at that time.
[3]
On August 14, 2000, his wife and their first
child arrived in Canada and made a refugee claim on August
22, 2000. She was pregnant at that time and gave birth to a son in Montreal in October 2000.
[4]
The
applicants were denied refugee status on August 7, 2003, by the Refugee Protection
Division (the RPD).
[5]
The RPD found, in a decision dated August 7, 2003, that the
father was not in Nigeria at the time of his alleged persecution, but rather in
the United States, where he was convicted once for grand larceny in 1992 and
twice for possession of forged securities in 1996 and 1997.
[6]
For these reasons, the RPD did not believe the wife’s
testimony about her arrest because of her husband’s political opinion or the
statement about meeting her husband and living with him from 1993 to 1997 in Nigeria. The leave for judicial review of that decision was
refused by this Court on January 13, 2004.
[7]
The wife
gave birth to a daughter on June
20, 2005.
ISSUES FOR
CONSIDERATION
[8]
I believe the issues should be restated as follows:
1.
Did the officer err in his assessment of the H&C
factors?
2.
Did the officer apply the right legal test to his H&C
analysis?
PERTINENT
LEGISLATION
[9]
The humanitarian and
compassionate exemption is found at subsection 25(1) of the Act, and reads as
follows:
|
25. (1) The Minister shall, upon request of a
foreign national who is inadmissible or who does not meet the requirements of
this Act, and may, on the Minister’s own initiative, 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.
|
25. (1)
Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne
se conforme pas à la présente loi, et peut, de sa propre initiative, 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.
|
STANDARD OF
REVIEW
[10]
It is trite law that the applicable standard of review of
decisions made on H&C grounds is reasonableness simpliciter
(Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 62). In Ramirez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1404, Mr. Justice Yves De
Montigny held, at paragraph 31:
This Court will therefore interfere with the H&C
decision only if it discloses no line of analysis which could reasonably lead
the immigration officer from the evidence to the conclusion she reached. Having
said this, I am also mindful of the fact that some of the applicants’ arguments
involve the interpretation of legal concepts. The issue of defining “hardship”
in the context of analyzing the best interests of a child, for one, does not
involve first and foremost an appreciation of the facts. The same can be said
of the question as to whether an immigration officer must evaluate risk
differently in the context of a PRRA application and an H&C application.
While these issues are more properly characterized as questions of mixed fact
and law as opposed to being fact-specific, I do not believe they warrant a
different standard of review. Indeed, it seems to me the mixed nature of these
questions merely reinforces the appropriateness of the reasonableness standard.
[11]
However, on questions of procedural fairness, the
appropriate standard is correctness.
ANALYSIS
1. Did the officer err in his assessment of the H&C factors?
[12]
The applicants submit that the officer did not sufficiently
assess the interests of the children in his decision, especially concerning the
risk their daughter would face of undergoing Female Genital Mutilation (FGM) if
they return to Nigeria.
[13]
The relevant parts of the officer’s decision read as
follow:
FGM
The applicants allege
that their Canadian daughter would face female genital mutilation (FGM) in
Nigeria or they would be forced to leave their Canadian daughter behind to
avoid FGM in Nigeria, which is an excessive difficulty.
[…]
The applicants have
not sufficiently shown how this daughter is seriously at risk of being forced
to undergo FGM. Yetunde, the child’s mother, has not indicated that FGM has
been done to herself or anyone else in her family and has not indicated that it
is customary in her family or particular community. Recent country information
on Nigeria indicates that only 19 per cent of women in Nigeria undergo
the FGM procedure and the applicants have not presented sufficient evidence
that they [sic] would be a serious risk of being forced to have the procedure
done to their daughter. Recent country report information indicates that 60 per
cent of Yoruba women have had FGM, however, the applicants, even though they
have indicated that they are Yoruba, have not mentioned this kind of
information as a relevant factor regarding their daughter. Furthermore, these
reports indicate that FGM is in decline and that educated women in urban areas
are less likely to support the practice and that pressure to have FGM done
emanates from the family. The adult applicants, who themselves are apparently
against FGM, have not provided sufficient information that such pressure exists
for them that they would lead to FGM for their daughter.
[14]
It is established that on an H&C application for
exemption, the onus of establishing their claim rests on the applicants’
shoulders. As held by Mr. Justice Richard Mosley in Bui v. Canada (Minister of
Citizenship and Immigration), 2005 FC 816, at paragraphs 11 and
12:
[11]
The standard of unusual, undeserved and
disproportionate hardship for the grant of an exemption from the requirement to
apply for a visa from outside of Canada is a high threshold: Lee v. Canada (Minister of
Citizenship and Immigration) [2001] F.C.J. No. 139; Irimie v. Canada (Minister of
Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206 (F.C.T.D.).
[12] The
applicant bears the onus of satisfying the decision-maker and may present
whatever facts he believes are relevant. An oblique, cursory or obscure
submission does not impose an obligation on the officer to inquire further: Owusu,supra
at para. 9.
[15]
It appears from the decision that the officer considered
not having sufficient proof indicating that their daughter would have to
undergo FGM. The evidence was to the effect that without family pressure, the
practice was less likely to be performed. The fact that the applicants are
alleging that their daughter would have to undergo FGM if they were sent back
to Nigeria as a factor for their H&C
applications surely indicates that they are against that practice.
[16]
The officer’s reasons on the interests of the children read
as follows:
Yetunde says that she
has two Canadian born children born in 2000 and 2005 and that these children
have known no other lifestyle or culture other than that in Canada. She says
that these children are entitled to Canadian benefits and that it would be
unfair to force them to live in a culture and lifestyle unknown to them. She
says that the oldest child is in school and should finish his education, that
he has friends in school and church and enjoys modern technology in education
and has a more structured life in Canada.
The applicant has not
adequately specified what benefits that may exist in Canada that the applicants
or their children would not have in Nigeria. I recognize that
forcing the children to change school and to move from Canada may cause
difficulties and the loss of friends but there is insufficient evidence to show
that the move would be an excessive hardship for the children.
[17]
Mr. Justice Denis Pelletier held, in Irimie v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906
(QL), at paragraph 26, that the humanitarian and compassionate exemption
process “is not designed to eliminate hardship; it is designed to provide
relief from unusual, undeserved or disproportionate hardship”. Paragraph
12 of his decision reads as follows:
[…] It would seem to follow that the hardship which would
trigger the exercise of discretion on humanitarian and compassionate grounds
should be something other than that which is inherent in being asked to leave
after one has been in place for a period of time. Thus, the fact
that one would be leaving behind friends, perhaps family, employment or a
residence would not necessarily be enough to justify the exercise of
discretion.
[18]
In Liniewska v. Canada (Minister of
Citizenship and Immigration), 2006 FC 591, at paragraph 20, I noted that the applicant bears the burden of
establishing that the officer did not take into consideration the evidence
concerning the best interests of the children in his H&C evaluation:
[20] The
applicant has the onus of providing evidence regarding the adverse effects on
the children if she were forced to leave. The immigration officer has an
obligation to take that evidence into consideration. It is not sufficient for
the applicant to simply state that the officer did not take the children’s best
interests into consideration, she must establish that the officer did not take
into consideration the evidence bearing on the best interests of the children
[…]
[19]
Given the evidence before him, I find the officer’s
conclusion to be reasonable. The applicants failed to demonstrate that the
evidence before the officer could not reasonably lead to the decision rendered
by the officer.
2. Did
the officer apply the right legal test to his H&C analysis?
[20]
The applicants submit that the officer erred in law by
applying the wrong burden of proof when he determined that “[t]he applicants
have not sufficiently shown how this daughter is seriously at risk of being
forced to undergo FGM” and further that “the applicants have not presented sufficient
evidence that they [sic] would be a serious risk of being forced to have
the procedure done to their daughter”. They argue that the officer should have
considered the hardship associated with the return to Nigeria instead of the risk upon return of the applicants’ daughter, who is a
Canadian citizen and therefore is not subject to the PRRA program. In support
of this allegation, they quote paragraph 42 of Mr. Justice Yves De Montigny’s
decision Ramirez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1404. Since that decision makes a clear distinction between a PRRA and an
H&C analysis of risk, I will also quote paragraphs 44, 45 and 48 of the
decision:
[42] It is
beyond dispute that the concept of “hardship” in an H&C application and the
“risk” contemplated in a PRRA are not equivalent and must be assessed according
to a different standard. As explained by Chief Justice Allan Lutfy in Pinter
v. Canada (Minister of Citizenship and Immigration), 2005 FC 296:
[3] In an application for humanitarian and compassionate
consideration under section 25 of the Immigration and Refugee Protection Act
(IRPA), the applicant's burden is to satisfy the decision-maker that there
would be unusual and undeserved or disproportionate hardship to obtain a
permanent resident visa from outside Canada.
[4] In a pre-removal risk assessment under sections 97, 112
and 113 of the IRPA, protection may be afforded to a person who, upon removal
from Canada to their country of
nationality, would be subject to a risk to their life or to a risk of cruel and
unusual treatment.
[5] In my view, it was an error in law for the immigration
officer to have concluded that she was not required to deal with risk factors
in her assessment of the humanitarian and compassionate application. She should
not have closed her mind to risk factors even though a valid negative
pre-removal risk assessment may have been made. There may well be risk
considerations which are relevant to an application for permanent residence
from within Canada which fall well below the higher threshold of risk to life
or cruel and unusual punishment. [Emphasis Added]
[…]
[44] There is
not a scintilla in the above-quoted passage of a discussion relating to
hardship as opposed to risk. Even in her conclusion, the officer returns to
this theme and states: “I am satisfied that the applicant would be able to
apply to immigrate to Canada through the standard overseas procedures without
requiring an exemption from the usual requirements without putting her at risk
to life or risk to her family’s personal security.”
[45] While it
may be that violence, harassment and the poor health and sanitary conditions
may not amount to a personalized risk for the purposes of a PRRA application,
these factors may well be sufficient to establish unusual, undeserved or
disproportionate hardship. […]
[48]
Specifically, when deciding a PRRA, immigration officers are conducting a risk
assessment. While it is true that H&C applications may also raise “risk
factors,” that does not change the fact that an H&C application is about
assessing hardship. That an application may involve issues of risk does not
convert the application into a second risk analysis. Rather, other issues, like
the best interests of the children, and risk factors, are to be assessed as
parts, or subsets, of this global hardship analysis.
[21]
Unlike the case cited above, it is not because the officer
looked for a personalised risk, but because he did not find that there was a
serious risk that the daughter would undergo FGM that he finally concluded that
the applicants did not show that they would suffer unusual, undeserved or
disproportionate hardship. This is similar to another decision rendered by
Justice De Montigny, Pannu v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1356, at
paragraph 37 which reads as follows:
[37] I do not
think that the reference in the last sentence to the risk to life of personal
security is proof that the officer applied the wrong test. First of all, the
officer could certainly adopt the factual conclusions in her PRRA decision to
the analysis she was making in the H&C application (Liyanage v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1045 at paragraph 41). Second, it is clear from a
contextual reading of this paragraph that she was coming to the conclusion that
the Applicant would not suffer unusual and undeserving, or disproportionate
hardship since there was no objective evidence of personal risk. Not only did
the officer correctly set out the H&C test at the very beginning of her
reasons, but she also concluded her discussion of the Applicant’s allegations
of risk and hardship in the following way:
With the evidence before me, I find that the applicant has
not provided sufficient persuasive evidence to establish that she faces a
personalized risk to her life or a risk to the security of the person from her
ex-husband if returned to India. Similarly, I find that the applicant has not provided
sufficient probative evidence to establish the hardships associated with
returning to India amounts to unusual and undeserved or disproportionate hardship.
[22]
In the recent decision Radji v. Canada (Citizenship and
Immigration), 2007 FC 836, Mr.
Justice Max M. Teitelbaum held, at paragraphs 8
and 27:
[8]
With respect to the risk allegations relating to the minor
applicant, the Officer noted that the applicant had provided no evidence to
support the allegation that she would be at risk of female genital mutilation
if she returned to Benin. The Officer noted that although there is now a law which
prohibits female genital mutilation in practice the government has not
succeeded in completely eradicating the practice. The Officer also referred to
an IRB Request for Information document that cited the assistant executive
secretary of the Benin chapter of the l’Organization Femmes, Droit et Développement en Afrique
as stating that Benin was in a period of transition with respect to this practice and that
there was currently an education campaign to inform people about the new law.
According to the documentary evidence approximately 17% of women in Benin have been subjected
to female genital mutilation and that 70% of women from the Bariba, Yoa-Lokpa
and Peul ethnic groups are subjected to it. The Officer noted that the
applicant is not from one of these groups. She concluded that the applicant had
not established that her daughter is at risk of female genital mutilation.
[…]
[27] I agree
with the respondent. The applicants made a significant number of claims but
failed to bring forth evidence to support these claims. As the respondent
noted, the applicants brought forward no evidence regarding the conditions for
women in Benin, forced marriages, female genital mutilation and the
availability of mental health care in Benin. Had the applicant believed that she deserved H&C
relief because her mental health condition and that a return to Benin could affect her to
the point that her daughter was at risk, then she should have raised this issue
in the submissions and adduced evidence to support it. […]
[23]
The facts and the findings of that decision are so similar
to the ones in the case at bar that I will only point out that the risk of FGM
was assessed in this H&C application and that the officer’s decision was
maintained.
[24]
In the case at bar, I am of the opinion that “[i]t is clear from reading the decision as a
whole that the Officer’s decision was made in the context of evaluating the relevant
factors raised by the [a]pplicant[s] and evaluating these factors using the
proper threshold applicable in the H&C context, namely that an “unusual and
undeserved or disproportionate hardship” must be demonstrated” (Doukhi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1464, at paragraph 27).
[25]
For the
above reasons, these judicial review applications are dismissed.
[26]
Neither
counsel provided a question for certification.
JUDGMENT
1.
The applications are denied.
2.
There is no question for certification, and none
will be certified.
“Pierre Blais”
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