Date: 20110630
Docket: IMM-5961-10
Citation: 2011 FC 797
Ottawa, Ontario, June 30, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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TESSY DANIEL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
present application addresses the validity of a decision by a visa officer to
deny the Applicant’s request for relief on humanitarian and compassionate
grounds (H&C application) pursuant to section 25 of the Immigration and
Refugee Protection Act, SC 2001, c 27. The application was denied by the
officer, and it is this decision that the Court is asked to judicially review.
The Officer’s Decisions
[2]
After
stating the Applicant’s arguments for her H&C application and her position
in regards to her risk from removal, the officer commented the evidence.
Firstly, the Applicant alleges she is a Christian widow, whose husband’s family
is Muslim. Her late husband’s family is supposedly well-connected and has
threatened the Applicant and her son in light of these religious motives.
However, the Applicant had not been found credible in her initial refugee
claim. Also, a first H&C application was denied. Thus, she was not found
credible in her refugee claim: she had not established she was really a widow.
She has now established her identity and seeks to have the same grounds now
recognized (i.e. her husband’s family’s threats, her situation as a widow in Nigeria, and as a
Christian in Nigeria). The
Officer found it relevant to use in the assessment of the previous H&C
application and her previous PRRA these “valid observations” made by the IRB
and her credibility.
[3]
The
Officer did not believe the Applicant was a widow, and did not accept this as a
source of “undue and disproportionate hardship”. From these findings, the
Officer held that there was no personal risk resulting from her alleged
husband’s death, as she was not found credible on this basis. Also, the risk
stemming from the fact that she married a Muslim was not considered, as she had
not established she was married. She did not establish she would be victim to
mistreatment resulting from the fact she was a woman, as this was a generalized
risk that was not proven to affect her personally.
[4]
Two
letters submitted by the Applicant from churches in Nigeria and Canada were not
considered probative, as they did not show independent knowledge of the events.
Furthermore, her PRRA application stated she gave collateral on her husband’s
property in order to travel to Canada. This was inconsistent with her allegation
that widows were mistreated and have no property rights in Nigeria.
[5]
Also,
the documentation submitted only established that there were generalized risks
of violence in Nigeria, and the Officer found she did not show how
this violence would affect her personally.
[6]
In
the context of her H&C application, the best interests of her Canadian born
child were then considered. Her son had surgery on his knee and requires
physiotherapy. There is a possibility his other knee would require surgery. The
physiotherapy and possibility of future surgery were deemed too speculative to
be accepted as H&C grounds. Arguments were also submitted that her child’s
best interest cannot be found if he is separated from his mother. A Clinic
Coordinator submitted a letter whereby the dismal state of schools in Nigeria was
discussed. However, the Officer deemed that it was not established that this
particular child would not have adequate access to education. The hardship
suffered would not be disproportionate.
[7]
The
Applicant’s son also suffers from ADHD, a condition that is medicated today.
However, no efforts were made by the Applicant to establish that she made
specific efforts to determine which medical and educational services would be
available to her and her son in Nigeria. The medication for
ADHD in Nigeria was not
shown to be expensive or unavailable. The intervention plan that was submitted
by the son’s school was deemed “vague” and did not establish that the services
required were unavailable in Nigeria.
[8]
In
sum, it is the Applicant’s choice to bring her son with her if removed, and
this would not cause a disproportionate hardship to her son or her.
[9]
The
applicant stated she was established, owned property and had a job. She is
involved with her church and friends. She has adequate language skills.
However, the Officer stated that none of these elements amount to a
disproportionate hardship if removal takes place. Thus, the visa exemption was
not awarded. The Applicant was not found to be at risk if removed.
Standards of Review
[10]
The
H&C application is based on section 25 of the Immigration and Refugee
Protection Act, LC 2001, c 27:
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Humanitarian and compassionate
considerations — request of foreign national
25.
(1) The Minister must, on request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, 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 obligations
of this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to the foreign
national, taking into account the best interests of a child directly
affected.
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Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
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,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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[11]
The
relief sought by an H&C application is that the Minister waive the habitual
requirement that a permanent residency application be submitted from abroad. The
starting point of the Court’s analysis in reviewing an H&C decision is that
the relief sought by the Applicant is exceptional and discretionary (Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125). Justice Shore added
the following instructive comments in regards to the nature of an H&C
application in Mirza v Canada (Citizenship and
Immigration), 2011 FC 50, at para 1:
The humanitarian and compassionate
(H&C) decision-making process is a highly discretionary one that considers
whether a special grant of an exemption is warranted. It is widely understood
that invoking subsection 25(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) is an exceptional measure, and not simply an alternate
means of applying for permanent resident status in Canada (Barrak v Canada
(Minister of Citizenship and Immigration), 2008 FC 962 (CanLII), 2008 FC
962, 333 FTR 109, at paras 27, 29; Doumbouya v Canada (Minister of
Citizenship and Immigration), 2007 FC 1186 (CanLII), 2007 FC 1186, 325 FTR
186, at para 7; Pannu v Canada (Minister of Citizenship and Immigration),
2006 FC 1356 (CanLII), 2006 FC 1356, 153 ACWS (3d) 195, at para 26).
[12]
In
this respect, it is clear that an officer’s assessment of an H&C
application is also to be reviewed on the standard of reasonableness (Mirza,
above; Hernandez Malvaez v Canada (Citizenship and Immigration), 2011 FC
129).
The Objective Risk
[13]
The
grounds for persecution alleged by the Applicant are the same as the grounds
claimed in her asylum claim. She alleges being a widow from an interfaith
marriage. As such, she alleged she would be the victim of persecution in her
native Nigeria. However,
her claim for asylum was denied on the grounds that she lacked credibility in
her claim. This was further confirmed during the course of her PRRA hearing.
The Officer concluded that “in the absence of evidence that corroborates the
applicant’s allegations of fact related to personal risk of harm against her,
the applicant’s statements regarding personal risk remain generally not
credible”. Furthermore, the risk alleged as a single woman in Nigeria was deemed
generalized and the Applicant did not adequately personalize it to the
Officer’s satisfaction.
[14]
The
burden to prove the elements in support of a PRRA application is upon the
Applicant (Hailu v Canada (Solicitor General), 2005 FC 229;
Guergour v Canada (Citizenship and
Immigration), 2009 FC 1147). Contrary to what was argued in writing by
counsel for the Applicant, a PRRA application is not a forum to re-litigate
questions of the Applicant’s previously assessed credibility, or lack thereof.
The findings of the Immigration and Refugee Board in regards to her credibility
in her asylum claim were not subject to judicial review by this Court, nor was
her previous H&C application. As such, it is improper for this Court to be
asked to reconsider these findings in assessing whether the Applicant faces a
personalized risk as a widow and Christian in Nigeria. The
question here is not whether the tribulations of widows in Nigeria were
properly assessed. Rather, the Applicant is not found to have provided evidence
to establish herself as a widow and this, in various fora.
[15]
The
Officer’s findings in respect to the objective risk from removal are
reasonable. The Court is satisfied they fall within the “acceptable outcomes
defensible in fact and law” (Dunsmuir v New Brunswick, 2008 SCC 9,
at para 47). The findings made properly fall within the Officer’s mandate as
trier of fact and no reviewable error has been committed in this respect. In
all clarity, it should be restated that a PRRA application is not the forum to
re-litigate a failed asylum claim on the basis of credibility (see Nation-Eaton
v Canada (Citizenship
and Immigration), 2008 FC 294 for an example).
The H&C Decision
[16]
The
Officer’s decision in regards to an H&C Application is indeed
discretionary, but some factors have been recognized as important by the case
law, as well as being enshrined in the IP-5 Manual made available to visa
officers. The standard which must be met by an applicant is that “undue,
underserved or disproportionate hardship” must be proven, which excludes the
hardship inherent to being removed from Canada (Doumbouya v Canada (Citizenship
and Immigration), 2007 FC 1186; Serda v Canada (Citizenship
and Immigration), 2006 FC 356).
[17]
The
following factors were considered by the Officer in analyzing whether applying
for a permanent resident visa from abroad constitutes “undue, undeserved or
disproportionate hardship” for the Applicant: her establishment and integration
in Canada; her risk in Nigeria; and the best interests
of her Canadian-born child.
[18]
The
Applicant’s establishment was considered insofar as the Applicant owns a house
jointly with her second husband, to whom she is now separated. She is also
active in her community and church and has held a steady job since 2005. The
Officer ruled that the information pertaining to establishment, “while
positive, does not show that the applicant’s departure from Canada would cause
a disproportionate hardship for her or anyone else”.
[19]
As
submitted by the Minister, the exceptional nature of an H&C application entails
that “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” (Quijano v Canada (Citizenship
and Immigration), 2009 FC 1232, at1/ para 45). Furthermore, it can be
seen that the Applicant’s establishment, namely in regards to her real
property, is based upon a precarious status, that of being a failed refugee
claimant. Her initial refugee claim was denied in 2005 and her mortgage application
was accepted in 2008. While arising in the context of a stay of removal, the
following comments from Justice Shore in Duran v Canada (Public Safety and
Emergency Preparedness), 2007 FC 738, at para 48 are relevant to this case:
Ultimately, the applicant and her spouse
were aware of her precarious status when they took on the financial
commitments, which were, moreover, not in evidence before the Court, and they
made their decisions with full knowledge of the situation. In the words of Mr.
Justice Paul Rouleau, they did so at their peril:
[16] I see no transgressions in the
conduct of the Minister; no expectations granted the applicant; if he chose to
marry while still not having his situation favourably determined by Canadian
authorities, it is at his peril, not that of the Minister who has a duty to
uphold the laws of Canada.
(Banwait v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 522 (T.D.) (QL))
[20]
Here,
the financial commitments were in evidence before the Officer. However, in
assessing establishment, the Officer ruled that the Applicant’s establishment
and integration were not determinative in her H&C applicant. These findings
in regards to establishment and integration are reasonable: no important
factors were ignored and the Court must not re-weigh the Officer’s assessment
of these factors (see, inter alia, Adams v Canada (Citizenship
and Immigration), 2009 FC 1193).
[21]
In
addition, the best interests of the Applicant’s child were also considered. It
is well set out that the Officer must be “alert, alive and sensitive” to these
issues in the context of an H&C application. In Baker, above, at
para 75, the Supreme Court rendered its view on the Officer’s assessment of
these interests:
[…] for the exercise of the discretion to
fall within the standard of reasonableness, the decision-maker should consider
children’s best interests as an important factor, give them substantial weight,
and be alert, alive and sensitive to them. That is not to say that children’s
best interests must always outweigh other considerations, or that there will
not be other reasons for denying an H & C claim even when children’s
interests are given this consideration. However, where the interests of
children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate
tradition and the Minister’s guidelines, the decision will be unreasonable.
[22]
As
clear as this guidance is, it was necessary for this Court and the Federal
Court of Appeal to nuance the Supreme Court’s stance on the assessment of the
best interests of children in H&C Applications. It is in this perspective
that the Federal Court of Appeal decided in Legault, above, at paragraph
12 that:
[…] the presence of children, contrary to
the conclusion of Justice Nadon, does not call for a certain result. It is not
because the interests of the children favour the fact that a parent residing
illegally in Canada should remain in Canada (which, as justly stated by
Justice Nadon, will generally be the case), that the Minister must exercise his
discretion in favour of said parent. Parliament has not decided, as of yet,
that the presence of children in Canada constitutes in itself an impediment to
any "refoulement" of a parent illegally residing in Canada (see Langner v. Canada (Minister of Employment and
Immigration)
reflex, (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal refused, [1995] 3
S.C.R. vii).
[23]
Thus,
the best interests of a child in an H&C application has not been held to be
a determinative factor, yet it is an important one which requires serious
consideration by the Officer (Legault, above; Garcia v Canada
(Citizenship and Immigration), 2010 FC 677; Hussain v Canada
(Citizenship and Immigration), 2010 FC 334). Furthermore, the onus is on
the Applicant to adduce the necessary evidence to establish the grounds of her
H&C application (Sharma v Canada (Citizenship and Immigration), 2009
FC 1006; Barrak v Canada (Citizenship and
Immigration), 2008 FC 962; Owusu v Canada (Citizenship
and Immigration), 2004 FCA 38).
[24]
In
this respect, it cannot be said that the Officer completely ignored or
otherwise did not consider the evidence provided in respect to the
Canadian-born child’s best interests, not least of which were his medical
needs. The question is whether this assessment falls within “the range of
acceptable outcomes defensible in fact and law”, as there were no breaches of
fairness of discounting of relevant evidence.
[25]
As
such, the Court’s analysis is drawn to the Officer’s appreciation of the
evidence placed in support of the child’s medical conditions. The following
evidence was submitted in support of the child’s medical condition, which the
Applicant claims justifies her H&C application:
a.
The child
suffers from Attention Deficit and Hyperactivity Disorder (ADHD). He is under
medication for this condition.
b.
The son’s
ADHD also required an “Intervention Plan” from his school. In this Intervention
Plan, the child’s needs are specified and include being loved, appreciated,
esteemed and befriended.
c.
A letter
from the Montreal City Mission was submitted, whereby several grounds of the
H&C application are discussed. Also, the letter relates the likely
consequences of the son being separated from his mother if she is removed.
Also, statistics pertaining to healthcare and schooling in Nigeria are given.
d.
In support
of the alleged dismal state of healthcare and schooling in Nigeria, reports from international
organizations were submitted and related statistics regarding the dismal state
of education and health services. Later reports speak to a certain improvement
in this respect.
e.
Letters
from two physicians where the son’s medical conditions are explained. His heart
murmur is stated to be benign. He “could” require surgery on his left knee, and
has undergone physiotherapy and surgery on his right knee.
[26]
It
is understood that the child’s recovery period from the surgery on his right
knee is all but completed. No updated information is brought forth in regards
to ongoing physiotherapy. The most specific evidence adduced to additional
healthcare requirements for his knees is that his left knee has begun to hurt,
with no diagnostic or prognosis. A letter dated June 8, 2010 from one of the
treating physicians indicated that “investigations under way” as to whether the
same condition which required surgery on his right knee would affect his left
knee. The Officer determined that an operation on the left knee was not
established as being probable. Furthermore, the need for physiotherapy is not
“specific enough to show that such therapy would be needed after the applicant
would depart Canada and even if such therapy is needed after the applicant
would return to Nigeria, she has not adequately shown that she would not be
able to access those services for her child, if she decided to take Ayomide
with her to Nigeria”. Also, the Officer deemed that the Applicant had not shown
that the required medication for the treatment of ADHD was not available in Nigeria.
[27]
In
sum, it can be said that the Officer found that the Applicant did not particularize
her H&C application with evidence applicable to her situation and her son’s
needs. It was not shown that the specific care and educational services
required were not accessible in Nigeria. The evidence adduced
in regards to the ongoing treatment and future treatments were not satisfactory
to the Officer, as it was unclear and speculative. Also, the Officer stated
that while the removal of the Applicant would be effective, the child was born
in Canada and could
remain in the country.
[28]
This
decision is reasonable. Again, the Court cannot re-weigh the evidence as it was
before the Officer. Surely, the evidence was considered and analyzed, yet was
deemed unclear enough to grant the exceptional remedy provided by an H&C
application. The burden is upon the Applicant to particularize her claim. The
Officer’s decision was that how the evidence specifically relates to her
condition and her child’s was not provided. Surely, the onus is not upon the
Officer to deduce which elements relate to an applicant’s case. For example,
general statistics pertaining to health care do not overcome the burden of
specifying the nature of the care required, something which was not
sufficiently accounted for by the Applicant. The same reasoning applies to the
son’s need for medication and schooling. It is important to note that the child
may remain in Canada as of right.
[29]
As
counsel for the Minister highlighted for the Court, the assessment of an
H&C application is not whether an applicant is an ideal candidate for
immigration, but whether if the circumstances of a case require that the
requirement of applying for a visa from abroad be waived. In fairness to all
other applicants abroad and considering the fair administration of the IRPA, it
was reasonable for the Officer not to grant the H&C exemption to the
Applicant.
Proposal for a Certified
Question and Declaratory Relief
[30]
Counsel
for the Applicant seeks to have certified the following question:
Do the guarantees of Articles 23 and 24
of the International Covenant on Civil and Political Rights regarding the
protection of family life and the protection of children mandate the acceptance
of requests for residence based on humanitarian consideration when there are
Canadian children or a Canadian spouse who is affected by the decision in the
absence of significant countervailing considerations?
[31]
Basically,
it is argued that the separation of families is a breach of international law,
and that, as such, proper emphasis should be placed on the humanitarian
consideration that is family life and that Canada’s
international obligations require such a determination.
[32]
Counsel
for the Minister points out that the very same question was proposed by the
same counsel in Choudhary v Canada (Citizenship
and Immigration), 2008 FC 412. Justice Lagacé disposed of the question by
citing applicable appellate authority on this issue arising from Legault,
above and Langner, above, as well as in Baker, above. In all
clarity, Justice Lagacé stated that “the presence of Canadian children does not
call to a certain result in the context of an application under section 25 of
the Act”.
[33]
The
question seeks to uproot well founded principles in immigration law, such as
the discretionary and exceptional nature of H&C applications. In this
respect, the appellate guidance provided by the above cited cases and the
legislative intent are sufficiently clear so as to give proper weight to the
best interests of children in the context of H&C applications. The proposed
question for certification also seeks to read into IRPA principles which have
been refused by the Courts, and more importantly, by Parliament. The same can
be said of the declaratory relief sought by the Applicant.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is denied. No question
is certified.
“Simon Nöel”
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