Date: 20110826
Docket: IMM-6633-10
Citation: 2011 FC 1021
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, August
26, 2011
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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BOUBAKAR TRAORÉ
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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
I. Preliminary
[1]
The
decision at issue, rendered pursuant to subsection 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), is an exceptional and discretionary
measure:
[16] This exceptional measure is a part of a
legislative framework where "[n]on-citizens do not have a right to enter
or remain in Canada", where "[i]n general, immigration is a privilege
not a right"
(Chieu, para. 57) and where "the Act
treats citizens differently from permanent residents, who in turn are treated
differently from Convention refugees, who are treated differently from
individuals holding visas and from illegal residents. It is an important aspect
of the statutory scheme that these different categories of individuals are
treated differently, with appropriate adjustments to the varying rights and
contexts of individuals in these groups" (Chieu,
para. 59).
[17] Parliament chose, at subsection 114(2),
to restrain the discretionary exercise to cases where there are compassionate
and humanitarian considerations. Once these grounds are established, the
Minister may allow the exception, but he may also choose not to allow it. That
is the essence of the discretion, which must be exercised within the general
context of Canadian laws and policies on immigration. The Minister can refuse
to allow the exception when he is of the view that public interest reasons
supercede humanitarian and compassionate ones. [Emphasis added.]
(Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358; Chieu v.
Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R.
84; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R.
817.)
II. Introduction
[2]
This
is an application for judicial review of a decision to refuse an application
for permanent residence in Canada on humanitarian and compassionate (H&C) grounds
dated June 25, 2010. This decision upheld the decision rendered
August 3, 2010.
[3]
In
that decision, the Minister’s delegate denied the application for an exemption
sought in accordance with section 25 of the IRPA; consequently, the application
for permanent residence was refused.
[4]
The
applicant argues that the decision is unreasonable because the Minister’s
delegate allegedly failed to consider all of the elements concerning the
availability of treatments in Côte d’Ivoire and the applicant’s characteristics,
because the Minister’s delegate failed to take the applicant’s stigmatization in
Côte d’Ivoire into account and because the Minister’s delegate improperly
assessed the documents submitted by the applicant with respect to political
risks.
[5]
The
Court agrees with the respondent’s position as argued by Michèle Joubert. The
decision by the Minister’s delegate is well founded in fact and in law.
[6]
The
applicant also submitted an application for judicial review of the negative
decision with respect to his pre-removal risk assessment (PRRA) application.
III. The facts (in summary—see
Court decision, docket IMM-6635-10)
[7]
On
May 12, 2006, the Refugee Protection Division (RPD) of the Immigration and
Refugee Board rejected the applicant’s refugee claim, deeming his account to be
entirely lacking in credibility.
[8]
On
January 29, 2007, Justice Danièle Tremblay-Lamer dismissed the application for
judicial review submitted by the applicant in respect of the RPD’s decision.
[9]
In
the context of his application for an exemption, the applicant presented, among
other things, written submissions and an affidavit (both dated May 9, 2007), a
copy of his PRRA file dated April 26, 2007, and numerous other documents. On
September 16, 2007, the PRRA application was also denied.
IV. Decision
under review
[10]
After
assessing the risks alleged by the applicant and the documents submitted in
support of his allegations, the Minister’s delegate found that the applicant
would not be at risk if he were to return to his country.
[11]
The
Minister’s delegate carefully analyzed the applicant’s medical condition and
the possibility of receiving care in Côte d’Ivoire in his case and also examined
the submissions and documents presented by the applicant.
[12]
On
August 3, 2010, the Minister’s delegate assessed the documents submitted to
demonstrate the applicant’s establishment and found the following:
In his favour, I note that the documents
submitted demonstrate that Mr. Traoré has entrepreneurial and networking
skills. I note that Mr. Traoré has a track record as a business person prior to
coming and that, given the type enterprise he has chosen to establish, he may
even be able to continue working on this project from Côte d’Ivoire or
establish something similar once he returns.
(Decision, Tribunal Record (TR) at page 4 and
Applicant’s Record (AR) at page 17.)
[13]
After
examining the documents, the Minister’s delegate was not satisfied that the
H&C application should be granted:
Consequently, I am not satisfied that
sufficient humanitarian and compassionate considerations exist to warrant an
exemption to Mr. Traore’s medical inadmissibility. I have also taken into
consideration the issuance of a Temporary Resident Permit and similarly do not
find sufficient humanitarian and compassionate considerations based on the same
rationale.
(Decision, TR at page 70 and AR at page
15.)
I am therefore satisfied that the March
24, 2010 package from Counsel does not alter my decison of June 25, 2010.
(Addendum dated August 3, 2010, TR at page
5 and AR at page 18.)
[14]
The
applicant is not challenging the merits of the findings on establishment or
risks except concerning the finding that some of the new documents submitted by
the applicant are purportedly fraudulent.
[15]
The
applicant argues that the decision is unreasonable because of the following:
a. the Minister’s delegate
made perverse or capricious findings with respect to the medical evidence;
b. the Minister’s delegate
improperly assessed the qualifications and expertise of Dr. Klein and Johanne
Cyr;
c. the Minister’s delegate
did not consider the applicant’s personal circumstances and stigmatization.
V. Relevant statutory provisions
[16]
On
June 16, 2010, section 25 of the IRPA read as follows:
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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.
…
Provincial
criteria
(2) The Minister may not grant
permanent resident status to a foreign national referred to in subsection
9(1) if the foreign national does not meet the province’s selection criteria
applicable to that foreign national.
[Emphasis
added.]
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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.
[...]
Critères
provinciaux
(2) Le statut de résident permanent ne
peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne
répond pas aux critères de sélection de la province en cause qui lui sont
applicables.
[La Cour souligne].
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[17]
On
June 16, 2010, sections 66 to 68 of the Immigration and Refugee Protection
Regulations SOR/2002-227
read as follows:
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Humanitarian
and Compassionate Considerations
Request
66. A request made by a foreign
national under subsection 25(1) of the Act must be made as an application in
writing accompanied by an application to remain in Canada as a permanent
resident or, in the case of a foreign national outside Canada, an application
for a permanent resident visa.
Applicant
outside Canada
67. If an exemption from
paragraphs 70(1)(a), (c) and (d) is granted under
subsection 25(1), 25.1(1) or 25.2(1) of the Act with respect to a foreign
national outside Canada who has made the applications referred to in section 66, a permanent resident visa
shall be issued to the foreign national if, following an examination, it is
established that the foreign national meets the requirement set out in
paragraph 70(1)(b) and
(a) in the case of a foreign
national who intends to reside in the Province of Quebec and is not a member
of the family class, the competent authority of that Province is of the
opinion that the foreign national meets the selection criteria of the
Province;
(b) the foreign national is not
otherwise inadmissible; and
(c) the family members of the
foreign national, whether accompanying or not, are not inadmissible.
Applicant
in Canada
68. If an exemption from
paragraphs 72(1)(a), (c) and (d) is granted under
subsection 25(1), 25.1(1) or 25.2(1) of the Act with respect to a foreign
national in Canada who has made the applications referred to in section 66,
the foreign national becomes a permanent resident if, following an
examination, it is established that the foreign national meets the
requirements set out in paragraphs 72(1)(b) and (e) and
(a) in the case of a foreign
national who intends to reside in the Province of Quebec and is not a member
of the family class or a person whom the Board has determined to be a
Convention refugee, the competent authority of that Province is of the
opinion that the foreign national meets the selection criteria of the
Province;
(b) the foreign national is not
otherwise inadmissible; and
(c) the family members of the foreign
national, whether accompanying or not, are not inadmissible.
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Circonstances
d’ordre humanitaire
Demande
66. La demande faite par un
étranger en vertu du paragraphe 25(1) de la Loi doit être faite par écrit et
accompagnée d’une demande de séjour à titre de résident permanent ou, dans le
cas de l’étranger qui se trouve hors du Canada, d’une demande de visa de
résident permanent.
Demandeur
se trouvant hors du Canada
67. Dans le cas où
l’application des alinéas 70(1)a), c) et d) est levée en
vertu des paragraphes 25(1), 25.1(1) ou 25.2(1) de la Loi à l’égard de l’étranger qui se trouve
hors du Canada et qui a fait les demandes visées à l’article 66, un visa de
résident permanent lui est délivré si, à l’issue d’un contrôle, les éléments
ci-après, ainsi que celui prévu à l’alinéa 70(1)b), sont établis :
a) dans le cas où il cherche à s’établir
dans la province de Québec et n’appartient pas à la catégorie du regroupement
familial, les autorités compétentes de la province sont d’avis qu’il répond
aux critères de sélection de celle-ci;
b) il n’est pas par ailleurs interdit de
territoire;
c) les membres de sa famille, qu’ils
l’accompagnent ou non, ne sont pas interdits de territoire.
Demandeur
au Canada
68. Dans le cas où
l’application des alinéas 72(1)a), c) et d) est levée en
vertu des paragraphes 25(1), 25.1(1) ou 25.2(1) de la Loi à l’égard de
l’étranger qui se trouve au Canada et qui a fait les demandes visées à
l’article 66, celui-ci devient résident permanent si, à l’issue d’un
contrôle, les éléments ci-après, ainsi que ceux prévus aux alinéas 72(1)b)
et e), sont établis :
a) dans le cas où l’étranger cherche à
s’établir dans la province de Québec, n’appartient pas à la catégorie du
regroupement familial et ne s’est pas vu reconnaître, par la Commission, la qualité de réfugié, les autorités
compétentes de la province sont d’avis qu’il répond aux critères de sélection
de celle-ci;
b) il n’est pas par ailleurs interdit de
territoire;
c) les membres de sa famille, qu’ils
l’accompagnent ou non, ne sont pas interdits de territoire.
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VI. Standard
of review
[18]
The
standard of review applicable to H&C applications is reasonableness:
[18] It is
unnecessary to engage in a full standard of review analysis where the
appropriate standard of review is already settled by previous jurisprudence
(see: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at
para. 62). The parties agree that the standard of review to be applied to an
H&C decision is reasonableness. This standard is supported by both pre- and
post-Dunsmuir cases . . . . [Emphasis
added.]
(Kisana v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2010] 1 F.C.R. 360.)
VII. Analysis
Interpretation
of subsection 25(1) of the IRPA
[19]
The
decision at issue, rendered pursuant to subsection 25(1) of the IRPA, is an exceptional
and discretionary measure:
[16] This exceptional measure is a part of a
legislative framework where "[n]on-citizens do not have a right to enter
or remain in Canada", where "[i]n general, immigration is a privilege
not a right" (Chieu, para. 57) and
where "the Act treats citizens differently from permanent residents, who
in turn are treated differently from Convention refugees, who are treated
differently from individuals holding visas and from illegal residents. It is an
important aspect of the statutory scheme that these different categories of
individuals are treated differently, with appropriate adjustments to the
varying rights and contexts of individuals in these groups" (Chieu, para. 59).
[17] Parliament chose, at subsection 114(2),
to restrain the discretionary exercise to cases where there are compassionate
and humanitarian considerations. Once these grounds are established, the
Minister may allow the exception, but he may also choose not to allow it. That
is the essence of the discretion, which must be exercised within the general
context of Canadian laws and policies on immigration. The Minister can refuse
to allow the exception when he is of the view that public interest reasons
supercede humanitarian and compassionate ones. [Emphasis added.]
(Legault,
above; Chieu, above; Baker, above.)
[20]
The
onus of proof is on the person presenting an H&C application (Owusu v.
Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635).
Assessment of
the evidence
[21]
The
applicant alleges that the part of the decision on the applicant’s medical
condition is unreasonable because the Minister’s delegate improperly assessed
the evidence without considering the documentary evidence he sent regarding
treatments in Côte
d’Ivoire, because
the Minister’s delegate erred by assessing the testimony of the experts in a
cursory manner and because the Minister’s delegate failed to consider the
applicant’s personal characteristics and stigmatization.
(i) The Minister’s delegate did not disregard the
medical evidence on the availability of retroviral treatments and the alleged
lack of continuity
[22]
The
applicant alleges that the part of the decision on the applicant’s medical
condition is unreasonable because the Minister’s delegate improperly assessed
the evidence without considering the documentary evidence he sent regarding treatments in
Côte d’Ivoire.
[23]
The
Minister’s delegate took all of the documents submitted by the applicant into account.
[24]
Given
the nature of the decision at issue and the standard of review applicable to
this type of decision, it has been well established that it is not up to this
Court to reassess the evidence assessed by the Minister’s delegate:
[99] First, the
applicant is criticizing the Minister’s Delegate for not analyzing his
personalized risk with respect to his particular medical condition. [Emphasis
added.]
(Lupsa v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1054.)
[25]
It
has not been demonstrated that the decision at issue is unreasonable given the
following factors, most of which were mentioned by the Minister’s delegate:
a. The applicant
lived in Côte d’Ivoire for forty-four years, including ten years in Abidjan, before
coming to Canada;
b. The applicant could
therefore settle in Abidjan, where medications are more widely available than
in the rest of the country;
c. There is no evidence in
the record that a change in therapy could negatively affect the applicant’s
medical condition;
d. The
applicant’s children (except one, who resides in the United States) and
extended family are in Côte d’Ivoire;
e. The applicant
is a businessman who is used to being resourceful;
f.
The
applicant could prepare his return home with his attending physician in Canada
and his family in Côte d’Ivoire in order to find a doctor there and be
prescribed a therapy that is available in Abidjan and is the most compatible
with the one he has here;
g. The costs associated
with the therapy in Côte d’Ivoire are not prohibitive, between US $22 and US $35 in
2005, and the applicant could seek financial assistance from his family.
(Decision, TR at pages 66 to 70 and AR at pages
11 to 15.)
[26]
Moreover,
the recent elections have led to a change of government in Côte d’Ivoire.
[27]
According
to the assessment, the Minister’s delegate considered all of the evidence and
arguments submitted by the applicant.
(ii) The
Minister’s delegate did not err in assessing the evidence by the experts
[28]
The
applicant alleges that the part of the decision on the applicant’s medical
condition is unreasonable because the Minster’s delegate erred by assessing the
testimony by the experts in a cursory manner.
[29]
However,
it appears from footnotes 11 and 12 and in the reasons for decision to which
these footnotes refer, the Minister’s delegate properly understood the qualifications
and area of expertise of the persons concerned.
(iii) The Minister’s delegate did not
err in assessing the personal characteristics and the stigmatization of the
applicant
[30]
The
applicant’s argument that the delegate disregarded his personal characteristics
and stigmatization does not stand up to a reading of the reasons for decision.
The reading demonstrates that the Minister’s delegate understood the
applicant’s allegations (Decision, TR at pages 62, 63, 65, 66, 69 and 70 and AR
at pages 7, 8, 10, 11, 14 and 15).
[31]
As
it appears in the reasons for decision, including the excerpts above, the
Minister’s delegate took the arguments submitted by the applicant into account.
Fraudulent
nature of documents
[32]
The
applicant alleges that the delegate made an unreasonable and erroneous finding by
indicating that the applicant had submitted fraudulent evidence and breached
the principles of natural justice by not conducting an interview.
[33]
Given
the evidence in the record, the applicant, who was found not credible by the
RPD, did not demonstrate that this finding is unreasonable and warrants the
intervention of this Court.
[34]
As
it appears in the letter dated December 4, 2007, regarding the results of verifications
by the authorities in Côte d’Ivoire, the unit head stated that the documents that
were submitted are fraudulent, which confirms the opinion given by an embassy official
dated November 8, 2007, in an e‑mail to Anne‑Marie Loungnarath (Verification
results, TR at page 132; E-mail dated November 8, 2007, TR at page
336).
[35]
Furthermore,
as it appears in Ms. Loungnarath’s letter dated January 30, 2008, in reply to
that of counsel for the applicant dated December 28, 2007, not only is the applicant’s
name extremely common in Côte d’Ivoire, but also no other information making it
possible to identify him, or the names of the other people involved, was
provided.
[36]
The
applicant availed himself, on four occasions, of the opportunities provided to
respond to the decision-maker’s concerns with respect to the genuineness of the
documents he submitted in connection with his PRRA application dated April 26,
2007. Thus, the applicant was able to respond in December 2007, in
February 2008, in March 2008 and in April 2008 and was able to send other
documents.
[37]
The
filing of these documents confirms the applicant’s lack of credibility as noted
by the RPD and the Federal Court.
[38]
Further
to the Court’s analysis, the finding by the Minister’s delegate regarding these
documents is reasonable.
VIII. Conclusion
[39]
For
all of the above-mentioned reasons, the applicant’s application for judicial
review is dismissed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the applicant’s application for judicial
review be dismissed. No question for certification arises.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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