Date: 20070209
Docket: IMM-867-06
Citation: 2007 FC 157
Ottawa, Ontario, February 9,
2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
ESTANISLAU
BUIO
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of an immigration officer’s decision, rejecting Estanislau
Buio’s humanitarian and compassionate application (H&C application). Mr.
Buio has argued the officer violated his right to fairness, and also erred in
the assessment of his establishment in Canada. For the
reasons that follow, I have found that his application must be dismissed.
FACTS
[2]
Mr.
Buio was born in Angola in 1967. In 1987, he left Angola to study in the
Ukraine for ten
years. He graduated from Kiev Taras Shevchenko University with a masters
degree in geology. He also married, had a son, and separated from his wife in
the Ukraine.
[3]
Mr.
Buio submits that while living in the Ukraine, he returned to Angola once,, in
1992. During that visit, he says he was shot while travelling in a car with a
“UNITA” flag on it. UNITA is a political group in Angola and a former
rebel force. As a result of that incident, he claims he developed a blood
pressure condition requiring prescription medication.
[4]
In
August 1997, Mr. Buio flew back again to Angola, after
having completed his studies in the Ukraine. Until June 1998, the
government sent him to train other geologists. Between June 1998 and November
1999, he says he lived in hiding and worked in a church, because security
forces were after him to help locate his father and brother, who had been taken
away by UNITA when he was a child.
[5]
In
January 2000, Mr. Buio came to Canada after travelling through South Africa, Ethiopia
and the United
States.
Upon arriving here, he claimed refugee status.
[6]
On
July 22, 2003, his refugee claim was rejected by the Immigration and Refugee
Board’s Refugee Protection Division. The Board found Mr. Buio was not a
credible witness, and highlighted numerous inconsistencies and omissions in his
evidence.
[7]
The
Board rejected Mr. Buio’s claim that he hid from the government in Luanda, Angola between June
1998 and October 1999. It noted that Mr. Buio had obtained both an identity
card and a driver’s license from the government, providing his address in Luanda. Further, he
went to the government airport in August 1999 and completed an international
vaccination certificate in preparation for leaving Angola that
November. Finally, the Board wrote that Mr. Buio told an immigration officer he
had left Angola with his own
passport, which included his actual name and photograph. This was not
consistent with his stated fear of the government.
[8]
In
December 2005, Mr. Buio submitted a permanent residence application, requesting
an exemption from the normal visa requirements based on humanitarian and
compassionate grounds. In his H&C application, he wrote that he takes
regular medication to control his blood pressure, and would not be able to buy
the medicine in Angola. He also referred to his fear of returning to Angola because of
its poor human rights record, and because his immediate family had all been
murdered there – with the exception of his sister.
[9]
Finally,
he explained that problems with his personal information form (PIF) had arisen
because he had been poorly represented by counsel when he first arrived in Canada. He
discussed his job and community involvement, to illustrate his establishment in
Canada. He also
included reference letters from his employer, his church, and community
organizations.
THE IMPUGNED DECISION
[10]
The
immigration officer refused Mr. Buio’s H&C application on February 3, 2006.
In doing so, the officer focused on the notions of establishment, and
personalized risk/hardship.
[11]
With
respect to establishment, the officer noted that Mr. Buio had been employed
since 2000, and was involved in his community through the Angolan Community of
Ontario, the Scott Mission and St. Helen’s Parish. While he had written about
taking ESL classes to improve his English, the officer noted that Mr. Buio had
not provided evidence of those classes. Nor had he provided evidence of his
alleged separation from his wife in the Ukraine. Mr. Buio
also wrote that his 13-year-old son and ex-wife live in Ukraine. The officer
noted that Mr. Buio has no savings and no family in Canada, and one sister in Angola. Thus, the
officer determined that severing Mr. Buio’s existing ties (mainly employment)
with Canada would not
impose unusual, undeserved or disproportionate hardship.
[12]
The
officer concluded as follows, at page 5 of the Tribunal Record:
He has no family and shows no
support mechanism in Canada. He lived and went to School
in the Ukraine. His child and spouse reside
in the Ukraine and he has family in his
homeland. Prior to coming to Canada he was employed in Angola and there is insufficient
evidence before me that he would not be able to secure employment or to resume
a normal life on return there.
[13]
With
respect to personalized risk and hardship, the officer doubted whether Mr. Buio
had been or was still being targeted by the Angolan government in any way,
noting the lack of evidence to establish he had been intentionally shot. The
officer also questioned the link between Mr. Buio’s gunshot wound and high
blood pressure, as well as Mr. Buio’s claim that he will not be able to obtain
his medication in Angola.
[14]
The
officer gave little weight to a letter written by “Tininha” in Angola, because it
was internally contradictory and its author was unidentified. As well, the
officer wrote, Mr. Buio had not explained how documents from Human Rights Watch
were relevant to his application. Finally, the officer attached little weight
to Mr. Buio’s claim that he was not properly represented at his hearing before
the Immigration and Refugee Board. Not only was he assisted by counsel, but he
spoke English – and, he had a Russian translator. The officer noted that the
Board had found Mr. Buio’s testimony inconsistent and not credible during his
hearing.
ISSUES
[15]
There
are essentially three questions to be determined in this application for judicial
review:
a)
What is
the appropriate standard of review?
b)
Was it an
error to disregard some of Mr. Buio’s submissions because they were not
supported by evidence?
c)
Did the
officer err when assessing the degree of Mr. Buio’s establishment?
ANALYSIS
a) Standard
of review
[16]
The
crux of Mr. Buio’s first argument is that the officer erred by concluding there
was a lack of evidence supporting his submissions. Mr. Buio submits the officer
ought to have given him the chance to disabuse her of her concerns, and should
have requested further information or corroboration. As such, this is an issue
of procedural fairness, and it should not be subject to a standard of review
analysis. No curial deference is due when procedural fairness is at stake (Canada
(Attorney General) v. Sketchley, 2005 FCA 404 at paragraph
53; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29,
[2003] 1 S.C.R. 539 at paragraphs 100 ff).
[17]
The
question of establishment is generally subject to the reasonableness standard
on judicial review (see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 57-62 [Baker];
Zhang v. Canada (Minister of Citizenship and Immigration), 2006 FC
1381 at paragraph 21). While Mr. Buio has accused the officer of making a
“legal error” in assessing establishment, I believe this issue requires the
Court to assess the officer’s discretion in assessing the facts.
b) The
absence of evidence
[18]
While
Mr. Buio accepts it was his burden to present information he wanted considered
in his H&C application, he claims it was sufficient to do so through
written submissions. Indeed, he argues that nothing in the H&C application
process requires applicants to provide “evidence”. Rather, the government has
created an administrative process based on written submissions. Thus, while it
was open to the officer to request more information or corroboration, it was an
error to disregard something in his submissions that was not contradicted by
other evidence. Mr. Buio claims he was therefore denied a fair hearing because
the officer failed to request further verification, and says the decision
should be set aside on this ground.
[19]
After
having given due consideration to this argument, I am not convinced the Court
needs to conduct a full analysis of this issue, because I do not believe it was
material to the officer’s ultimate decision to reject Mr. Buio’s H&C
application.
[20]
It
is important to recall which facts the officer allegedly disregarded for lack
of evidence: that Mr. Buio had separated from his wife in Ukraine, and that he
was enrolled in ESL courses. On reading the officer’s reasons, I do not think
either of these factored into the decision in any meaningful way. The officer
focused much more on the degree of Mr. Buio’s establishment in Canada and whether
or not he faced a personalized risk of hardship on return to Angola. Whether or
not he was actually separated or actually enrolled in ESL classes were at best
peripheral issues.
[21]
Thus,
I do not accept Mr. Buio’s argument that the officer’s decision somehow rested
on the absence of “evidence” to support either fact. I think the officer was
simply describing the contents of Mr. Buio’s application. In my opinion, there
is a distinction between citing the fact that parts of Mr. Buio’s application
were not supported by evidence, and using that fact against him in a material
way. I am not convinced the immigration officer did the latter. Therefore, I do
not believe the officer violated any principles of natural justice.
[22]
In
any event, I am also of the view that Mr. Buio’s argument does not hold water. It
is trite law that an H&C applicant bears the onus of making his case. It is
therefore his responsibility to adduce proof of any claim on which his
application relies. After having taken into account all the factors relevant to
determining the content of the duty of fairness, the Supreme Court of Canada
found in Baker, above, that an oral hearing is not always necessary to
ensure an applicant has a meaningful opportunity to present the various types
of evidence relevant to his case and have it fully and fairly considered. According
to Madam Justice Claire L’Heureux-Dubé: “The opportunity…for the appellant or
her children to produce full and complete written documentation in relation to
all aspects of her application satisfied the requirements of the participatory
rights required by the duty of fairness in this case” (Baker, above, at paragraph
34).
[23]
This
is precisely what Citizenship and Immigration Canada has provided for. For
example, prospective H&C applicants are put on notice in no uncertain terms
that they must disclose all relevant information and supporting evidence. In
the instruction guide entitled Applying for Permanent Residence from Within
Canada – Humanitarian and Compassionate Considerations (IMM 5291 E), it is
stated at page 4:
We may not ask you for
any additional information on the humanitarian and compassionate grounds you
would like us to assess. You must ensure that all circumstances you wish
to have considered are identified and included in your application. You must
also include any documents which you believe will support your statements. You
are responsible for providing evidence in support of any statement you make on
your application.
[Emphasis in original]
[24]
Similarly,
the Document Checklist (IMM 5280) instructs applicants to check the following box
before sending their applications:
Any document that supports why
you think there may be sufficient humanitarian and compassionate grounds to permit
your application for permanent residence processed from within Canada.
[25]
Finally,
a standard letter was sent to Mr. Buio shortly before the officer’s decision was
made. The relevant paragraphs of that letter read as follows:
An interview may not be
required in your case. Before a decision can be made about exempting you from
the requirements of the Immigration and Refugee Protection Act, further
information is required.
Canadian Immigration law
requires applicants for permanent residence to obtain a permanent resident visa
at an overseas office before coming to Canada. Explain why there might be special
reasons to exempt you from this requirement and allow you to apply from within Canada for permanent residence. What
excessive hardship will you suffer if you have to submit your application at a
visa office outside of Canada as required by law? Ensure
that you provide evidence or documents to support your statements.
(…)
Please send the requested
information/documents to this office within thirty (30) days of the date of
this letter. If you do not, the decision about exemption will be made based
upon the information on your file. [Emphasis in original]
[26]
Citizenship
and Immigration Canada’s application process thus makes it clear, more than
once, that an H&C applicant must provide evidence to support his claim. As
a matter of fact, Mr. Buio did provide some evidence: a notice of assessment
from Canada Customs and Revenue Agency, letters from his doctor and from his
employer,, letters from various community and religious organizations, a letter
from Legal Aid Ontario, a letter from the University of Toronto’s Comparative
Education Service, a letter from one “Tininha”, bank statements, a copy of his
lease, statements of earnings, and a performance evaluation form from his job. He
cannot now claim that he was partially unaware of his onus to support his
application.
[27]
This
is precisely the conclusion the Federal Court of Appeal reached in Owusu
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38. At issue in that case was
whether the applications judge had erred by dismissing the application for
judicial review. Mr. Justice John Evans, delivering judgment for the Federal Court
of Appeal, wrote at paragraph 8:
H & C applicants have no
right or legitimate expectation that they will be interviewed. And, since
applicants have the onus of establishing the facts on which their claim rests,
they omit pertinent information from their written submissions at their peril. In
our view, Mr. Owusu’s H & C application did not adequately raise the impact
of his potential deportation on the best interests of his children so as to
require the officer to consider them.
[28]
Mr.
Buio has correctly pointed out that the Court in Owusu, above, was
dealing with a different issue than that raised in this application. As he
explains, Mr. Owusu had left information out of his written submissions, giving
rise to the Court’s analysis above. Here, in contrast, Mr. Buio did not leave
any information out of his written submissions. Rather, the officer noted that
Mr. Buio had not supported particular parts of his written submissions with
documentary evidence (i.e. his separation and his enrolment in ESL classes).
[29]
Counsel
for Mr. Buio tried strenuously to have the Court infer from the above excerpt
of Owusu, above, that submitting “pertinent information” in written
submissions is the only thing required for a claimant to establish the
underlying facts of a claim. However, I think that interpretation would take
the Owusu reasons out of context, and would unduly curtail the principles
upon which the decision was reached.
[30]
While
discussing the duty of an immigration officer to be “alert, alive and
sensitive” to the best interests of children, Justice John Maxwell Evans
stressed that this duty will arise only if the applicant himself relies on this
factor. He then went on to add, at paragraph 5 of Owusu, above:
Moreover, an applicant has the
burden of adducing proof of any claim on which the H & C application relies.
Hence, if an applicant provides no evidence to support the claim, the officer
may conclude that it is baseless.
[31]
Applying
this principle to the facts of the case, Justice Evans wrote, at paragraph 9:
The half-sentence on page four
of the seven-page letter, quoted above in [6], said only that Mr. Owusu would
be unable to support his family financially if he was deported was too oblique,
cursory and obscure to impose a positive obligation on the officer to inquire
further about the best interests of the children. The letter did not say that
Mr. Owusu had been supporting his children from the money he earned while in Canada, and that they were
financially dependent upon him and would be deprived of that support if he was
deported. Nor was there any proof before the officer of any of these facts.
[Emphasis added]
[32]
I
think it is clear from these quotes that an applicant bears the onus of
bringing both the information relevant to his claim, and the evidence
supporting that information, to an officer’s attention. Written submissions
alone may not be sufficient for an application to succeed. In other words, an
officer is entitled to disbelieve an applicant’s story if it is not borne out
by tangible evidence.
c) Establishment
[33]
While
I empathize with Mr. Buio, I am not convinced by his interpretation of the term
“establishment”. He has emphasized that he has been away from Angola for twenty
years. However, the notion of “establishment” is designed to assess an
applicant’s connections to Canada – not the absence of any connections to
his homeland. Thus, while I can appreciate the length of time Mr. Buio has been
away from Angola, he has not
spent the bulk of that time living in Canada. He left Angola in
1987, but only arrived in Canada in 2000.
[34]
I
am not trying to present this as a negative factor. Rather, I am simply not
persuaded by Mr. Buio’s extensive reliance on the passage of time since leaving
Angola. Of more
relevance is the way in which the officer assessed the factors connecting Mr.
Buio to Canada. Those
factors are listed in section 11.2 of the Immigration Manual dealing with
H&C applications.
[35]
I
cannot say the way in which the officer assessed these factors was
unreasonable, though a different officer might have arrived at a different
conclusion on these facts. As the officer noted, Mr. Buio has no family or
substantial assets in Canada. While he has lived here for about six
years, this time spent in Canada was not due to any “prolonged inability to
leave”. Rather, his refugee claim was rejected in July 2003. After that time,
Mr. Buio stayed in Canada without status, knowing the possibility of
being deported once he ran out of legal options.
[36]
Overall,
it is important to remember that the purpose of assessing establishment is to
determine whether the claimant is established to such a degree that removal
would constitute disproportionate hardship. This Court has repeatedly affirmed
the hardship which would trigger the exercise of a favourable H&C
discretionary decision should be something other than that which is inherent in
being asked to leave after one has been in Canada for a period of time (see Irimie
v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1906 (F.C.T.D.)(QL) at paragraphs 12 and 17 [Irimie]; Mayburov
v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 953 (F.C.T.D.)(QL); Lee v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 7 at paragraph 14).
[37]
Finally,
it is worth noting that establishment is not a determinative factor in an
H&C application. It is one of many factors to consider. As Mr. Justice
Denis Pelletier wrote in Irimie, above, at paragraph 20:
The guidelines could be seen
as limiting a decision-maker’s discretion as to when establishment can be
considered as a factor for an H&C determination. Without anything more than
reference to the guidelines themselves, I cannot agree with the applicants that
the H&C officer was required to give some weight to their degree of
establishment in Canada. It is a factor to be
considered, but it is not, nor can it be, the determining factor, outweighing
all others. The degree of attachment is relevant to the issue of whether the
hardship flowing from having to leave Canada
is unusual or disproportionate. It does not take those issues out of
contention.
[38]
For
all of the foregoing reasons, I would dismiss this application for judicial
review. At the hearing, Mr. Buio’s counsel requested the opportunity to make
submissions with respect to certification once I had reached my conclusion. I
have agreed to that request, and shall accordingly give counsel for Mr. Buio
ten days from the date of these reasons to file submissions in this respect. Counsel
for the respondent will thereafter have ten days to respond. I will then sign
my judgment, after having determined whether questions will be certified.
JUDGMENT
THIS COURT
ORDERS that this application for judicial review be dismissed. At the
hearing, Mr. Buio’s counsel requested the opportunity to make submissions with
respect to certification once I had reached my conclusion. I have agreed to
that request, and shall accordingly give counsel for Mr. Buio ten days from the
date of these reasons to file submissions in this respect. Counsel for the
respondent will thereafter have ten days to respond. I will then sign my
judgment, after having determined whether questions will be certified.
"Yves
de Montigny"
Email this Content