Date: 20071025
Docket: IMM-894-07
Citation: 2007 FC 1106
Ottawa, Ontario, the 25th
day of October 2007
Present:
the Honourable Mr. Justice Blais
BETWEEN:
PEPINE LUCIE
ROSE MACKIOZY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review from a decision by Linda Parker (the
immigration officer) on January 24, 2007 by which the application for an
immigrant visa exemption on humanitarian and compassionate grounds under
subsection 25(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act), was denied.
FACTS
[2]
The
applicant is a citizen of the Republic of the Congo (Congo-Brazzaville) who arrived in Canada from Paris on February 19, 2003. She was travelling
with a French passport in the name of Anabelle Gladys Foxy M’VOUAMA-MACAMPA. She
was found inadmissible and agreed to return to France.
[3]
On February 20, 2003, the day on which she was to
return to France, she claimed refugee status,
and this was denied on February 19, 2004.
[4]
On August 17, 2004 she gave birth to a child who
is accordingly a Canadian citizen by birth.
[5]
The
applicant’s family settled in Canada consists of this child and a
sister who has not obtained refugee status.
[6]
The
applicant’s family remaining in the Republic of the Congo consists of four brothers, three
sisters, their parents and two other children.
IMPUGNED DECISION
[7]
By this
application the applicant is challenging the decision of the immigration
officer which found that the humanitarian grounds relied on were insufficient
for an exemption to be granted. The officer was not satisfied that the
applicant and her child would encounter unusual, undeserved or disproportionate
hardship if they had to apply for permanent residence from outside Canada.
ISSUES
1.
Did
the officer err in assessing the risks of return?
2.
Did
the applicant have an opportunity to put forward her exemption application and
comment on the evidence?
3.
Did
the officer err in assessing the evidence?
APPLICABLE LEGISLATION
[8]
The Act
requires that a foreign national wishing to settle in Canada permanently apply for and obtain a
permanent residence visa before coming into Canada. However, it is possible to obtain an
exemption under subsection 25(1) of the Act, which provides:
|
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
[9]
The
standard of review applicable in the case at bar is that of reasonableness simpliciter
(Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, at paragraph 62). Where procedural fairness and points of law are
concerned, the standard of correctness will be applicable.
ANALYSIS
1.
Did
the officer err in assessing the risks of return?
[10]
The
standard of review for the question of whether the officer applied the proper
test is that of correctness, since in connection with an application for an
exemption on humanitarian and compassionate grounds (H&C) the question is
one of law (Mooker v. Minister of Citizenship and Immigration, 2007 FC 779,
at paragraph 16).
[11]
The
applicant alleged that the officer assessed the application for an exemption on
the basis of the risks of return, when she should have confined herself to
analysing unusual, undeserved or disproportionate hardship.
[12]
In Mooker,
supra, Max M. Teitelbaum J. noted the following at paragraphs 18 and 19:
[18] The respondent for its part submits that
if the Officer’s decision is read in its totality it is clear that the Officer
applied the correct standard. The respondent submits that the Officer referred
to “risk to life” because the applicants submitted that they faced risk to life
in their H&C application. The respondent relies on the Court’s decision in Doukhi
v. Minister of Citizenship and Immigration, 2006 FC 1464, where the Court
held that:
[24] As evidence that the Officer applied the higher
threshold applicable in PRRAs instead of the lower threshold applicable in the
H&C context, the Applicant points to page 3 of the H&C Applications -
Notes to File where the Officer writes (Tribunal Record, H&C Applications -
Notes to File, p.16):
. . . the objective documentary evidence does not support the
applicant’s conclusions that the nature and severity of the situation amounts
to persecution, or that Lebanese State policies or practices amount to persecution against the
Palestinians.
. .
. . .
[25] Before addressing whether this evidence is proof
that the Officer applied the higher threshold applicable in PRRAs instead of
the one applicable in the H&C context, it is essential to note that the
Applicant raised the issue of persecution in his submissions in support of it’s
H&C Application as indicators that he would face ‘unusual and underserved
or disproportionate hardship’.
. .
. . .
[26] Taking into account the Applicant’s own
submissions as to his risk of persecution, in my view it is logical that the
Officer would undertake an analysis as to whether the Applicant would face
persecution if returned to Lebanon. Furthermore, the Officer was justified in using the term
“persecution” in his decision, even though he was dealing with an H&C
application. Having read the Officer’s decision, I can note that the
Officer does not use the term “persecution” or conduct an analysis as to
whether persecution exists other than to respond to the Applicant’s suggestion
that he would face persecution as a Palestinian refugee living in a refugee
camp in Lebanon.
[19] In the present case, the Officer did not
simply use the language of risk to life only to respond to the applicants’
submission but also explicitly stated that this was the test on an H&C
application. The Officer held that “In the context of this H&C application,
the issue is whether there are reasonable grounds to believe that the applicant
would be at risk for loss of life or a risk to the security of his person,
should he return to Kenya.” Later the Officer concluded
that “the applicants have failed to establish that they face personalized risk
to their life or risk to the security of their person if they are returned to Kenya.” The Officer clearly applied the PRRA
standard. As Pinter and Ramirez make clear it is a reviewable
error to apply the PRRA standard in an assessment of an H&C application.
[13]
It can be
seen from reading the decision as a whole that the officer did not apply the
wrong standard. Although the officer analyzed the risk of persecution, it has
to be borne in mind that the applicant had herself alleged this risk of
persecution in her application for an exemption. In the case at bar, the risk
was assessed among other factors and the officer’s conclusion shows that she
did in fact use the right test:
The applicant has raised a number of
personal circumstances in support of her application for an exemption. The
factors include personalized risk, establishment within Québec/Canadian
society, and the best interest of the child directly affected by this decision.
After considering all the evidence submitted and all the information in the
applicant’s file, I am not satisfied that the applicant and her child would
face unusual, undeserved, or disproportionate hardship if required to apply for
a permanent resident visa from outside Canada.
2. Did the applicant have an
opportunity to put forward her exemption application and comment on the evidence?
Update
[14]
As the
question is one of procedural fairness, the applicable standard of review is
that of correctness.
[15]
It appears
from the record that the applicant did not update her address, on several
occasions.
[16]
It further
appears from the record that despite the fact that the letter informing the
applicant she had the right to update her exemption application was never
claimed by her, the attorney representing her at the time, Luc Desmarais, had
received a copy of the application by fax.
[17]
She
accordingly had an opportunity to update her application through her counsel.
Right to comment on evidence
[18]
The
applicant submitted that the officer made an error justifying this Court’s
intervention because she relied on documents on which she was unable to
comment.
[19]
The test
applicable in the case at bar was defined by the Federal Court of Appeal per
Robert Décary J.A. in Mancia v. Canada (Minister of Citizenship and
Immigration), [1998] 3 F.C. 461, at
paragraphs 26 and 27:
[26] The documents are in the
public domain. They are general by their nature and neutral in the sense that
they do not refer expressly to an applicant and are not prepared or sought by
the Department for the purposes of the proceeding. They are not part of a “case”
against an applicant. They are available and accessible, absent evidence to the
contrary, through the files, indexes and records found at documentation
centres. They are generally prepared by reliable sources. They can be
repetitive. The fact that a document becomes available after the filing of an
applicant's submissions does not signify that it contains new information or
that such information is relevant and will affect the decision. It is only when
an immigration officer relies on a significant post-submission document which
evidences changes in the general country conditions that may affect the
decision, that the document must be communicated to that applicant.
[27] The
certified question was answered as follows: it being understood that each case
must be decided according to its own circumstances, and assuming that the
documents are of a nature described above: with respect to documents relied
upon from public sources in relation to general country conditions which are
available and accessible (a) when an applicant files a submission, fairness
does not require disclosure in advance of a determination; (b) after an
applicant files a submission, fairness requires disclosure where they are
novel, significant and evidence changes in the general country conditions that
may affect the decision.
[20]
In Hassaballa
v. Canada (Citizenship and Immigration), 2007 FC 489, I analyzed this
question and said the following at paragraphs 33 to 35:
[33]
First of
all, it is important to emphasize that the PRRA officer has not only the right
but the duty to examine the most recent sources of information in conducting
the risk assessment; the PRRA officer cannot be limited to the material filed by
the applicant.
[34]
In this case, the applicant is concerned by the use of
updated versions of the U.S. Department of States Human Rights Report (U.S. DOS
report) and the U.S. Department of States International Religious Freedom
Report (Religious Freedom report). In his own submissions, the applicant relied
on the 2003 U.S. DOS report and on the 2004 Religious Freedom report. The PRRA
officer, for her part, relied on the 2004 and 2005 U.S. DOS reports and on the
2004 and 2005 Religious Freedom reports.
[35]
There is no question that these updated reports are in the
public domain, that they originate from well-known sources, that they are
general in nature, and that they are frequently quoted by counsel involved in
immigration cases on both sides. In fact, they are part of the standard country
documentation packages relied on by immigration officers when considering
various applications under the Act.
[21]
In the
case at bar, there was also a question of documents in the public domain originating
with a known and reliable source, general in nature and frequently cited by
legal representatives in immigration matters, since they were the 2005
Country Reports on Human Rights Practices, U.S. Department of State (U.S. DOS Report),
Republic of Congo. Further, although they were published after the
applicant’s initial application, they essentially follow the same wording as
those in 2003.
3. Did the officer
err in assessing the evidence?
[22]
As
mentioned at the start of the decision, the applicable standard of review is
that of reasonableness simpliciter (Baker, supra).
Documents filed in support of
PRRA application
[23]
The
applicant argued that the officer did not take the documents filed in support
of her PRRA application into account.
[24]
The
documents set out at pages 28 to 34 of the applicant’s record are not in the
record of documents certified in this Court and the officer’s affidavit
indicates that she did not have these documents when she rendered her decision.
[25]
At
paragraph 11 of her affidavit the officer, after repeating that she had never
received the documents, wrote: “furthermore, I could find with the Applicant’s
PRRA . . . the documents found at pages 28 to 40”. The part “however . . . had
sent the documentary evidence found at pages 35 to 40” in the following
sentence appears to indicate that the word “not” is missing before the words “I
could find”.
[26]
In the
absence of opposing evidence or cross-examination of the officer on the
affidavit, I cannot be persuaded that these documents were available to the
officer.
Risk of persecution and Pool area
[27]
The
applicant further argued that the officer erred in not realizing that Brazzaville was included in the Pool
area.
[28]
It is
worth mentioning here that the Pool area is south of the capital Brazzaville, according to the information
received by the officer and cited in her decision at the footnotes on pages 8
and 9. Although the applicant submitted documents maintaining that Brazzaville
is in the Pool area, the discretion the officer is allowed when dealing with
contradictory evidence seems to have been reasonably exercised in the case at
bar.
[29]
The
officer properly concluded that the fact the applicant was born and lived in
the capital Brazzaville did not in any way establish
that she would be returned specifically to the south of the capital, to an area
considered to be dangerous.
[30]
As the
documentary evidence showing there was persecution of the Larie tribe also
concerned only the Pool area, it was reasonable for the officer, after
concluding that the applicant had not proven she would be returning to the Pool
area, to find that the applicant had not shown either by objective documentary
evidence or by subjective evidence that she would be at risk if she had to
return to the country.
Involvement of applicant in her community
[31]
It appears
from the decision that the officer assessed the applicant’s participation in
her parish and the fact she had a child in Canada. However, she reasonably concluded that
these were not facts justifying an exemption, since the applicant’s degree of
establishment did not exceed what it was reasonable to expect from a person in
the same situation (Mooker, supra, at paragraph 15).
Child’s interest
[32]
As noted
by the respondent, the applicant objected that the officer did not take into
account arguments which were never alleged.
[33]
First, the
separation of the child from its father was not alleged and in view of the fact
that the birth certificate indicates that the father is [TRANSLATION]
“unknown”, the officer did not have to analyze this aspect.
[34]
Second,
the applicant did not consider the possibility of obtaining legal
representation for her child before this application for judicial review. At
this stage she cannot allege that her interest and those of the child are
separate. As the child was less than four years old when the decision was
rendered, its mother is the only one with parental authority over it and she
never took any steps before that date to establish some other legal
representative, I see no error here that would warrant this Court’s
intervention.
[35]
Third, the
officer allegedly failed to consider that the 2005 U.S. DOS report indicated
“that children were trafficked for labor” (note this is the same document which
was apparently not brought to the applicant’s attention before the final
decision). In actual fact, the text reads as follows: “There were a few
unconfirmed reports that children were trafficked for labor”.
[36]
It is
clear from reading the decision that the officer was careful to consider the
aspect of the child’s interest, and that even if the only argument raised by
the applicant concerned the serious hardship the child would suffer if it had
to live in an environment completely different from Canada, the officer was
careful to check the access the child would have to education, schooling costs,
the fact that it had a family – including grandparents – in the Republic of the
Congo and general protection for the rights and well-being of children provided
by the Government of the Republic.
[37]
In
conclusion, in so far as the officer considered the applicable relevant
factors, it is not this Court’s function to reassess them, even if the Court
might have given them a different weight (Hamzai v. Canada (M.C.I.),
2006 FC 1108, at paragraph 24).
[38]
For all
these reasons, I consider that the officer made no error that would require
this Court’s intervention.
[39]
The
parties submitted no serious question for certification.
JUDGMENT
- The application for judicial review
is dismissed.
- No question will be certified.
“Pierre
Blais”
Certified
true translation
Brian
McCordick, Translator
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