Date: 20080911
Docket: IMM-419-08
Citation:
2008 FC 1015
Ottawa, Ontario, September 11, 2008
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
MONOARA
BEGUM
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
[41] In my view, the immigration
officer could adopt the factual conclusions in her PRRA decision to the
analysis she was making in the H & C application. However, it was important
that she apply those facts to the test of unusual and undeserved or disproportionate
hardship, a lower threshold than the test of risk to life or cruel and unusual
punishment which was relevant to the PRRA decision.
(As stated by Chief Justice Allan Lutfy of
the Federal Court in Liyanage v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1045, 141 A.C.W.S. (3d) 118.)
II. Legal proceeding
[2]
This
is an application for judicial review of a decision by a pre-removal risk
assessment officer (PRRA), dated December 14, 2007, dismissing the application
for permanent residence based on humanitarian and compassionate considerations
(HC) with a risk of return component.
III. Facts
[3]
The
applicant, Ms. Monoara Begum, a citizen of Bangladesh, entered Canada on December 3,
2001.
[4]
On
March 14, 2003, the Refugee Protection Division (RPD) refused Ms. Begum’s claim
for refugee protection on the basis that her testimony was riddled with
contradictions.
[5]
On
July 15, 2003, this Court dismissed the application for leave and judicial
review of the RPD’s negative decision.
[6]
Ms.
Begum alleges that she was the victim of a vendetta to sully her reputation by
one Mr. Montu, with whom she lived in Canada.
Specifically, she says that the individual in question took compromising
photographs of her and showed them to her family, which subsequently cut off
all contact with her.
[7]
She
submits that if she had to return to Bangladesh, she would face
persecution by family members because of her tarnished reputation and the fact
that she is divorced.
IV. Issues
[8]
(1)
Based on all the evidence before the PRRA officer, does the decision contain a
reviewable error of fact or law?
(2) Did the PRRA
officer apply an improper test to the applicant’s HC application?
V. Analysis
Applicable law
[9]
Under
subsection 11(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), a person who wishes to immigrate to Canada must file an
application for permanent residence from outside Canada:
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11.
(1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act. (Emphasis added.)
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11. (1) L’étranger doit, préalablement
à son entrée au Canada, demander à l’agent les visa et autres documents
requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un
contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la
présente loi. (La
Cour souligne.)
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[10]
Subsection
25(1) of the IRPA provides, however, that the Minister has the power to
facilitate the admission of a person to Canada or to exempt
a person from any applicable criteria or
obligation set out in the IRPA, if the
Minister is satisfied that such an exemption or facilitation
should be granted on the basis of
humanitarian and compassionate considerations (HC):
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25. (1) The Minister shall, upon request
of a foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or 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
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. (Emphasis added.)
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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, de sa propre initiative ou sur
demande d’un étranger se trouvant hors du Canada, 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. (La Cour souligne.)
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[11]
However,
the Minister’s power to grant an exemption based on humanitarian and
compassionate considerations is highly discretionary and is meant to be an
exceptional remedy, as Mr. Justice Yves de Montigny pointed out in Serda v.
Canada (Minister of Citizenship and Immigration), 2006 FC 356:
[20] One of the cornerstones
of the Immigration and Refugee Protection Act is the requirement
that persons who wish to live permanently in Canada must, prior to their
arrival in Canada, submit their application outside Canada and qualify
for, and obtain, a permanent resident visa. Section 25 of the Act gives
to the Minister the flexibility to approve deserving cases for processing
within Canada. This is
clearly meant to be an exceptional remedy, as is made clear by the wording of
that provision . . . (Emphasis added.)
[12]
Accordingly,
Ms. Begum has the onus of proving that the hardships she would encounter if she
had to apply for permanent residence outside the country would be disproportionate,
unusual or undeserved. This test has been adopted in this Court’s
jurisprudence:
[26] An applicant has a high
threshold to meet when requesting an exemption from the application of
subsection 11(1) of Act. The applicant has the burden of presenting the facts
on which his request is based in order to demonstrate that he would encounter
disproportionate, unusual or undeserved hardship if he had to apply from
outside Canada . . .
(Barzegaran v. Canada (Minister of
Citizenship and Immigration), 2008 FC 681, [2002] F.C.J. No. 867 (QL);
also, Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA
125, [2002] 4 F.C. 358 at paragraph 23; Choudhary v. Canada (Minister of
Citizenship and Immigration), 2008 FC 412, [2008] F.C.J. No. 583 (QL) at
paragraph 31; Lee v. Canada (Minister of Citizenship and Immigration),
2008 FC 368, [2008] F.C.J. No. 470 (QL) at paragraph 18.)
[13]
The
Manual IP5 “ Immigrant Applications in Canada made on
Compassionate or Humanitarian Grounds”, published by Citizenship and
Immigration Canada, defines the words “unusual, undeserved or excessive” in
this context:
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6.7 Unusual and undeserved
hardship
Unusual and undeserved hardship is:
• the hardship (of having to apply for
a permanent resident visa from outside of Canada) that the applicant would face should
be, in most cases, unusual, in other words, a hardship not anticipated by the
Act or Regulations; and
• the hardship (of having to apply for
a permanent resident visa from outside Canada) that the applicant would face should
be, in most cases, the result of circumstances beyond the person's control.
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6.7. Difficulté inhabituelle et
injustifiée
On appelle difficulté inhabituelle et
injustifiée:
• la difficulté (de devoir demander un
visa de résident permanent hors du Canada) à laquelle le demandeur
s’exposerait serait, dans la plupart des cas, inhabituelle ou, en d’autres
termes, une difficulté non prévue à la Loi ou à son Règlement; et
• la difficulté (de devoir demander un
visa de résident permanent hors du Canada) à laquelle le demandeur
s’exposerait serait, dans la pluparts des cas, le résultat de circonstances échappant
au contrôle de cette personne.
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(Also Legault and Serda,
above.)
The standard of review for
HC applications
[14]
It
has been recognized since Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 61,
that the appropriate standard of review for HC applications was reasonableness simpliciter.
However, this standard was recently merged with the patently unreasonable
standard to become one standard, that of reasonableness. (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.)
[15]
For
purposes of a judicial review of a decision on an HC application, in light of
the tests established in Dunsmuir, above, the appropriate standard of
review for mixed questions of fact and law or general facts is reasonableness.
For questions of law only, the appropriate standard of review is correctness (Choudhary,
above). In all cases, the Court should show considerable deference to the decision
of the PRRA officer who reviewed the HC application.
(Kaurv v. Canada (Minister of
Citizenship and Immigration), 2008 FC 897, [2008] F.C.J. No. 1113 (QL)
at paragraph 12; also, Blair v. Canada (Minister of Citizenship and
Immigration), 2008 FC 800, [2008] F.C.J. No. 997 (QL) at paragraphs
11-12; Lee v. Canada (Minister of
Citizenship and Immigration), 2008 FC 368, [2008] F.C.J. No. 470 (QL) at
paragraph 21.)
The decision is reasonable
[16]
The
RPD issued a lengthy decision following a thorough review of the evidence
submitted by Ms. Begum.
[17]
In
her application, Ms. Begum asserts three reasons that she says represent the unusual,
undeserved or excessive hardships she would encounter if she had to return to Bangladesh to apply for
permanent residence:
(a) She fears her
ex-spouse;
(b) She fears Bangladesh society in
general, given her status as a divorced woman and given certain rumours that
she says are circulating about her in her country of origin;
(c) She alleges
that it would be impossible to receive adequate treatment for her mental health
problems.
Fear of her ex-spouse
[18]
Ms.
Begum contends that she fears her ex-spouse’s violence if she had to return to Bangladesh.
[19]
However,
this fear was examined by the RPD, which found that Ms. Begum had not credibly
demonstrated this fear (Certified tribunal record at pp. 282-290).
[20]
This
Court itself dismissed the application for leave and judicial review of this decision
(Certified tribunal record at p. 277).
[21]
Given
these facts and in the absence of fresh evidence demonstrating the applicant’s
fear, the PRRA officer was fully justified in rejecting this allegation and not
acting on it. An HC application is not an appeal of the RPD’s decision (Potikha
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 136, [2008] F.C.J. No. 167 (QL) at
paragraph 50). Accordingly, the PRRA officer’s decision was reasonable.
Fear of Bangladesh society because
she is divorced
[22]
Ms.
Begum also claims that she fears Bangladesh society in general
because she is now divorced and because false rumours about her were circulated
in her country by one Mr. Montu who distributed compromising photos of her to
her family.
[23]
Ms.
Begum only filed one series of affidavits to corroborate her allegations about
Mr. Montu’s actions, and the RPD considered those affidavits to be of
little probative value.
[24]
In
fact, the three affidavits appear to have been drafted by Ms. Begum’s friends,
thus casting doubt on their impartiality.
[25]
Furthermore,
two of the three affidavits were signed on the same day before the same officer,
and their contents are identical, word for word (Certified tribunal record at
pp. 209-212).
[26]
The
two deponents in question gave no details about Mr. Montu’s actions that
sullied Ms. Begum’s reputation. The deponents stated that “Mr. Abdur
Rahman Montu committed punishable offence by intoxicating rumor of the character
against Ms. Monowara Begum.”
[27]
The
deponents never stated that Mr. Montu displayed in Bangladesh photos of Ms.
Begum in bed, as she contends (Certified tribunal record, p. 171, at paragraph
7; Applicant’s record at p. 13, paragraph 18).
[28]
Moreover,
the third affidavit, which is not sworn, deals more with disagreements between
Mr. Montu and Ms. Begum about finances than with what he did to damage her
reputation (Certified tribunal record at pp. 201-202).
[29]
In
fact, in the last paragraph of his affidavit, the deponent states that he learned
from his son Awlad Hossain (one of the two other deponents) that Mr. Montu “spread
various scandals relating to character assassination of Monoara Begum”. The
deponent does not have personal knowledge of the facts, and the affidavit does
not contain any further details regarding the alleged scandal.
[30]
In
the absence of further evidence corroborating Ms. Begum’s allegations, it was
completely reasonable for the PRRA officer to find that the evidence about her
fear was insufficient.
[31]
As
for the allegations about her status as a divorced woman and the risk that she
would face based on that fact if she had to return to Bangladesh, the PRRA
officer clearly noted this and examined the documentary evidence on this point.
[32]
He
concluded that violence towards divorced women in Bangladesh was real,
although not systematic. He found that the violence varied based on the women’s
education and social class and that the situation in cities differed
significantly from that in the countryside.
[33]
The
PRRA officer found that Ms. Begum had lived in Dacca for several
months and in Montréal for several years where she developed new responses to
defend her rights.
[34]
Last,
he determined that the documentary evidence referred to discrimination that,
although clearly unfortunate, could not be characterized as persecution.
Medical care
available in Bangladesh
[35]
Last,
Ms. Begum claimed that her health condition required care that she would be
unable to find if she had to leave for Bangladesh.
[36]
The
PRRA officer reviewed the evidence on this point. Relying, in particular, on a
decision by the European Court of Human Rights, he determined that the care
required by Ms. Begum, although not perfect, was nonetheless available.
[37]
Based
on the evidence before the PRRA officer, this finding was reasonable. It is not
for this Court to substitute its opinion for that of the PRRA officer on
questions of fact.
[38]
In
short, the PRRA officer concluded that the grounds relied on by Ms. Begum did
not constitute unusual, undeserved or excessive hardships that she would be subjected
to if she had to return to Bangladesh. Therefore, using the
discretion explicitly granted to him under subsection 25(1) of the IRPA, he
dismissed the application. This decision was reasonable and, accordingly, is immune
from the intervention of this Court.
Allegations
presumed true in absence of corroborating evidence
[39]
Ms.
Begum submits that, regardless of the probative value of the affidavits she
filed, her allegations should be accepted as true, in the absence of evidence
to the contrary.
[40]
Ms.
Begum has the burden of proving the allegations in support of her application (Owuwu
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635 at paragraph
8). In this case, Ms. Begum did not provide any other evidence to support her
allegation that she feared her family in Bangladesh.
[41]
The
evidence adduced by Ms. Begum was insufficient. Her failure to adequately prove
her allegations could undoubtedly have caused the PRRA officer to reject them.
Applicant
unable to work in Bangladesh
[42]
Ms.
Begum contends that the PRRA officer failed to consider the documentary
evidence concerning violence towards women who work as domestics in Bangladesh.
[43]
To
put things in context, the PRRA officer wrote the following in his reasons:
[translation]
. . . it also indicates that, in terms of
the economy, women’s labour is less expensive and that there are job
opportunities for many women, especially as domestics or labourers . . .
(Certified tribunal record at p. 6.)
[44]
The
PRRA officer merely suggested that Ms. Begum could find work as a domestic or a
labourer. He did not choose for Ms. Begum nor did he force her to find work as
a domestic.
[45]
The
PRRA officer did not have to discuss the situation for domestics in Bangladesh more directly
since Ms. Begum had never worked as one in the past, and there was no evidence
that she would have such a job if she returned to her country.
[46]
As
for the allegations concerning the hardships Ms. Begum would encounter in
finding work in Bangladesh owing to both the prevailing discrimination and her
fragile mental health, the PRRA officer determined that Bangladesh was capable
of providing her with medical care.
[47]
The
PRRA officer also found that Ms. Begum had developed new skills (she now speaks
English) and that the six years she spent in Montréal would be an asset in her
search for work in Dacca. The PRRA officer also determined that these
factors would partially shield Ms. Begum from the prevailing discrimination.
General risk
of persecution
[48]
Ms.
Begum submits in her record that the documentary evidence establishes that women
in Bangladesh are victims
of discrimination that, cumulatively, is similar to persecution.
[49]
The
PRRA officer found that Ms. Begum has some skills that would shield her, in
part, from the prevailing discrimination.
[50]
In
her record, Ms. Begum relies only on general documentary evidence without
linking it directly to herself. This evidence was insufficient to demonstrate
to the PRRA officer that Ms. Begum would be personally at risk should she
return to her country (Kaba v. Canada (Minister of Citizenship and Immigration),
2007 FC 647, 160 A.C.W.S. (3d) 524 at paragraph 46).
Improper test
for assessing HC application
[51]
Ms.
Begum submits that the PRRA officer used an improper test to assess her HC
application.
[52]
However,
there is no merit to this argument. The decision in this case was clearly based
on the non-existence of unusual, undeserved or excessive hardships for Ms.
Begum if she had to return to her country to apply for permanent residence in
the usual way (Certified tribunal record at pp. 7‑9).
[53]
The
PRRA officer was entitled to rely on the facts reviewed on the PRRA application,
provided that the jurisprudential test for HC applications was applied to those
facts (Liyanage, above).
[54]
As
shown in Liyanage, the PRRA officer conducted this analysis and
correctly applied the test on his review of the HC application.
VII. Conclusion
[55]
Ms.
Begum did not meet her burden of demonstrating that she would face unusual,
undeserved or excessive hardships if she had to return to Bangladesh to submit
her application for permanent residence, as set out in subsection 11(1) of the IRPA.
The officer rendered a decision that was supported by all the evidence that had
been submitted to him and applied the appropriate tests in arriving at his
conclusion.
[56]
For
all these reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial
review be dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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