Date: 20080205
Docket: IMM-2795-07
Citation: 2008 FC 138
Ottawa, Ontario, February 5, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
BARNABAS
MAICHIBI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
[36] The Applicant's evidence of risk was not
found credible by the IRB, and this position was adopted by the PRRA Officer,
which he was entitled to do. Other evidence submitted was found not to
corroborate the Applicant's alleged personal risks. The Officer concluded
"...that the Applicant's circumstances are not of such a nature that he
would face unusual, under served, or disproportionate hardship if required to
submit his permanent residence application from outside Canada." In so doing, the Officer
articulated the proper test to be applied in assessing the Applicant's H&C
application.
[37] Considering the
Officer's H&C decision and the reasons in support thereof, I find that the
Officer applied the appropriate test and committed no reviewable error in
assessing the H&C application. I also find that the Officer's conclusion on
the H&C application was reasonably open to him on the evidence.
(As specified by Justice Edmond Blanchard
in Rai v. Canada (Minister of Citizenship and Immigration), 2007 FC 12,
[2007] F.C.J. No. 12 (QL).)
[2]
[12] It
is also a well-recognized principle that it is insufficient simply to refer to
country conditions in general without linking such conditions to the
personalized situations of an applicant (see for example, Dreta v. Canada (The Minister of
Citizenship and Immigration),
[2005] F.C.J. No. 1503, 2005 FC 1239 and Nazaire v. Canada (Minister of
Citizenship and Immigration) [2006] F.C.J. No. 596 416).
[13] It must also be
recalled the standard of review of an I.O.'s decision refusing an application
for permanent residence on H&C considerations is reasonableness (see Baker, supra).
(As specified by Justice J. Fançois Lemieux in Hussain
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 719, [2006] F.C.J. No. 916 (QL).)
INTRODUCTION
[3]
In
an application for permanent residence, filed from within Canada, based on
humanitarian and compassionate grounds (H&C), the officer must examine if
the Applicant faces unusual, undeserved or disproportionate hardship should he
file his application from outside Canada.
[4]
It
is clear, from the reasons, that the officer applied the correct standard and
addressed the risks alleged by the Applicant in the framework of unusual and
undeserved or disproportionate hardship.
JUDICIAL PROCEDURE
[5]
This is an
application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of the decision of an
Immigration Officer, dated June 13, 2007, refusing the Applicant’s application
for an exemption, on H&C grounds, to allow him to apply for permanent
residence from within Canada
FACTS
[6]
The
Applicant, Mr. Barnabas Maichibi, is a citizen of Nigeria. Between
1983 and 1990, he lived and studied in the United States. In 1990, he
returned to Nigeria, until
October 2, 1999, when he left to sojourn a few days in France and two months in
Israel. He entered Canada, on December 2,
1999, as a visitor and claimed refugee status a few weeks later.
[7]
On
November 21, 2000, his refugee claim was rejected by the former Convention
Refugee Determination Division of the Immigration and Refugee Board (IRB). The Board
found that Mr. Maichibi’s story was completely lacking in credibility. On
May 1, 2000, the Federal Court dismissed the application for leave filed by Mr.
Maichibi. On June 29, 2002, his application under the Post-Determination
Refugee Claimant Class in Canada was denied.
[8]
In
February 2004, Mr. Maichibi submitted his H&C application. He based it on
his degree of establishment in Canada and his fear of returning to Nigeria
because of his political opinions, his religion and the tribal strife which
prevails in Nigeria.
DECISION UNDER REVIEW
[9]
On
June 13, 2007, the officer denied the Applicant’s H&C application. In her
notes, the officer focussed on the notion of establishment, the best interest
of the children, and personalized risk and hardship.
[10]
With
respect to establishment, the officer noted that the Applicant had been
involved in his community through his church and that he had held four jobs,
the last of which was as journalist, editor and owner of “The African Voice”
newspaper; however, the officer noted that the Applicant had not provided
evidence to demonstrate that the newspaper had been published after 2004 and
that he had acted as journalist or editor after 2004 or that the newspaper
provided a source of income. Thus, the officer determined that there was
insufficient evidence to conclude that the Applicant had established strong
ties to Canada.
(Applicant’s Record, p. 9; Officer’s notes, p. 5.)
[11]
With
regard to the best interest of the Applicant’s son who lives in Nigeria, as
well as the Applicant’s brothers and sisters, the officer noted that the
Applicant had not provided any information to indicate his degree of
involvement in his son’s life; therefore, the officer found that the Applicant had
not demonstrated that his departure from Canada would be injurious to the best
interest of his son and that it would cause him unusual or undue hardship.
(Applicant’s Record, above; Officer’s notes, above.)
[12]
With
respect to personalized risk and hardship, the officer noted that the
Applicant’s allegations were identical to those made before the IRB.
Considering that the IRB concluded that the Applicant’s story was devoid of
credibility and that the Applicant had not provided any evidence regarding his
involvement in human rights movements or that he would be sought by the
authorities, the officer determined that he could not revisit the IRB’s factual
and credibility conclusions. As such, she concluded that the Applicant had not
demonstrated that he had a political profile that would cause him a
personalized risk which would equate to unusual and undeserved or
disproportionate hardship should he return to Nigeria. (Applicant’s Record, pp.
9-10; Officer’s notes, pp. 5-6.)
[13]
The
officer also considered the general documentary evidence concerning religious
violence in Nigeria. She noted
that the situation in Nigeria was one which affected the entire population and
that the Applicant had not established that his situation was not similar to
that of other Nigerians; therefore, the officer concluded that the Applicant had
not demonstrated that he faced a personalized risk to his life or a risk to his
security that would amount to unusual or undeserved or disproportionate
hardship. (Applicant’s Record, p. 11; Officer’s notes, p. 7.)
[14]
Overall,
the Applicant had not demonstrated that he gave information to third parties
and that the authorities are looking for him; nor did he establish that he
would face a personalized risk because of his religious faith or because of the
violence in Nigeria and that
these situations would cause him hardship if he returned in his country. The
officer concluded that the Applicant had not met his burden of proving the
existence of unusual, undeserved or disproportionate hardship justifying his
application for permanent residence from Canada.
(Applicant’s Record, above; Officer’s notes, above.)
ISSUES
[15]
(1)
It must be emphasized that the Applicant did not address in his
submissions the question of the establishment and the best interest of the
child. Consequently, these conclusions must stand.
(2) Did
the officer apply the wrong test in her H&C assessment?
(3) Did
the officer err by requiring the proof of a personalized risk and not applying
the standard of “unusual and underserved or disproportionate hardship” in
assessing the risk allegedly faced by the Applicant?
ANALYSIS
[16]
The
officer applied the correct test in assessing the risk factors of Mr.
Maichibi’s H&C application. Her analysis clearly revealed an assessment of
the relevant facts against the threshold of unusual, undeserved or
disproportionate hardship as required in the context of an H&C application.
[17]
The
officer referred to the IRB decision and accepted the Board’s decision as to
credibility, something which she was entitled to do. (Rai, above, paras.
35-36.)
[18]
The
officer noted that Mr. Maichibi did not adduce any evidence of personalized
risk should he return to Nigeria. As a result, the
officer concluded that Mr. Maichibi had not established that he had a profile
that would put him personally at risk that would amount to an unusual and
undeserving or disproportionate hardship.
Si le demandeur avait établi, selon la
prépondérance des probabilités, l’existence des faits invoqués, notamment sa
divulgation de renseignement secret ou le fait que les autorités soient à sa
recherche, mais que les risques qui en découlaient ne rencontraient pas les
critères de la définition de réfugié, ou de personne à protéger, il m’eut été
loisible de revoir ces faits, ce n’est pas le cas en l’espèce.
Le demandeur ne soumet pas de document se
rapportant à une participation dans des mouvements de défenses des droits
humains.
Le demandeur ne fournit pas de documents
qui indiqueraient qu’il aurait divulgué de l’information à des groupes de
défense des droits humains, et que les autorités pourraient être à sa recherche
étant donné cette situation.
Il n’a pas établi, non plus, que les
autorités nigérianes puissent être à sa recherche suite à un emploi occupé au
sein du gouvernement.
Je note d’ailleurs qu’il aurait renoncé à
cet emploi en 1995, quelque 4 années avant de quitter le Nigeria.
Le demandeur n’a pas démontré avoir un
profil politique qui pourrait lui causer un risque objectivement personnalisé
pour sa vie ou sa sécurité qui équivaudrait à des difficultés inhabituelles et
injustifiées ou excessives advenant un retour vers(sic) le Nigeria.
(TRANSLATION NOT AVAILABLE.)
(Applicant’s
Record, p. 10; Officer’s Notes, p. 6.)
[19]
In
so doing, the officer articulated the proper test to be applied in assessing
Mr. Maichibi’s H&C application.
[20]
Conversely,
the officer reviewed the documentary evidence dealing with the country
conditions in Nigeria and noted that the
situation Mr. Maichibi feared is faced generally by other individuals in that
country did not constitute a personalized risk. Consequently, the officer came
to the conclusion that Mr. Maichibi would not suffer unusual, undeserving or
disproportionate hardship since there was no objective evidence of personal
risk:
Le demandeur n’a pas démontré avoir un
risque objectivement personnalisé à sa vie ou à sa sécurité qui représenterait
des difficultés inhabituelles et injustifiées ou excessives.
Monsieur ne m’a pas démontré qu’il ait
donné de l’information à de tierces personnes, il n’a pas démontré que les
autorités le recherchent. Pas plus qu’il n’a établi qu’il puisse avoir un
risque objectivement personnalisé étant donné sa foi chrétienne ou étant donné
les violences qui sévissent au Nigeria, et que ces situations pourraient lui
causer des difficultés advenant un retour vers son pays d’origine.
(TRANSLATION
NOT AVAILABLE.)
(Applicant’s Record, p. 11; Officer’s Notes, p. 7.)
[21]
Not
only did the officer correctly set out the H&C test, but she was correct in
requiring that Mr. Maichibi show that he would personally be at risk in Nigeria in order to sustain a
finding that denial of an exemption would cause unusual, undeserved or
disproportionate hardship.
[22]
Section
13 of Chapter IP-5 of the Immigration Manual: Inland Processing (IP) “Immigrant
Applications in Canada made on Humanitarian or
Compassionate Grounds” published by Citizenship and Immigration Canada,
requires the risk to be personalized:
|
Personalized risk
Positive
consideration may be warranted for persons whose removal to their country or
countries of nationality
or, if they do not have a country of nationality, their country of former
habitual residence, would
subject them personally to a risk to their life or to a risk to security
of the person.
(Emphasis
added.)
|
Risque personnalisé
On
peut justifier une décision favorable pour un demandeur qui courrait un
risque objectivement personnalisé s’il était renvoyé du
Canada vers un pays dont il a la nationalité ou, s’il n’a pas la nationalité
d’un pays, le pays où il avait sa résidence habituelle. Il peut s’agir d’un risque
pour sa vie ou un risque pour sa sécurité.
|
[23]
The
Court’s case law acknowledges the necessity of proving a personalized risk to
be entitled to a favourable H&C decision. This was notably reiterated in Mathewa
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 914, [2005] F.C.J. No. 1153 (QL),
where Justice Pierre Blais confirmed a decision where the officer required a
particular risk in order to conclude to an unusual or undeserved hardship:
[10] As for the argument
that the Officer erred in imposing a legal requirement that the applicant
demonstrate a particular risk in order to show an unusual or undeserved
hardship, I find it to be unfounded in the facts before me. The Officer simply
stated in the earlier part of her decision that the applicant had not
convinced her of a personalized risk. During the second part of her
decision, she then goes on to analyse the hardship which would be experienced
by the applicant if he were to be denied his H & C application. There is
no error on behalf of the Officer. As has been stated previously, H & C
grounds may exist in cases that would not meet the "unusual and
undeserved" criterion but where the hardship of having to apply for an
immigrant visa from outside of Canada would have a disproportionate impact on the applicant due to his
or her personal circumstances. (Irmie v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No.
1906, at
paragraph 10) (Emphasis added.)
[24]
In Pannu
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1356, [2006] F.C.J. No. 1695 (QL), at
paragraph 37, this Court also confirmed a decision where an H&C officer
came to the conclusion that “the Applicant would not suffer
unusual and undeserving, or disproportionate hardship since there was no
objective evidence of personal risk”, as in the present case. In the Court’s
opinion, the officer correctly set out the H&C test. (Reference is also made
to Rai, above, para. 36.)
[25]
In Hussain,
above, concerning also an H&C decision, this Court reiterated the principle
that it is insufficient to refer to country conditions in general without
linking such conditions to the personalized situations of the Applicant:
[12] It is also a
well-recognized principle that it is insufficient simply to refer to country
conditions in general without linking such conditions to the personalized
situations of an applicant (see for example, Dreta
v. Canada (The Minister of
Citizenship and Immigration), [2005]
F.C.J. No. 1503, 2005 FC 1239 and Nazaire v. Canada (Minister of
Citizenship and Immigration) [2006]
F.C.J. No. 596. 416). (Emphasis added.)
[26]
Considering
that Mr. Maichibi had not provided any evidence in his H&C application to
show he faced a particular risk in Nigeria (Applicant’s Record, p.11; Officer’s Notes, p.
7), the officer was entitled to conclude the way that she did. The documents of
general nature on the situation in Nigeria were insufficient to show the existence of a
personal risk that would amount to unusual, undeserved or disproportionate
hardship.
[27]
The
Federal Court decisions, referred to by Mr. Maichibi in his memorandum, can
easily be distinguished from the present matters, as in those decisions, the
officer applied a wrong test and assessed risk and not hardship, which is not
the case here. In the current case, the officer clearly assessed the hardship
and concluded that Mr. Maichibi would suffer no unusual, undeserved or
disproportionate hardship if forced to return to Nigeria given the absence of evidence about a
personalized risk in this country.
[28]
As
for the argument that the issue of state protection was irrelevant to the
assessment of the hardship Mr. Maichibi would suffer in Nigeria, is unfounded, since
this issue was never discussed in the immigration officer’s notes.
[29]
Considering
the officer’s H&C decision and the reasons in support, the officer applied
the appropriate test and committed no reviewable error in assessing the H&C
application.
CONCLUSION
[30]
For
all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2. No serious question of general
importance be certified.
“Michel M.J. Shore”
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