Date:
20130514
Docket:
IMM-10111-12
Citation:
2013 FC 499
[REVISED ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, May 14, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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ABSA ZABSONRE
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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
Preamble
Without knowing a
person’s history, origins or that which has become of a person, can a decision
base itself only on the present of the person, and, thus, attempt to establish
its premise on speculation?
Prior to making a
decision, if a decision-maker is without an awareness of the person’s past and
without a perception of the future of the person by which to clarify the
present, the decision-maker remains at a loss. Thus, without past history, the
evidence, for a decision-maker, is without links, neither does it have a past
nor is it connected to future within any understandable space and time
sequence, and, therefore, such a decision would be baseless as it would be made
in a void.
Without knowing a
person’s roots, the potential future lacks a connection to a present reality
through which the future could link itself to potential outcomes, and, thus,
greater clarity in a decision. When the evidence is scant, a case cannot be resolved
and remains a paradox without an identifiable outcome, other than rejection due
to ambiguity at the core.
I. Introduction
[1]
This
is an application for judicial review against a decision, dated June 18,
2012, by which an immigration officer refused to grant the applicant
an exemption, for humanitarian and compassionate (H&C) considerations, of
the obligation to apply for permanent residence from outside Canada, in
accordance with subsection 25(1) de la Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA).
[2]
This
decision was sent to the applicant at the same time as a negative pre-removal
risk assessment (PRRA) decision, which was the subject of a separate
application for leave and for judicial review in docket IMM-10112-12. According
to the respondent, the applicant seems to have abandoned her application for
judicial review against the PRRA decision.
[3]
Further,
at paragraph 33 of her affidavit, the applicant stated that her husband
Maxis Labissière filed a sponsorship application in Canada on her behalf under
the spouse or common-law partner category.
II. Facts
[4]
The
applicant, Absa Zabsonre, is a citizen of Burkina Faso. She is 37 years old.
[5]
On
June 12, 2008, the applicant obtained a student visa for Canada using an
altered Ivoirian passport.
[6]
On
December 14, 2008, the applicant alleged that she arrived in Canada, passing
through the Ivory Coast and France, still using her fake passport and a false identity.
On January 8, 2009, the applicant filed a refugee claim in Canada for
political reasons. The Immigration and Refugee Board’s Refugee Protection
Division (RPD) rejected this refugee claim on September 13, 2011, as it
was not satisfied with the identity of the applicant or her credibility because
of a lack of a credible basis. The applicant [Translation] “invented an entire history
to justify her refugee claim” (RPD’s decision at para 15). The application
for leave and judicial review filed against the RPD’s decision was also
dismissed on January 31, 2012.
[7]
On
September 22, 2010, the applicant gave birth to a child in Canada. It was
the applicant’s second child. She has another son who is 12 years old, born on November 16,
1999, who has lived in Burkina Faso with the applicant’s mother since the
applicant has been in Canada.
[8]
On
March 5, 2012, the applicant filed an H&C application, followed by a
PRRA application filed on April 27, 2012. Both applications were
respectively rejected on June 18 and 19, 2012.
[9]
In
support of his H&C application, the applicant submitted evidence relating
to her establishment in Canada since 2009, including evidence of this
employment and volunteering since June 2009, the best interest of his two
children, one of which is a Canadian citizen, the hardships or risks to which she
may be exposed on returning to Burkina Faso and the financial support that she
provides to her family and son in Burkina Faso by sending money regularly
because of the salary from employment in Canada.
IV. Decision under judicial
review
[10]
The
officer recognized that the applicant has had jobs since June 2009 and
that she made the necessary effort to support herself although she did not submit
official evidence of income, notices of assessments or pay stubs from previous employers.
The officer also noted that the applicant took and completed courses to become a
security guard and another course for private-home daycare, that she
volunteered for the MAAH foundation and that, according to the evidence, she
participated in a benefit evening to give assistance to persons in distress. However,
the officer specified that, without substantial details, the letter from the
MAAH foundation was not very determinative.
[11]
Other
positive factors that the officer acknowledged in his reasons include the fact that
the applicant has a good command of both official languages, the letter from
PRAIDA (Programme régional d’accueil et d’intégration des demandeurs d’asile), a
program that the applicant has been involved in since arriving in Canada, the
fact that the applicant provides for her family’s financial needs in Burkina
Faso, specifically her son’s.
[12]
However,
the officer noted that the applicant would not suffer unusual or
disproportionate hardship, since she has had equivalent jobs in Burkina Faso although
the work conditions and salaries were better in Canada. The officer’s finding gave
more weight to the applicant’s return to her son and her family, considering
that she does not have family connections or support in Canada, except her
two-year-old son.
[13]
With
respect to the best interests of the applicant’s children, the officer stated
that the applicant’s return is more beneficial to the eldest son who has not
seen her for three years. The officer noted that no information was submitted
with respect to the conditions in the country informing him about the well-being
of the children of the applicant, who would in no way harm their development. With
respect to the youngest son, the officer noted that, according to the applicant’s
testimony, the child’s biological father accepted no responsibility for their
son and he only sees him a few times a year. Therefore, the officer noted that,
given his very young age and the fact that he will keep his Canadian
citizenship, the best interests of the applicant’s child was not truly affected
by the applicant’s removal to Burkina Faso.
[14]
Finally,
the officer noted that the applicant did not bring any evidence establishing
that she would likely face discrimination or other adverse conditions outlined
in the documentary evidence upon her return to Burkina Faso.
[15]
Consequently,
the officer found that the applicant could not benefit from the exemption under
subsection 25(1) of the IRPA.
III. Issues
[16]
(1)
Did the officer commit an error in his assessment of the evidence that is
relevant and favourable to the applicant and in particular in his assessment of
the best interests of her children?
(2)
Do the reasons given by the officer give rise to a reasonable apprehension of bias
or even of a lack of objectivity and open-mindedness?
IV. Standard of review
[17]
The
standard of review applicable to a decision relating to an H&C application is
that of reasonableness (Ramirez v Canada (Minister of Citizenship and
Immigration), 2006 FC 1404, 304 FTR 136, at para 30). As justice
Leonard Mandamin stated in Hamam v Canada (Minister of Citizenship and Immigration),
2011 FC 1296, referring to Mikhno v Canada (Minister of Citizenship and
Immigration), 2010 FC 386: “ [g]iven the discretion an Immigration
Officer has in a H&C application, a heavy burden rests on the Applicants to
satisfy the Court that the decision under section 25 requires the intervention
of the Court” (at para 27).
[18]
However,
as the Federal Court of Appeal stated in Sketchley v Canada (Attorney
General), 2005 FCA 404: “[t]his procedural fairness element is reviewed as
a question of law. No deference is due. The decision-maker has either complied
with the content of the duty of fairness appropriate for the particular
circumstances, or has breached this duty" (at para 53). Thus, the breaches
to the rules of natural justice and procedural fairness such as impartiality, objectivity
and the open-mindedness of the decision-maker must be reviewed on a standard of
correctness (Dunsmuir v Nouveau-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
at para 47-50 and Hamam, above, at para 28).
V. Analysis
Preliminary
question – admissibility of new evidence
[19]
In
her affidavit dated October 30, 2012, the applicant states that she
registered for French language courses to then take training, which gave her
the opportunity to obtain a permit to operate a private-home daycare. In it,
she also states that she acquired a private-home daycare that she runs alone, which
allows her to earn income up to $43,000 per year. In support of this new allegation,
the applicant produced a certificate for his training and several contracts that
she had allegedly signed with parents of children that she taken into her
establishment.
[20]
The
respondent challenges the admissibility of this evidence at the stage of judicial
review since these documents in question were never submitted to the officer
who made his decision on June 18, 2012 (affidavit of Francine Lauzé and
tribunal record). This is entirely new evidence.
[21]
In
fact, given that this evidence does not aim to show that there was a violation
of procedural fairness or jurisdictional error, it does not meet the specific requirements
established by this Court’s jurisprudence on the exceptional nature of the
admissibility of new evidence in the evaluation of an application for judicial
review. Although the Court cannot decide on the probative value that the
officer gave to this evidence, the applicant did not submit anything that could
support the new evidence (nothing was said with respect to the commitments of parents
who allegedly wanted to register their children in a daycare run by the
applicant). The documents relating to her daycare are not relevant given that
the trial decision-maker had not received any evidence that the applicant allegedly
wanted to start a daycare herself. However, the Court’s case law is clear on
this issue. As Justice Pierre Blais explained in Kim v Canada (Minister of
Citizenship and Immigration), 2005 FC 1357: “[a] judicial review is not the
appropriate venue for adducing such information to bolster a failed
application…” (at para 5), or to support her evidence to decide on issues
that have already been reviewed by the decision-maker (see also Zolotareva v
Canada (Minister of Citizenship and Immigration), 2003 FC 1274, 241 FTR 289,
at para 36).
[22]
Therefore,
the Court will hold to the evidence included in the tribunal record for the
purposes of this application for judicial review.
(1) Did the
officer commit an error in his assessment of the evidence that is relevant and
favourable to the applicant and in particular in his assessment of the best
interests of her children?
[23]
The
applicant submits that the officer did not give the appropriate weight to all
the relevant evidence and information that were submitted before him and that he
failed in his duty to be sensitive to the best interests of the applicant’s children.
[24]
On
reading the written submissions, the Court is of the view that the applicant disagrees
with the weight given to the various factors concerned that were possibly more favorable
to her application, such as the evidence of her jobs, her establishment in
Canada and her financial self-sufficiency. It is not up to the Court to
re-weigh these factors, none of which were ignored or overlooked by the officer
(Nkitabungi v Canada (Minister of Citizenship and Immigration), 2007 FC
331).
[25]
The
applicant alleges that the officer was not sensitive to the best interests of
the children directly affected by his decision. The officer’s findings with
respect to the applicant’s children seem reasonable since they took into
account all the circumstances alleged by the applicant and did not ignore any
specific reason within the meaning of Hawthorne v Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, [2003] 2 FC 555, at paragraph
5.
[26]
The
officer determined that the interests of the applicant’s eldest son would not
be affected by the removal of his mother, given that the applicant is able to
find herself a job in Burkina Faso and support her child like she does now by
regularly sending him money. As for the applicant’s youngest son, the officer
took into account the age and particular circumstances of the child and the
fact that the child’s biological father only meets with him a few times per
year. The officer’s findings that, since he is very young, the applicant’s
child would have no trouble integrating in Burkina Faso and that he could obtain
citizenship in this country through his mother’s descent and keep his Canadian
nationality, is reasonable. In any event, the applicant did not raise to the
officer or this Court any particular circumstance that would adversely affect
the interests of her children in one way or another by her removal. This is the
sole responsibility of the applicant (Liniewska v Canada (Minister of
Citizenship and Immigration), 2006 FC 591, at para 20-21). As the Federal
Court of Appeal explained in Owusu v Canada (Minister of Citizenship and
Immigration), 2004 FCA 38, [2004] 2 FCR 635: “…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” (au para 8).
[27]
Therefore,
since the weighing of relevant factors is not up to the court reviewing the
exercise of ministerial discretion, it is sufficient to say that, given all of
the evidence on the record, the officer’s findings fall with a range of
possible acceptable outcomes defensible in respect of the facts and the law (Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 FC
358, at para 9; Dunsmuir, above, at para 47).
(2) Do the reasons
given by the officer give rise to a reasonable apprehension of bias or even of
a lack of objectivity and open-mindedness?
[28]
Generally
and without any details of the facts in this case or the officer’s reasons, the
applicant claims that the impugned decision was not made without bias and that the
officer did not show the objectivity and open-mindedness required by the Citizenship
and Immigration Canada manual on inland processing of applications, IP 5 - Immigrant
Applications in Canada made on Humanitarian or Compassionate Grounds (IP 5
Guide).
[29]
As
for the allegation that the decision does not respect the principle of
impartiality and procedural fairness, the applicant did not at all specify how the
officer allegedly violated these principles or how the officer allegedly lacked
objectivity and open-mindedness or how the applicant was unable to make her
case. Such vague and general allegations without any supporting facts in
evidence would not succeed in satisfying the legal test of a reasonable
apprehension of bias within the meaning of Committee for Justice and Liberty
v Canada (National Energy Board), [1978] 1 S.C.R. 369:
... [T]he apprehension of bias must be a reasonable
one, held by reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information. ...
... In the words of the Court of Appeal, that test
is “what would an informed person, viewing the matter realistically and
practically—and having thought the matter through—conclude. Would he think that
it is more likely than not that Mr. Crowe, whether consciously or
unconsciously, would not decide fairly.”
[30]
In
R v R.D.S., [1997] 3 S.C.R. 484, the Supreme Court explained that:
114. The onus of demonstrating bias lies with
the person who is alleging its existence. ... Further, whether a reasonable
apprehension of bias arises will depend entirely on the facts of the case.
[31]
There
must be very convincing elements for establishing a bias or an apprehension of
bias. After a careful reading of the officer’s reasons as a whole and the relevant
excerpts of the IP 5 Guide, the reasons in no way suggest that the officer was
closed-minded toward the applicant’s allegations or showed any kind of bias.
VI. Conclusion
[32]
For
all of the reasons below, the applicant's application for judicial review is
dismissed.
JUDGMENT
THE
COURT ORDERS that the applicant's application for judicial review
be dismissed with no question of general importance to certify.
"Michel M.J.
Shore"
Certified true
translation
Catherine Jones,
Translator
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