Docket: IMM-5400-13
Citation:
2014 FC 595
Ottawa, Ontario, June 20, 2014
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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CLOTHILDE NICAYENZI
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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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JUDGMENT AND REASONS
[1]
This is a judicial review application of the
decision of a delegate of the Minister of Citizenship and Immigration, refusing
the applicant’s application for permanent residence based on humanitarian and
compassionate considerations pursuant to s 25 of the Immigration and Refugee
Protection Act, SC 2001, c-27(the Act).
I.
Background
[2]
The applicant is a citizen of Burundi. She arrived in Canada in 2008 on a temporary visa. Shortly thereafter, she claimed
protection under s 96 and 97(1) of the Act on the basis that she was kidnapped,
detained and raped in Burundi. The Refugee Protection Division of the
Immigration and Refugee Board denied her application. It basically found the
applicant’s story not believable. The applicant did not seek judicial review of
that decision.
[3]
In January of 2012, the applicant sought to be
exempted, on humanitarian and compassionate grounds, as contemplated by ss
25(1) of the Act, from the normal requirement of applying for permanent
resident status from outside Canada (the “H and C application”). She alleged
that she would suffer unusual and undeserved, or disproportionate hardship from
the application of the normal rule both by leaving Canada, given her degree of
establishment in this country, and by being removed to Burundi given her widowhood and her medical condition as HIV positive. In this regard, she
expressed fears that once in Burundi, she would be subjected to further sexual
violence given her widowhood status without a male protector, and would not be
able to access adequate medical treatment.
[4]
The applicant also claimed that being exempted
from applying for permanent resident status from outside Canada would be in the best interests of her two young female cousins residing in Burundi. She said she was worried about their well-being given the violence they may face
in that country and would therefore ultimately like to adopt them in order to
bring them to Canada.
[5]
On July 25, 2013, a Senior Immigration Officer,
acting on behalf of the Minister of Citizenship and Immigration (the
“officer”), dismissed the applicant’s H and C application. In particular, the
officer found that the applicant’s establishment in Canada was insufficient to
justify an exemption on humanitarian and compassionate grounds and that her
claim based on the best interests of her two young cousins was not open to her
as these two cousins were no longer minors at the time the application was
made.
[6]
With respect to the humanitarian and
compassionate ground associated with being removed to Burundi, the officer gave no weight to the applicant’s allegations that she would face
hardship as a widow without a male protector, given the various discrepancies
in the evidence as to her widowhood status. The officer also concluded that
given her training and social status, it was reasonable to assume that the
applicant did have the profile of the relatively small portion of the Burundian
population who has access to proper medical treatment.
[7]
The applicant is seeking judicial review of that
decision. She claims that the officer’s decision is flawed in three ways:
first, by ignoring evidence as to her widowhood status; then by speculating as
to her ability to access proper medical treatment; and finally, by not
providing her with an oral hearing or an opportunity to respond to the
officer’s concerns given the nature of those findings, one based on
credibility, the other on pure conjecture.
[8]
The applicant is not challenging the officer’s
findings regarding her claims based on her establishment in Canada and the best interests of her two young female cousins.
II.
Issues and standard of review
[9]
This case basically raises two issues, one that
goes to the officer’s treatment of the evidence before her, the other to the
fairness of the process that leads to the officer’s decision.
[10]
It is settled law that the applicable standard
to the analysis of the evidence performed by a Minister’s delegate in the
context of an application made under s 25(1) of the Act is reasonableness (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No 39 (QL) [Baker]; Walker v Canada (Citizenship and Immigration), 2012 FC 447 at para 31, [2012] FCJ No 479 (QL); De
Leiva v Canada (Minister of Citizenship and Immigration), 2010 FC 717 at
para 13, [2010] FCJ No 868 (QL); Adams v Canada (Minister of Citizenship and
Immigration), 2009 FC 1193 at para 14, [2009] FCJ No 1489 (QL); Kisana v
Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18,
[2009] FCJ No 713 (QL)). This means that considerable deference is to be
accorded to the outcome reached by the delegate on the record of evidence
before him or her. As a result, if the delegate’s decision falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and the law, the Court is not
allowed to intervene even if its assessment of the evidence that was before the
delegate might have lead it to a different outcome (Dunsmuir v New Brunswick, 2008 SCC
9 at para 47, [2008] 1 S.C.R. 190; Kanthasamy v Canada (Minister
of Citizenship and Immigration), 2014 FCA 113, at paras 81 to 84, [2014]
FCJ No 472 (QL)).
[11]
On issues of procedural fairness, the standard
of review is stricter; it is that of correctness. This means that when such
issues arise, the Court must determine whether the process followed by the
Minister’s delegate satisfies the level of fairness required in all the
circumstances (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12
at para 43, [2009] 1 S.C.R. 339; Eshete v Canada (Minister of Citizenship and Immigration),
2012 FC 701 at para 9, [2012] FCJ No 697 (QL); Prieto v Canada
(Minister of Citizenship and Immigration), 2010 FC 253 at para 24, [2010]
FCJ No 307 (QL)).
III.
Analysis
[12]
The purpose of applications made under ss
25 of the Act is to seek an exemption from Canadian immigration laws that are
otherwise universally applied. The Minister may grant this relief if, as per
the wording of ss 25(1), “[he] is of the opinion that the
exemption is justified by humanitarian and compassionate considerations relating
to the foreign national, taking into account the best interests of a child
directly affected”.
[13]
This Court has consistently held that
humanitarian and compassionate applications were designed not to eliminate the
hardship inherent in being ask to leave the country after one has been in
Canada for a certain period of time, but rather to provide relief from “unusual
and undeserved or disproportionate hardship” that would ensue should the
applicant be required to leave Canada and apply to immigrate through normal
channels (Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2014 FCA 113 at paras 40 to 42, [2014] FCJ No 472 (QL); Monteiro
v Canada (Minister of Citizenship and Immigration), 2006 FC 1322 at para
20, [2006[ FCJ No 1662 (QL); Irimie v Canada (Minister of Citizenship and
Immigration), 2000 CanLII 16640 (FC), at para 26, [2000] FCJ No 1906 (QL)).
[14]
As the Federal Court of Appeal has recently
held, ss 25(1), when examined in the context of the Act as a whole, is an
exceptional provision which is not to be understood as an alternative
immigration stream or an appeal mechanism for failed asylum claimants (Kanthasamy,
above at para 40).
[15]
As a result, humanitarian and compassionate
applications have been held to be highly discretionary (Monteiro, above
at para 18). The onus is squarely on applicants to satisfy the decision-maker
that their personal circumstances are such that the hardship of having to
obtain immigrant status from outside Canada in the normal manner would be
either unusual and undeserved or disproportionate (Kisana v Canada
(Minister of Citizenship and Immigration), 2009 FCA 189 at para 45, [2009]
FCJ No 713 (QL); Irimie, above at para 10).
[16]
That onus is a demanding one. Lack of evidence
or omission of relevant information in support of a humanitarian and
compassionate application is at the peril of the applicant (Owusu v
Canada (Minister of Citizenship and Immigration), 2004 FCA 38
at para 5, [2004[ FCJ No 158 (QL)). This means that the decision-maker is under
no duty to assist applicants in discharging the burden of making their case or
to highlight the cases’ weaknesses and request further submissions to allow
applicants to overcome them. In other words, the decision-maker is under no
duty to make further inquiries so as to discover evidence that might be
favourable to the case put forward by an applicant (Kisana, above at
paras 43 to 45).
[17]
In terms of process, it is now well established
that applicants to an application brought under ss 25(1) of the Act have no
right or legitimate expectations that they will be interviewed by the
Minister’s delegate (Owusu, above at para 5; Eshete, above at
para 12; Leonce v Canada (Minister of Citizenship and Immigration),
2011 FC 831, at para 6, [2011] FCJ No 1033 (QL)).
[18]
However, the rules of natural justice are
capable of flexibility when the circumstances warrant it and the case law
recognizes that in cases where the decision-maker’s decision is clearly based
on a credibility finding or on concerns that could not have reasonably been
predicted by the applicant, he or she has a duty to share these concerns with
the applicant so as to allow him or her to respond in a meaningful way. On
credibility issues, the manner to respond in a meaningful way will normally
take the form of an interview (Leonce, above at para 6; Duka v
Canada (Minister of Citizenship and Immigration), 2010 FC 1071
at paras 11 and 12, [2010] FCJ No 1334 (QL)).
[19]
How do these principles apply to this case?
[20]
There are two main issues in this respect. The
first is the officer’s finding that the applicant is not actually a widow and
that, as a result, her allegations of potential hardship as a widow without a
male protector are unfounded. The second is the officer’s conclusion that given
the applicant’s employment history, she would likely have access to HIV
treatments if she were to return to Burundi.
[21]
For the reasons that follow, the applicant fails
on the first issue but not on the second.
[22]
On the first issue, the applicant claims that
the officer ignored evidence as to the correct date of the alleged death of her
husband. She says this evidence made it clear that the
contradictions the officer saw as a problem in assessing her H and C
application were not real and should therefore not have been a factor in the
officer’s decision.
[23]
In her written submissions, the applicant says
that the husband’s date of death correctness issue represented «at least 50%»
of the officer’s conclusion that she was not a widow. Even assuming that the
officer was clearly wrong on that point, the applicant does not discuss the
other factors that were considered by the officer. In other words, she
does not address the other part of the officer’s reasons on that particular
point.
[24]
That other part has to do with the conflicting
information the applicant supplied in her visa application of 2008, where she
stated being married, and her H and C application, where she reported being a
widow.
[25]
The onus was on the applicant to establish she
was a widow without a male protector, as claimed in her H and C application. As
indicated previously, this onus, given the exceptional nature of H and C
applications, is a demanding one. Here, the applicant was aware, or ought to
have been aware, of this clear contradiction in her Canadian immigration record
and had therefore to be prepared to provide a reasonable explanation for this
state of affairs. She did not.
[26]
As the respondent points out in its written
submissions, nowhere in her H and C application did the applicant explain these
contradictory statements, not even by invoking, as she did in the context of
her refugee claim, that it is not her, but the person who arranged her way out
of Burundi, who completed her Canadian visa documents. Maybe the reason for
this is that this explanation was dismissed by the Refugee Protection Division
of the Immigration and Refugee Board as not being credible. This discussion
before the Board occurred in the context of conflicting information in the
applicant’s visa documents and refugee claim as to the nature of her employment
in Burundi at the time she left that country.
[27]
The net result is that this conflicting piece of
evidence as to the applicant’s alleged widowhood status was not addressed in
any way, shape or form in the H and C application material. As the officer also
noted in her decision, the applicant did not provide any details as to who was
taking care of her two young female cousins who were 14 and 18 years of age
when she left Burundi, a piece of information that could have been relevant in
assessing whether she could count on some sort of protection upon her return to
Burundi.
[28]
In such circumstances, where the onus was
clearly on the applicant, I agree with the respondent that it was reasonable
for the officer to refuse to give weight to this allegation in light of the
contradictory evidence submitted by the applicant, the negative credibility
finding of the Refugee Protection Division of the Immigration and Refugee Board
and the absence of any corroborative evidence. There were holes in the
applicant’s story that she knew, or ought to have known, about. It was her duty
to fill them up. She failed.
[29]
This is a matter of sufficiency of evidence, not
of pure credibility. The officer was under no duty here to assist the applicant
in discharging the burden of making her case or to highlight the case’s weaknesses
and request further submissions to allow her to overcome these weaknesses (Owusu,
above, Kisana, above at paras 43 to 45).
[30]
This is certainly not a situation that could not
have reasonably been predicted by the applicant as, again, she was or had to be
aware of these contradictory statements in her Canadian immigration record.
Therefore, there was no obligation on the part of the officer to share these
concerns with the applicant so as to allow her to respond to them (Leonce,
above at para 6; Duka, above at paras 11 and 12).
[31]
There is an additional hurdle to this particular
humanitarian and compassionate ground advanced by the applicant. As the Federal
Court of Appeal stated in Kanthasamy above, in order for an applicant to
be successful on an humanitarian and compassionate application, there has to be
evidence that the unusual and undeserved or disproportionate hardship that
forms the basis of the application in any given case will affect the applicant
“personally and directly” (Kanthasamy, above at para 48). As the
respondent puts it, and I agree with it, the applicant’s widowhood argument
amounts to stating that all widows from Burundi shall be granted permanent
residence in Canada based on humanitarian and compassionate factors. This is
not enough to meet the test set out in ss 25(1) of the Act.
[32]
In sum, the applicant has not shown that the
officer’s findings regarding her alleged widowhood was either unreasonable or
procedurally unfair.
[33]
The same cannot be said of the second issue
which concerns the inference the officer drew in regards to the applicant’s
access to medical treatment based on her former employment. The applicant
contends that this inference on the part of the officer was pure speculation.
The Court agrees with her.
[34]
It is well established that findings of fact
based on mere speculation are inherently unreasonable as such findings are
generally characterized as mere guesses and devoid, therefore, of any legal
value (Ukleina v Canada (Citizenship and Immigration), 2009 FC 1292 at
paras 8 and 14, [2009] FCJ No 1651 (QL)). An inference is valid, on the other
hand, when it is grounded in some proven fact and established to be probable in
the circumstances (Zhang v Canada (Citizenship and Immigration) 2008 FC
533 at para 3, [2008] FCJ No 678 (QL); Newfoundland (Workers’ Compensation
Commission) v Miller, 2001 NFCA 20, (2001), 199 NFLD & PEIR 186 at para
11; Weng v Canada (Citizenship and Immigration), 2011 FC 1483 at para
30, [2011] FCJ No 1811 (QL); Matthews v Canada (Citizenship and Immigration),
2012 FC 535 at para 37, [2012] FCJ No 563 (QL)).
[35]
It is therefore improper for an immigration
officer to draw inferences that are not based on established fact or evidence.
In the present case, the officer accepted the applicant’s documentary evidence
that only 23% of HIV positive Burundians at an advanced stage of the virus have
access to the necessary medical treatment. She concluded that the applicant’s
profile as a lecturer and chargée de mission for the Laboratoire
Nationale de l’Industrie Pharmaceutique meant that it was reasonable to
conclude that the applicant would probably be among the 23% of Burundians who
would benefit from medical treatment.
[36]
The Court finds that the officer’s conclusion
that the applicant would have access to medical treatment was purely
speculative and unfounded on any documentary evidence. Indeed, the applicant,
in the Court’s view, had established that her access to treatment was unlikely
or in serious doubt, given her evidence that only 23% of HIV patients at an
advanced stage of the virus in Burundi have such an access. There was an
inference here that the applicant, whose HIV condition and need for treatment
are well documented, could face unusual and undeserved or disproportionate
hardship that would affect her personally and directly, if she were to return
to Burundi.
[37]
I agree with the applicant that in order to
displace that inference, the officer needed more evidence than that she had
before her, such as the salary of a lecturer, evidence as to whether the
applicant would or could go back to her former position, who has access to HIV
treatment in Burundi and on what basis and the costs of her HIV medication.
[38]
The officer’s finding that the applicant would
be part of the minority of Burundians who receive medical treatment for HIV was
not grounded in some proven facts. There was simply no evidence to support this
conclusion. The officer made an inference leap she was not entitled to do. Her
finding in that regard was unreasonable.
[39]
The applicant’s HIV condition is a new feature
in her story. That is something that was discovered after she came to Canada. The risks of unusual and undeserved or disproportionate hardship are real and
individualized. The concerns the officer had on her ability to access medical
treatment could hardly have been predicted by the applicant who had established
that in Burundi, access to HIV treatment is seriously limited. In these
circumstances, the applicant was at least entitled to be made aware of the
officer’s concerns and to be allowed an opportunity to respond in a meaningful
way. This was not done.
[40]
For these reasons, this judicial review
application is granted.
[41]
Neither party proposed a question of general
importance, and none will be certified.
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