Docket: IMM-2856-13
Citation:
2014 FC 832
Ottawa, Ontario, August
29, 2014
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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JULIANA ANDREA CHUNZA GARCIA
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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
I.
Nature of the matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision dated April 15, 2013, of officer I.
Fonkin [the officer] of Citizenship and Immigration Canada [CIC] refusing the
applicant, Andrea Chunza Garcia’s, application for permanent residence on
humanitarian and compassionate grounds [H & C application].
[2]
For the following reasons, the application is
rejected.
II.
Background
[3]
The applicant is a 20-year old citizen of Colombia. In April 2005 she fled Colombia to the United States with her parents and sister
where they sought asylum. Their claims were refused, and they traveled from the
United States to Canada on June 26, 2009, where they filed refugee claims. The
applicant was 16 years old at the time.
[4]
The applicant’s family’s refugee claims were
refused, and in June 2012, the applicant made an H & C application based on
her establishment in Canada as a student and employee of the Royal Bank of
Canada (RBC), her contributions to her community, as well as the hardship she
would face as a young woman in Colombia returning after an absence of seven
years to a country beset by violence.
[5]
On January 8, 2013, the applicant and her
parents returned to Colombia pursuant to directives from the Canada Border
Services Agency [CBSA]. On February 6, 2013, the applicant’s legal counsel
requested that a decision not be made within 60 days so as to allow the
applicant to provide additional submissions and evidence regarding the hardship
that she faced in Colombia. The officer, in an apparent mix-up, refused the H &
C application by decision rendered March 25, 2013 (the initial decision).
[6]
In the initial decision, it was determined that
the applicant had succeeded exceedingly well in her three and a half years in Canada. She was an exemplary student winning scholarships and various awards. She had
volunteered with a number of charitable organizations and assisted in
fundraisers. She had been accepted at Ryerson University and York University in commerce programs, with a scholarship from York. She had participated in the
school co-op program where she gained valuable skills and work experience with
RBC, who thereafter hired her on a permanent basis. She had obtained several
certifications in various fields including for Anti-Money Laundering and Anti-Terrorist
Financing Awareness and Outstanding Leadership. She also had significant
support from friends and family all stating that the applicant was an
exceptional person, enthusiastic, optimistic, encouraging, honest, kind and
that she should be allowed to remain in Canada.
[7]
After reviewing all the evidence, the officer first
concluded that the claim that the applicant would suffer undue hardship by the
violence which occurs against women in Colombia was speculative. She also found
that the applicant would not be directly affected by the general country
conditions in Colombia on the basis of her living in Bogota and her profile as
an educated and capable person. The officer concluded that there was
insufficient evidence to demonstrate a serious possibility that the applicant
would be the subject of discriminatory treatment based on her gender.
[8]
The officer considered the applicant’s
establishment claim, finding residency in Canada of approximately 3.5 years to
be a relatively short period of time. She also concluded that the applicant had
not established herself significantly in her employment or that her skills were
unique to Canada and would be lost or not useful upon her return to Colombia. The officer considered speculative the claim that the applicant would not have
access to a level higher education. Given the applicant’s demonstrated ability
to succeed as a high achiever, with her first language in Spanish and being fluent
in English, she concluded that Ms. Garcia would more likely adapt well and be
successful. Accordingly, the officer rejected the claim on the basis that the
applicant would not suffer hardship which would amount to unusual and
undeserved or disproportionate should she return to Colombia.
[9]
That decision was the subject matter of an
application for leave and judicial review under court file IMM-2857-13, which
thereafter was refused on April 15, 2013.
[10]
Further submissions and evidence were submitted
by counsel. These submissions were dated April 8, 9, and 15, 2013, requesting a
reconsideration of the decision.
[11]
The applicant deposed that she been unsuccessful
in finding a position in banking during the three-month period since her return
to Colombia, noting that the country had the highest unemployment rate in South America. Included in the additional materials were letters of job offers from the
RBC, one which offered a $10,000 bonus to assist the applicant complete her
studies while working with the bank. The supplementary materials contained a
further letter of support from 40 RBC employees in management and other staff
describing her positive qualities and how her departure had left a void with
clients and staff alike. The applicant renewed her concerns about her inability
to continue her education in Colombia.
[12]
On April 15, 2013, the officer determined that
the refusal decision would stand despite the new evidence. The reconsideration
decision is the object of the current judicial review.
III.
Standard of review
[13]
The standard of review for a decision on an H &
C application is reasonableness (Kisana v Canada (Citizenship and
Immigration), 2009 FCA 189, [2010] 1 FCR 360 at paras 18, 20). The standard
of review as regards the officer’s treatment of the evidence is also
reasonableness (Barrios Trigoso v Canada (Citizenship and Immigration),
2011 FC 991, 208 ACWS (3d) 164 at para 19).
IV.
Issues
[14]
The only issue which arises in this situation is
whether the officer’s treatment of the evidence was reasonable, such that it
allows the Court to understand how his conclusions support his final decision.
V.
Analysis
[15]
The applicant submits that the officer erred in
his consideration of the further submissions and documents by unreasonably
giving very little weight to them.
[16]
First, the applicant argues that the officer
erred in attributing little weight to her lack of success in finding work
because there was no corroborating evidence supporting her bare allegation to
this effect in her affidavit. The applicant argued that Westmore v Canada (Citizenship and Immigration), 2012 FC 1023, 417 FTR 88 [Westmore] should
apply. In that H & C application, Justice Russell held that it was
unreasonable to reject a statement in an affidavit as insufficient where there
is no contrary evidence. In my view, Westmore is distinguishable. The officer
had rejected a statement for the failure to provide supporting information that
the claimant had no friends and acquaintances in the United Kingdom - in
effect, requiring the proving of a negative.
[17]
Moreover, the requirement to attribute
truthfulness to an applicant’s sworn statement, as first enunciated in Maldonado
v Canada (Minister of Employment and Immigration), [1980] 2 FC 302, 31 NR
34 (FCA), reflects a policy that exigent circumstances facing fleeing refugees
may compromise their ability to present corroborative documentation.
Conversely, when a claimant has, or may readily obtain, corroborative evidence
in situations where it normally would be filed with the adjudicative tribunal
to bolster the weight of an otherwise bare allegation, it is expected that the
party will adhere to the ordinary reliability requirements to introduce the
best evidence in support of their case. If they fail to do so, less weight (or
none at all) may be attributed to the statement. The situation is similar to
the presumption that arises against the party not calling a witness who may
provide relevant evidence on an issue.
[18]
The applicant in this matter states that she has
been “diligent in looking for a job in banking given my
experience in that field, but it has simply been impossible to find a job.”
The officer is entitled to expect both particulars of efforts made to locate
work, in addition to being provided with documents supporting this statement in
the form of exhibits. Such documentation would obviously be in the possession
of the applicant. The officer therefore acts within her discretionary mandate
to attribute less or no weight to the applicant’s statement for lack of
objective corroborating documentation.
[19]
Second, the applicant submitted that the officer
failed unreasonably to consider further relevant evidence consisting of two letters
from RBC offering the applicant employment were she to return to Canada. It was argued that the officer misapprehended the probative value of this evidence
on the grounds that it related to events after the applicant’s removal and
therefore served no purpose to demonstrate establishment. I agree that little
weight can be attributed to offers of employment after the claimant leaves the
country. I think this so especially when the letters serve little purpose of
differentiating the applicant’s situation from that of her having been employed
at RBC prior to her removal. I also think that it is of no significance that
the officer appeared to consider only one job offer, apparently overlooking the
second letter. Overall, it was reasonable for the officer to attribute little
weight to these letters as additional support to an argument of establishment.
[20]
Thirdly, I similarly reject any complaint of a
misapprehension of evidence by the officer failing to consider the applicant’s letters
of acceptance from Ryerson and York when there was reference to these facts in
the initial decision. I suspect that the applicant is of the impression that
the reconsideration decision would be considered absent any reference to the
initial decision, which is not the case, as common sense dictates that the two
decisions must be considered together.
[21]
Fourth, I find reasonable the officer’s conclusion
that three months is insufficient time to demonstrate an inability to find
employment in Colombia. Besides the time normally required to find positions of
the nature sought by the applicant, the officer was entitled to attribute less
weight to this evidence on the basis that the applicant was undergoing a period
of adjustment during the time that she alleges that she was searching for a
banking position in Colombia.
[22]
In the same vein, the high level of high unemployment
in Colombia is a generalized situation, which does not necessarily apply to the
applicant. She exhibits special attributes that should make her attractive to
financial institutions and similar organizations based upon the high praise of
her colleagues at RBC and her other recognized accomplishments. It is not
unreasonable for the officer to have concluded that she should be able to find
suitable employment in Colombia. I also do not find an unemployment rate of
10.8 % to be significantly out of line with unemployment rates around the world
to the point of being a relevant factor in the consideration of hardship.
[23]
Sixth, I also reject any suggestion that RBC would
incur hardship because of the unavailability of an excellent prospective
employee. Large multinational institutions like RBC are not generally
vulnerable to loss of personnel, particularly at the entry level of the
employment hierarchy. There is no reasonable basis to conclude that during her
short time with the bank (or in the foreseeable future if she had been hired) that
she would have become a key member of RBC such that the failure to employ her
would have had any impact on its operations.
[24]
Seventh, the applicant submits that the Court
should apply the comments from the cases of Velazquez Sanchez v Canada (Citizenship and Immigration), 2012 FC 1009, 221 ACWS (3d) 964 at paragraphs 18-20 and Adu
v Canada (Minister of Citizenship and Immigration), 2005 FC 565, 139 ACWS
(3d) 164 at paragraphs 13-14 and 20-21. In those cases the court criticized officers
for resorting to a “commonplace” practice of dismissing a matter for lack of
insufficient objective evidence, which the court described as being contrary to
the purpose of reviewing, rather than obscuring the rationale for the decision.
These criticisms do not apply to a situation where the officer has already
provided comprehensive reasons in the initial decision, none of which appear to
have been referenced by the applicant when challenging the reconsideration
decision. On reconsideration, the officer is only required to respond to
additional evidence provided. She can reject allegedly new evidence for not
sufficiently distinguishing that initially presented to her. I conclude that
this officer’s reasons respond reasonably to any new evidence introduced, such
as it was found in the further affidavit, and that the decision is reasonable
and well justified, particularly in light of the officer’s previous conclusions
in her initial decision.
[25]
In considering the reasonability of the decision
on a more common sense level, although not referred to by the officer, I also
find it difficult to accept that the general profile presented by the applicant
would normally support a claim for permanent residency on humanitarian and
compassionate grounds. The applicant is 20 years old with only 3.5 years of
residency in Canada. This period of residency has provided her with invaluable
employment experience to find work with banks and multinational banks that are
world-wide, even though she had no basis to be in Canada in the first place. By
all accounts, she possesses exceptional personal qualities, with no
disabilities, dependencies, or other evident collateral attributes that might
support a valid establishment claim.
[26]
In my view, establishment in terms of causing
hardship is much about the suffering caused by adjustment to a removal
because of deep, permanent, and inflexible roots put down into the Canadian
milieu, often compounded by the restraints of others dependent upon the
claimant who will suffer related undue hardship if the applicant is removed.
Like most things in law it is highly contextual and there are always
exceptions, including some of the cases referred to by the applicant. Generally,
however, persons who are beginning their careers and have demonstrated an
ability to quickly adapt to Canada and possess the fine qualities and skills
attributed to the claimant by her colleagues at RBC should reasonably be able
to respond to challenging country conditions or other circumstances that will
naturally arise in Columbia or anywhere over a long life ahead. It is
therefore, unlikely that a young person with the applicant’s attributes would
endure unusual and undeserved or disproportionate hardship upon return to her
country of origin required to meet the exceptional circumstances of a
successful H&C application.
[27]
I also question the weight that should be
attributed to economic factors generally, such as the applicant having found a
position in Canada, or that she is encountering difficulty in finding work in her
country of origin. There is no concept that I am aware of that failed refugee
claimants can earn their way into becoming a permanent resident of Canada, particularly when there is no basis for the person to be in the country in the
first place. Canada has a system in place for economic immigrants and the last
thing that the immigration regime can permit is to allow refugee claimants to
gain back door entry into the country as a means to circumvent the rules for
entry as economic immigrants. Moreover, in terms of hardship, there can be no reasonable
unmet expectation that a person whose basis for entry into the country is
rejected will be able to remain here afterwards. In summary, I do not see where
economic considerations such as are advanced in this case can amount to
exceptional circumstances of hardship to remain in Canada.
[28]
I conclude that the officer’s decision meets the
required standards of reasonableness and is justified by intelligible and
transparent reasons.
Certified Question
[29]
The Applicant has requested that if the
application is declined, I should certify a question on minimum period of
residency for establishment. The respondent opposes such a request. My comments
on residency and economic hardship were neither definitive nor determinative of
the decision. They are also not of general importance. There is no basis to
certify a question for appeal.
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