Docket: IMM-7378-13
Citation:
2015 FC 43
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, January 13, 2015
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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JANVIER MALE LIKALE
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Applicant
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and
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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 pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA),
for judicial review of a decision by L. Ly (officer) dated October 24, 2013, refusing
the applicant’s application for permanent residence made on humanitarian and
compassionate grounds under subsection 25(1) of the IRPA.
[2]
For the following reasons, I am of the opinion
that this application must be dismissed.
II.
Facts
[3]
The applicant is a citizen of the Democratic
Republic of the Congo (DRC). On August 2, 2006, the applicant entered Canada
and filed a claim for refugee protection, which was rejected on November 26,
2008. On April 27, 2009, the application for judicial review of that decision
was also dismissed by Justice Teitelbaum.
[4]
His first humanitarian and compassionate application
was refused on April 29, 2011.
[5]
His second application made on humanitarian and
compassionate grounds was received on October 24, 2011, and refused on
October 24, 2013. As stated above, it is that decision that is the subject
of this judicial review.
III.
Decision
[6]
At the outset of her decision, the officer
specified that the application was based on two factors, that is, the establishment
and integration of the applicant in Canada as well as the impact of the
applicant’s prospective return to his country of origin. Citing Willson v
Canada (Citizenship and Immigration), 2007 FC 488, at para 12, the officer
noted, in particular, that: “a second H&C application
should be based on new evidence, and not simply on a re-assessment of the same
evidence.”
[7]
The officer found that since the refusal of his
first humanitarian and compassionate application, the applicant has had a job
and has made an effort to be financially self-sufficient. The officer noted,
however, that there has been little change in respect of the applicant’s job
and income since his first application, besides the fact that the applicant has
continued to work. The applicant’s income for the years 2006 to 2010 was $2,880,
$9,984, $13,770, $10,243 and $6,391 respectively. The officer thus found that
the applicant did not demonstrate that he is financially self-sufficient.
[8]
Furthermore, the officer noted that the
applicant worked as a mechanic in the DRC from 1986 to 2006 and that he would
therefore be able to find a job in his field upon return to his country. The
officer also found that the applicant did not demonstrate that the severance of
his current employment relationship would cause him hardship that is unusual and
undeserved or disproportionate if he had to apply for a permanent resident visa
from abroad.
[9]
The officer noted that the applicant volunteers,
attends church, has no criminal record and is valued in his community, but submitted
that he did not demonstrate how a severing of those ties would constitute
hardship that is unusual and undeserved or disproportionate if he had to file
his application from abroad.
[10]
The officer pointed out that even though the
applicant maintains that he would have no house or financial assistance upon
returning to his country, he demonstrated his adaptability by getting by in
Canadian society and he could work as a mechanic upon return to his country.
[11]
The officer also noted that the humanitarian and
compassionate application before her was not equivalent to a mechanism for
appealing the first application. The officer found that the evidence before her
still did not support a finding that an exemption based on humanitarian and
compassionate grounds was justified.
[12]
The officer found the temporary suspension of
removal (TSR) to the DRC to be justified by the difficult country conditions,
which, she stated, are circumstances beyond the applicant’s control. Although
the TSR does not prevent the applicant from leaving Canada voluntarily, the
officer stated that she took the period of inability to leave Canada due to
circumstances beyond the applicant’s control into account. However, the officer
found that the applicant’s establishment is not a sufficient justification for
an exemption, despite the fact that the applicant has been in Canada since 2006
and has made significant efforts to integrate into Canadian society.
[13]
The officer considered the applicant’s argument
that it is likely that he will remain in Canada without status indefinitely because
of the TSR. However, she submitted that the applicant did not demonstrate that
he would face unusual and undeserved or disproportionate hardship if he had to
file his permanent resident visa application from outside Canada once the TSR
is lifted. Furthermore, the applicant did not demonstrate that his lack of
status has prevented him from working or being involved in the Canadian
community.
[14]
The officer noted that the applicant claims that
he has a 28-year old daughter in the DRC, but that the issue of a child’s best
interests can only be raised, where necessary, in cases where a refugee
claimant has a child under the age of 18.
[15]
The officer found that the hardship the
applicant would face upon his return to the Congo is no different from what is
faced by the general population of that country.
[16]
She pointed out that, in his first refugee
claim, the applicant failed to establish his identity in a satisfactory manner
and that despite that, the applicant submitted documents that were presented in
his first refugee claim in support of his second application made on
humanitarian and compassionate grounds, even though he knew that the determination
of his identity was still at issue. The officer therefore reiterated that the
second application made on humanitarian and compassionate grounds by the
applicant was not equivalent to an appeal.
[17]
The officer stated that the applicant submitted considerable
evidence attesting to the fact that many crimes and rapes are still committed
in the DRC and that the armed forces have been guilty of fundamental rights
violations (torture, sexual violence, arbitrary arrests, etc.), in certain
cases for political reasons. However, the officer argued that the applicant did
not explain in his application how that situation affects him or how the filing
of an application from abroad would cause him hardship.
[18]
The officer noted that a TSR is a process associated
with a generalized risk to the civilian population when a country is facing a
catastrophic event and that the applicant can therefore continue to avail
himself of the TSR by staying in Canada. However, the officer maintained, citing
case law, that despite the TSR-related risks, the applicant had to demonstrate
that the particular facts of his personal situation mean that filing his application
from abroad would cause him unusual and undeserved or disproportionate hardship
(Lalane v Canada (Citizenship and Immigration), 2009 FC 6, at para 38,
41 (Lalane)).
[19]
The officer therefore found that the applicant failed
to demonstrate that an exemption based on humanitarian and compassionate considerations
must be granted.
IV.
Issue
[20]
One issue arises:
1.
Is the officer’s decision reasonable?
V.
Relevant provisions
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Immigration
and Refugee Protection Act SC 2001, c 27
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Loi sur l’immigration
et la protection des réfugiés, LC 2001, ch 27
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3 (3) This Act is
to be construed and applied in a manner that:
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3 (3)
L’interprétation et la mise en œuvre de la présente loi doivent avoir pour
effet :
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(f) complies
with international human rights instruments to which Canada is signatory.
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f) de se conformer aux instruments
internationaux portant sur les droits de l’homme dont le Canada est
signataire.
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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.
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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.
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25. (1) Subject to
subsection (1.2), the Minister must, on request of a foreign national in
Canada who applies for permanent resident status and who is inadmissible —
other than under section 34, 35 or 37 — or who does not meet the requirements
of this Act, and may, on request of a foreign national outside Canada — other
than a foreign national who is inadmissible under section 34, 35 or 37 — who
applies for a permanent resident visa, examine the circumstances concerning
the foreign national and may grant the foreign national permanent resident
status or an exemption from any applicable criteria or obligations of this
Act if the Minister is of the opinion that it is justified by humanitarian
and compassionate considerations relating to the foreign national, taking into
account the best interests of a child directly affected.
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25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire — sauf si c’est en raison d’un cas visé aux
articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit
de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de
résident permanent, étudier le cas de cet étranger; il peut lui octroyer le
statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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International Covenant on Civil and Political Rights
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Pacte international relatif aux droits civils et politiques
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Article 17
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Article 17
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1. No one shall be
subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.
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1. Nul ne sera
l’objet d’immixtions arbitraires ou illégales dans sa vie privée, sa famille,
son domicile ou sa correspondance, ni d’atteintes illégales à son honneur et
à sa réputation.
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2. Everyone has the
right to the protection of the law against such interference or attacks.
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2. Toute personne a
droit à la protection de la loi contre de telles immixtions ou de telles
atteintes.
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The Constitution Act, 1982, Schedule B to the Canada Act 1982
(UK), 1982, c 11
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Loi constitutionnelle de 1982, Annexe B de la Loi de 1982 sur le
Canada (R-U), 1982, c 11
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12. Everyone has the right not to be subjected to any cruel and
unusual treatment or punishment.
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12. Chacun a droit à la protection contre tous traitements ou
peines cruels et inusités.
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VI.
Submissions of the parties
A.
Applicant’s submissions
[21]
Citing Dunsmuir v New Brunswick, 2008 SCC
9, the applicant started his arguments with a general statement that questions
of fact, discretion and policy and questions of mixed fact and law are reviewable
on a standard of reasonableness. The applicant also stated that certain
questions of law are reviewable on a standard of correctness.
[22]
First, the applicant argues that the officer
erred in law and in fact by failing to address the substance of the international
human rights instruments to which Canada is signatory. The applicant argues
that the officer erred by not bearing in mind the humanitarian and
compassionate values enshrined in the Canadian Charter of Rights and
Freedoms (Charter) and the International Covenant on Civil and Political
Rights (ICCPR), a binding legal instrument for Canada, in conducting an
analysis pursuant to section 25 of the IRPA (Canada (Citizenship and Immigration)
v Okoloubu, 2008 FCA 326, at para 36 (Okoloubu)).
[23]
The applicant points out that the documentary
evidence shows that the values enshrined in the ICCPR are violated in the DRC.
The applicant contends that Article 17 of the ICCPR, which guarantees that everyone
has the right to the protection of the law against arbitrary or unlawful interference
with his privacy, family, home or correspondence, or unlawful attacks on his
honour and reputation, applies in this case. The applicant therefore submits
that the officer erred by not addressing the substance of the international
instruments to which Canada is signatory because the objective evidence shows
that the DRC does not offer any protection against infringements of the rights
set out in Article 17 of the ICCPR.
[24]
The applicant contends that the officer’s
failure to integrate the ICCPR into her analysis violates section 12 of the Charter
(protection from any cruel and unusual treatment or punishment).
[25]
Second, the applicant argues that the officer did
not exercise her discretion under subsection 25(1) of the IRPA appropriately.
The applicant submits in this regard that the officer did not comply with Operational
Manual IP 5, namely by considering the factors in isolation instead of globally
(as set out in the manual).
B.
Respondent’s submissions
[26]
The respondent argues that the applicable
standard is reasonableness.
[27]
The respondent also contends that an application
for permanent residence on humanitarian and compassionate grounds is
discretionary and exceptional. The onus is on the applicant to establish that
he would face unusual and undeserved or disproportionate hardship if he had to apply
for permanent residence from outside Canada.
[28]
The respondent argues that Lalane should
be applied to the case at hand. In that case, Justice Shore stated that the
fact that an applicant had “made progress in adapting to
Canadian society, that he was working and that he had become financially
self-sufficient could not have been a basis for the immigration officer to
conclude automatically that there were humanitarian and compassionate grounds”
(Lalane, at para 27).
[29]
Moreover, the respondent argues that generalized
risks are not sufficient to justify a finding under section 25 of the IRPA and
that it is important that the applicant demonstrate a link between the evidence
and his personal situation.
[30]
The respondent submits that this Court has
already determined that a TSR to the Congo does not prevent an application made
on humanitarian and compassionate grounds from being denied (Lalane, at
para 41; Mathewa v Canada (Citizenship and Immigration), 2005 FC 914 (Mathewa);
Nkitabungi v Canada (Citizenship and Immigration), 2007 FC 331, at para
12 (Nkitabungi)).
[31]
Furthermore, the respondent argues that the
officer bore in mind the basic human values enshrined in the Charter and the
ICCPR because the officer specifically noted that the applicant can continue to
remain in Canada as a result of the TSR.
[32]
The respondent maintains that there was no
indication that the officer failed to address the substance of the
international instruments. The respondent points out that the case law has established
that officers in charge of reviewing humanitarian and compassionate
applications are not required to specifically refer to the international human
rights instruments (Okoloubu, at para 50).
[33]
Furthermore, the respondent points out that the
enforcement of the removal order that the applicant is subject to and the
decision rendered by the officer on humanitarian and compassionate grounds are
two separate proceedings.
[34]
Finally, the respondent notes that the
applicant’s argument that the decision violates section 12 of the Charter is
without merit because: (i) the decision made on humanitarian and compassionate
grounds is neither a treatment nor a punishment, (ii) the applicant did not
submit any case law in support of his argument, and (iii) the applicant did not
demonstrate how the decision would meet the threshold of cruel and unusual
treatment or punishment.
VII.
Analysis
A.
Applicable standard of review
[35]
In this case, the issue raised is whether the officer
erred in applying her discretion under section 25 of the IRPA, and the
applicable standard is reasonableness (Okoloubu, at para 30).
B.
Is the officer’s decision reasonable?
[36]
The officer did not err by finding that the
applicant failed to demonstrate that he would face unusual and undeserved or
disproportionate hardship in the event his application for permanent residence
were filed from outside Canada. As pointed out by the respondent, the fact that
an individual works in Canada, is financially self-sufficient (which is not the
case for the applicant) or is forced to leave his family members and/or his job
cannot be the basis for automatically concluding that a favourable decision
under section 25 of the IRPA must be rendered (Lalane, at para 27 and
para 31). In this case, the applicant demonstrated that he became accustomed to
living conditions in Canada, namely because of his volunteering activities and his
job. However, the applicant did not submit any evidence that his return to the
DRC, once the TSR is lifted, would cause him hardship that would be unusual and
undeserved or disproportionate. Moreover, the applicant worked as a mechanic in
the DRC for many years (1986-2006) and he, in all likelihood, has the necessary
resources to readjust to life in the Congo.
[37]
The officer considered all of the evidence and
all of the relevant factors that she was required to consider. In my opinion,
her decision was completely reasonable.
[38]
It seems that the officer applied section 25 of
the IRPA in accordance with paragraph 3(3)(f) of the IRPA. First,
as stated by the parties, the case law has established that paragraph 3(3)(f)
of the IRPA does not require an officer to “specifically
refer to and analyse the international human rights instruments to which Canada
is a signatory” (Thiara v Canada (Citizenship and Immigration),
2008 FCA 151, at para 9) when the officer is conducting an examination under
section 25 of the IRPA. Second, as argued by the respondent, the officer
adequately addressed the substance of those instruments and of the humanitarian
and compassionate values associated with the Charter and the ICCPR. After
evaluating the documentary evidence submitted, the officer found that significant
risks for the civilian population arise from the general socio-political
situation in the DRC; violations of the population’s fundamental rights are
common in that country. However, the officer noted that [translation] “the
applicant can continue to avail himself of the TSR and remain in Canada”.
That analysis is in line with the humanitarian values.
[39]
In fact, it seems that the applicant contends
that simply being a citizen of the DRC would allow him to automatically obtain
permanent resident status in Canada. Justice Shore stated the following in Lalane,
at para 1:
The applicant has the burden of establishing a
link between that evidence and his personal situation. Otherwise, every
H&C application made by a national of a country with problems would have to
be assessed positively, regardless of the individual’s personal situation, and
this is not the aim and objective of an H&C application.
[Emphasis added.]
In fact, the applicant cannot simply make
the general argument that [translation]
“the objective documentation submitted . . . demonstrates
that the risks he would face in the DRC are acts that could lead to fundamental
rights violations”. Thus, it was reasonable for the officer to find that
the applicant did not demonstrate that he would personally be at risk of
unusual and undeserved or disproportionate hardship if he were to return to the
DRC to apply for permanent residence.
[40]
Moreover, the case law has clearly established that
the mere presence of a TSR does not mean that an application made on humanitarian
and compassionate grounds will automatically be allowed (Lalane, at para
41; Nkitabungi, at para 12). In Nkitabungi, Justice Martineau stated the following:
Moreover, the fact that the relevant
authorities have decided not to return to DRC all Congolese citizens in Canada
without legal status does not create a presumption of undue or disproportionate
hardship as learned counsel for the applicant argues. In fact, every H&C
application case is a specific case. With regard to this, I note that in Mathewa
v. Canada (Minister of Citizenship and Immigration), 2005 FC 914, it was
found that a moratorium on removals to DRC does not in and of itself prevent
an application made on humanitarian and compassionate grounds from being denied.
[Emphasis added.]
This passage applies especially to this case.
[41]
Finally, I am of the view that the applicant’s
argument that the decision violates section 12 of the Charter is without
merit. The officer’s decision does not involve any cruel and unusual treatment
or punishment.
VIII.
Conclusion
[42]
I am of the opinion that the application for
judicial review must be dismissed.
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