Docket: IMM-6029-13
Citation:
2015 FC 80
Ottawa, Ontario, January 21. 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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MARIE
ASSUMPTA JUDY DEVADAWSON (A.K.A. MARIE ASSUMPTA DE VADAWSON)
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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.
Background and Nature of the Matter
[1]
Ms. Devadawson [the Applicant] sought an
exemption from the in-Canada selection criteria based on humanitarian and
compassionate [H&C] grounds pursuant to section 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA]. Her
application for that exemption was refused by a senior immigration officer [the
Officer], so she now applies for judicial review pursuant to section 72(1) of
the IRPA, requesting that this Court set aside the Officer’s decision
and return the matter for re-determination by a different decision-maker. The
Applicant had been scheduled to be removed from Canada shortly after filing
this application but this Court stayed that removal pending the determination
of this application.
[2]
The Applicant is a Sri Lankan woman who came to Canada on May 12, 2010, seeking refugee protection and claiming to be a human rights activist who
was targeted because she obtained information that could embarrass the
government in Sri Lanka. The Immigration and Refugee Board [the IRB] did not
believe the Applicant’s claim and denied her protection as a refugee. The
Applicant sought judicial review of the IRB’s decision, but this Court denied
leave to apply for judicial review on May 2, 2011 (Devadawson v Canada (Citizenship and Immigration), IMM-585-11 (FC)).
[3]
Subsequent to such denial of leave, the
Applicant next applied for a pre-removal risk assessment [a PRRA] and for
permanent residence from within Canada on H&C grounds. Both of these
applications were refused, so the Applicant again sought relief from this
Court. The Applicant’s application for leave to apply for judicial review of
the PRRA decision was denied by this Court on June 10, 2013 (Devadawson v Canada (Citizenship and Immigration), IMM‑695-13 (FC)). The Applicant’s
application with respect to the H&C decision was withdrawn on June 6, 2013,
after the Minister of Citizenship and Immigration [the Minister] undertook to
have a different immigration officer reconsider the H&C decision; the Applicant
was afforded 30 days to submit any updated information for purposes of
this reconsideration.
II.
Decision under Review
[4]
Upon reconsideration, the Officer refused the
Applicant’s H&C application.
[5]
The Applicant’s claims, in part, were that she
feared persecution, risk of torture, and a risk to her life if she returned to Sri Lanka. The Officer dismissed those claims, saying that section 25(1.3) of the IRPA
precludes consideration of “factors which pertain
to a fear of persecution and/or risk to life, or of cruel and unusual
punishment”. The Officer stated that, since discrimination
does not always rise to the level of persecution, it might nonetheless be an
unusual and undeserved or disproportionate hardship faced by the Applicant.
[6]
In considering the discrimination which the
Applicant claimed she faced, the Officer reviewed a number of country
conditions documents supplied by the Applicant which described the plight of
Tamils in Sri Lanka. The Officer was not satisfied, however, that these country
conditions would directly and personally affect the Applicant. Although the
Applicant claimed that she had been harassed and discriminated against due to
her gender, ethnicity, religion, and perceived political opinion, the Officer
determined that the details of any such harassment or discrimination were vague
and uncorroborated. The Officer was not satisfied that the Applicant would be
adversely treated on the basis of any of those factors.
[7]
As for the Applicant’s work as a human rights
activist, the Officer noted that her claims were materially similar to the ones
rejected by the IRB, whose decision the Officer gave considerable weight. The
Officer found that the threats described by the Applicant were intended to keep
her from leaving her position with the provincial council, and she ultimately
got what she wanted when that position was terminated. Given the Applicant’s
impressive work history and her courage, the Officer concluded that she would
have no trouble finding new employment as a human rights activist if that was
what she wished to do.
[8]
The Officer accepted that the Applicant had
established herself in Canada and was supported by many positive character
references. However, the Officer determined that the Applicant could maintain
her friendships in Canada through other means and that she had lots of friends
in Sri Lanka as well. The Officer also accepted that the Applicant sent money
to her family in Sri Lanka and that there would be a disruption in their
quality of life if she lost her job in Canada. However, the Officer found that
the Applicant had good employment prospects since she is multi-lingual,
intelligent, and has a wealth of job experience. Furthermore, the Officer
noted, since the Applicant had spent most of her life in Sri Lanka, she should have no difficulty re-integrating in Sri Lanka. The Officer determined that
the Applicant’s level of establishment in Canada was not beyond what could be
expected while she received due process on her refugee claim, and that her
establishment here was not so great that having to apply for permanent
residence from Sri Lanka would be an unusual and undeserved or disproportionate
hardship.
[9]
The Officer noted that the Applicant has a lot
of family members still in Sri Lanka, including six children, several of whom
are adults. The Officer found there was no reason to believe that the
Applicant’s family could not support her if she needed them. As for her younger
children, the Applicant’s own testimony was that they had been affected
immensely by their separation from her, so the Officer concluded that
re-uniting them with the Applicant was in their best interests.
[10]
In the result, the Officer rejected the
Applicant’s application in a letter dated August 12, 2013. However, this decision
was not communicated to the Applicant until September 3, 2013, and in the
meantime the Applicant had submitted additional materials to the Officer and
requested an interview.
[11]
Following receipt of these additional materials,
the Officer wrote an addendum to the August 12 decision in a letter dated
August 29, 2013, wherein the Officer stated that he had considered all of the
additional material submitted up until August 28, 2013. These additional
materials did not change the Officer’s initial decision as stated in the August
12 letter. The Officer did not agree with the Applicant that an interview was
required, since the Applicant’s “credibility was not
found to be an issue”. The Applicant also submitted that she did not
have the chance to present police clearances, but that was irrelevant, the
Officer stated, since it had no bearing on the decision to reject the
Applicant’s application. The Officer accepted the bank statements and the
additional letters of support supplied by the Applicant, but decided that these
documents were consistent with the earlier findings anyway. In the end, the
Officer was still not satisfied that having to apply for permanent residence
from outside Canada would result in sufficient hardship to the Applicant to
justify an exemption.
III.
Issues
[12]
The Applicant focuses on the following three
issues in her supplementary memorandum of argument:
1.
What is the standard of review?
2.
Were there breaches of procedural fairness in
this case?
3.
Did the Officer make an unreasonable decision
by: ignoring and/or selectively relying on the evidence; by conducting a flawed
country analysis and/or by misconstruing the definition of “discrimination” in
relation to the test for hardship; and/or by failing to take into account the
best interests of the children?
[13]
The Respondent argues that the Officer did not
err in refusing the Applicant’s H&C application and did not breach the duty
of procedural fairness. The Respondent also contends that the Applicant has
improperly supplemented the record before the Court.
IV.
Parties’ Arguments
A.
Applicant’s Arguments
[14]
The Applicant submits that no deference is owed
to the Officer on questions of procedural fairness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR
339 [Khosa]). For the other issues raised by the application, the
Applicant acknowledges that the standard of review is one of reasonableness (Shallow
v Canada (Citizenship and Immigration), 2012 FC 749 at para 5, 410 FTR 314
[Shallow]), but emphasizes that the Court must assess the Officer’s
reasons on their own merits and not substitute better reasoning to justify the
outcome (see e.g., Pathmanathan v Canada (Citizenship and Immigration),
2013 FC 353 at paras 27-28, 430 FTR 192).
[15]
The Applicant argues that H&C applicants are
owed more than a minimal level of procedural fairness (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 32, 174
DLR (4th) 193 [Baker]), and it includes a right to an interview when
credibility is at stake (Duka v Canada (Citizenship and Immigration),
2010 FC 1071 at paras 12-14, 92 Imm LR (3d) 255 [Duka]). The Applicant
asserts that the Officer implicitly rejected the Applicant’s statutory
declaration, and so her credibility was in issue. Furthermore, the Applicant
submits that, while the IRB had rejected her claims to be a human rights
activist, the PRRA officer did not. In these circumstances, the Applicant
argues that she should have been granted an interview and that she was denied
the right to know the case to meet (Pusat v Canada (Citizenship and
Immigration), 2011 FC 428 at para 32, 388 FTR 49). She also asserts that it
was unfair to re-open the decision without waiting for forthcoming evidence,
and to waive the requirement of police clearances in order to more quickly
refuse the application.
[16]
The Applicant also argues that the Officer
ignored evidence. For example, the Officer found that the Applicant had not
proven any personal link to the problems faced by perceived supporters of the
Liberation Tigers of Tamil Eelam [the LTTE], but the Applicant’s statutory
declaration identifies clearly that she was once suspected of having
connections to the LTTE. Similarly, the Applicant says that her statutory
declaration provides links to the problems of discrimination and harassment
faced by women and activists in Sri Lanka.
[17]
The Applicant states that human rights
organizations in Sri Lanka are threatened by the government, so it was
unreasonable to dismiss her financial concerns by saying that such an
organization might hire her because of her history of activism. This finding,
the Applicant says, was also selective and perverse: selective, because the
Officer rejected her history of activism in order to find that she had
established no link to the country conditions, and made an opposite finding to diminish
her claim; and perverse, because it means that she could only avoid the
hardship of being unable to support herself by courting the risks of activism.
This was unreasonable, the Applicant states, since she established that her
family could not be adequately supported without her income.
[18]
The Applicant further states that the Officer
ignored her evidence of establishment by dismissing it as merely what could be
expected (El Thaher v Canada (Citizenship and Immigration), 2012 FC 1439
at para 52, [2012] FCJ No 1658 (QL) [El Thaher]).
[19]
The Applicant says that the Officer had to
consult the most recent documentary evidence, and it was wrong to dismiss such
evidence just because it did not personally name the Applicant. This evidence
described risks faced by people of the Applicant’s ethnicity, gender, and
perceived political opinion, and it had to be considered. According to the
Applicant, the concept of personalized risk has no place in an H&C
application (Hamam v Canada (Citizenship and Immigration), 2011 FC 1296
at para 44, 3 Imm LR (4th) 289).
[20]
Finally, the Applicant says that the Officer’s
analysis of the best interests of the children was internally inconsistent. It
was unreasonable, the Applicant states, to find that returning the Applicant to
Sri Lanka would adversely affect them yet still be in their best interests.
B.
Respondent’s Arguments
[21]
As a preliminary issue, the Respondent argues
that the Applicant has improperly supplemented the record by relying on
evidence which was not before the Officer and which was filed with the Court
for purposes of the Applicant’s motion to stay her removal from Canada.
[22]
The Respondent agrees that the standard of
review for procedural issues is correctness, but the “highly deferential”
reasonableness standard otherwise applies in reviewing the Officer’s decision.
[23]
The Respondent emphasizes that the denial of an
H&C exemption does not involve the determination of any legal rights. According
to the Respondent, the purpose of the H&C process is not to eliminate all
hardship, just that which is unusual and undeserved or disproportionate and
which directly affects applicants (Kanthasamy v Canada (Citizenship and
Immigration), 2014 FCA 113 at paras 49-50, 55, 372 DLR (4th) 539, leave to
appeal to SCC granted, 35990 (4 December 2014) [Kanthasamy]).
Consequently, the Respondent states that it is difficult to show that an
H&C decision was unreasonable and the onus is upon the Applicant to do so (Mikhno
v Canada (Citizenship and Immigration), 2010 FC 386 at para 25, [2010] FCJ
No 583 (QL)).
[24]
In this case, the Respondent says that there was
no breach of procedural fairness. Interviews are not generally required and no
interview was required in this case since credibility was not in issue and, in
any event, the IRB and PRRA decisions were consistent.
[25]
Furthermore, the Respondent submits that the
Applicant bore the burden to supply evidence and was given 30 days to do so
after the Minister’s undertaking to reconsider the Applicant’s application in
June, 2013 (Owusu v Canada (Minister of Citizenship and Immigration),
2004 FCA 38, [2004] 2 FCR 635 [Owusu]). The Respondent says that the
Applicant submitted all of her evidence late, but the Officer still considered
it and, with the August 29 addendum, even re-opened the decision for her. The
Respondent states that the Applicant was given ample opportunity to make her
case and provided no excuse for why she did not submit evidence on time. As for
the missing police clearance, the Respondent says that had no bearing on the
decision and could not affect the result.
[26]
The Respondent submits that the Officer did not
ignore any of the evidence and did not have to determine whether the Applicant
was at risk of persecution. The Officer was entitled to consider the IRB
findings since the basic allegations were the same. As such, according to the
Respondent, it was reasonable for the Officer to find that there was no
evidence of discrimination or hardship upon which the Applicant’s claim of
hardship could be based.
[27]
The Respondent states that the Officer’s
findings regarding the Applicant’s income, establishment, and re-integration were
reasonable and the Officer properly concluded that such hardships did not meet
the threshold for H&C consideration. Furthermore, the Respondent submits
that the Officer’s assessment of the best interests of the children was also
reasonable.
[28]
The Respondent states that the Applicant simply
did not link any of the negative country conditions to her situation. The
Respondent argues that H&C applications cannot be granted based on the
hardships faced by other people and the Applicant’s claims that she fits those
profiles were simply bald assertions.
V.
Analysis
[29]
The issues raised by this application for
judicial review can be addressed in the following order:
1.
Is the evidence challenged by the Respondent
admissible?
2.
What is the standard of review?
3.
Was the process unfair?
4.
Was the decision unreasonable?
A.
Is the evidence challenged by the Respondent
admissible?
[30]
At the hearing of this matter, the Respondent
argued that the Applicant had improperly supplemented the record for judicial
review by relying on evidence which was not before the Officer. This evidence
was filed with the Minister after the Officer’s decision and for purposes of
the Applicant’s motion to stay her removal from Canada.
[31]
The general rule in this regard is that the
evidentiary record for purposes of a judicial review application is restricted
to that which was before the decision-maker (Association of Universities and
Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright),
2012 FCA 22 at para 19, 428 NR 297 [Association of Universities]).
Despite this general rule, new evidence can sometimes be admitted if it is
necessary to substantiate a procedural defect not apparent in the record (Association
of Universities at para 20). That, however, is not the case here since the
procedural defect about which the Applicant complains was the Officer’s
decision not to grant the Applicant an interview.
[32]
The Applicant argues that the Officer had a duty
to consult the most recent sources of country condition information and is not
limited to materials furnished by the Applicant, and the disputed evidence here
could be relevant insofar as it shows that there was recent evidence that the
Officer did not consult.
[33]
I reject the Applicant’s foregoing argument. The
additional evidence adduced by the Applicant subsequent to the date of the
Officer’s decision cannot and will not be considered by the Court in assessing
the Officer’s decision. The Applicant cannot now produce new evidence which was
not before the Officer in an effort to buttress and bolster her arguments that
the Officer erred in assessing the Applicant’s application.
B.
What is the standard of review?
[34]
As both parties acknowledge, the Supreme Court
has said that the standard of review for procedural issues is nominally
correctness (Khosa at para 43; Mission Institution v Khela,
2014 SCC 24 at para 79, [2014] 1 S.C.R. 502). Reviewing courts are responsible for
determining whether the process was fair, although relief may be withheld if
any error is “purely technical and occasions no
substantial wrong or miscarriage of justice” (Khosa at para 43).
Accordingly, the process by which the Officer assessed the Applicant’s H&C
application, including the Officer’s decision not to grant the Applicant an
interview, should be assessed from a standard of correctness.
[35]
As for the other issues, the standard of review
is reasonableness (Baker at para 62; Kanthasamy at para 32; Shallow
at para 5). Accordingly, this Court should not intervene so long as “the reasons allow the reviewing court to understand why the
tribunal made its decision and permit it to determine whether the conclusion is
within the range of acceptable outcomes” (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 16, [2011] 3 S.C.R. 708).
[36]
Furthermore, the Court does not have “carte blanche to reformulate a tribunal’s decision in a way
that casts aside an unreasonable chain of analysis in favour of the court’s own
rationale for the result” (Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 54,
[2011] 3 S.C.R. 654, citing Petro-Canada v British Columbia (Workers’
Compensation Board), 2009 BCCA 396 at para 56, 276 BCAC 135; Lemus v
Canada (Citizenship and Immigration), 2014 FCA 114 at paras 29-38, 372
DLR (4th) 567).
C.
Was the process unfair?
[37]
After the application for leave to apply for
judicial review of the H&C decision was discontinued in early June, 2013, the
Applicant was afforded 30 days to submit any new information. She submitted her
first batch of information on July 3, 2013, but it was not received at the Minister’s
Toronto office until July 17, 2013. The Applicant continued to send new
information after the 30 day deadline and even after the Officer’s decision was
made on August 9, 2013. The Officer clearly considered all of the
Applicant’s new information up until August 28, 2013, as it was specifically
referenced in the letter dated August 29, 2013. As for the material she sent on
September 3, 2013, the Applicant is not entitled to interminably delay the
decision-making process by disclosing her evidence in late instalments.
Ultimately, the Applicant had ample time to make her case before the Officer. I
agree with the Respondent that the police clearances were immaterial to the
decision under review.
[38]
The Applicant, citing Yang v Canada (Citizenship and Immigration), 2013 FC 20 at para 23, [2013] FCJ No 25 (QL)
[Yang], claims that “an officer has a duty to
consult the most recent sources of information and is not limited to materials
furnished by the applicant”. In Yang, however, Mr. Justice Mosley
was reviewing both a PRRA decision and an H&C decision, and it was with
respect to the PRRA decision that this principle applies (Hassaballa v
Canada (Citizenship and Immigration), 2007 FC 489 at para 33, [2007] FCJ No
658 (QL); Lima v Canada (Citizenship and Immigration), 2008 FC 222 at
para 13). No such duty applies in respect of an H&C decision, for which the
“applicant has the burden of adducing proof of any claim
on which the H & C application relies. Hence, if an applicant provides no
evidence to support the claim, the officer may conclude that it is baseless”
(Owusu at para 5).
[39]
Furthermore, the guidance set forth in
Citizenship and Immigration Canada’s Manual, “IP 5:
Immigrant Applications in Canada made on Humanitarian and Compassionate Grounds”
[the Manual], does not, as the Applicant suggests, create a duty for an
immigration officer to consult the most recent sources of information and go
beyond the materials furnished by the applicant. Section 5.18 of the Manual makes
it clear that an “H&C Officer may undertake
research with respect to the issues identified in the application” (emphasis
added). While this section goes on to say that applicants “can expect officers to routinely refer to the most
recent information sources identified below in 5.19” (emphasis added),
that simply puts applicants on notice that such information may be considered.
Section 5.18 of the Manual does not make it mandatory for an officer to refer
to the most recent information sources and, regardless of what sources of
information the Officer may or may not have considered, there was no breach of any
duty owed to the Applicant in this regard.
[40]
With respect to the Applicant’s request for an
interview, the Supreme Court has said that “an oral
hearing is not a general requirement for H & C decisions” (Baker at
para 34; see also Owusu at para 8). However, that is not invariably the
case, and an interview should be held if credibility is a determinative issue (Duka
at paras 11-13; ND v Canada (Citizenship and Immigration), 2014 FC 742
at para 63, [2014] FCJ No 795 (QL); see also Khan v University of Ottawa,
[1997] OJ No 2650 (QL) at para 22, 34 OR (3d) 535, 148 DLR (4th) 577).
[41]
In this case, the Applicant’s refugee claim was
denied exclusively because the IRB found her not to be credible. The Officer
acknowledged that the IRB’s findings were not binding, but nevertheless gave
them “considerable weight”. That said, the Officer
began the next paragraph in his decision with “[n]otwithstanding
the above, …”, and the Officer stated that the Applicant’s credibility
was not in issue in the addendum letter dated August 29, 2013, saying:
[I]t is to be noted that the applicant’s
credibility was not found to be an issue in this H&C application. Reference
is made in my decision to the credibility findings by the Immigration and
Refugee Board (IRB) within the historical context of the applicant’s immigration
history. It is also to be noted that although a high deference was awarded to
the IRB findings it is stated that I am not bound by that decision.
[42]
The Officer thus conducted the review of the
Applicant’s H&C application assuming that the Applicant was credible. The
Officer therefore did not err by refusing the Applicant an interview.
[43]
In my view, the process by which the Applicant’s
H&C application was considered was fair and the Officer’s decision cannot
be quashed on this basis.
D.
Was the Officer’s decision unreasonable?
[44]
The Applicant points out that the USDOS report before
the Officer expressly stated that there are major human rights problems in Sri Lanka where there were “attacks on and harassment of civil
society activists, [and] persons viewed as Liberation Tigers of Tamil Eelam”.
Also, “[v]iolence and discrimination against women were
problems”. The Officer never questioned that the Applicant was a Tamil
woman and an activist, yet the Applicant says these factors were completely
ignored.
[45]
I disagree. The Officer simply observed that,
although not conclusive, an applicant’s past personal experiences were relevant
to establishing a link to the country conditions. The Officer rejected some of
the accounts in the Applicant’s statutory declaration because she did “not clarify from whom she fears the harassment and
discrimination” and she provided little objective evidence that she
would be unable to find employment. The Officer further found “the applicant’s statement to be abstract, lacking in details
and examples of incidents within the context of previous or anticipated
hardship in the field of employment and discriminatory treatment”. In
the Officer’s view, the Applicant simply did not supply enough evidence to
satisfy her burden with respect to those allegations (Owusu at para 5).
A review of the Applicant’s statutory declaration shows that finding is
justifiable, and the Court cannot disturb it without re-weighing the evidence.
[46]
The Applicant’s allegations about the harassment
and threats she received relating to her position with the provincial council
were not vague. The Officer noted, however, that that position has been
terminated and, impliedly, would no longer be a source of hardship. This
conclusion is reasonable.
[47]
The Applicant also argued that the Officer
ignored the fact that her family depended on her to maintain an adequate
standard of living. However, the Officer expressly acknowledged that “an additional income is always beneficial and the applicant’s
family may experience some hardship due to a discontinuation of financial
funds”. The Officer simply found that it would not be an unusual and
undeserved or disproportionate hardship since: (1) her family had gotten by
even when she had no income; (2) she is highly employable and could find work in
Sri Lanka; and (3) her many other family members in Sri Lanka could likely
support her. The Applicant further argued that she should not have to court the
risk of being an activist to provide for her family. However, given the
Officer’s findings that the Applicant was multi-lingual, intelligent, had 11
years of teaching experience prior to her work as an activist, and had gained
work experience in Canada as a security guard, it is evident and reasonable
that the Officer did not think working as an activist was the only employment
she could pursue.
[48]
Finally, the Applicant submitted that the
Officer erred by ignoring and negating positive establishment evidence on the
basis that it is only what is expected, and cited El Thaher for that
proposition. In El Thaher, however, Mr. Justice Russell allowed the
application for judicial review on the basis that the H&C decision was
missing any “analysis of the degree of establishment”
(El Thaher at para 56). The same cannot be said here. The Officer gave
“high regard” to the positive character references and acknowledged that the
Applicant had integrated herself into Canada. Nonetheless, the Officer found
that the bonds the Applicant had created in Canada would not be severed since
she could maintain these relationships through means other than physical
proximity. It is understandable why the Officer found it would not cause
unusual and undeserved or disproportionate hardship if the Applicant were to
apply for permanent residence through the ordinary mechanisms of the IRPA.
[49]
Lastly, the Applicant submitted that the
Officer’s analysis of the best interests of the children was internally
inconsistent. The Officer said:
I am cognizant of the applicant’s reference to
her separation from her youngest children and affecting “them immensely.” I
find that it is in the best interests of the applicant’s youngest children
that she returns to Sri Lanka where her children could benefit from having
their mother back in their lives.
The applicant also indicates that her children
have had to change dwelling places five times and change of schools due to
“fear within an year, and search by the pro government militants too had
affected my children psychologically.” [sic] I find that there is insufficient
information to substantiate this statement. Moreover, I find that there is
information to indicate that the best interests of applicant’s children will be
adversely affected if this application was to be refused. [Emphasis added]
[50]
On first impression, it appears that the
underlined sentences above contradict each other. However, in my view, the
adverse effect upon the Applicant’s children that the Officer refers to above
is that which would be occasioned by money no longer being sent by the
Applicant from Canada to her family in Sri Lanka. These statements by the
Officer are not internally inconsistent, as the Applicant suggests, but rather
reflect the Officer’s balancing of the factors affecting the best interests of
the children.
[51]
At page five of the decision, the Officer
correctly stated that the Applicant bore the onus to show that any adverse
country conditions would directly and personally affect her (Kanthasamy
at paras 48-49; Vuktilaj v Canada (Citizenship and Immigration), 2014 FC
188 at para 36, 24 Imm LR (4th) 234). However, the Officer appears to qualify
that by saying: “I find the applicant has failed to
establish the facts of her case as it pertains to adverse country conditions in
that she would be subjected to conditions not faced by the general populace”
(emphasis added). It goes without saying that someone can be personally
affected by a particular problem no matter how many other people in their
country of origin are also affected by it. Importing a strict legal rule from
paragraph 97(1)(b)(ii) of the IRPA betrays the underlying purpose of
H&C discretion and directly violates section 25(1.3) of IRPA (Kanthasamy
at para 76, citing Caliskan v Canada (Citizenship and Immigration), 2012
FC 1190 at para 22, [2014] 2 FCR 111). However, I do not think this one misstatement
affects the reasonableness of the Officer’s decision as a whole or makes the
outcome of the decision fall outside the range of acceptable outcomes. In all
other respects, the Officer correctly stated the test and the factual findings
support the conclusion that the Applicant would not be personally affected. Consequently,
the decision is still understandable and reasonable as a whole.
VI.
Conclusion
[52]
In the end, I find that the Officer’s decision
was reasonable and the application for judicial review should be and is hereby
dismissed, and there shall be no order as to costs. Neither party suggested a
question for certification; so, no such question is certified.
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