Docket: IMM-637-14
IMM-640-14
Citation: 2015
FC 231
Ottawa, Ontario, February 24, 2015
PRESENT: The Honourable Mr. Justice Fothergill
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BETWEEN:
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ARLENE KANEZA
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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]
Arlene Kaneza (the Applicant)
has brought two applications for judicial review. The first (IMM-637-14)
concerns a determination by Citizenship and Immigration Canada (CIC), following
a Pre-Removal Risk Assessment (PRRA), that she will not be subject to a risk of
persecution, torture, risk to life, or cruel or unusual treatment or punishment
if she is returned to Burundi. The second (IMM-640-14) concerns a denial by CIC
of the Applicant’s request for an exemption to enable her to apply for permanent
resident status from within Canada based on humanitarian and compassionate (H&C)
grounds.
[2]
For the reasons that follow,
the first application for judicial review is dismissed. The second application
for judicial review is allowed, and the matter remitted to a different
immigration officer for reconsideration of the best interests of the Applicant
as a child.
I.
Background
[3]
According to the Immigration
Officer’s written decisions, the Applicant’s requests for a PRRA and exemption
based on H&C grounds were based on the following contentions.
[4]
The Applicant is a citizen
of Burundi. At the time she entered Canada she was 17 years old.
[5]
On October 15, 2011, the Applicant
witnessed a female schoolmate being raped by a group of four young men. She
believed the men to be members of the Imbonerakure, which she described as a
powerful militia associated with Burundi’s ruling party, the National Council
for the Defence of Democracy – Forces for the Defence of Democracy. She
recognized one of the assailants as a fellow schoolmate.
[6]
The male schoolmate found
her at school, and threatened to kill her if she revealed what she had seen.
The Applicant had already informed a friend at school. Two days later, the male
schoolmate told the Applicant that she had not kept her promise and that she
was going to pay the price.
[7]
On October 25, 2011, while
the Applicant was waiting for a taxi outside her home to visit her aunt, a taxi
stopped and a young man got out and forced her inside the car. She was sexually
assaulted in the taxi by a group of young men including her male schoolmate.
They threatened to rape her before killing her.
[8]
The Applicant accidentally
punched the driver while trying to fight off her assailants. The driver lost
control of the car and collided with a Jeep. The assailants fled the scene and
the driver of the Jeep returned her to her home.
[9]
After the Applicant’s father
discovered what had happened, he decided that the Applicant should leave Burundi. He obtained a visa for her to travel to the United States of America (USA). On
December 17, 2011, the Applicant left Burundi with her father destined for the USA.
[10]
On December 19, 2011, the Applicant
arrived at the Canadian border by herself.
[11]
On March 26, 2012, the
Applicant submitted an application based on H&C grounds, which was denied
by the Immigration Officer. On April 23, 2012, she submitted a request for a
PRRA, which resulted in a determination against the Applicant by the same Officer.
[12]
The Applicant was scheduled
for removal to Burundi on March 27, 2014. On March 26, 2014, Justice Boivin ordered
a stay of the Applicant’s removal order until her application for leave and
judicial review of the PRRA decision was finally determined.
[13]
The Applicant submitted the
following in support of her PRRA: i) an undated letter from the Applicant; ii) a
letter from her lawyer dated May 13, 2012; iii) a psychological report dated 10
May 2012; and iv) news articles and country condition reports. The Immigration
Officer also considered material contained in the Applicant’s H&C
application.
[14]
Because she arrived at the
Canadian border from the USA, the Applicant is ineligible to apply for refugee
protection under paragraph 101(1)(e) of the Immigration and Refugee
Protection Act, the safe third country provisions.
[15]
The Immigration Officer
concluded that the Applicant was unable to demonstrate that she is a political
opponent of the Imbonerakure and would therefore be targeted by them. The Officer
acknowledged that the Applicant had submitted a psychological report to support
her fear of harm at the hands the Imbonerakure. However, the Officer gave the
psychological report low probative value, because the psychologist was not a
first-hand witness to the incidents.
[16]
Based on a review of
publicly available documents, the Immigration Officer noted that the
Imbonerakure sometimes attack political opponents and their relatives. Elderly
women and those with a mental or physical disability are more likely to be
targeted for rape. Rape victims in Burundi tend to resolve the issue informally
with their aggressors. They fear reprisal and stigmatization, and they are often
unaware of the procedures to seek justice. However, the Officer found that this
did not demonstrate that the Imbonerakure are generally prone to attack women
and sexually assault them. The Officer noted that the Applicant did not provide
other evidence to substantiate her allegations. The Officer therefore concluded
that the Applicant had not demonstrated that she was a victim of sexual assault
at the hands of the Imbonerakure, and that this group wants to harm her.
[17]
The Immigration Officer also
examined the Applicant’s profile as a 19-year-old woman. The Officer
acknowledged human rights problems in Burundi, and concluded that many women are
reluctant to report rape for cultural reasons. Nevertheless, there are services
available in Burundi to help women with counselling and reintegration. The Officer
found that the Applicant did not demonstrate that she could potentially face
problems if she returns to Burundi. The Officer also found that the Applicant did
not submit personalized evidence to demonstrate that, as a woman, she could be
harmed in Burundi.
[18]
The Immigration Officer
summarised his conclusion on the PRRA as follows:
The human rights situation is not without
problems in Burundi. Nevertheless, the applicant did not submit personalized
evidence demonstrating the presence of a personal risk of return to Burundi. Furthermore, she did not demonstrate that her situation is different from the rest
of the population in such a way that it would place her at risk based on her
personal profile including that of being a woman.
[19]
The Immigration Officer
found against the Applicant on the PRRA, concluding that she had not
demonstrated that there is more than a mere possibility of a well-founded fear
of persecution under section 96 of the Immigration and Refugee Protection Act.
Further, the Applicant did not establish on a balance of probabilities that she
is personally subject to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture;
or to a risk to her life or to a risk of cruel and unusual treatment or
punishment under section 97 of the Act.
[20]
With respect to the
Applicant’s H&C application, the Immigration Officer found that the Applicant
was unable to demonstrate that she would suffer unusual and undeserved or
disproportionate hardship if her establishment in Canada and links to Canadian
society were severed. The Officer noted that the Applicant did not submit
evidence to support her claim of financial support from a paternal aunt and an
organization named PRADA. The Applicant did not identify any other factors to demonstrate
her establishment in Canada or ties to Canadian society. The Officer observed
that it would not be unreasonable for the Applicant to return to her native
country after being in Canada for only two years, given that she was born in Burundi, spent most of her life there, and has relatives there to support her
re-establishment.
[21]
While the psychological
report stated that the Applicant experiences nightmares and headaches, the
Immigration Officer found that this did not indicate that the Applicant suffers
from a mental or physical condition that could prevent her from being
autonomous.
[22]
The Immigration Officer
acknowledged that the Applicant arrived in Canada as a minor child. The Officer
cited the legal requirement to be “alert, alive and sensitive” to the best
interests of the child (BIOC) when conducting an H&C analysis. However,
the Officer determined that the Applicant had not provided sufficient
information regarding the BIOC. The Officer was therefore not satisfied that
the BIOC in this case warranted an exemption to filing an application for permanent
residence from abroad.
[23]
The Immigration Officer’s analysis of country
conditions in Burundi and the probative value of the psychological report
submitted by the Applicant were similar to the Officer’s analysis that preceded
the adverse decision on the PRRA. Accordingly, the Officer concluded that the
Applicant would not face unusual and undeserved or disproportionate hardship
should she be returned to Burundi.
II.
Issues
[24]
The issues raised in these applications
for judicial review are the following:
A.
Did the Immigration Officer
apply the correct test in conducting the PRRA, and if so, was the Officer’s
conclusion reasonable?
B.
Did the Immigration Officer
apply the correct test in considering the BIOC, and if so, was the Officer’s
conclusion reasonable?
C.
Should there be an award of costs in favour of
the Applicant?
III.
Analysis
Did the Immigration Officer apply the correct
test in conducting the PRRA, and if so, was the Officer’s conclusion reasonable?
[25]
Whether the
Immigration Officer applied the correct legal test in conducting the PRRA is
reviewable on the standard of correctness. The Officer’s application of the
test to the facts at issue is a question of mixed fact and law and reviewable
on the standard of reasonableness, and is generally afforded deference by this
Court (Talipoglu v Canada (Minister of Citizenship and Immigration), 2014 FC 172 at para 22). An applicant
must demonstrate that there is more than a mere possibility of persecution (Chan
v Canada (Minister of Employment of Immigration), [1995] 3 S.C.R. 593 at para
120). Women who fear persecution due to their gender, and women who fear rape,
may constitute particular social groups pursuant to s. 96 of the Immigration
and Refugee Protection Act (Josile v Canada
(Citizenship and Immigration), 2011 FC 39 at para
24).
[26]
The Applicant takes issue
with the Immigration Officer’s conclusion that the Applicant “did not demonstrate that her situation is
different from the rest of the population in such a way that it would place her
at risk based on her personal profile including that of a being a woman.” She asserts that the Officer required the
Applicant to prove a risk that was different from that faced by the rest of the
population, rather than demonstrate something more than a mere possibility of
persecution.
[27]
Counsel for the Respondent
conceded that the Immigration Officer’s decision was “inelegant”. I agree with
the Applicant that the Immigration Officer was wrong to require the Applicant
to demonstrate a level of risk that differs from the rest of the Burundi population. However, the correct formulation of the legal test appears in the Immigration
Officer’s conclusion. Furthermore, read as a whole, the decision confirms that
the Immigration Officer’s attention was properly directed towards whether the
Applicant faced more than a mere possibility of persecution if she returned to
her native Burundi.
[28]
The Immigration Officer acknowledged that “it is possible that the applicant was a victim of sexual
assault,” but then concluded that “the applicant
did not demonstrate that she was a victim of sexual assault at the hands of the
Imbonerakure and that this group wants to harm her.” The Applicant
states that it is unclear whether the Immigration Officer doubted that the Applicant
was a victim of sexual assault, that the agent of persecution was the Imbonerakure,
or that there is an ongoing threat of harm to the Applicant.
[29]
The Applicant argues that
the Immigration Officer made implicit adverse findings of credibility, and an
oral hearing should have been convened to address them (Latifi v Canada (Minister
of Citizenship and Immigration), 2006 FC 1388 at paras 44-65). The
Respondent submits that the Officer did not make an adverse finding of
credibility against the Applicant, but rather concluded that the evidence
presented was insufficient to establish that the Applicant faced more than a
mere possibility of persecution in Burundi. According to the Respondent, the
Applicant was required to provide evidence to establish a forward-looking,
objective basis for her fear, and it was open to the Immigration Officer to
ascribe little probative value to her unsworn statements. The Respondent
contends that an adverse finding of credibility finding is distinct from an
applicant’s failure to meet his or her burden of proof on the balance of
probabilities (Herman v Canada (Minister of Citizenship and Immigration),
2010 FC 629 at para 17). I agree.
[30]
In Herman, Justice Crampton, as he then
was, quoted Ferguson v Canada (Minister of Citizenship and Immigration),
2008 FC 1067 as follows: “It is open to the trier of
fact, in considering the evidence, to move immediately to an assessment of
weight or probative value without considering whether it is credible.
Invariably this occurs when the trier of fact is of the view that the answer to
… [the question as to whether the evidence is credible] is irrelevant because
the evidence is to be given little or no weight, even if it is found to be
reliable evidence.” Justice Crampton continued:
I am satisfied that in the case at bar, the
PRRA Officer was not cloaking adverse credibility findings in conclusions that
the evidence adduced by the Applicant was not sufficient. In each instance, it
was reasonably open to the PRRA Officer to conclude, without making an adverse
credibility finding, that the evidence adduced was not sufficient to establish,
on a balance of probabilities, the claims advanced by the Applicant.
[31]
Counsel for the Applicant
conceded that the evidence tendered in support of the PRRA application could
have, and indeed should have, been better. This evidence consisted of an
undated and unsworn written document prepared by the Applicant, a supporting
letter from her lawyer, a psychological report that was based on two interviews
with the Applicant, news articles and country condition reports. As noted by
the Immigration Officer, “she
did not submit a police report, a medical document supporting her allegations,
a letter from her father or any other relative or witness that could
corroborate her allegations ...”
[32]
In my view, this case is
similar to Herman and Ferguson, and it was reasonably open to the
PRRA Officer to conclude, without making an adverse credibility finding, that
the evidence adduced was not sufficient to establish, on a balance of
probabilities, the claims advanced by the Applicant. I therefore disagree with
the Applicant that it was necessary for the Immigration Officer to convene an
oral hearing to give the Applicant an opportunity to buttress a fundamentally
weak case.
[33]
I would accordingly dismiss
the Applicant’s application for judicial review of the Immigration Officer’s
adverse determination of the PRRA.
Did
the Immigration Officer apply the correct test in considering the BIOC, and if
so, was the Officer’s conclusion reasonable?
[34]
Whether the Immigration Officer applied the
correct legal test for assessing the BIOC is a question of law to be reviewed
on the standard of correctness (Judnarine v Canada (Minister of Citizenship
and Immigration), 2013 FC 82 at para 15). The officer’s treatment of the
evidence is to be reviewed on the standard of reasonableness (Mandi v Canada (Minister of Citizenship and Immigration), 2014 FC 257 at para 19).
[35]
The Applicant submits that the
officer failed to apply the correct BIOC test, and instead simply determined
that there was a “lack of
sufficient details and [a] lack of evidence regarding the BIOC.” She argues that the long-standing jurisprudence
of this Court requires that an officer conducting a BIOC analysis be “alert,
alive and sensitive.” (Kolosovs v Canada (Minister of Citizenship and Immigration),
2008 FC 165).
[36]
When
assessing a child’s best interests, an Immigration Officer must establish first
what is in the child's best interest; second, the degree to which the child’s
interests are compromised by one potential decision over another; and then
finally, in light of the foregoing assessment, determine the weight that this
factor should play in the ultimate balancing of positive and negative factors
assessed in the application (Williams
v Canada (Minister of Citizenship and Immigration), 2012 FC 166 at paras 64-65; and Chandidas v Canada (Minister
of Citizenship and Immigration), 2013 FC 258 at para 66). This is followed by
a weighing of the BIOC in the overall H&C decision. The Officer must
balance the hardship of removal against other factors that might mitigate the adverse
consequences of removal (Hawthorne v Canada (Minister of Citizenship
and Immigration), 2002 FCA 475 at para 5).
[37]
The Applicant argues that,
while the evidentiary record may have been wanting, this did not relieve the
Immigration Officer of the obligation to conduct a proper BIOC analysis.
[38]
In Kolosovs, Justice
Campbell explained the meaning of “alert, alive and sensitive” as follows:
[9] The word alert implies awareness. When
an H&C application indicates that a child will be directly affected by the
decision, a visa officer must demonstrate an awareness of the child's best
interests by noting the ways in which those interests are implicated.
[…]
[11] Once an officer is aware of the best
interest factors in play in an H&C application, these factors must be
considered in their full context and the relationship between the factors and
other elements of the fact scenario concerned must be fully understood. Simply
listing the best interest factors in play without providing an analysis on
their inter-relationship is not being alive to the factors. In my opinion, in
order to be alive to a child's best interests, it is necessary for a visa
officer to demonstrate that he or she well understands the perspective of each
of the participants in a given fact scenario, including the child if this can
reasonably determined.
[12] It is only after a visa officer has
gained a full understanding of the real life impact of a negative H&C
decision on the best interests of a child can the officer give those best
interests sensitive consideration. To demonstrate sensitivity, the officer must
be able to clearly articulate the suffering of a child that will result from a
negative decision, and then say whether, together with a consideration of other
factors, the suffering warrants humanitarian and compassionate relief.
[39]
According to section 5.19 of
the CIC Operational Manual IP 5 – “Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds”, factors relating to a child’s emotional,
social, cultural, physical and educational welfare should be taken into account
when they are raised. These may include:
•
the age of the child;
•
the level of dependency
between the child and the H&C applicant;
•
the degree of the child's
establishment in Canada;
•
the child’s links to the
country in relation to which the H&C decision is being considered;
•
medical issues or special
needs the child may have;
•
the impact to the child’s
education;
•
matters related to the
child’s gender.
[40]
In this case, the
Immigration Officer acknowledged the Applicant’s status as a minor child. However,
because the Applicant did not provide sufficient information regarding the BIOC
beyond the allegations of harm in Burundi, the Officer was not satisfied that
the BIOC warranted an exemption from the requirement to file an application for
permanent residence from abroad.
[41]
The Respondent attempted to
distinguish the jurisprudence of this Court regarding the BIOC on the ground
that in this case the Applicant is herself the child. Ordinarily, the Court is
asked to consider the BIOC in the context of an application by another person,
typically a parent, who does not have status in Canada.
[42]
In Beharry v Canada (Citizenship and Immigration), 2011 FC 110,
the applicant and her two minor children all applied for permanent residence on
H&C grounds. None of them had status in Canada. Justice Mactavish concluded
that the immigration officer had failed to conduct a proper BIOC analysis, and
allowed the application for judicial review:
[14] As the Federal
Court of Appeal observed in Hawthorne, immigration officers are presumed
to know that living in Canada can afford many opportunities to a child that may
not be available in the child’s country of origin. The task of the officer is
thus to assess the degree of hardship that is likely to result from the removal
of the child from Canada, and then to balance that hardship against other
factors that might mitigate the consequences of removal: see also Ruiz v.
Canada (Minister of Citizenship and Immigration), 2009 FC
1175 (CanLII), [2009] F.C.J. No. 1474, at para. 31.
[15] In other words,
the Officer had to determine whether the children’s best interests, “when
weighed against the other relevant factors, justified an exemption on H&C
grounds so as to allow them to enter Canada”: Kisana v. Canada (MCI), 2009 FCA
189 (CanLII), at para. 38. That is not what happened here.
[43]
This case is similar. The
Immigration Officer did not specifically evaluate the interests of the
Applicant as a minor child, how they would be affected by removal, and the
suffering that could result from an adverse decision. There was no mention in
the Officer’s BIOC analysis of the risk of psychological harm if the Applicant
is deported to Burundi, despite some evidence having been adduced to this
effect. Nor was any serious consideration given to the impact of removal on the
Applicant’s education or matters related to her gender, having regard to the prevalence
of sexual and gender-based violence in Burundi.
[44]
I am therefore of the view
that the Immigration Officer applied the incorrect test in assessing the BIOC,
and the decision as a whole did not fall within a range
of possible acceptable outcomes which are defensible in respect of the facts
and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). The application for judicial review of the denial of the
Applicant’s request for an exemption to enable her to apply for permanent
resident status from within Canada based on H&C grounds is allowed.
Should there be an award of
costs in favour of the Applicant?
[45]
Success on the two
applications for judicial review was mixed. Nor are there any special reasons
that would justify an order of costs in accordance with Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22. Accordingly, no
costs are awarded to either party.
Certified
question
[46]
Neither
party has suggested a question for certification, and none arises here.
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