Docket:
IMM-1232-13
Citation: 2013 FC 1200
Ottawa, Ontario, this 29th
day of November 2013
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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MARIE EDITHE BERTHOUMIEUX
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Applicant
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And
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review pursuant
to subsection 72(2) of the Immigration and Refugee Protection Act, SC
2001, c 27 (the “Act”). The applicant is arguing that the decision-maker who
rejected her request on humanitarian and compassionate [H&C] grounds to be
exempted from having to return to Haiti to apply for permanent residence failed
to assess properly the hardship which she would face if returned to Haiti.
[2]
Although the decision made is certainly not
perfect, an intervention of this Court is not warranted when the decision is
read in context, together with the facts of this case.
Facts
[3]
The applicant is a Haitian national. It appears that
she left Haiti in February 2002 in order to live in the United States. However, she never acquired any status in that country. Instead, she came to
Canada on October 18, 2007 and sought refugee status. Her claim was denied on
April 2, 2009.
[4]
It is only in April 2010 that she made her
request pursuant to section 25 of the Act in order to be exempted on H&C
grounds. To my surprise, her request was the subject of a decision only in
January 2013. It is unclear why it took close to three years for the matter to
be addressed by a senior immigration officer. Such appears to be the backlog. Be
that as it may, I do not believe that anything turns on such a delay in dealing
with the applicant’s request. Evidently, the applicant was not complaining
about the delay it took to have her request considered. It is from that
decision of a senior immigration officer (the “officer”) that judicial review
is sought.
[5]
Originally, the applicant complained about the
decision on two fronts. First, she claimed that the officer unreasonably
disregarded the risk of sexual violence the applicant would face if she were to
return to Haiti and, more generally, the officer disregarded evidence of
generalized hardship in view of the humanitarian crisis in Haiti. The second argument dealt with the establishment of the applicant in Canada. That ground has since been abandoned.
[6]
In essence, the applicant presented documentary
evidence tending to show that the situation in Haiti is such that a single
woman, which is the situation in which the applicant finds herself, would face
hardship if she were to return to Haiti and she would be at risk of falling victim
to the sexual violence that appears to be prevalent in the country in the wake
of the national catastrophe that struck Haiti in 2010. We know very little of
the circumstances of this applicant.
Argument
[7]
The applicant contends that once that evidence of
the conditions of the country to which she would be returned is led, it is
incumbent on the officer to conduct an analysis in order to conclude whether or
not H&C grounds are present and are sufficient for section 25 of the Act to
be engaged. As is well known, section 25 of the Act is a discretionary remedy
that must be exercised by the Minister in a reasonable fashion. Absolute
discretion does not exist, but decisions made pursuant to section 25 benefit
from a significant measure of deference on judicial review. Subsection 25(1)
reads:
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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 or does not meet the
requirements of this Act, and may, on request of a foreign national outside
Canada 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, soit ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada 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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[8]
In effect, the applicant argues that it is incumbent on the respondent
to assess the risk faced if returned to Haiti on the basis of the documentary
evidence. That risk is relative to sexual violence against women.
[9]
Similarly, the applicant would want that the general conditions in Haiti are such that, in and of themselves, they should have been assessed to conclude that
they constitute undue hardship.
[10]
The parties agree that the standard of review is that of the reasonable
decision which, as indicated before, implies a significant measure of deference
with respect to the officer’s decision.
Analysis
[11]
The difficulty with the argument made by the applicant
is that she shifts the burden on the decision-maker without offering any
evidence that would tend to personalize the hardship that is alleged. To put it
another way, the applicant describes, through documentary evidence, the
difficult circumstances that existed in Haiti in 2010 and, to a lesser extent,
since 2010. However, we know very little about her personal circumstances and
what she would face if she were to return to Haiti.
[12]
The recent case law emanating from this Court stresses
that the hardship must be personalized in order to satisfy section 25
applications. I find myself in agreement with my colleague Justice Richard
Boivin who wrote, in Villa v Minister of Citizenship and Immigration,
IMM-10125-12 (June 11, 2013) [Villa]:
Although the focus
should be on the hardship, not on the risk itself (Sahota v Canada (Minister
of Citizenship and Immigration), 2007 FC 651, [2007] FCJ No 882 (QL)), the
Court recalls that the personalized element must still be reflected in the
consideration of risk as having potential to cause unusual and undeserved or
disproportionate hardship in the analysis of an H&C application (Lalane
v Canada (Minister of Citizenship and Immigration), 2009 FC 6, at
para 1, 338 FTR 224 (Lalane)). Risk is one of the factors to
consider in such an application and although it is true that an applicant does
not have to satisfy the test requirement applicable to the PRRA application and
section 97 of the Act, there must still be a connection between this
alleged risk and the applicants’ personal situation, without which the risk
cannot be the source of unusual, undeserved or disproportionate hardship:
[1] The
allegation of risks made in an application for permanent residence on
humanitarian and compassionate grounds (H&C) must relate to a particular
risk that is personal to the applicant. 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.
That conclusion would be an error in the exercise of the discretion provided
for in section 25 of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA) which is delegated to, inter alia, the Pre-removal
Risk Assessment (PRRA) officer by the Minister … .
(Lalane, above, at para 1. Emphasis added.)
Given that an
application for exemption for humanitarian and compassionate considerations is
an exceptional remedy, the factors considered within it must be adapted to the
specific situation of each applicant. The officer’s finding on the question of
risk relies mainly on the fact that it was established by general documents
that are not connected to the applicants’ personal situation.
[13]
Earlier this year, Justice Boivin had to consider an argument quite
similar to the one presented in the case at bar and concerning Haiti. In Piard v The Minister of Citizenship and Immigration, 2013 FC 170, the
applicants contended there had to be a purely objective evaluation of hardship.
In disposing of this argument, the Court wrote at paragraph 19:
[19] Therefore,
individuals seeking an exemption from a requirement of the Act may not simply
present the general situation prevailing in their country of origin, but must
also demonstrate how this would lead to unusual and undeserved or
disproportionate hardship for them personally. With respect to the issue of the
temporary stay of removals in effect for Haiti, it was found that a moratorium
on removals does not in and of itself prevent an application made on H&C
grounds from being denied (Nkitabungi v Canada (Minister of Citizenship and
Immigration), 2007 FC 331, 74 Imm LR (3d) 159).
[14]
That view of the law is not new. Already in
2009, my colleague Justice Michel Shore made the same observations in the case
of Lalane v The Minister of Citizenship and Immigration, 2009 FC 6,
to which reference was made by Justice Boivin in Villa, supra. Justice Shore reiterated just a month ago the same view, this time in the context of an H&C
application with respect to a return to Haiti. At
paragraphs 36 and 37 of Dorlean c Le ministre de la Citoyenneté et de
l’Immigration, 2013 CF 1024, the Court states:
[36] Il
doit nécessairement y avoir un lien entre les preuves corroborant le risque
généralisé et celles concernant le risque devenu personnalisé. Il revient donc
au demandeur de démontrer un lien entre le risque et sa situation personnelle.
Même si un risque généralisé pouvait être prouvé dans le présent cas, cela ne
serait pas assez pour obtenir une réponse favorable à la demande CH (voir Paul
c Canada (Ministre de la Citoyenneté et de l’Immigration), 2009 CF 1300; Ramotar
c Canada (Ministre de la Citoyenneté et de l’Immigration), 2009 CF 362,
[2010] 1 RCF 232; Chand c Canada (Ministre de la Citoyenneté et de
l’Immigration), 2009 CF 964).
[37] La
Cour estime qu’il y avait une preuve mince, voire inexistante, concernant les
risques personnels de la demanderesse en Haïti. La demande CH était concentrée uniquement
sur les conditions socio-économiques en Haïti auxquelles la population générale
doit faire face quotidiennement. L’agent a donc conclu de manière raisonnable
que la demanderesse n’avait pas réussi à prouver que sa situation comportait un
risque personnalisé.
I find the reasoning of Justices
Boivin and Shore to be persuasive.
[15]
In our case, there was no evidence presented on behalf of the applicant
about the particular circumstances she would face if she were to return to Haiti. There is general evidence of sexual violence and of a humanitarian crisis in Haiti. On the other hand, we know that the applicant has three sons who live in Haiti. That is the extent of our knowledge about her circumstances. Counsel for the
applicant valiantly tried to convince the Court that once the country
conditions and risks are established, the burden, so to speak, shifts onto the
shoulders of the officer to conduct an analysis the purpose of which would be
to decide if the hardship is sufficient in order to justify the application of
section 25.
[16]
She contended, successfully in my view, that it is not because there are
generalized poor conditions that an applicant should be denied any H&C
application because her circumstances would not be any different than anyone
else in the country. To put it another way, I would certainly have entertained
an argument to the effect that the fact that the general population suffers in
dire circumstances does not prevent an H&C application on the basis that
the applicant would be returned to the generalized conditions in the country.
But such is not the case here. The applicant carries the burden of showing that
she will suffer disproportionate hardship, not merely that the country
situation is difficult. There is a gap between the evidence of the general
country situation and disproportionate hardship that must be filled by the
evidence presented by an applicant about his or her particular circumstances.
[17]
It is one thing to argue that an H&C application ought not to be
denied because the particularized circumstances of the applicant would not be
any worse than those of the rest of the population. It is quite another to
argue generally that it is enough to lead evidence of the country’s general
situation and then require that the Minister, for all intents and purposes,
prove that the general situation will not apply to this applicant. Not only is
that a burden that is just about impossible to discharge, but this whole
approach does not account for the requirement that the H&C considerations
be those relating to the foreign national who is the one who makes the request
(section 25 of the Act).
[18]
I reckon that the officer’s decision is not a model of clarity and contains
sentences that could leave someone with the general impression that the
generalized situation in the country cannot be the basis of an H&C application.
Thus, one can read the following two sentences at page 6 of the officer’s
decision:
D’autre part, cette
situation difficile qui prévaut en Haïti touche l’ensemble de la population. Je
note que la requérante n’a pas démontré comment sa situation serait différente
de celle de ses concitoyens et concitoyennes.
If these sentences are not read in
context, they may lead one to suggest that an applicant cannot succeed if she
is to be returned to the conditions experienced by the whole population. In my
view such is not the test and that would constitute a reviewable error. The
simple fact that the whole population suffers disproportionate hardship cannot
prevent a successful application.
[19]
In my view, however, the sentences have to be read in the context of the
decision as a whole and what is effectively decided by the officer. When read
in context, it seems to me clear that the negative decision is based on the
fact that the applicant has not particularized her circumstances. The following
two sentences are, in fact, what was decided by the officer:
La requérante
n’allègue pas et ne démontre pas comment les membres de sa famille ont été
affectés par le séisme de janvier 2010, les inondations qui ont suivi et les
conditions existantes en Haïti et n’explique pas en quoi celles-ci auraient un
impact particulier sur elle. Il n’y a pas au dossier de documents nous
permettant de déterminer qu’en raison de circonstances particulières, il en
résulterait pour elle des difficultés inhabituelles et injustifiées ou démesurées.
[20]
As can be plainly seen, the officer is concluding that although there
was a catastrophe that hit Haiti in 2010, that cannot suffice in order to be
successful. There was still a requirement that the applicant show how she would
have been impacted had she had to return to Haiti. That is the test applicable
in section 25 cases, as found by this Court.
[21]
The same can be said of the argument that the applicant would be at risk
because she is a single woman. One can read at page 6 of the decision:
… La documentation
soumise et consultée indique que les femmes déplacées dans des camps
temporaires suite au séisme, surtout les jeunes filles et les enfants, sont
particulièrement vulnérables à l’abus et la violence sexuelle. Je note que la
requérante n’élabore pas sur la nature des atteintes à sa sécurité personnelle
qu’elle craint et ne démontre pas en quoi elle serait personnellement ciblée.
Je note aussi qu’elle déclare avoir de la famille proche en Haïti, incluant
trois fils, dont deux adultes, ainsi que son père.
[22]
The officer denied the H&C application because the applicant did not
particularize the hardship she would suffer if returned to Haiti. Thus, there is no way to make a reasonable determination that hardship would be
disproportionate in her case. As the decision is read in context, the officer
does not conclude that the application fails because the applicant would be
returned to her country of origin to face the same circumstances as the rest of
the population. As I have indicated before, this would in my view open the door
to an intervention by this Court. On the contrary, the officer, having noted, awkwardly
perhaps, that the situation in Haiti following the catastrophe of 2010 was
difficult for the population as a whole was not satisfied that the applicant
had personalized her situation. Similarly it does not suffice that there be sexual
violence, especially in refugee camps. Evidence must be led, and it would have
to be believed, that the disproportionate hardship would be suffered by the
applicant. In this case, there was simply no such evidence.
[23]
As a result, the judicial review application is dismissed. The parties
agreed that the matter was reviewable on a reasonability standard and I agree. As
put in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
paragraph 47 “the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”. Furthermore,
the parties agreed that there is no question of general importance that ought
to be certified in the circumstances. That is a view that I share.
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