Dockets: IMM-1850-16
IMM-1851-16
Citation:
2016 FC 1422
Ottawa, Ontario, January 3, 2017
PRESENT: The
Honourable Madam Justice Strickland
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Docket: IMM-1850-16
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BETWEEN:
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NGOZI PATRICIA
IKEJI
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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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Docket: IMM-1851-16
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AND BETWEEN:
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NGOZI PATRICIA
IKEJI
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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]
These are the applications for judicial review
of a negative Pre-Removal Risk Assessment (“PRRA”)
decision dated March 29, 2016 (IMM-1851-16) and a decision by the same
immigration officer (“Officer”) on the same date
refusing the Applicant’s application for permanent residency on humanitarian
and compassionate (H&C) grounds (IMM-1850-16). The two applications were
heard together.
[2]
For the reasons that follow I find both
decisions to be reasonable.
Background
[3]
The Applicant is a citizen of Nigeria. She
entered Canada in July 1998 at the age of 19. Two months later she made a
claim for refugee protection on the basis of political opinion. She alleged
that, following the publishing of an article which was critical of the regime,
she and ten colleagues who authored the article were twice detained and raped
by soldiers. The Immigration and Refugee Board (“IRB”)
did not believe that the events described by the Applicant occurred and
rejected her claim on May 10, 1999. A Post-Determination Refugee Claimant in
Canada Risk Analysis and Decision (“PDRCC”),
dated September 15, 2000, concluded that there was insufficient persuasive
evidence to support that the Applicant would be specifically targeted or
subjected to an objectively identifiable risk if she were required to return to
Nigeria.
[4]
The Applicant was scheduled to be removed from
Canada in June 2001 and was denied a stay of removal. The Applicant did not
depart and continued to live in Canada without legal status. She submitted a
PRRA on July 16, 2015 in which she alleged a new risk, that she fears returning
to Nigeria as she identifies her sexual orientation as bisexual. She claimed
that because of this she has been disowned and ostracized by her family and is
at risk because of laws in place in Nigeria that criminalize homosexuality. On
September 23, 2015 she filed an H&C application for permanent residence
from within Canada, pursuant to s 25 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (“IRPA”), on
the basis of her establishment in Canada, lack of establishment in Nigeria,
generalized risk in Nigeria, economic and social hardships associated with
leaving Canada, the best interests of a child, her sexual orientation and a
medical condition, anemia.
Decisions Under Review
i)
The PRRA Decision
[5]
The Officer found, based on the totality of the
evidence provided, that the Applicant had not established, on a balance of
probabilities, her sexual orientation as bisexual.
[6]
In reaching this conclusion the Officer noted
that the Applicant’s supporting affidavit stated that when she left Nigeria she
was in denial of her sexual identity but had come to accept who she was shortly
after her arrival in Canada in 1998 and lived openly. Despite this, she had
failed to disclose her sexual orientation as a risk to the IRB, which entity
was in a position to grant her protection. She also failed to declare her
sexual orientation and that it was a basis of her fear of return, in her
subsequent PDRCC application. Nor did a psychological report, dated August
1999, or the supporting affidavit of her friend, Catherine Uchendu, both
included in support of the PDRCC, refer to her sexual orientation.
Subsequently, in her July 28, 2015 affidavit made in support of the PRRA, Ms.
Uchendu stated that she has known the Applicant since the summer of 1998 and
was fully aware of her past and that she had been mistreated and was not very
lucky in both her heterosexual and bisexual relationships.
[7]
The Officer noted that the reports of a social
worker and psychotherapist submitted in support of the PRRA indicated that the
Applicant was in a long term relationship with Stacy which appeared to have
commenced shortly after the Applicant’s arrival in Canada. Further, that the
Applicant implied in her affidavit that she and Stacy were in a long term
relationship and living together. However, the Applicant had produced insufficient
evidence of this common law relationship and her affidavit was general in
nature and provided little detail. The Officer found that there was
insufficient evidence to establish that the Applicant was bisexual based on the
evidence that she provided with respect to her alleged long term relationship
with Stacy.
[8]
Additionally, the Applicant’s relationship with
Stacy was at odds with her immigration history. Mr. Frank Ficker had submitted
a spousal sponsorship on behalf of the Applicant on February 10, 2001 and the
Applicant had indicated in her IMM8 (H&C application) that she was in a
genuine marriage with Mr. Ficker from December 10, 2000 to July 13, 2013.
However, during the same period, she was allegedly in a common law relationship
with Stacy. The Applicant had provided no explanation for this apparent
overlap.
[9]
The Officer acknowledged an August 17, 2015
letter from the Metropolitan Community Church of Toronto (“Metropolitan Church”) and August 2015 documents from
the 519 Space for Change organization (“519 Centre”)
but found, while these established a connection to a community, they did not
establish the Applicant’s sexual orientation. The Officer also acknowledged
the affidavits of Ms. Uchendu and of Mr. Newman Obike, which stated that they were
aware of the Applicant’s sexuality as a bisexual female, but assigned them
minimal weight on the basis that they were written by her friends who had a
vested interest in the outcome of the application. The Officer also noted that
the statements made in the affidavits with respect to the Applicant’s sexual
orientation were general and lacked detail.
[10]
The Officer noted that the Applicant has resided
in Canada since 1998 but provided no other information or details of any other
relationships other than the one with Stacy when she first arrived. The
Officer stated that it would be reasonable to presume that the Applicant could
and would provide sufficient details of her bisexual orientation.
[11]
For all of these reasons, the Officer concluded
that the Applicant had not established her sexual orientation on a balance of
probabilities.
ii)
H&C Decision
[12]
The Officer stated that the Applicant based her
H&C application on the grounds of establishment, best interests of the
child and country conditions related to her personal circumstances. As to
establishment, the Officer found that the Applicant had been in Canada for
nearly 18 years but that this alone was not sufficient to warrant an
exemption. And, although she claimed to own and operate a business, she had
provided insufficient evidence to support that claim or that she had
established herself to such a degree that an exemption from having to apply for
permanent residence status from outside Canada was warranted. The Officer
noted that the Applicant had no family in Canada but acknowledged letters of
support provided by her friends, Ms. Uchendu and Mr. Obike and that they had
attested to their friendship, as well as the letters from the 519 Centre and
the Metropolitan Church. However, the Officer found that while these
demonstrated that the Applicant had established friendships and made community
connections, she was not satisfied that the evidence established that
separation would cause the Applicant hardship.
[13]
For essentially the same reasons as set out in
the PRRA decision, the Officer found that, based on the totality of the
evidence, the Applicant had not presented sufficient evidence to establish on
the balance of probabilities her sexual orientation as a bisexual.
[14]
As to the Applicant’s claim that she considers Ms.
Uchendu’s son, who was born in December 2012, as her own son, maintaining
regular contact, seeing him once a week and speaking with him daily, and Ms.
Uchendu’s letter stating that Joshua would be devastated were the Applicant to
leave Canada, the Officer found that there was insufficient evidence of a level
of dependency wherein the Applicant’s departure would negatively impact the
child or that the child’s best interests would not be met should the Applicant
be required to apply for permanent residence status from outside Canada.
[15]
The Applicant had also submitted that she was
receiving psychotherapy and that it continued to assist her in recovery from
her past experiences and to come to terms with her sexual orientation. She
submitted that it was important to continue to receive that treatment but that
she could not do so in Nigeria as bisexuality is taboo and was the place where
she was sexually assaulted. The Officer concluded that the Applicant had
provided insufficient evidence that she is receiving ongoing psychotherapy and
that returning to Nigeria would compromise her recovery. The Applicant also
claimed that she suffered from anemia which she treats with vitamins, iron
pills and eating healthy. The Officer found that she had provided insufficient
evidence that she would not receive adequate care for her condition in Nigeria.
[16]
Finally, as to the Applicant’s submission that
she has never worked in Nigeria and had no family or community there to assist
her, the Officer found these statements to be speculative and unsupported.
Further, she had arrived in Canada at age 19 with few skills, work experience
or family but was able to establish a network, find work and attend courses.
The Officer was not satisfied that she could not achieve the same in Nigeria.
[17]
The Officer concluded, upon examination of all
of the circumstances presented by the Applicant, that the requested exemption
was not justified on H&C considerations and denied the request.
Issues
[18]
In my view, the issues arising from both
decisions are as follows:
(1)
In the PRRA decision, did the Officer render a
veiled credibility determination, and so err in failing to conduct an oral
hearing?
(2)
Were the Officer’s decisions reasonable?
Standard of Review
[19]
The Applicant submits that the standard of
review of a PRRA or H&C decision is reasonableness on questions of fact or
mixed fact and law and correctness for questions of law and that the standard
of review for the decision as a whole is reasonableness. The Respondent
submits that the factual findings of a PRRA or H&C officer are reviewable
on a reasonableness standard.
[20]
Reasonableness is the standard of review for
questions of veiled credibility findings. (Chekroun v Canada (Citizenship
and Immigration), 2013 FC 738 at para 40 (“Chekroun”);
Angulo Lopez v Canada (Citizenship and Immigration), 2012 FC 1022 at
paras 20 and 24; Zeng v Canada (Citizenship and Immigration), 2015 FC 49
at paras 14 and 16). While the jurisprudence is divided on the standard of
review applicable to a PRRA officer’s decision respecting an oral hearing, I
have previously found that this is reviewable on the reasonableness standard as
a PRRA officer decides whether to hold an oral hearing by considering the PRRA
application against the requirements of s 113(b) of the IRPA and the factors in
s 167 of the Immigration and Refugee Protection Regulations, Can. Reg.
2002-227 (“IRP Regulations”) which is a question of mixed fact and law (Chekroun
at para 40; Seyoboka v Canada (Citizenship and Immigration), 2016 FC
514 at para 29).
[21]
I agree that the standard of review of decisions
of PRRA and H&C officers is reasonableness (Wang v Canada (Citizenship
and Immigration), 2010 FC 799 at para 11 (“Wang”);
Chen v Canada (Citizenship and Immigration), 2016 FC 702 at para 13;
Belaroui v Canada (Citizenship and Immigration),
2015 FC 863 at paras 9-10; Herrera v Canada (Citizenship and Immigration),
2015 FC 261 at para 6-7; Aleziri v Canada (Citizenship and Immigration), 2009 FC 38 at para 11; Din v Canada (Citizenship and
Immigration), 2013 FC 356 at para 5; Kisana v Canada (Citizenship and
Immigration), 2009 FCA 189 at para 18; Betoukoumesou v Canada
(Citizenship and Immigration), 2014 FC 589 at para 16; Ogunyinka v
Canada (Citizenship and Immigration), 2015 FC 595 at para 19) and that the
appropriate standard of review for issues of procedural fairness is correctness
(Wang at para 11; Khosa v Canada (Citizenship and Immigration),
2009 SCC 12 at para 43; and Liu v Canada (Citizenship and Immigration),
2008 FC 836 at para 11).
ISSUE 1: In
the PRRA decision, did the Officer render a veiled credibility determination,
and so err in failing to conduct an oral hearing?
Applicant’s Position
[22]
The Applicant submits that where credibility is
a determinative issue in a PRRA application, pursuant to s 113(b) of the IRPA and
s 167 of the IRP Regulations, an applicant is entitled to an oral hearing.
Failure to conduct a hearing in that circumstance is a breach of procedural
fairness. In this matter, there was no oral hearing and, therefore, to the
extent that the Officer rendered a credibility determination, the decision is
in error (Liban v Canada (Citizenship and Immigration), 2008 FC 1252 (“Liban”)).
[23]
Further, in Chekroun, the applicant
therein had provided a letter from an LGBTQ organization and had failed to
disclose his sexual orientation in his refugee claim. There the officer was
found to have erred in failing to give the applicant’s sworn affidavit the
presumption of truthfulness and requiring corroborating evidence in the absence
of reasons to doubt its truthfulness. Similarly, in this matter, the Applicant
had provided her affidavit and some corroborating evidence, including a letter
from an LGBTQ organization. It is therefore at least arguable that the Officer
simply did not believe her and so erred in failing to conduct an oral hearing.
Respondent’s Position
[24]
The Respondent submits that the cases cited by
the Applicant with respect to veiled credibility findings are distinguishable
and refers to several decisions of this Court which found that findings on
sufficiency of evidence were not cloaked credibility findings (Herman v
Canada (Citizenship and Immigration), 2010 FC 629 at paras 16-18 (“Herman”); Sayed v Canada (Citizenship and
Immigration), 2010 FC 796 at paras 30-38; Ullah v Canada (Citizenship
and Immigration), 2011 FC 221 at paras 27-35; Gao v Canada (Citizenship
and Immigration), 2014 FC 59 at paras 32-47 (“Gao”);
Ibrahim v Canada (Citizenship and Immigration), 2014 FC 837 at paras
21-29 (“Ibrahim”)). The Respondent
submits that it is important to recognize the distinction between being
persuaded that the Applicant has met his or burden of proof and simply
disbelieving the Applicant.
[25]
The Respondent submits that in this case the
evidence that was proffered by the Applicant to establish her sexual orientation
was weak and could not have satisfied the evidentiary burden. There was no
veiled credibility finding and no oral hearing was required (Herman at paras
16-17).
[26]
As to the Applicant’s argument that the Officer
erred in failing to give her affidavit the presumption of truthfulness, in Maldonado
v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA) (“Maldonado”) the Court held that testimony is
presumed to be true unless there is a valid reason to doubt its truthfulness. However,
in this case, the Applicant asserted that she was in a long term, common law relationship
with Stacy during the same period of time that she was married to her husband.
No explanation was provided for this discrepancy, which the Applicant appeared
to have deliberately withheld from the Officer. The discrepancy was sufficient
to overcome the presumption that her affidavit was true and justified the
Officer assigning it little weight.
Analysis
[27]
Justice Kane of this Court, in Gao, noted
that it can be difficult to distinguish between a finding of insufficient
evidence and a finding of credibility:
32 I note that in some cases it is
difficult to draw a distinction between a finding of insufficient evidence and
a finding that the applicant was not believed i.e. was not credible. The choice
of words used, whether referring to credibility or to insufficiency of the
evidence is not solely determinative of whether the findings were one or the
other or both. However, it can not be assumed that in cases where an Officer finds
that the evidence does not establish the applicant’s claim, that the Officer
has not believed the applicant.
[28]
In Ferguson v Canada (Citizenship and
Immigration), 2008 FC 1067 (“Ferguson”),
a PRRA officer found that the applicant therein had provided insufficient
evidence to establish that she was lesbian. The only evidence was a written
submission by her counsel and the officer found that this was not probative
evidence. The applicant argued that the officer had really made a credibility
finding. Justice Zinn disagreed, finding that the PRRA officer’s reasoning
simply suggested that he neither believed nor disbelieved the Applicant but was
left unconvinced:
34 It is also my view that there is
nothing in the officer’s decision under review which would indicate that any
part of it was based on the Applicant’s credibility. The officer neither
believes nor disbelieves that the Applicant is lesbian - he is unconvinced. He
states that there is insufficient objective evidence to establish that she is
lesbian. In short, he found that there was some evidence - the statement of
counsel - but that it was insufficient to prove, on the balance of
probabilities, that Ms. Ferguson was lesbian. In my view, that determination
does not bring into question the Applicant’s credibility.
[29]
The Applicant refers to the Liban and Chekroun
decisions as being analogous to this matter. While I agree that there are
factual similarities with those cases, I find that they are nevertheless
distinguishable. Unlike Liban, in this case the Officer did not place
considerable emphasis on the credibility findings of the IRB. And in this
matter the Officer provided reasons for assigning low probative value to the
evidence submitted by the Applicant.
[30]
This case is also distinguishable from Chekroun,
in which the officer had failed to state why the applicant’s evidence alone was
insufficient to establish his sexual orientation and there was no conflicting
evidence or inconsistencies to bring that evidence into question. Here the
Officer explained that the Applicant’s affidavit was vague and lacked detail
about the Applicant’s alleged long term relationship with Stacy. In that
regard, in her affidavit the Applicant stated only that from 1998 to 2001 she
was very active within Nigerian community associations in Toronto. However,
she had to sever all ties because of the backlash she experienced after she
became open with her lesbian partner. She stated “after
years of promises to sponsor me as a common-law partner” the
relationship had ended.
[31]
Nor did the Applicant make any mention of her
marriage in her affidavit and in her PRRA application she did not answer the
question as to her present marital status. But, as noted by the Officer, there
was evidence disclosed in the Applicant’s H&C application demonstrating
that the Applicant claimed that she was in a genuine marriage with Mr. Ficker
from 2000 to 2013. Thus, the marriage appeared to overlap with the time of her
alleged common law relationship with Stacy. While there may have been a
reasonable explanation for this, none was provided in the Applicant’s affidavit
and the onus to do so lay with her (Moreno Corona v Canada (Citizenship and
Immigration), 2012 FC 759 at para 27; Borbon Marte v Canada (Public
Safety and Emergency Preparedness), 2010 FC 930 at para 39 (“Borbon Marte”); Sufaj v Canada (Citizenship
and Immigration), 2014 FC 373 at para 39; Ogunrinde v Canada (Public
Safety and Emergency Preparedness), 2012 FC 760 at para 41; Gao at
para 45).
[32]
In my view, the lack of detail as to her
relationship with Stacy and the failure to address her marriage was a valid
reason to doubt the truthfulness of the Applicant’s affidavit and thereby rebut
the Maldonado presumption.
[33]
This matter is more analogous to Ferguson
as the Officer is weighing the evidence and making a finding that the legal
standard has simply not been met. As stated by Justice Zinn in Ferguson,
not all evidence is of the same quality, and while an applicant may meet the
evidentiary burden because evidence of each essential fact has been presented,
the applicant may not have met the legal burden because the evidence presented
does not prove the facts required on the balance of probabilities. As in Ferguson,
the legal burden of proof would be met in this case if the Applicant proved her
sexual orientation to the Officer, on the balance of probabilities. However,
the determination of whether the evidence presented meets the legal burden
depends very much on the weight given to that evidence (Ferguson at paras
23-24) and deference must be given to PRRA officers in their assessment of the
probative value of evidence before them. If that assessment falls within the
range of reasonableness, it should not be disturbed (Ferguson at para
33; also see Gao at paras 41-44; Herman at paras 17-18).
[34]
As in Herman, I am satisfied that in
these circumstances the Officer was not cloaking adverse credibility findings
in conclusions that the evidence adduced by the Applicant was not sufficient.
Rather, it was open to the Officer to conclude, without making an adverse
credibility finding, that the evidence adduced was not sufficient to establish,
on a balance of probabilities, the Applicant’s sexual orientation.
Accordingly, an oral hearing was not required.
ISSUE 2: Were the Officer’s decisions reasonable?
i)
PRRA Decision
Applicant’s
Position
[35]
The Applicant submits that the Officer’s
decision is unreasonable given the evidence before her. The Officer erred in
treating the Applicant’s delay in disclosing risk based on her sexual
orientation, from the time of the RPD hearing and her PDRCC to the time of her
PRRA, as a credibility concern per se (Chekroun). Further, the
evidence disclosed that the LGBTQ community in Nigeria and in Canada is highly
stigmatized. Therefore, it would not be unreasonable for the Applicant to be
reluctant to disclose her sexual orientation to anyone, including Canadian
authorities.
[36]
And, while the Officer found that the Applicant’s
affidavit was vague on details of her same sex relationship in Canada, was not
corroborated, and did not explain how she was in a genuine marriage to a man at
the same time as she was in a common law relationship with Stacy, her affidavit
did state that she had been in a same sex relationship and was ostracized by
the Nigerian community when this became known. Details could have been
requested and provided at an oral hearing, which did not occur.
[37]
The Applicant submits that while the letter from
the LGBTQ organization did not confirm the Applicant’s sexual orientation and
participation may not be restricted to members of that community, this was not
a basis for dismissing it out of hand as it was probative. The Officer erred
in doing so.
[38]
The Officer also erred in assigning minimum
weight to the affidavits of the Applicant’s friends on the basis that they have
a vested interest in the outcome and lack details. The Applicant submits that
this Court has dismissed this reasoning as it fails to apply the presumption of
truthfulness to the affidavits and fails to recognize that the affiants may, as
here, be providing first-hand eyewitness evidence. It was also unreasonable
for the Officer to conclude that the Applicant was required to have had other
same sex relationships in order to establish her sexual orientation.
[39]
The Applicant also submits that pursuant to the
Supreme Court of Canada’s decision in Kanthasamy v Canada (Citizenship and
Immigration), 2015 SCC 61 (“Kanthasamy”),
psychological assessments should not be dismissed out of hand. In this case,
the Officer says virtually nothing about the psychotherapist’s report and does
not question its opinion that the Applicant suffers from mental health
conditions. The Officer therefore ignored this important evidence or at least
failed to provide clear reasons for dismissing it.
Respondent’s
Position
[40]
The Respondent submits that the Applicant’s
failure to disclose the risk at the first opportunity is a relevant
consideration and, contrary to the Applicant’s submission, a negative inference
can be drawn based on the failure to present this risk at an earlier
proceeding. In this case, it was reasonable for the Officer to point out that
the Applicant could have raised this risk on two prior occasions. The
Applicant does not state definitively in her affidavit that she was not aware
of her sexual orientation at the time of the refugee hearing. The PRRA is
meant to consider new risk not be a second refugee hearing. In any event, the
Officer’s decision did not turn on the Applicant’s failure to disclose the
evidence earlier but rather it was premised on multiple evidentiary considerations.
Given the multiple bases for the decision, it was not an error for the Officer
to take into consideration the Applicant’s failure to disclose her sexual
orientation earlier.
[41]
The Respondent submits that the PRRA is a paper
based application and an oral hearing is warranted only in exceptional
circumstances. As such, there was no requirement for the Officer to have
convened a hearing in order to reconcile deficiencies in the Applicant’s
affidavit. Rather, the onus was on the Applicant to put the best evidence
forward.
[42]
The Respondent submits that the Officer’s
treatment of the remaining evidence was reasonable. The letters from the 519
Centre and the Metropolitan Church did not vouch for the Applicant’s sexual
orientation and they could not have been interpreted as such. The affidavits
of the Applicant’s two friends were vague and, although Ms. Uchendu had also
provided an affidavit in support of the Applicant’s PDRCC application, it had
not mentioned the Applicant’s sexual orientation. Further, self-serving
affidavits cannot themselves demonstrate risk on a balance of probabilities.
The Officer did not err in affording them minimal weight.
[43]
The Officer’s treatment of the psychologist’s
report was also reasonable as the Applicant’s claim for protection was not
based on her inability to receive treatment in Nigeria but on her sexual
orientation. The report was based on a single interview with the Applicant in
which the Applicant self-reported her experiences. The Respondent submits that
the psychotherapist could not have vouched for the Applicant’s sexual
orientation under these circumstances. Accordingly, no error arose from the
Officer not having made a finding that the report contributed to establishing
her sexual orientation.
[44]
Nor did the Officer require the Applicant to
provide evidence about other same sex relationships in Canada as asserted by
the Applicant. The Officer simply noted that the Applicant had lived in Canada
for 17 years, had told the psychologist that she was dating women exclusively,
yet she provided no description of any other same sex relationships. This was
a reasonable factor for the Officer to consider.
[45]
The Respondent submits that the Officer’s
conclusions were reasonable and, given the Officer’s expertise in assessing the
weight of the evidence, she should be given deference. The onus was on the
Applicant to have established her sexual orientation on a balance of
probabilities and she has failed to do so.
Analysis
[46]
I am not convinced that the Officer was making a
credibility finding when noting that the Applicant had not identified her
sexual identity in the IRB and PDRCC proceedings. In any event, while
claimants coming from countries where sexual orientation is highly stigmatized
or unlawful may understandably be reluctant to disclose their sexual
orientation to the authorities when arriving in Canada, the Applicant does not
state in her affidavit that this was the reason why she did not previously
raise her sexual orientation, nor does she provide any reason for not having
done so. Her affidavit states only that between 1998 and 2001 she was active
within Nigerian community associations but had to sever her ties with them “…after I became open with my lesbian partner”. Thus,
it is unclear both when she began the referenced relationship and when she
severed her ties with the Nigerian community associations and whether this was
before or after her IRB and PDRCC hearings.
[47]
In this regard, the onus was on the Applicant to
establish her claim with evidence that would meet the evidentiary and legal
burden. She was represented by counsel and would have been advised that a
hearing is not the norm for a PRRA and that she must put her best foot forward
to establish her sexual orientation on the balance of probabilities (Gao
at para 45).
[48]
Further, the Officer did not dismiss the
documents from the 519 Center or the August 17, 2015 letter from the
Metropolitan Church. The Officer found that they served to indicate a
connection to the community but that membership did not establish the Applicant’s
sexual orientation as a bisexual. Additionally, that there was insufficient
evidence that membership or active participation in the organizations was
restricted to persons who identify themselves as LGBTQ. I would note that the
July 23, 2015 letter from the 519 Centre stated only that the Applicant had
volunteered with PrideHouse TO during the Para/Pan Games which took place from
June 8 to 26, 2015. In that regard, she had completed her orientation and
donated 16 hours of volunteer time. A letter dated August 10, 2015 states that
the Applicant completed a newcomer orientation session in August 2015 and had
since been attending and participating in weekly support meetings and LGBT
related workshops. The August 17, 2015 letter from the Metropolitan Church
states that the Applicant had attended the peer support group seeking support
for her claim to remain in Canada due to her sexual orientation, began
attending Sunday services in early July 2015 and had started to volunteer as a
receptionist. In my view, the Officer’s assessment of the documents from the
519 Centre and Metropolitan Church was reasonable. In that regard, I also note
that the Applicant’s participation with both groups immediately preceded her
PRRA submission on July 16, 2015, and that there was no evidence on the record
before the Officer indicating any such participation prior to this, even though
the Applicant submitted that she had been open about her relationship with her
same sex partner sometime between 1998 and 2001.
[49]
The Officer’s treatment of the affidavits from
the Applicant’s friends, affording them minimal weight, was also reasonably
open to her. While I agree with the Applicant that it was not open to the
Officer to dismiss the affidavits solely because her friends have a vested
interest in the outcome of the application (Cruz Ugalde v Canada (Public
Safety and Emergency Preparedness), 2011 FC 458 at paras 23-28; Haq v
Canada (Citizenship and Immigration), 2015 FC 380 at para 11; Tabatadze
v Canada (Citizenship and Immigration), 2016 FC 24 at paras 4-6), the
Officer also found that the affidavits are general in nature and lack any
detail about when the deponents became aware of the Applicant’s sexual
orientation or any details of the same sex relationship with Stacy. In that
regard, I note that Ms. Uchendu states that she and the Applicant have known
each other for well over 15 years and that she is very much aware of the
Applicant’s sexuality as a bisexual female, yet she makes no reference to the
alleged long term common law relationship with Stacy or any other relationship.
[50]
As to the Applicant’s assertion, in reference to
the Officer’s conclusion that her own affidavit was vague and lacked details,
that details could have been requested and provided in an oral hearing, as
noted above, credibility was not at issue and, therefore, an oral hearing was
not required. Further, a PRRA officer’s role is to evaluate and weigh the
evidence before him or her and make a reasonable finding, not to set out for an
applicant what evidentiary elements should be provided in order to meet this
burden (II v Canada (Citizenship and Immigration), 2009 FC 892 at para
22). The onus was on the Applicant to ensure that all relevant evidence was
before the PRRA officer and the Officer was only obliged to consider that
evidence. She was not required to solicit the Applicant for better or
additional evidence (Ormankaya v Canada (Citizenship and Immigration),
2010 FC 1089 at para 31; also see Ibrahim at paras 27-28; Borbon Marte
at para 39).
[51]
The Officer reasonably found that the Applicant’s
affidavit was vague and lacking in detail. She does not identify Stacy by name
or say when her relationship began or ended. Nor does she say when and where
they lived together only that “…after years of promises
to sponsor me as a common-law partner, turned her back on me…”. Given
the vagueness of her affidavit, it was also reasonable for the Officer to find
that the Applicant had failed to provide sufficient corroborating evidence of
the existence of the common law relationship, such as joint bank statements,
rental agreement or a statement from her former partner. Such documentation
could reasonably be expected in the circumstances of a long term relationship
and the Applicant offered no explanation in her affidavit as to why it was not
or could not be provided. Additionally, the Applicant had made no reference to
her 13 year marriage to Mr. Ficker in her PRRA application which appears to
have overlapped her alleged common law relationship with Stacy. This too
provided a reasonable basis upon which corroborating documents could be sought,
the absence of which goes to the weight of the Applicant’s statements.
[52]
The Applicant notes the Officer’s finding that
she has not provided information about any other same sex relationships, aside
from the one with Stacy, and asserts that it was unreasonable for the Officer
to conclude that the Applicant was required to have had other same sex
relationships to establish her sexual orientation. In my view, this is a mischaracterization
of the Officer’s reasons. The Officer noted that the Applicant had lived in
Canada for over 17 years and that it would be reasonable to presume that she
could have provided sufficient details of her bisexual orientation. Further,
that the social worker had stated in his report that the Applicant was dating
women exclusively, but that the Applicant had not provided any details of other
relationships. The Officer was not requiring the Applicant to have had more
same sex relationships or suggesting a stereotype. Rather, given her own
evidence that she had been open about being a bisexual since at least 2001 and
that she dated women exclusively, that it was reasonable to expect that she
would provide some information in support of her claim, given that sexual
orientation was the reason that she claims to fear returning to Nigeria. In
any event, the Officer’s decision is not based solely or primarily on this
finding.
[53]
The Officer mentioned both the July 24, 2015
report of a psychotherapist (“Psychotherapist Report”)
and the August 13, 2015 report of a social worker (“Social Worker Report”) in
the context of the establishment of the Applicant’s sexual identity. It is
true that the Officer’s reasons do not address the psychotherapist’s clinical impression
that the Applicant exhibits symptoms consistent with post-traumatic stress
disorder (“PTSD”), generalized anxiety disorder
and major depressive disorder. However, the psychotherapist’s clinical
impression does not speak to the question of the Applicant’s sexual
orientation. Rather, it was based on the Applicant’s narrative and, on that
basis, accepted her description of her sexuality. Thus, while the Officer did
not make a finding as to the probative value of the psychotherapist’s report in
establishing her sexual orientation, in these circumstances this is not fatal.
Further, and as discussed below, Kanthasamy is distinguishable because
the Officer in this case did not accept the psychological diagnosis (Kanthasamy
at paras 47-48; Sitnikova v Canada (Citizenship and Immigration),
2016 FC 464 at para 36).
[54]
Viewed in whole, the Officer’s decision that the
Applicant had not provided sufficient evidence to establish her sexual
orientation as a bisexual was reasonable and fell within the 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 (“Dunsmuir”)).
ii)
H&C Decision
Analysis
[55]
Subsection 25(1) of the IRPA gives immigration officers
the discretion to exempt foreign nationals from the ordinary requirements of
the IRPA, such as applying for permanent residence and obtaining a visa before
entering Canada, if the officer is of the opinion that such relief is justified
on H&C considerations relating to the foreign national, including the best
interests of a child directly affected.
[56]
The Applicant submitted that her sexual
orientation as a bisexual was such a factor. In that regard, she repeated her PRRA
submissions that the Officer had unreasonably found, on the balance of
probabilities that she had presented insufficient evidence to establish her
sexual identity as a bisexual. For the reasons set out above, it is my view
that the Officer did not err in this regard.
[57]
The Applicant also asserted that the Officer
unreasonably considered her establishment in Canada as an H&C factor. The
Officer noted that while the Applicant claimed that she has been self-employed
since 2006, owning a business called “Trina Fashion and
Things Inc.”, and that she provided documentation of the business
including the corporate registration, income tax returns, bank statements and
financial documents, these are all in the name of her friend, Ms. Uchendu.
The Applicant explained that Canadian identification is needed to register a
business but the Officer found that there was insufficient evidence to support
that claim. More significantly, that there was insufficient evidence from Ms.
Uchendu to explain that the business actually belongs to the Applicant, and not
herself, as the documents indicate.
[58]
The Applicant submits that in her affidavit she
explained why the business was registered in her friend’s name but that she
operated it. This is true, but the Officer did not accept that she had
provided sufficient evidence to support that explanation. I see no error in
that finding as there is nothing in the record which addresses that point.
[59]
The Applicant also submits that, contrary to the
Officer’s decision, Ms. Uchendu’s letter did confirm that the business is the
Applicant’s. In my view there is no merit to this submission. In her letter
Ms. Uchendu states only that “at the store she
[Applicant] works hard. The store is called: Trina Fashion and Things at 830
Sheppard Ave. W. in Toronto. She is very passionate about fashion and selling
clothing and accessories. I know she is easily approachable.”
Ms. Uchendu went on to note that she works as a registered nurse at a
hospital. Her letter makes no reference to the ownership of Trina Fashion and
Things. Nor does Ms. Uchendu’s affidavit make any reference to the business.
Further, and as noted by the Respondent, in a medical record found in the
record the Applicant had reported that she works under the table at her friend’s
clothing store. Based on the record before her, in my view, the Officer did
not err in concluding that the Applicant had provided insufficient evidence as
to the business ownership.
[60]
The Applicant also submits that the Officer’s
assessment of her establishment was unreasonable as in several other cases this
Court has found H&C applications to have been unreasonably refused where
establishment was of a far lesser degree than in this case and that the Officer
gave insufficient reasons for this conclusion. In my view, the cases cited by
the Applicant are distinguishable in that they consider situations where
establishment was well documented and extraordinary or exemplary.
[61]
Further, more recent jurisprudence suggests that
maintaining employment and integrating into the community does not necessarily
constitute an unusually high degree of establishment. In Persaud v Canada (Citizenship
and Immigration), 2012 FC 1133, this Court held that:
44 The assessment of the degree of
establishment allows for a proper determination on whether an applicant would
suffer hardship if required to apply for permanent residence from abroad (see Raudales
v. Canada (Minister of Citizenship & Immigration), 2003 FCT 385, [2003]
F.C.J. No. 532 (Fed. T.D.) at paragraph 19). This Court has quashed H&C
decisions where establishment has been assessed without adequate reference to
the particular circumstances of the applicant (see Singh v. Canada (Minister
of Citizenship & Immigration), 2009 FC 1062, [2009] F.C.J. No. 1322
(F.C.) at paragraph 11; and Amer v. Canada (Minister of Citizenship &
Immigration), 2009 FC 713, [2009] F.C.J. No. 878 (F.C.) at paragraphs 12
and 13).
45 In this case, the officer
considered the applicants’ employment, community involvement and education in
Canada. These factors were all relevant to the assessment of the degree of
establishment, as provided in the IP-5 Manual. However, it is notable that
maintaining employment and integrating into the community does not necessarily
constitute an unusually high degree of establishment (see Ramotar v. Canada
(Minister of Citizenship & Immigration), 2009 FC 362, [2009] F.C.J. No.
472 (F.C.) at paragraph 33).
[62]
Further, as stated by Justice Snider in Dan Shallow
v Canada (Citizenship and Immigration), 2012 FC 749, unless the
establishment is exceptional and not of the applicant’s own choosing, this will
not normally be a factor that weighs in favour of the applicant. At best, this
factor will usually be neutral (para 9).
[63]
The Officer in this case acknowledged that the
Applicant has been in Canada for a significant period of time, almost 18
years. However, the Officer found that the length of time spent in Canada is
not in and of itself sufficient to warrant an exemption and then went on to consider
various other factors. In that regard, the Officer noted the evidence as to
the Applicant’s claim of being self-employed in Canada since 2006.
Additionally, the Officer noted that while the Applicant has no family in
Canada, she provided the letters of support from the Applicant’s friends, as
well as from the 519 Centre and the Metropolitan Church. The Officer found
that while these demonstrate friendships and connections to a community, she
was not satisfied that they established that her removal would cause hardship.
[64]
The Officer engaged with the facts and found
that the evidence was not sufficient to establish that the Applicant had
established herself to such a degree than an exemption to apply for permanent
residence from outside Canada was warranted. This finding was reasonably open
to her and I do not agree that the Officer made an unclear determination by
merely stating a conclusion.
[65]
I also do not agree that the Officer’s decision
runs afoul of Kanthasamy, on the basis that she assessed the Applicant’s
establishment solely through the lens of “hardship”,
as the Applicant submits, rather than a broader equitable determination. In Kanthasamy
the Supreme Court of Canada stated that:
33 The words “unusual and undeserved
or disproportionate hardship” should therefore be treated as descriptive, not
as creating three new thresholds for relief separate and apart from the
humanitarian purpose of s. 25(1). As a result, what officers should not do, is
look at s. 25(1) through the lens of the three adjectives as discrete and high
thresholds, and use the language of “unusual and undeserved or disproportionate
hardship” in a way that limits their ability to consider and give weight to all
relevant humanitarian and compassionate considerations in a particular case.
The three adjectives should be seen as instructive but not determinative,
allowing s. 25(1) to respond more flexibly to the equitable goals of the
provision.
[66]
In my view, reading the decision in whole, the
Officer’s reasons do not suggest that she improperly applied a hardship
analysis, rather, she considered all of the relevant H&C factors in the
context of the evidence in reaching her conclusion. Nor did the Applicant
provide any support for her submission that the equitable analysis now required
by Kanthasamy means that the mere fact of presence in Canada, even when
an applicant is here without status, is to be considered as a positive
establishment factor. In any event, the Officer did not refer to the fact that
the Applicant was out of status when considering the duration of her stay in
Canada.
[67]
The Applicant also submits that the Officer
dismissed her concerns of economic and social hardship upon return to Nigeria
which was unreasonable and not responsive to the evidence that Nigeria is
plagued by a poor economy, health and security concerns.
[68]
However, the Officer noted that the Applicant
had stated that she had left Nigeria when she was 19 years old, she had never
worked in that country and has no family or community that could help her and
found these statements to be speculative and unsupported. Further, that the
Applicant had arrived in Canada with very few skills, work experience, no
family and very few friends but was able to establish a network, find work and
attend courses. The Officer was not satisfied that she could not accomplish
the same in Nigeria, where she grew up and is somewhat familiar with the
surroundings, culture and social fabric. She had also gained work experience
in Canada which might assist with her reintegration which would undoubtedly
include a period of adjustment and even a period of difficulty. This finding
was reasonably open to the Officer (Gonzalez v Canada (Citizenship and
Immigration), 2009 FC 81 at para 25; Mooker v Canada (Citizenship and
Immigration), 2007 FC 779 at para 15; Gonzalo v Canada (Citizenship and
Immigration), 2015 FC 526 at para 16; Rahman v Canada (Citizenship and
Immigration), 2009 FC 138 at paras 43-44).
[69]
It is also to be recalled that the Officer did
not accept that the Applicant had established her sexual orientation.
Therefore, she was not required to address this within the economic and social
factors analysis. In my view, the Officer’s reasons disclose a reasonable
basis for her determination that the Applicant had not provided sufficient
evidence to support that generalized social and economic factors were
sufficient to warrant an exemption. The Officer was not required to
specifically mention each piece of documentary evidence in reaching her
conclusion (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425 (FC) at para 16; Gallai v Canada
(Citizenship and Immigration), 2015 FC 52 at para 43).
[70]
As to the best interests of Ms. Uchendu’s son,
the Officer acknowledged that the Applicant considers the boy as her own son
and maintains regular contact, by seeing him once a week and talking to him on
a daily basis. Further, that Ms. Uchendu stated in her letter that the boy
would be devastated if the Applicant were to leave Canada. The Officer stated
that she recognized that having a network of persons in his life who cared
about him and played an active role in his life is important, however, she was
not satisfied that his best interest would be affected by the outcome of the
H&C application. The Officer found that there was insufficient evidence as
to the level of dependency between the Applicant and the boy such that his best
interest would be negatively impacted or that his best interest will not be met
should the Applicant be required to apply for permanent residence from outside
Canada.
[71]
The Applicant submits that the Officer erred by
conflating best interest with basic needs. I am not convinced that the Officer
conducted a basic needs analysis. I would also note that this is not a
situation such as Sebbe v Canada (Citizenship and Immigration), 2012 FC
813, referenced by the Applicant, where the issue was whether a Canadian born
child would leave Canada with his or her foreign national parent(s) who were
being removed from Canada to a less advantageous environment. Here there is no
question of the child leaving Canada and his mother to go to Nigeria with the
Applicant. In my view, in the circumstances of this matter and given the
limited evidence that was before her, the Officer sufficiently considered the
best interests of the child (Kanthasamy at paras 38-39, referencing Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817) and
determined that there was insufficient evidence as to his level of dependency
on the Applicant.
[72]
The Applicant also submits that the Officer
erred in her treatment of the Psychotherapist Report and the Social Worker
Report. Specifically, that the Officer unreasonably dismissed the
psychological harm that the Applicant would face from the loss of counselling
and therapy in Canada relating to her sexual orientation and the trauma she
experienced from sexual assault in Nigeria. Further, that the Officer’s
approach was not in conformity with the Supreme Court of Canada’s decision in Kanthasamy.
[73]
The Officer noted that in her affidavit the
Applicant stated that she is receiving psychotherapy which continues to assist
her in her recovery from past experiences and to come to terms with her sexual
orientation. She claimed that it was important that she continue to receive
that treatment but could not do so in Nigeria because bisexuality is taboo and
it was the place where she was assaulted. As noted by the Officer, however,
the letter from the social worker was dated August 13, 2015 and stated that the
social worker had had three appointments with the Applicant and, while he had
not seen the Applicant in a counselling session, he was still available to
offer support when she could make it to appointments.
[74]
The Officer also noted that the July 24, 2015 Psychotherapist
Report made no reference to the Applicant currently receiving psychotherapy or
any other ongoing treatment. The Officer found that the Applicant had provided
insufficient evidence that she is receiving ongoing psychotherapy and that
returning to Nigeria would compromise her recovery. Further, that her
statement that she continues to need therapy to come to terms with her sexual
orientation was at odds with her statements that she entered into a same sex
relationship and lived that lifestyle openly yet only sought the need for
therapy within the last year.
[75]
I note that the Officer had determined that the
Applicant had not established her identity as a bisexual woman. The Officer
also noted that the Applicant’s refugee claim “was
based on a fear that she was gang raped by authorities who arrested her for
criticising the regime. The panel [IRB] determined the events described by the
applicant never occurred and rejected her claim”. Thus, the Applicant’s
assertion that she was receiving psychotherapy and required this to assist her
in her recovery from her past experiences and come to terms with her sexual
identity contradicted the prior factual findings of the IRB and the factual
finding of the Officer. Nor did the reports support the Applicant’s assertion
that she was actually receiving the therapy that she claimed she required.
[76]
It is of note that, in her PRRA, the Applicant did
not put forward new evidence to challenge the IRB’s finding that the alleged
sexual assault did not occur. Instead, she relied on that same allegation which
had previously been rejected by the IRB to support her H&C claim, stating
in her affidavit that she would be traumatized if she were returned to Nigeria
because she had been subjected to a brutal sexual assault there. The narratives
she provided to the social worker and psychotherapist were also based on this
allegation, which provided a foundation for their findings.
[77]
Thus, unlike Kanthasamy, here the factual
basis for the Applicant’s psychological conditions was not clearly established
and uncontradicted, nor was the psychologist’s diagnosis accepted by the
Officer.
[78]
Finally, the Applicant submits that the Officer
unreasonably dismissed evidence that she would not receive adequate care for
her anemia in Nigeria. The Officer found that there was insufficient evidence
that the Applicant could not avail of adequate treatment in Nigeria, which she
is treating in Canada with vitamins, iron pills and eating healthy. The
Applicant submits that she could not afford such care. The Respondent submits
that the Applicant has not pointed to any evidence that she provided to the
Officer which specifically states that such treatment would be unavailable in
Nigeria. In my view, based on the record before the Officer, it was reasonable
for her to conclude that there was insufficient evidence that the Applicant
would not have access to treatment for anemia.
[79]
In conclusion, the Officer did not err in her
consideration of the relevant H&C factors and turned her mind to the
specific circumstances of the Applicant’s case. The Officer’s determination that
the evidence did not establish that the H&C factors were such that they
would support the Applicant’s exemption from applying for permanent residence
from outside Canada falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and the law (Dunsmuir at para
47).
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