Date: 20201014

Docket: IMM-5099-19

Citation: 2020 FC 964

Montréal (Québec), October 14, 2020

PRESENT:  Mr. Justice Gascon

JUDGMENT AND REASONS

I.  Overview

[1]  The main applicant in this matter, Mr. Kokou Felix Housou, is a citizen of Togo. Mr. Housou fled his country of nationality some 26 years ago, he received refugee status in neighbouring Ghana, and he has been living with his family in Ghana ever since. The four other applicants are Mr. Housou’s dependents, namely his wife and children.

[2]  In June 2019, an immigration officer [Officer] at the High Commission of Canada in Dakar, Ghana [HCC] rejected Mr. Housou’s application for a permanent resident visa as a member of the Convention Refugees Abroad class or as a member of the Humanitarian-protected Persons Abroad class (under the Country of Asylum sub-class) [Decision]. The Officer determined that Mr. Housou did not meet the applicable requirements, set out in section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] as well as paragraph 139(1)d) and sections 145 and 147 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. The Officer found that Mr. Housou was unable to describe a credible fear of persecution within his country of nationality for reason of race, religion, nationality, membership in a particular social group or political opinion. The Officer further concluded that a durable local solution was available to Mr. Housou and his family in Ghana.

[3]  Mr. Housou now seeks judicial review of the Decision. He raises four different grounds to challenge the Officer’s Decision. First, Mr. Housou claims that the Officer made a fundamental error of law by importing additional requirements into the definition of refugee under section 96 of the IRPA, contrary to the well-established jurisprudence setting out the test for refugee protection. Second, he argues that the Decision lacks the requisite justification and intelligibility, as it leaves the reader to speculate on the Officer’s reasoning regarding central issues. Third, Mr. Housou submits that the Officer relied on speculation about the prospect of a durable solution in Ghana, rather than assessing Mr. Housou’s personal circumstances. Lastly, Mr. Housou complains that the Officer misapprehended or disregarded evidence in making key findings of fact. Mr. Housou asks the Court to set aside the Decision and return the matter to the HCC so that a different immigration officer may re-determine his application.

[4]  The Minister responds that the issue of a durable solution in Ghana is dispositive of Mr. Housou’s application, and that Mr. Housou has failed to meet his burden on that front.

[5]  For the reasons that follow, I will dismiss Mr. Housou’s application for judicial review. Despite the able submissions to the contrary made by counsel for Mr. Housou, I agree with the Minister that the issue of a durable solution is determinative in this case. Having considered the evidence before the Officer and the applicable law, I find no basis for overturning the Officer’s Decision on this point. Mr. Housou failed to discharge his burden of showing that a durable solution was not available to him and his family in Ghana. I am satisfied that the Decision is justified and intelligible, and that the Officer considered all relevant evidence in his Decision. While they could perhaps have been more detailed, the Officer’s reasons demonstrate that the Decision is based on an internally coherent and rational chain of analysis, and that it is justified in relation to the facts and law that constrain the Officer. The Officer’s finding on the prospect of a durable solution is sufficient to sustain the refusal of Mr. Housou’s visa application, and there are therefore no grounds to justify the Court’s intervention. Given that conclusion, I do not have to deal with Mr. Housou’s other arguments challenging the reasonableness of the Decision.

II.  Background

A.  The factual context

[6]  Mr. Housou is a citizen of Togo of the Ewe ethnicity. In 1993, he fled his country of nationality with his relatives, due to a civil disturbance in his home country. He sought asylum in Ghana, which borders Togo to the west. Mr. Housou claims that he left Togo after an attack on his home in which his father, a political opposition party member, was killed. Mr. Housou submits that he and his family were targeted by the ruling party which is still in power in Togo as of the date of his visa application. Mr. Housou fears persecution from the ruling party as a result of the events faced by his family.

[7]  Mr. Housou has been recognized as a Convention refugee by the United Nations High Commission for Refugees [UNHCR] and the government of Ghana. He has been living in a refugee camp in Ghana since his arrival in this country in 1993.

[8]  Mr. Housou was identified as a candidate for resettlement as a refugee in Canada by the Office for Refugees – Archdiocese of Toronto [ORAT]. In December 2017, ORAT sent a refugee sponsorship application to the inland Canadian immigration authorities. The sponsorship undertaking was approved in August 2018. In June 2019, Mr. Housou and his wife were interviewed by the Officer and, further to the interview, Mr. Housou’s application for resettlement as refugee was rejected by the Officer.

B.  The Decision

[9]  As is often the case with visa applications, the Officer’s Decision is short. However, the Global Case Management System [GCMS] notes taken by the Officer, which form part of the Decision, provide further light on the analysis conducted by the Officer and on the grounds for refusing Mr. Housou’s application.

[10]  The Officer made two main findings. The Officer first found that Mr. Housou did not qualify as a member of either the Convention Refugees Abroad class or the Humanitarian-protected Persons Abroad (Country of Asylum) class. Regarding Mr. Housou’s claim that he was a member of the Convention Refugees Abroad class pursuant to section 145 of the IRPR, the Officer observed that, at the interview, Mr. Housou and his wife did not make any claim of personal persecution for reason of race, religion, nationality, membership in a particular social group or political opinion in their country of nationality, namely Togo. With respect to the Country of Asylum class pursuant to section 147 of the IRPR, the Officer stated that, at the interview, Mr. Housou had failed to establish that he had been and continued to be personally and severely affected by civil war, armed conflict or massive violation of human rights in Togo.

[11]  The Officer then turned to the existence of a durable solution, and found that Mr. Housou did not meet the requirements of paragraph 139(1)d) of the IRPR since a durable, local solution was available to him and his family in Ghana. In reaching this conclusion, the Officer determined that Mr. Housou had refugee status in Ghana and had the option of applying for permanent residency or nationality in Ghana under that country’s laws. But he never attempted to do so. The Officer further noted that Mr. Housou had access to education and health care in Ghana, that his children attended school in this country and that he could move freely in Ghana to seek employment. The Officer added that, when needed, Mr. Housou was able to successfully seek the assistance of Ghanaian authorities. In light of that evidence, the Officer concluded that Mr. Housou appeared to have a local and durable solution available to him and his family, and that a permanent resident visa could not be issued in these circumstances.

C.  The statutory framework

[12]  The relevant provisions of the IRPR read as follows:

D.  The standard of review

[13]  It is not disputed that reasonableness is the standard of review applicable to a decision made by an immigration officer on a request for a permanent resident visa under one of the refugee classes (Shahbazian v Canada (Citizenship and Immigration), 2020 FC 680 [Shahbazian] at para 18; Feboke v Canada (Citizenship and Immigration), 2020 FC 155 at para 13). That reasonableness is the appropriate standard has been reinforced by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. In that judgment, the majority of the Court set out a revised framework for determining the standard of review with respect to the merits of administrative decisions, holding that they should presumptively be reviewed on the reasonableness standard, unless either legislative intent or the rule of law requires otherwise (Vavilov at paras 10, 17). I am satisfied that neither of these two exceptions apply in the present case, and that there is no basis for derogating from the presumption that reasonableness is the applicable standard of review for the Decision.

[14]  Regarding the actual content of the reasonableness standard, the Vavilov framework does not represent a marked departure from the Supreme Court’s previous approach, as set out in Dunsmuir v New Brunswick, 2008 SCC 9 and its progeny, which was based on the “hallmarks of reasonableness”, namely justification, transparency and intelligibility (Vavilov at para 99). The reviewing court must consider “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”, to determine whether the decision is “based on an internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker” (Vavilov at paras 83, 85; Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post] at paras 2, 31).

III.  Analysis

A.  Durable solution

[15]  Mr. Housou submits that the Officer’s finding that he and his family have a “durable local solution” in Ghana within the meaning of paragraph 139(1)d) of the IRPR is unreasonable, as the Officer’s central conclusion relies on the speculative notion that Mr. Housou and his family have “access” to an undefined mechanism of acquiring nationality. Mr. Housou further argues that the Officer misapprehended his evidence with respect to his interactions with the Ghanaian authorities. According to Mr. Housou, it is well established that the durable solution analysis requires immigration officers to engage with the actual personal circumstances of an applicant, and that a finding of a durable solution cannot be theoretical or speculative. He claims that the Officer’s reasons do not address whether he actually met the applicable permanent residency or nationality requirements in his circumstances. Finally, Mr. Housou maintains that the Officer either misapprehended or disregarded the evidence in concluding that Mr. Housou was able to “successfully seek the assistance of Ghanaian authorities”. The evidence, says Mr. Housou, instead shows that, when he approached the police after an incident where he was injured, he was just told to go to the hospital.

[16]  In response to the Minister’s argument on the determinative nature of the Officer’s finding on the existence of a “durable solution”, Mr. Housou argues that the issue cannot be analyzed in a vacuum, and that the Officer’s erroneous finding on his absence of a Convention Refugees Abroad status permeates and infects the Officer’s conclusion on the issue of a durable solution. 

[17]  I am not persuaded by Mr. Housou’s arguments.

[18]  The question to be determined is whether the immigration officer reasonably concluded that the foreign national, based on an assessment of his/her personal circumstances and the conditions in the person’s country of residence, has a durable solution in a country other than Canada (Al-Anbagi v Canada (Citizenship and Immigration), 2016 FC 273 at para 17). It is a fact-based analysis, dependent on the evidence before the decision maker (Shahbazian at para 22).

[19]  It is well recognized in the case law that, on this issue of a durable solution, the burden of proof rests on an applicant (Issa v Canada (Citizenship and Immigration), 2019 FC 1365 at para 19; Qurbani v Canada (Citizenship and Immigration), 2009 FC 127 at para 18; Salimi v Canada (Citizenship and Immigration), 2007 FC 872 at para 7). To succeed in his visa application, Mr. Housou had to establish that no reasonable prospect, within a reasonable period, of a durable solution in Ghana was available to him. Here, Mr. Housou has not offered sufficient evidence to meet that burden.

[20]  Mr. Housou claims that the alleged error of the Officer on the Convention Refugees Abroad status bleeds and permeates into the durable situation issue. Despite the valiant efforts made by counsel for Mr. Housou at the hearing, I am not convinced by this argument. Even if I were to assume that the Officer was wrong on this conclusion and that Mr. Housou was indeed a member of the Conventions Refugees Abroad class, the evidence on the record still does not disclose any evidence that Mr. Housou had no reasonable prospect of a durable solution in Ghana. Moreover, it is well recognized by the Court that the availability of a durable solution in a country other than Canada is a sufficient basis on which to refuse an application for permanent residence as a Convention refugee or as a person in need of protection (Mushimiyimana v Canada (Citizenship and Immigration), 2010 FC 1124 at para 20).

[21]  In this case, I am satisfied that the Officer did engage with the personal circumstances of Mr. Housou. The Officer’s reasons clearly illustrate that Mr. Housou was unable to demonstrate that he does not have a durable solution in Ghana, where he has been residing for 26 years as a Convention refugee. At the interview, he was given the opportunity to show that Ghana could not provide such a solution, but Mr. Housou failed to provide any compelling evidence in that respect. Mr. Housou offered no evidence that he could not apply for permanent resident status in Ghana. When asked about it during the interview, he simply stated that he did not do it because he did not “…think it would be ideal to stay here” and because his “heart is not here in Ghana”. He did not demonstrate to any degree that he did not have access to shelter, employment, education and healthcare, for himself and his family. On the contrary, the evidence in the GCMS notes and in the record shows that Mr. Housou and his family have been able to benefit from all of these since they have been in Ghana, albeit in a refugee camp. Furthermore, when Mr. Housou’s wife was asked about whether she had ever applied for permanent resident status in Ghana, she just said no, and she could not provide any reason upon further questioning, despite having lived in Ghana as a refugee since she was a child.

[22]  In addition, I note that the UNHCR Refugee Registration Certificates for each of Mr. Housou, his wife and his children indicate that they are entitled to “all the fundamental human rights and freedoms available to all Ghanaians, including access to livelihood as well as to social and other services without discrimination based on his/her nationality”.

[23]  In light of the foregoing, I do not share Mr. Housou’s view that the Officer misapprehended or disregarded evidence in concluding that Mr. Housou had a durable solution in Ghana. With respect to the Officer’s conclusion that Mr. Housou successfully sought assistance of the Ghanaian authorities, I observe that Mr. Housou had claimed that, at work, individuals had cut off part of his fingers and he had been poisoned and that, when he sought help from the police authorities, he was told to go to the hospital. Although the incident was certainly very unfortunate, I fail to see how these events could reflect an inability for Mr. Housou to successfully seek assistance from the Ghanaian authorities. When Mr. Housou referred to this evidence during his interview, he never made or even attempted to link them to an actual fear of persecution on Convention grounds. According to the evidence, he went to the police with a physical injury, not a claim of persecution made on a Convention ground. In the circumstances, it was certainly open to the Officer to conclude that the police’s response directing him to a hospital was “assistance” from the Ghanaian authorities.

[24]  Mr. Housou takes particular exception with the comment made by the Officer to the effect that, if he applies, he should meet the requirements for nationality in Ghana. Mr. Housou claims that this is speculative and that the Officer did not assess whether Mr. Housou would actually meet such requirements. However, I cannot accept this argument as it essentially amounts to a reversal of the burden of proof. It was up to Mr. Housou to demonstrate that there is no reasonable prospects of a durable solution in Ghana. The situation “does not need to perfect” and the ability to obtain permanent legal status as either a refuge or permanent resident in a country may meet the test so long as the solution is durable (Shahbazian at para 22). Here, despite having lived in Ghana for more than 26 years, Mr. Housou did not even try to obtain permanent resident status or nationality in Ghana. In the circumstances, the onus was on him to show that his acceptance as a refugee in Ghana did not provide him with a durable solution. But Mr. Housou simply did not provide the required evidence establishing that there was no reasonable prospect that Ghana could offer a durable solution for him and his family.

[25]  The Officer’s reasons are perhaps not as detailed and precisely worded as Mr. Housou would have hoped. However, I am not persuaded that they lack the requisite justification and intelligibility. The reasons given by an administrative decision maker must not be assessed against a standard of perfection (Vavilov at para 91). An administrative decision maker’s reasons do not need to be comprehensive or perfect. They only need to be comprehensible and justified (Vavilov at para 86). It suffices if the reasons provided by the decision maker demonstrate that the decision under review was based on an internally coherent and rational chain of analysis and that it conforms to the relevant legal and factual constraints that bear on it and the issue at hand (Canada Post at para 30; Vavilov at paras 105-107).

[26]  Vavilov’s revised framework for reasonableness requires the reviewing court to take a “reasons first” approach to judicial review (Canada Post at para 26). Where a decision maker has provided reasons, the reviewing court must begin its inquiry into the reasonableness of the decision “by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” (Vavilov at para 84). The reasons must be read holistically and contextually in light of the record as a whole and with due sensitivity to the administrative setting in which they were given (Vavilov at paras 91-94, 97, 103). An assessment of the reasonableness of a decision must be robust, but it must remain sensitive to and respectful of the administrative decision maker (Vavilov at paras 12-13). Reasonableness review is an approach anchored in the principle of judicial restraint and in a respect for the distinct role and specialized knowledge of administrative decision makers (Vavilov at paras 13, 75, 93). In other words, the approach to be followed by the reviewing court is one of deference, especially with respect to findings of facts and the weighing of evidence. Before a decision can be set aside on the basis that it is unreasonable, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100). Here, there are no shortcomings and flaws in the Officer’s analysis of the availability of a durable solution that are sufficiently central or significant to render the Decision unreasonable (Vavilov at paras 96-97, 100). The only shortcomings are in Mr. Housou’s own evidence.

[27]  To echo the language of the Supreme Court in Vavilov, a review of the Officer’s analysis does not cause me “to lose confidence in the outcome reached” by the Officer (Vavilov at para 122; Canada Post at paras 52-53).

B.  Other arguments of Mr. Housou

[28]  Given my conclusion on the Officer’s conclusion on the availability of a durable solution, it is not necessary to address the other arguments put forward by Mr. Housou to challenge the reasonableness of the Decision. I will however make the following additional remarks on Mr. Housou’s arguments.

[29]  Mr. Housou submits that the Officer made a fundamental error of law with respect to the legal test for refugee protection, as set out in section 96 of the IRPA. He claims that the Officer erroneously required evidence of “personal persecution” in order to find that Mr. Housou and his wife were Convention refugees and that, in doing so, the Officer inappropriately imported a requirement of an individualized or personalized risk of persecution into the analysis of section 96 of the IRPA.

[30]  I disagree and I am not convinced that such an error can be read into or implied from the Decision. Section 96 of the IRPA does not require an applicant to demonstrate that “he or she has personally been persecuted in the past or would be persecuted in the future; the applicant need only show that his or her fear stems from wrongdoing committed or likely to be committed against members of a group to which he or she belongs, not that it stems from wrongdoing committed or likely to be committed against him or her” (Garces Canga v Canada (Minister of Citizenship and Immigration), 2020 FC 749 [Garces Canga] at para 49; Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1 at para 33; Alcantara Moradel v Canada (Immigration, Refugees and Citizenship), 2019 FC 404 at paras 22-23). The courts have made it clear that, in order to successfully meet the test establishing that an applicant is a Convention refugee, the applicant must demonstrate the existence of both objective and subjective fear of persecution, and establish a link between him or herself and persecution on a Convention ground (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at 721; Debnath v Canada (Immigration, Refugees and Citizenship), 2018 FC 332 [Debnath] at para 31). A claimant can demonstrate his fear of persecution by comparing his or her specific personal situation to the treatment of persons in similar circumstances (Garces Canga at para 51; Jean-Baptiste v Canada (Citizenship and Immigration), 2018 FC 285 at para 15).

[31]  However, it has also been established by this Court that the use of terms such as “personally”, “personally at risk”, “personalized risk” by a decision maker does not necessarily imply that the decision maker has injected additional requirements into the definition of a refugee under section 96 of the IRPA, therefore conflating section 96 of the IRPA into section 97 of the IRPA (Debnath at para 32; Mavhiko v Canada (Citizenship and Immigration), 2018 FC 1066 at para 25; Pillai v Canada (Minister of Citizenship and Immigration), 2008 FC 1312 at paras 42, 44). In my view, nowhere in the Decision did the Officer refer to or imply a requirement of a “personalized risk”.

[32]  Mr. Housou also argues that, when read as a whole, the Officer’s findings amount to implicit adverse credibility findings. I do not agree and I cannot detect any credibility findings in the Decision. The Officer did not discard Mr. Housou’s story nor did the Officer portray it as untrue. The Officer simply noted that, at the interview, Mr. Housou did not refer to the material elements of the event – his escape from Togo in 1993 – that anchored his fear of persecution on a Convention ground. The references made by the Officer in the GCMS notes to Mr. Housou being “small” in 1993 (when he was 21 years of age) or to the fact that he “does not speak French” are not credibility findings. When the Decision is read in context, I am satisfied that they are only observations about the fact that, at the interview, Mr. Housou failed to provide relevant details about his claimed fear of persecution.

[33]  I accept that a decision maker’s conclusion that there is insufficient evidence to support an assertion can sometimes hide what is actually a veiled adverse credibility finding. However, the analysis first starts with the decision, and the answer ultimately rests on the wording and context of the decision. The term “credibility” is often erroneously used in a broader sense of insufficiency or lack of persuasive value. But these are two different concepts. A credibility assessment goes to the reliability of the evidence. When there is a finding that the evidence is not credible, it is a determination that the source of the evidence (for example, an applicant’s testimony) is not reliable. The reliability of the evidence is one thing, but the evidence must also have sufficient probative value to meet the applicable standard of proof. A sufficiency assessment goes to the nature and quality of the evidence needed to be brought forward by an applicant in order to obtain relief, to its probative value, and to the weight to be given to the evidence by the trier of fact, be it a court or an administrative decision maker. The law of evidence operates a binary system in which only two possibilities exist: a fact either happened or it did not. If the trier of fact is left in doubt, the doubt is resolved by the rule that one party carries the burden of proof and must ensure that there is sufficient evidence of the existence or non-existence of the fact to satisfy the applicable standard of proof. The evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test (F.H. v McDougall, 2008 SCC 53 at paras 45-46). It cannot be assumed that, in cases where an immigration officer finds that the evidence does not establish the applicant’s claim, the officer has not believed the applicant.

[34]  Here, the Officer’s reasoning and assessment is worded in terms of insufficiency of the evidence, and I cannot identify passages which could be characterized as an implicit or veiled credibility finding. A careful reading of the Officer’s Decision and GCMS notes confirms that, in the eyes of the Officer, the issue was one of insufficiency of evidence, not credibility. In this case, the Officer concluded that, given the lack of evidence presented, Mr. Housou had not been able to establish a “credible fear of persecution” at the interview. The Officer’s Decision outlines how Mr. Housou was unable, at the interview hearing, to support his claim with sufficient evidence of a fear of persecution related to the incident that happened in Togo in 1993. Throughout the Decision and in the GCMS notes, the Officer referred to the absence of probative evidence put forward in Mr. Housou’s claim, stating that “[n]either [Mr. Housou], nor [his] spouse, made any claim to personal persecution” and that Mr. Housou “did not establish at interview that [he] ha[s] been, and continue to be, personally and severely affected by civil war, armed conflict or massive violation of human rights in Togo”. Although the Officer used the term “credible” at one point, when read in context, the language used cannot be considered as a veiled adverse credibility finding or an indirect assessment of credibility (Garces Canga at paras 36-37). In sum, Mr. Housou’s application failed “not because of any sort of credibility finding, but simply because of the insufficiency of the evidence” (Ahmed v Canada (Citizenship and Immigration), 2018 FC 1207 at para 31).

IV.  Conclusion

[35]  For the above stated reasons, Mr. Housou’s application for judicial review is dismissed. On a reasonableness standard, it is sufficient that the reasons detailed in the Decision demonstrate that the conclusion is based on an internally coherent and rational chain of analysis and that it is justified in relation to the facts and law that constrain the decision maker. This is the case here. The parties have not proposed a question of general importance for me to certify. I agree there is none in this case.

[36]  At the hearing, counsel for both parties agreed that the style of cause had to be amended to add the names of Mr. Housou’s four dependents. The style of cause will be amended to reflect that and will appear as it does in this judgment.

JUDGMENT in IMM-5099-19

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed, without costs;

2. No serious question of general importance is certified.

3. The style of cause is amended with immediate effect to add Mr. Housou’s wife and children as applicants.

"Denis Gascon"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: