Date:
20120314
Docket:
IMM-6236-11
Citation:
2012 FC 307
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, March 14, 2012
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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THIERNO AMADOU BALDE
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is a Guinean citizen of Peul ethnicity. He has filed an application
for judicial review of a decision by an immigration officer (officer) dated
June 20, 2011, rejecting his application for permanent residence, from within
Canada, based on humanitarian and compassionate considerations (H&C
application) pursuant to section 25 de la Immigration and Refugee Protection
Act, SC 2001, c. 27 (Act).
[2]
For
the following reasons, the application for judicial review is allowed.
I. Background
[3]
The
applicant arrived in Canada on July 18, 2007, through the United States and
claimed refugee protection upon his arrival. His claim was based on events that
apparently occurred between June 2006 and January 2007. His claim was rejected
by the Refugee Protection Division of the Immigration and Refugee Board (Board)
because it found that his narrative was not credible. An application for
judicial review of that decision was dismissed on August 11, 2010.
[4]
On
January 16, 2011, the applicant filed his H&C application, which he based
on his establishment in Canada, the best interests of a child, his niece, and
his fears of return. The impugned decision is dated June 20, 2011.
[5]
The
applicant also filed a pre-removal risk assessment (PRRA) application, which
was the subject of a negative decision on July 4, 2011, by the same immigration
officer who handled his H&C application.
II. Impugned decision
[6]
The
officer stated that the burden of proof rests with the H&C applicant to
demonstrate that [translation] “his
or her particular case is such that the hardship of having to obtain a
permanent resident visa from outside Canada would be either unusual and
undeserved or disproportionate.”
[7]
She
then analyzed the three considerations raised. Regarding establishment, she
noted some positive elements, but found that they were not determinative in
granting an exemption from filing a permanent residence application from
outside Canada. Regarding the best interests of the applicant’s niece, the
officer believes that that was not demonstrated with satisfaction and did not
justify granting an exemption.
[8]
It
is important to spend some more time looking at the officer’s analysis of the applicant’s
alleged fears of return.
[9]
The
officer noted that, in the context of an H&C application involving fears of
return, the risk factor is assessed as a whole and the test to apply is to
define whether the risks experienced by the applicant are such that they are
equivalent to unusual and undeserved or disproportionate hardship justifying an
application for permanent residence from within Canada.
[10]
The
officer first noted that the applicant was making, among other things, the same
allegations that the Board had deemed not credible in the refugee claim and she
did not accept those risks, even if the applicant claimed that the Board’s
decision was not [translation] “reliable”.
[11]
The
officer also addressed new events that were raised by the applicant and that allegedly
occurred after his refugee claim was rejected.
[12]
She
noted that the applicant advanced that, since August 2009, his father has been
an active member of a political party called Union of Guinea’s Democratic
Forces (UFDG) and that by reason of his membership in that party, the applicant
was the subject of abuse by security forces, in particular during events in
September 2009. The officer attached [translation]
“minimal value” to that allegation. She noted that those events purportedly
occurred before the refugee hearing that took place on December 8, 2009, but
that the applicant did not amend his Personal Information Form or report those
new allegations of risk during the hearing. The officer also attached little
probative value to the letter bearing UFDG letterhead attesting to his father’s
membership because it was not accompanied by the envelope in which it was
mailed or a copy of his father’s membership card. The officer also noted that
even if she had given credence to the letter, it proved that the applicant’s
father was a member of the UFDG political party, but not that his father’s safety,
and, in turn, his safety, was at risk. The officer noted that despite the
alleged problems, the applicant’s parents and younger brother still live in
Guinea and have obtained many visas, namely for the United States, Canada and
the Schengen States.
[13]
The
officer also addressed the prevailing general conditions in Guinea. She noted
the election of Alpha Condé as President of the country on November 15, 2010,
and indicated that ethnic tensions were observed during the second round of
elections between the Peuls and the Malinkes. She also noted that there have
been improvements with respect to freedoms in some areas since the election of
President Condé, but that there is still progress to be made. She believes that
the risk advanced by the applicant is no different from that of the population
as a whole. She stated the following:
[translation]
The risk advanced by the applicant should he return
to Guinea would be no different from that of the entire Guinean population,
which is generally facing difficult circumstances in a country that is
constantly struggling with living conditions ridden by poverty and a politically
unstable situation. Overall, since the last elections, there has been a slight
improvement to the general situation in Guinea.
. . .
In light of the foregoing, I am not satisfied that
the risks advanced by the applicant should he return to Guinea are such that an
exemption on humanitarian and compassionate grounds is warranted.
III. Issues
[14]
The
applicant challenged the officer’s decision in several respects, but only one
issue seems determinative to me in this case:
Did the officer fail to consider the applicant’s
profile as a young male Peul in her assessment of the risk factors upon return
to Guinea?
IV. Standard of review
[15]
It
is well established that an exemption from filing an application for permanent
residence from outside Canada is an exceptional measure and that decisions involving
H&C applications are subject to broad discretion by the Minister (Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (available
on CanLII); Legault v Canada (Minister of Citizenship and Immigration),
2002 FCA 125, 212 DLR (4th) 139; Daniel v Canada (Minister of Citizenship
and Immigration), 2011 FC 797 at paragraph 11 (available on CanLII) (Daniel);
Mirza v Canada (Minister of Citizenship and Immigration), 2011 FC 50 at
paragraph 1, 382 FTR 211. The Court must show deference to those decisions,
which are reviewable on the standard of reasonableness (Daniel, above, at
paragraphs 11-12; Serda v Canada (Minister of Citizenship and Immigration),
2006 FC 356, 146 ACWS (3d) 1057).
V. Analysis
[16]
I
find that the H&C officer stated and applied the correct criteria with
respect to the applicant’s H&C application, but that she failed to address
one of the important elements of the risk component of his application.
[17]
In
his H&C application, the applicant raised various risks, including that
related to him a Peul and his connection to his father, namely based on his
father’s membership in the UFDG. In that regard, the applicant maintained that ethnic
Peul people and/or supporters of the UFDG are still targeted and have been the
subject of abuse and violence since the November 2010 elections.
[18]
The
officer limited her risk assessment to the risks related to the abuse that the
applicant’s father was purportedly the victim of in 2009. In her decision, she
addressed the allegation of risk based on the specific events allegedly
experienced by the applicant’s father, but not on his father’s mere membership
in the UFDG and on the applicant’s ethnic profile as a Peul.
[19]
Those
elements were important in the applicant’s H&C application and the
officer’s decision does not support a finding that she considered that specific
aspect of the application.
[20]
The
respondent raises that those specific risks were the subject of a decision by
the same officer regarding a PRRA application filed by the applicant that was
not the subject of an application for judicial review. In fact, a negative PRRA
decision was rendered by the officer on July 4, 2011. In that decision, the
PRRA officer did specifically address the allegation of risk based on the
applicant’s Peul ethnicity. The officer analyzed the situation during the
November 2010 election and how it has evolved since the election. She
found, based on the documentation, that conditions have improved since the
election of President Alpha Condé and that she did not believe that the applicant’s
life is at risk by reason of his ethnicity. She also found that the applicant
did not establish a connection between the documentary evidence and his
personal situation.
[21]
The
PRRA officer’s decision cannot, however, impact this application.
[22]
First,
the officer in the PRRA application analyzed the risks of return from the
perspective of section 97 of the Act and not in terms of the scale of the hardship
that would arise from those risks, as required in processing an H&C
application. Second, and this element is crucial, the PRRA decision is
subsequent to the decision rendered with respect to the H&C application and
the officer’s findings of fact could not be considered in the context of the
H&C application, no more than they can be in the context of the application
for judicial review of the decision that decided that application. In the PRRA
decision, the officer did address the specific risk raised by the applicant
related to his ethnicity, but did not analyze that risk factor in her decision
with respect to the applicant’s H&C application.
[23]
I
therefore find that by failing to address one of the primary risk factors
raised by the applicant in support of his H&C application, the officer
rendered an unreasonable decision (to the same effect, see Ariyaratnam v
Canada (Minister of Citizenship and Immigration), 2010 FC 608 at paragraphs
21 and 22 (available on CanLII); Kaur v Canada (Minister of Citizenship and
Immigration), 2010 FC 805, at paragraphs 12-18, 92 Imm. L.R. (3d) 48).
[24]
The
application for judicial review is therefore allowed. The parties did not
propose a question for certification and there is none in this matter.
JUDGMENT
THE COURT ORDER AND
ADJUDGES that
the application for judicial review is allowed. The
immigration officer’s decision is set aside and the applicant’s file is
returned to the Minister for reconsideration of his application for permanent
residence from within Canada on humanitarian and compassionate grounds by
another immigration officer. No question is certified.
“Marie-Josée
Bédard”
Certified
true translation
Janine
Anderson, Translator
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