Date:
20121023
Docket:
IMM-2021-12
Citation:
2012 FC 1213
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
October 23, 2012
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
BAH,
Mariama Djelo
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision
dated April 20, 2011, by a pre‑removal risk assessment officer (PRRA
officer) refusing an in-country application for permanent residence on
humanitarian and compassionate grounds.
[2]
The
applicant,
Mariama Djelo Bah, is a citizen of Guinea. She arrived in Canada in 1993 and
gave birth to her first daughter here. She went back to Guinea and returned, in
1995 and 1998, to Canada, where she gave birth to two sons.
[3]
The
applicant returned to Guinea immediately after the births. Accompanied by her
children, the applicant joined her spouse in China in 2001.
[4]
Her
three children born in Canada were enrolled for the school year here starting
in September 2006.
[5]
The
applicant was admitted to Canada as a visitor on December 3, 2006, for a
six-month period.
[6]
On
April 3, 2007, the applicant claimed refugee protection. At the same time, she
submitted a request for visa exemption on humanitarian and compassionate
grounds on April 17, 2007. The refugee protection claim was rejected by the
Refugee Protection Division on April 20, 2009.
[7]
The
applicant filed a pre-removal risk assessment application (PRRA application) that
was received by Citizenship and Immigration Canada on July 13, 2010.
[8]
Her
PRRA application and visa exemption request on humanitarian and compassionate
grounds were refused on April 20, 2011.
* * *
* * * * *
[9]
In
his decision refusing permanent resident status on humanitarian and
compassionate grounds, the officer stated that he considered the three reasons
submitted by the applicant in support of her application, that is, a
personalized risk of return in Guinea, the child’s best interests and the
applicant’s establishment in Canada.
[10] Regarding
the personalized risk, the officer considered that the applicant alleged the
same risk as she submitted as part of her refugee claim and PRRA application:
that she fears returning to Guinea because of her sexual orientation and
ethnicity. The Refugee Protection Division found that her risk was not credible.
[11] The
officer reiterated his analysis carried out in the applicant’s PRRA application
because no new evidence was submitted. The officer found that the applicant did
not discharge her burden of proving that she may face a risk if she were to
return to Guinea and that her return to that country would cause unusual,
undeserved or disproportionate hardship in the circumstances.
[12] Regarding
the best interests of the applicant’s Canadian children, the officer stated the
following:
[translation]
The children have been living in Canada for four (4)
and a half years and they demonstrated good adaptability and a good ability to
integrate. It is reasonable to think that they established relationships in
Canada and that a possible departure would cause them a certain amount of
stress. However, I also consider that they spent most of their lives abroad in
various countries. Furthermore, they have several family members in Guinea,
including their father, who can provide them with a significant amount of
assistance if they were to return. . . .
The claimant did not demonstrate why she would be
unable to provide for her children’s well being. To the contrary, the
information in the record shows that the claimant has properly fulfilled her
parental responsibilities.
The information in the record leads me to conclude
that the children have adapted well despite their many relocations. It is
reasonable to think that their adaptiveness will continue in Guinea. Even
though I am sensitive to the children’s situation, the claimant has not
demonstrated that the children’s best interests would be compromised.
[13] With
respect to the applicant’s degree of establishment, the officer stated that she
made an effort to integrate, but that she did not submit information enabling
him to find that she would suffer unusual, undeserved or disproportionate
hardship by filing her permanent residence application from outside Canada.
* * *
* * * * *
[14] This
application for judicial review raises the following issues:
a. Did
the officer err in his analysis of the children’s best interests?
b. Did
the officer err in his analysis of the applicant’s degree of establishment?
c. Does
the officer’s decision breach procedural fairness?
[15] The
standard of review to be applied to a humanitarian and compassionate decision
is reasonableness (Kisana v Canada (The Minister of Citizenship and
Immigration), 2009 FCA 189, [2010] 1 FCR 360 at paragraph 18 (Kisana)).
[16] The
standard of review that applies to allegations of a breach of procedural
fairness is correctness (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 43; Donoghue v The Minister of
National Defense, 2010 FC 404 at paragraph 27).
* * *
* * * * *
1. Did the officer
err in his analysis of the children’s best interests?
[17] It
appears from the evidence that the decision-maker in this case was “alert,
alive and sensitive” to the interests of the children (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph
75).
[18] On
that point, the applicant merely submitted school documents and photos, without
explanation, of the sports teams her children belong to. Under the circumstances,
I am of the opinion that the officer reasonably determined that the evidence
that was submitted to him did not demonstrate that the children’s best
interests would be compromised in the event of a return to Guinea.
[19] It
should be pointed out that it is up to the officer to determine what weight to
assign to the children’s interests in the circumstances (Lalane v The Minister
of Citizenship and Immigration, 2009 FC 6 at paragraph 47). Furthermore, a
child’s best interests is but one factor that must be weighed together with all
other relevant factors. Invoking it does not guarantee a favourable response to
an application on humanitarian and compassionate grounds (Kisana, above,
at paragraph 24).
2. Did the officer
err in his analysis of the applicant’s degree of establishment?
[20] The
applicant contends that the officer did not weigh the true value of all of the
relevant information and evidence concerning her. Thus, regarding her degree of
establishment in Canada, the applicant claims that she has become established
by making major investments, the estimated cost of which is more than $890,000.
[21] It
was open to the officer to find that the simple fact that the applicant has
purchased three buildings in Canada and that she has worked here does not
establish undeserved or disproportionate hardship with respect to a filing of
an application for permanent residence from outside Canada (see Jozsefne v The
Minister of Public Safety and Emergency Preparedness, 2008 FC 1411 at paragraph
23 and Jakhu v The Minister of Citizenship and Immigration, 2009 FC 159
at paragraph 29). I have no basis for concluding that this is unreasonable.
3. Does the officer’s
decision breach procedural fairness?
[22] The
applicant complains of a lack of procedural fairness because Citizenship and
Immigration Canada waited for the Refugee Protection Division decision to
render the decision under review.
[23] On
this point, the applicant was unable to support her argument with any specific
section of the Act or with the case law. The guidelines in chapter 5.14 of
Manual IP 5 by Citizenship and Immigration Canada, Immigrant
Applications in Canada made on Humanitarian or Compassionate Grounds, on
which the applicant relies, are of no help to her, especially because she did
not submit any evidence of serious harm that may have resulted from the long
delay between the two decisions.
* * *
* * * * *
[24] For
all of these reasons, the application for judicial review is dismissed.
[25] I
concur with counsel that there is no question for certification arising.
JUDGMENT
The
application for judicial review of a decision dated April 20, 2011, by a
pre-removal risk assessment officer of Citizenship and Immigration Canada,
refusing an in-country application for permanent residence on humanitarian and
compassionate grounds, is dismissed.
“Yvon
Pinard”
Certified
true translation
Janine
Anderson, Translator
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