Date:
20120607
Docket:
IMM-8571-11
Citation:
2012 FC 711
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 7, 2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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YOURI BOB ARMEL
TCHICAYA-LOEMBET
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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]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) for review of the decision of a
Citizenship and Immigration Canada officer (the officer) dated August 19,
2011, in which she refused the application for permanent residence for
humanitarian and compassionate considerations (H&C application) made by
Youri Bob Armel Tchicaya‑Loembet (the applicant). For the following
reasons, I dismiss the application for judicial review.
I. Background
[2]
The
applicant is a originally from the Democratic Republic of Congo (DRC). He
arrived in Canada on May 25, 2007, and claimed refugee protection. On
December 11, 2009, his claim was rejected. The Refugee Protection Division
of the Immigration and Refugee Board (the Board) found that the applicant was
not credible with respect to the essential elements of his claim. An
application for leave to apply for judicial review of that decision was
dismissed on April 16, 2010. On November 3, 2010, the applicant filed
a pre-removal risk assessment (PRRA) application, which was also rejected.
[3]
On
January 28, 2010, the applicant submitted an H&C application. On
November 20, 2010, the applicant married a Canadian citizen. In
December 2010, the applicant’s wife submitted an application to sponsor
the applicant, which was attached to the H&C application. When the H&C
application was processed, the applicant’s wife was pregnant, with a due date
of November 1, 2011.
II. Decision for which Judicial
Review is Sought
[4]
The
applicant based his H&C application on the risk he would be subject to from
the Congolese authorities if he had to return to the DRC and on his
establishment and ties in Canada.
[5]
The
officer noted that in processing the H&C application, she had to assess
whether the applicant’s circumstances were such that he would suffer unusual
and undeserved or disproportionate hardship if he were required to make an
application for permanent residence from outside Canada.
[6]
The
officer listed all the documents submitted by the applicant in support of his
application. She then analyzed the various factors.
[7]
With
respect to the risks alleged by the applicant, the officer noted that the
hardship alleged by the applicant arose from the same risks as he had alleged
in support of his refugee protection claim and his PRRA application, which had
been found not to be credible. She therefore did not accept that factor. She
also consulted the recent documentation on the general situation in the DRC and
noted that there are still problems involving human rights violations. However,
she concluded that the applicant would not be targeted specifically if he were
to return to his country. She therefore decided that the applicant had not
established that he might be exposed to risk that would cause him unusual and
undeserved or disproportionate hardship if he had to make his application for
permanent residence from the DRC. The applicant did not in fact revisit that
factor at the hearing.
[8]
The
officer then analyzed the factor relating to the applicant’s establishment and
ties in Canada.
[9]
She
considered that the applicant had been in Canada for four years and that
he was married to a Canadian citizen. The officer did not question the
marriage, and felt that it was a positive factor. She also found that the
applicant had not submitted sufficient evidence to show that his relationship
with his wife was such that a separation would amount to an unusual and
undeserved or disproportionate hardship. The officer felt that the relationship
was relatively recent and that there was no evidence of the relationship before
August 2010, although the applicant stated that they had been seeing each
other since he arrived in Canada. She also stated that it was reasonable to
think that the couple’s separation would be temporary, in view of the
sponsorship application submitted by the applicant’s wife, which would continue
to be processed even if the applicant were no longer in Canada. The officer
acknowledged that being physically separated might be difficult for the couple,
but noted that the relationship was relatively recent and the applicant had
chosen to marry in spite of his precarious status in Canada.
[10]
The
officer noted the applicant’s allegations regarding the best interests of the
child they were expecting. The applicant stated in his application that
protecting, rearing and educating the child called for both parents to be
present, and he had a responsibility to provide his family with moral,
financial and psychological support. The officer stated that she was sensitive
to the fact that the applicant’s wife was pregnant, but noted that it had not
been shown that she could not get assistance from her family or friends and
that she would be left with so few resources that the impact of the separation
would amount to unusual and undeserved or disproportionate hardship.
[11]
The
officer also considered the fact that the applicant had entered the labour
market quickly, that he was valued by his employer and coworkers, that he had
done volunteer work and that he had participated in his parish activities. She
also considered the fact that the applicant had savings, had a good civil
record and had no criminal record.
[12]
Although
the officer considered these to be positive factors, she concluded that the
evidence did not show that the applicant would be facing unusual or
disproportionate hardship if he had to make his application for permanent residence
from outside Canada. In short, she was of the opinion that there were
insufficient humanitarian and compassionate grounds to justify granting an
exemption.
III. Issue
[13]
The
only issue is whether the officer’s decision was reasonable.
IV. Standard of Review
[14]
It
is settled law that the standard that applies in reviewing decisions relating
to H&C applications is reasonableness (Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12 at paragraph 46, [2009] 1 S.C.R. 339;
Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at
paragraph 18, [2010] FCR 360) (Kisana).
[15]
The
role of the Court in reviewing a decision for reasonableness is explained in Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190:
. . . A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial
review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But
it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
V. Analysis
[16]
The
applicant submits that the officer did not give sufficient reasons for her
decision and erred in assessing the evidence and the factors relied on by the
applicant.
[17]
The
applicant submits that the officer did not adequately explain how and why she concluded
that the applicant’s establishment was not sufficient to mean that leaving
while his application for permanent residence was processed would result in
unusual and undeserved or disproportionate hardship.
[18]
The
applicant stressed the fact that the officer did not explain the basis of her
determination that it was reasonable to believe that the separation of the
applicant and his wife would be temporary because the sponsorship application
would continue to be processed. The applicant submits that this conclusion is
purely speculative, and that on the contrary it is unlikely that he would be
able to return to Canada quickly. He submits that the sponsorship application
will have to be attached to an application for authorization to return under
section 52 of the Act, which will be processed by the visa officer at the
Canadian Embassy in the DRC. The applicant alleged that this provision grants
visa officers broad discretion and that the complex administrative process
makes it difficult to predict when he will be able to return and the couple
will be reunited.
[19]
The
applicant also contends that the officer did not assign sufficient weight to
the extent of his establishment and the effect that his removal will have on
his marriage and family.
[20]
The
applicant further submits that the discretion granted to immigration officers
who process H&C applications is not absolute and that the officer assessed
the situation of the applicant and his wife arbitrarily and unreasonably. The
officer should have exhibited compassion and put herself in the applicant’s
shoes. The applicant also alleged that it was unreasonable for the officer to
consider the fact that the applicant had chosen to marry in spite of his
precarious status.
[21]
Granting
an exemption on humanitarian and compassionate grounds under section 25 of
the Act is an exception to the principle that a foreign national who wishes to
obtain permanent residence status must make their application from outside
Canada. In addition, that power is largely discretionary (Legault v Canada (Minister
of Citizenship and Immigration), 2002 FCA 125 at paragraph 15, [2002]
4 FC 358) (Legault)).
[22]
The
analytical framework for H&C applications is set out in the administrative
guidelines of Citizenship and Immigration Canada that provide guidance for
officers, and it is undisputedly acknowledged in the case law (Legault,
supra at paragraphs 20-23). The applicant must show that if he had to
apply for permanent residence from outside Canada, he would suffer unusual and
undeserved or disproportionate hardship (Williams v Canada (Minister of
Citizenship and Immigration), 2006 FC 1474 at paragraph 8 (available
on CanLII); (Rachewiski v Canada
(Minister of Citizenship and Immigration), 2010 FC 244 at paragraph 26,
365 FTR 1; Sharma v Canada (Minister of Citizenship and
Immigration), 2009 FC 1006 at paragraph 9 (available on CanLII); Pashulya v Canada (Minister of Citizenship and Immigration),
2004 FC 1275 at paragraph 43, 257 FTR 143; Monteiro v Canada
(Minister of Citizenship and Immigration), 2006 FC 1322 at paragraph 20,
166 ACWS (3d) 556).
[23]
When
we read the officer’s decision, we see that she considered and analyzed the
relevant factors and that she understood and considered all of the applicant’s
allegations, including the impact of his departure on his family. I also find
that her assessment of the evidence and the applicant’s circumstances is
reasonable and does not warrant intervention by the Court. In Kisana, above,
at paragraph 24, the Court noted that “[i]t is not
for the courts to reweigh the factors considered by an H&C officer”.
[24]
Contrary
to what the applicant argues, it was not unreasonable, having regard to the
evidence as a whole, to conclude that the relationship between the applicant
and his wife was recent, nor was it unreasonable to believe, having regard to
the pending sponsorship application, that the separation of the applicant and
his family would be temporary, notwithstanding the need for him to obtain
authorization to return. In addition, the fact that the applicant has to leave
his family is not sufficient to justify an exemption. In Irimie v Canada (Minister
of Citizenship and Immigration) (2000), 101 ACWS (3d) 995, 10 Imm LR (3d)
206 (FC), Justice Pelletier discussed the meaning to be applied to the concept
of unusual and undeserved hardship as follows:
12 If one
then turns to the comments about unusual or undeserved which appear in the
Manual, one concludes that unusual and undeserved is in relation to others who
are being asked to leave Canada. It would seem to follow that the hardship
which would trigger the exercise of discretion on humanitarian and
compassionate grounds should be something other than that which is inherent in
being asked to leave after one has been in place for a period of time. Thus,
the fact that one would be leaving behind friends, perhaps family, employment
or a residence would not necessarily be enough to justify the exercise of
discretion.
[25]
In
addition, although the interests of a child are an important element to be
considered, they do not outweigh other considerations (Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 75, 174
DLR (4th) 193; Legault, above, at paragraphs 11, 12 and Kisana,
above, at paragraph 24).
[26]
The
applicant also submits that the officer did not give sufficient reasons for her
decision. With respect, I am not of that opinion. The officer’s reasons are
succinct, but it can be understood from them that she considered the evidence
as a whole and examined the relevant factors. In addition, her reasons are
sufficient for understanding the basis of her decision.
[27]
The
principles recently stated by the Supreme Court in Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 apply in this case:
15 In assessing whether the decision is reasonable
in light of the outcome and the reasons, courts must show “respect for the
decision-making process of adjudicative bodies with regard to both the facts
and the law” (Dunsmuir, at para. 48). This means that courts
should not substitute their own reasons, but they may, if they find it
necessary, look to the record for the purpose of assessing the reasonableness
of the outcome.
16 Reasons
may not include all the arguments, statutory provisions, jurisprudence or other
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness
analysis. A decision-maker is not required to make an explicit finding on
each constituent element, however subordinate, leading to its final conclusion
(Service Employees’ International Union, Local No. 333 v. Nipawin District
Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other
words, if the reasons allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes, the Dunsmuir criteria are met.
17 The fact that there may be an alternative
interpretation of the agreement to that provided by the arbitrator does not
inevitably lead to the conclusion that the arbitrator’s decision should be set
aside if the decision itself is in the realm of reasonable outcomes.
Reviewing judges should pay “respectful attention” to the decision-maker’s
reasons, and be cautious about substituting their own view of the proper
outcome by designating certain omissions in the reasons to be fateful.
[28]
For
all these reasons, the Court dismisses the application for judicial review. No
question is proposed for certification and there is no question to be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
the application for judicial review is dismissed. No
question is certified.
“Marie-Josée
Bédard”
Certified
true translation
Monica
F. Chamberlain
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