Date: 20090409
Docket: IMM-3642-08
Citation: 2009 FC 363
Montréal, Quebec, April 9, 2009
PRESENT: The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
VICTOR
AIMÉ KOUKA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001 c. 27 (the Act) of a PRRA
officer’s decision dated June 13, 2008, refusing the applicant’s
application for permanent residence on humanitarian and compassionate grounds
(H&C application) as set out in subsection 25(1) of the Act
I. The facts
[2]
The
applicant is a citizen of the Republic of the Congo (RC). He arrived in Canada in
March 2003 and claimed refugee protection. The Refugee Protection Division
(RPD) rejected his claim in December 2003. His application for judicial
review of that decision was dismissed on October 1, 2004.
[3]
In
the meantime, namely, on May 5, 2004, the applicant filed his first
H&C application, which was refused on October 18, 2004. His
application for leave and judicial review of that decision was also dismissed a
little later by this Court’s judgment dated October 1, 2004 (Kouka
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1358).
[4]
On
April 13, 2007, the applicant applied for a Pre-Removal Risk
Assessment (PRRA), which was reviewed at the same time as his second H&C
application filed on May 16, 2007.
[5]
On
February 4, 2008, the officer wrote to the applicant to inform him
that his H&C application would be considered in the near future and to
invite him to update it by March 4, 2008. The applicant did so.
[6]
Both
applications were heard by the same officer, who refused them both on
June 13, 2008. The applicant applied for judicial review of both
decisions, which were communicated to him on July 31, 2008.
[7]
The
hearing for the applicant’s motion to stay the deportation order issued against
him was scheduled for November 3, 2008, and the motion was dismissed
on that day.
[8]
These
proceedings apply solely to the refusal of the second H&C application.
II. The H&C decision
[9]
After
conducting an exhaustive analysis of the reasons stated in the applicant’s
second H&C application, the officer found that the applicant made
essentially the same claims as in his previous applications, that it was not up
to her to sit in appeal on the RPD decision and that the evidence on the record
did not establish sufficient humanitarian and compassionate grounds to exempt
the applicant from the requirement to apply for his permanent resident visa
outside Canada. She also found that, since the RPD decision, the applicant had
not added to the record a single piece of new evidence that would demonstrate
that his return to RC in order to file his application in accordance with the
Act would entail risks constituting disproportionate and undeserved or unusual
hardship.
III. Issues
[10]
Is
the officer’s adverse decision unreasonable in respect of the facts and law?
IV. Analysis
Standard of review for H&C
applications
[11]
The standard of review applicable to
H&C applications rejected by a Minister’s officer is reasonableness, and it
has not changed since Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
The Act
[12]
Under
subsection 11(1) of the Act, a foreign national must normally apply for
his or her visa and for permanent residence before entering Canada.
[13]
The
Minister may exercise his discretion, pursuant to subsection 25(1), and
allow a foreign national to apply for permanent residence from within Canada only in exceptional cases (Baker,
supra; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, at
paragraphs 16 and 17). Since the applicant has no status in Canada, he is still a foreign
national under the Act.
[14]
The burden
is on the foreign national who is requesting to apply from within Canada to
satisfy the officer that the hardship of having to apply from outside Canada would be disproportionate and undeserved or unusual (Legault,
supra, at paragraph 23).
Did the
applicant discharge his burden of proof?
[15]
The applicant is basically claiming that the
officer erred in finding that his allegations were not sufficiently supported
by the evidence. He maintains that the officer should have given him an
opportunity to update his H&C application so that he could submit other
information or corroborating evidence or granted him an interview in order to
do so. The applicant is forgetting that the officer had invited him to update
his application before reviewing it, and that the applicant did so on
March 5, 2008. The applicant had every opportunity to adduce any
evidence he wanted in support of his allegations, and if he did not do so, he
has only himself to blame.
[16]
It was incumbent on the applicant to present the
evidence supporting his claims to the officer and to discharge his burden of
proof by providing all relevant information in a timely manner, especially
since this was his second H&C application. In this case, the officer
correctly determined that the applicant is essentially raising the same
allegations as in his previous applications. The officer was under no
obligation to require additional evidence from the applicant.
[17]
The
applicant cannot fault the officer for not granting him an interview and
allowing him to be heard before deciding as she did. Moreover, it was up to
the applicant to produce all of the evidence supporting his allegations. In Baker,
supra, the Supreme Court of Canada ruled that a hearing is not always
necessary to ensure that an applicant has a meaningful opportunity to present
the various types of evidence relevant to his case and have it fully and fairly
considered. The opportunity for the applicant to update his application with
new written documentation concerning all aspects of his application satisfied
the requirements of participatory rights contained within the duty of fairness
(Buio v. Canada (Citizenship and
Immigration), 2007 FC 157, at
paragraph 22), especially since this was the applicant’s second H&C
application.
Best interests of
the children
[18]
The
applicant is claiming that the officer did not adequately consider the
interests of his children. He is alleging that his application is essentially
based on family reunification and that the officer’s analysis of the
children’s best interests is obviously botched and does not take the children’s
interests into account.
[19]
The Court
does not see the merits of such claims because it is clear from the reasons for
the impugned decision that the officer considered the best interests of the
children, who are all of age, in the context of the evidence to which the
applicant confined himself.
[20]
Since
the applicant indicated in his application that he took care of his children’s
everyday needs with respect to both their studies and their daily lives, he
should have demonstrated the support he was providing by means of sufficiently
convincing evidence. He cannot be unaware of the importance of such evidence,
especially since the adverse decision in his first H&C application
mentioned such deficiencies
[21]
Unfortunately
for the applicant, the evidence does not enable the Court to find differently
from the officer concerning the fact that the applicant’s children have
developed such a dependency that a separation from their father would cause
them disproportionate and undeserved or unusual hardship,
if the applicant were to return to RC in accordance with the Act.
[22]
In
addition, the applicant’s two children, who were 25 and 30 years of age at the
time of the officer’s decision, had been in Canada for over five and a half years before
the arrival of their father. The evidence does not make it possible to assess,
even approximately, the extent of the support provided to them by their father
during that period.
[23]
Although
the children are alleging to be in their father’s care, the evidence does not
make it possible to conclude to what extent he has contributed and continues to
contribute to their tuition fees and their daily expenses, especially since the
income declared by the applicant is barely sufficient to provide for his own
personal needs. It is important to remember that by applying for an exemption
under subsection 25(1) of the Act for the second time the applicant is seeking
a privilege that has already been denied.
[25]
The
Court fails to see why family reunification or the best interests of the
children are more important now than they were at the time of the first H&C
application. The analysis of the file shows that the officer has been
receptive, attentive and sensitive to the children’s best interests, and
unfortunately for the applicant, he still did not discharge his burden to
satisfy the officer. He also failed to satisfy the Court of the existence of a
sufficient number of errors in the impugned H&C decision to warrant the
Court’s intervention on the grounds that it was unreasonable.
The applicant’s establishment
[26]
The
applicant remained in Canada without status from December 23, 2003, until
the dismissal of his stay application on November 3, 2008, not because of circumstances
beyond his control, but because he had chosen to undertake multiple proceedings
in order to obtain a status. He cannot refer to the length of his stay in Canada for the purposes of finding
that he is established here.
[27]
The
evidence submitted to the officer did not enable her to accurately assess the
applicant’s financial situation. That evidence would even make one wonder
whether the applicant was financially independent. The officer did, however,
consider as a positive factor the applicant’s involvement in his church as well
as in two other organizations, but she correctly noted that the applicant
presented no evidence on the disproportionate and undeserved or unusual hardship that he could
suffer as part of these activities to justify the exemption requested. The
Court notes no errors in the officer’s analysis and findings with respect to
the applicant’s insufficient establishment.
Risk in the
Republic of the Congo
[28]
The
officer is correct in stating that a second H&C application should not serve
to appeal an adverse refugee protection decision (Hussain v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 751, para. 12
(QL); Kouka v. Canada (Minister of Citizenship and Immigration), 2006 FC
1236, paras. 26 to 28). She could, however, refer to the RPD’s findings.
[29]
As the
officer correctly noted in her decision, the risks stated by the applicant in
the H&C application on appeal are largely the same as those alleged in the
adverse RPD decision and the refused first H&C application. In order to
justify his second H&C application, the applicant has now added that he
needed Canada’s protection because he was
involved in some events that happened long ago in RC. However, he did not think
it advisable to mention these long-ago events before the RPD or before the
first H&C officer. These are not new facts that have happened since the
previous applications; therefore, the Court can hardly blame the officer for
attributing little weight to a last‑minute piece of evidence submitted
late without a valid reason.
[30]
In
addition, the applicant is not challenging the officer’s finding that his Lari
ethnicity does not put him at risk. The RPD and the first H&C officer came
to the same conclusion.
[31]
Upon
reading the officer’s decision, it becomes clear that she did not simply adopt
the RPD’s assessment of the refugee protection claim and the other officer’s
assessment of the first H&C application. She made her own assessment and
conducted an independent analysis of the applicant’s situation in light of the
documentary evidence submitted. Based on this, the applicant’s claims against
the officer in this regard are obviously unfounded.
[32]
The
officer concluded that the applicant had not demonstrated that he would
personally be exposed to a risk likely to cause him disproportionate and
undeserved or unusual hardship were he to return to RC in order to file his
application for permanent residence from there. The applicant was unable to
prove to the Court that that finding was erroneous with respect to the facts in
evidence and the law.
V. Conclusion
[33]
The
applicant is basically requesting that this Court reassess all of the evidence
and render a different decision, yet he is failing to demonstrate that the
officer had erred. The officer’s findings are reasonable and supported by the
evidence. As a result, this Court’s intervention is not warranted. The
application will therefore be dismissed. Since no serious question of general
importance has been proposed and this Court sees none, no question will be
certified.
JUDGMENT
FOR THESE REASONS, THE COURT DISMISSES the application for judicial
review.
“Maurice E. Lagacé”
Certified
true translation
Margarita
Gorbounova, Translator
Email this Content