Date: 20110614
Docket: IMM-4836-09
Citation: 2011 FC 692
Ottawa, Ontario, June 14, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
EMMANUEL
MIKE MBAKWE
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), for judicial
review of a decision by an immigration officer (Officer), dated 5 May 2008
(Decision). The Officer refused to grant the Applicant’s application for
permanent residence based on humanitarian and compassionate (H&C) considerations.
BACKGROUND
[2]
The
Applicant is a 57-year-old citizen of Nigeria. He came to Canada on 24 April
2000 and made a claim for refugee protection based on a well-founded fear of
persecution by reason of his religion. He is a Christian. He grew up in
Owerri. He claims that his father was the chief priest of a pagan group which
practised ritual sacrifices. When his father died in 1988, the Applicant was expected
to succeed him but he refused to do so. This decision was highly unpopular with
his mother and other elders of the religious community.
[3]
The
Applicant claims that, in 1990, he moved to Kaduna and opened a
Christian bookstore. In 2001 during a period of religious riots, his shop was
gutted by fires that had been deliberately set by Muslim fundamentalists. These
same “religious thugs” kidnapped and detained him, but the Applicant bribed
them to set him free. He claims that if he goes back to any part of Nigeria, his life
will be endangered by Muslim fundamentalists. He also claims that he will be ostracized
because he will be perceived as having abandoned his children by coming to Canada and losing touch
with them. In his view, this amounts to inhumane treatment.
[4]
The
Applicant has submitted various applications since his arrival in Canada, among them
an application for Convention refugee status, which was rejected by the
Convention Refugee Determination Division (CRDD) on 26 March 2001. The tribunal
hearing this application found that the Applicant lacked credibility. The
evidence in his PIF differed radically from his evidence at the hearing with
respect to how long he was allegedly detained by the religious thugs, which was
the most important incident in his claim. The tribunal found that the
Applicant’s story, in general, was a “complete fabrication, designed to obtain [permanent]
resident status in Canada without going through the proper channels.”
[5]
The
Applicant’s application for a Pre-Removal Risk Assessment (PRRA) was rejected on
5 May 2008. The Officer who heard the Applicant’s PRRA application is the same
officer who rendered the Decision under review.
DECISION UNDER REVIEW
[6]
The
Applicant’s H&C application was based both on his assertions of risk should
he be returned to Nigeria and on his degree of establishment in Canada. The
analysis can be divided into four parts.
[7]
First,
the Officer analyzed the Applicant’s allegations of risk in Nigeria. He noted
that the risks enumerated in the Applicant’s H&C application had previously
been considered in the 2001 Convention refugee claim and the 2008 PRRA but that
risk considerations in an H&C application are “potentially broader.” The
Officer quoted directly from his decision rejecting the Applicant’s PRRA
application; he observed that there was no “change in the [country] conditions
in Nigeria which would expose [the Applicant] to a new and/or additional risk
not already contemplated by the CRDD” and that there was no substantive change
in the circumstances of the Applicant as a Christian since the rejection of his
refugee claim in 2001.
[8]
The
Officer found that the CRDD’s negative credibility findings were “worthy of
significant weight” in the H&C assessment and that, ultimately, the Applicant’s
evidence concerning the religious thugs and the riots in Nigeria did not
substantiate his allegations of risk or refute the CRDD’s findings. The
hardship consideration in an H&C application calls for credible evidence
and, in this case, the Applicant did not provide it.
[9]
First,
the Officer specifically commented on two aspects of the Applicant’s evidence:
his reasons for leaving Owerri and his reasons for leaving Kaduna. The
Applicant claimed that his refusal to assume the role of chief priest in Owerri
resulted in a confrontation with his mother and the elders of the shrine that
became so intense that his mother threw scalding water in his face. The Officer
pointed out, however, that this incident occurred in 1990, over 18 years ago.
There was no evidence that the Applicant’s mother or the elders had ever pursued
him to Kaduna or that they
still harboured an intention to harm him. The Applicant also claimed that his
shop in Kaduna was looted
and burned. The Decision notes, however, that the building depicted in the photos
provided by the Applicant is not obviously a bookstore; there is no police
report or documentation to show either that the Applicant owned a bookshop or
that it was vandalized. Having considered the evidence as a whole, the Officer
concluded that there was insufficient evidence to demonstrate that the
Applicant would be at risk of undue and undeserved or disproportionate hardship
were he to return to Nigeria.
[10]
Second,
the Officer analyzed the Applicant’s establishment in Canada. He observed
that the Applicant had been in Canada since 2000 but that his lengthy stay was
not due to circumstances beyond his own control. He had worked hard and
consistently while in Canada; he had invested in Canadian real estate
and was financially self-sufficient; he actively participated in community
activities; and he had undergone training in relation to his employment. Nevertheless,
the Officer concluded that there was little about the Applicant’s establishment
in Canada that could be characterized as exceptional, given that he had been in
Canada for eight
years. The Officer also commented that the skills acquired by the Applicant
during his stay in Canada were transferable and that he would likely find
employment should he return to Nigeria.
[11]
Third,
the Officer analyzed the Applicant’s claim that he would face psychological and
physical danger and expulsion from the community in Nigeria because he
has had no contact with his children and will be perceived as having abandoned
them. The Applicant gave conflicting evidence as to whether or not he had
maintained contact with his children during his time in Canada. This
inconsistency remains unexplained and therefore casts doubt on the Applicant’s
claim.
[12]
Finally,
the Officer observed that, following a negative decision, the Applicant would
return to a country where he is familiar with the language, culture and customs.
His lack of supportive family in Nigeria, while stressful, would
not be an undue hardship. The Applicant has no close family ties here in Canada, but he has managed
to be self-sufficient nonetheless.
[13]
Ultimately,
the Officer concluded that the Applicant had failed to demonstrate that he was
so firmly established in Canada that severing ties with the community and
with his financial investments would impose on him a hardship that is unusual,
undeserved or disproportionate.
[14]
For
the above-noted reasons, the H&C application was denied.
STATUTORY PROVISIONS
[15]
The following provisions of the Act are relevant to these
proceedings:
|
Objectives — immigration
3. (1) The objectives of this Act with respect to
immigration are
[…]
(c) to support the development of a strong and
prosperous Canadian economy, in which the benefits of immigration are shared
across all regions of Canada;
[…]
Humanitarian
and compassionate considerations
25.
(1) The Minister shall, upon request of a foreign national
in Canada who is inadmissible or who does not meet the requirements of this
Act, and may, on the Minister’s own initiative or on request of a foreign
national outside Canada, examine the circumstances concerning the foreign
national and may grant the foreign national permanent resident status or an
exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
|
Objet en
matière d’immigration
3. (1) En matière d’immigration, la présente loi a
pour objet :
[…]
c)
de favoriser le développement économique et la prospérité du Canada et de
faire en sorte que toutes les régions puissent bénéficier des avantages
économiques découlant de l’immigration;
[…]
Séjour
pour motif d’ordre humanitaire
25.
(1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
ISSUES
[16]
The Applicant raises the following issues:
a)
Whether
the Officer erred in determining that the Applicant did not have sufficient
humanitarian and compassionate grounds to warrant an exemption from the
requirements of the Act;
b)
Whether
the Officer’s Decision was based on an erroneous finding of fact that was made
in a perverse or capricious manner or without regard to the material before him;
and
c)
Whether the Officer failed
to observe a principle of natural justice.
STANDARD OF REVIEW
[17]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard
of review analysis need not be conducted in every instance. Instead, where the
standard of review applicable to the particular question before the court is
well-settled by past jurisprudence, the reviewing court may adopt that standard
of review. Only where this search proves fruitless must the reviewing court
undertake a consideration of the four factors comprising the standard of review
analysis.
[18]
The first
issue concerns the standard of review for an H&C decision. The Federal
Court of Appeal recently held in Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at paragraph 18, that the appropriate standard
is reasonableness. See also Thandal v Canada (Minister of
Citizenship and Immigration), 2008 FC 489 at paragraph 7.
[19]
The
second issue pertains to the Officer’s assessment of the Applicant’s credibility
and the Officer’s treatment of the evidence. Findings of fact and credibility
are within the Officer’s expertise and, therefore, they attract a standard of
reasonableness on review. See Aguebor v Canada (Minister of Employment
and Immigration)
(1993), 160 NR 315, 42 ACWS (3d) 886 (FCA); Aguirre v Canada (Minister of
Citizenship and Immigration), 2008 FC 571 at paragraphs 13-14; and Dunsmuir,
above, at paragraphs 51 and 53.
[20]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph
47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[21]
The
third issue raises questions of natural justice and procedural fairness. These
are reviewed on a standard of correctness. A breach of procedural fairness will
result in the decision being set aside. See Dunsmuir, above, at paragraph
129.
ARGUMENT
The
Applicant
The
Applicant’s Removal Will Result in Unusual, Undeserved or Disproportionate
Hardship
[22]
The
Applicant submits that he is now elderly. He has contributed significantly to
the Canadian economy through his employment, during which time he has been a diligent
and dependable worker. He has maintained stable employment; possesses three
real estate properties, which demonstrates sound financial management; and is
an active member of his church community.
[23]
The
Applicant contends that the Officer failed in his duty to give due
consideration to these factors in assessing the Applicant’s degree of
establishment in Canada. He thereby breached
the rules of procedural fairness.
The
Respondent
Subsection 25(1) Is Not
an Alternate Method of Immigration into Canada
[24]
The
Respondent argues that subsection 11(1) of the Act requires a foreign national
to apply for a visa or any other document required by the regulations before
entering Canada. Subsection 25(1) of
the Act allows the Minister to grant a foreign national permanent residence
status or an exemption from an obligation under the Act if such an exemption is
justified based on H&C considerations. The subsection 25(1) exemption
should not be used as an alternate method of immigration into Canada. Justice Barry Strayer
of this Court, in Vidal v Canada (Minister of Employment and Immigration) (1991), 13 Imm LR (2d)
123, [1991] F.C.J. No. 63 (QL), recognized that such exemptions constitute special
and discretionary benefits.
The Decision Is Reasonable,
Based on the Evidence
[25]
The
Respondent states that, in an H&C application, the burden is on the
applicant to demonstrate that, in his personal circumstances, applying for a
permanent residence visa outside Canada (as is normally required)
would constitute unusual, underserved or disproportionate hardship. Only when the
applicant has met this onerous burden will an H&C exemption be warranted. See
Owusu v Canada (Minister of Citizenship and Immigration), 2003 FCT 94
at paragraphs 11-12.
[26]
The
Officer recognized that the risks alleged in this H&C application were the
same as those alleged in the refugee claim and in the PRRA application. Conditions in
Nigeria have not
changed since the Applicant’s refugee claim in 2001 and his PRRA application in
2008. His own situation as a Christian has not changed either. The Applicant adduced no
evidence to indicate that anyone in Nigeria had pursued him from Owerri to Kaduna or maintained a continuing
interest in harming him because he refused to become a chief priest and,
instead, became a Christian. In addition, there was insufficient photographic
and documentary evidence to show that the Applicant owned a bookstore and that it
was targeted by Muslim fundamentalists. The Applicant also gave inconsistent
evidence regarding his level of contact with his family in Nigeria, and he failed to
explain this inconsistency.
[27]
The
Respondent contends that the Officer considered all of the evidence. The
Officer listed the evidentiary material that formed the basis of his Decision, and
he quoted from the Applicant’s submissions on numerous occasions. It does not
appear that the Officer’s findings of fact were in error or made in a perverse
or capricious manner without regard to the evidence, as the Applicant claims.
[28]
The
Officer considered the Applicant’s degree of establishment in Canada. He
concluded that, based on the evidence, it was the Applicant’s choice to
establish himself in Canada; there was nothing to prevent the
Applicant from returning to Nigeria. The difficulties
associated with uprooting himself are a consequence of his choice to make his
home in a country where he does not have permanent resident status.
The Respondent’s
Further Memorandum
[29]
The
Respondent states further that, in applications submitted in 2001 and 2005, the
Applicant indicated that his mother was deceased. Clearly, the Applicant faces
no risk of persecution from her.
[30]
The
Respondent notes additional inconsistencies in the Applicant’s evidence
regarding his relationship with his children. In documents from 2001 and 2005, the
Applicant claimed ignorance of his children’s addresses; in a different 2005
document, he identified the city in Nigeria where his children were living; in
a letter from 2008, he stated that all of his children had left Nigeria. In each
instance, the Applicant failed to indicate the source of his information
regarding his children’s whereabouts. The Officer did not err in finding that
the Applicant’s evidence concerning his relationship with his children and his
degree of contact with them was inconsistent.
ANALYSIS
[31]
In
my view, the Applicant has presented a particularly weak case for review. His
complaints amount to mere assertions and there is a distinct lack of substance
to back them up.
Error of Law
[32]
The
Applicant says that he discharged the burden of proof upon him and proved
unusual, undeserved and disproportionate hardship.
[33]
The
Applicant, however, simply disagrees with the Decision. When the Decision is
examined it is clear that the Officer provides justification, transparency and
intelligibility in the decision-making process and that the Officer’s
conclusions do not fall outside the range of possible, acceptable outcomes
which are defensible in respect of the facts and law. In other words, it is
possible to disagree with the Decision, but disagreement does not take it
outside of the Dunsmuir range. Even if a positive decision might have
been reasonable on the facts, this would not mean that the Decision was
unreasonable. See Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59.
Establishment
[34]
The
Applicant appears to think that the Decision is unreasonable because he has
managed to establish himself quite well in Canada and he does not want to leave. However, as
the Officer points out in the Decision, the test is not whether the Applicant
would be, or is, a welcome addition to the Canadian community. Establishment is
only one of the factors that has to be examined to determine whether there
would be unusual, undeserved or disproportionate hardship. Clearly the Officer
takes the degree of establishment into account and applies the correct test.
[35]
The
Applicant says that the Officer failed to consider adequately the degree of his
establishment in Canada. There is, however,
nothing in the Decision to support this assertion. Establishment was given a
full and fair consideration. Once again, the Applicant simply disagrees with
the Officer’s conclusions. Disagreement is not sufficient to establish a ground
for judicial review.
Breach of Procedural
Fairness
[36]
The
Applicant says that the Officer breached procedural fairness because he failed
to follow the policy considerations in Inland Processing Manual IP5 and “by
failing to consider relevant issues.”
[37]
It
is not clear what the Applicant means by this unsupported assertion. In any
event, the Officer fully considered the positive factors related to the
Applicant’s establishment in Canada and deemed them insufficient to make a case for unusual,
undeserved or disproportionate hardship. At the hearing of this matter before
me in Calgary on 14 February 14 2011, the Applicant presented a new argument,
one that was not in the written submissions, that, as regards the lack of
evidence on cultural ostracism, the Officer had a duty or an obligation to
obtain on his own initiative, or to contact the Applicant and ask him to
provide, independent objective information on the subject of cultural
ostracism.
[38]
Counsel
provided no legal authority for this position and, in my view, it would be
contrary to the consistent position taken by this Court that the onus is upon
the applicant in an H&C application to provide the evidence that he wants
the Officer to take into account. See , for example, Owusu v Canada (Minister of
Citizenship and Immigration), 2004 FCA 38 at paragraph 5. This principle has
been followed in numerous cases by this Court including: Rizvi v Canada (Minister of Citizenship
and Immigration), 2009
FC 463; Sharma v Canada (Minister of Citizenship and Immigration), 2009
FC 1006; Monteiro v Canada (Minister of Citizenship and Immigration),
2006 FC 1322; Samsonov v Canada (Minister of Citizenship and Immigration),
2006 FC 1158; Hamzai v Canada (Minister of Citizenship and Immigration),
2006 FC 1108; Liniewska v Canada (Minister of Citizenship and Immigration),
2006 FC 591; Ruiz v Canada (Minister of Citizenship and Immigration),
2006 FC 465; Nguyen v Canada (Minister of Citizenship and Immigration),
2005 FC 236; and Legault v Canada (Minister of Citizenship and Immigration),
[2002] 4 FC 358 (FCA).
[39]
Moreover,
Citizenship and Immigration Canada’s Inland Processing Manual IP5 also states
this finding throughout, section 5.7 being just one example. It says:
The
onus is entirely upon the applicant to be clear in the submission as to exactly
what hardship they would face if they were not granted the requested
exemption(s). Officers do not have to elicit information on H&C factors and
are not required to satisfy applicants that such grounds do not exist. The onus
is on the applicant to put forth and H&C factors that they believe are
relevant to their case.
[40]
The
problem in the present case is not just a lack of evidence regarding cultural
and social ostracism in Nigeria. The Applicant failed
to demonstrate with credible evidence how and why he would be personally
subjected to ostracism if he were to return to Nigeria and make his application for permanent
residence to Canada from that country.
Certification
[41]
The
Applicant has submitted the following questions for certification:
In
an application for exceptional relief pursuant to s. 25 of the Immigration and
Refugee Protection Act, when the reviewing officer, has questions that goes to
the “central issue” of a matter that is endemic to a specific country, that is
raised by the applicant, of which the officer lacks the requisite knowledge of
the subject matter; is there an obligation on the officer to educate him- or
herself on the subject matter prior to rendering a decision on the application?
In
analyzing evidence that has arisen after the Board has rejected a refugee claim
and, is therefore “new,” should the PRRA officer, in assessing the new
information, take into consideration factors such as the nature of the
information, its significance for the case and the impact on the applicant? Is
there an obligation on the officer to conduct independent research on the
subject similar to that of the Response to Information Requests done by the
Refugee Board?
If
the officer is applying his or her assessment of these “new” factors from the
PRRA application to the assessment of risk/hardship in the humanitarian and
compassionate application, as an expert in the field, should not the officer
base the assessment on objective documentary information that was examined and
applied to the case in a meaningful way?
[42]
These
questions do not meet the test for certification in that they are clearly an
attempt by the Applicant to shift the burden of proof in an H&C application
despite authority which states that the law is clear that “an applicant has the
burden of adducing proof of any claim on which an H&C application relies.”
See Owusu, above, at paragraph 5. In the present case, the
Applicant simply disagrees with a decision that has reasonably resulted from
his failure to adduce sufficient credible evidence to justify his H&C
claim.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The application is
dismissed.
2.
There is no question
for certification.
“James
Russell”
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