Date: 20070503
Docket: IMM-5121-06
Citation: 2007 FC 479
Ottawa, Ontario, May
3, 2007
Present:
The Honourable Mr. Justice Blais
BETWEEN:
OUMOU
TOURE
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This
is an application for judicial review, filed pursuant to section 72 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), against
a decision dated August 4, 2006, by a pre-removal risk assessment
officer (the PRRA officer), determining that in this matter there was not any
humanitarian and compassionate consideration justifying an exemption from the
obligation to obtain a permanent residence application prior to coming to Canada
(the HC application).
RELEVANT FACTS
[2]
Oumou
Touré (the applicant) is a citizen of Guinea who arrived in Canada on
November 23, 2003, and immediately claimed refugee status, alleging
that she feared her mother-in-law, who wanted her to marry an older man,
threatening to kill her if she refused.
[3]
On
December 15, 2004, her refugee claim had been refused by the Refugee Protection
Division of the Immigration and Refugee Board (the Board), which determined
that the applicant was not credible.
[4]
On
December 28, 2004, the applicant gave birth to a daughter, Fanta Touré, in
Montréal.
[5]
On
August 8, 2005, she applied for an exemption from the requirement to obtain a
permanent resident visa before coming to Canada, based on
humanitarian and compassionate considerations.
[6]
On
October 31, 2005, she filed a PRRA application. The decision made regarding
that application is the subject of an application for judicial review in docket
IMM-5123-06.
[7]
On
August 4, 2006, the application for exemption was refused, as the PRRA officer determined
that the applicant’s obligation to leave Canada to follow the procedure for
obtaining permanent residence status in Canada would not
cause unusual and undeserved or disproportionate hardship in the circumstances.
[8]
On
August 7, 2006, the applicant gave birth to a son, John-Fodé Touré, in
Montréal.
ISSUES
[9]
The
following issues were raised by the parties in the context of the judicial
review:
1.
Did the
officer adequately examine the best interests of the child, specifically the
interests of the applicant’s daughter in the context of the risk of circumcision?
2.
Did the
officer make an unreasonable determination in regard to the differences in
living conditions between Canada and Guinea?
RELEVANT LEGISLATIVE
EXCERPT
[10]
The
application for visa exemption based on humanitarian and compassionate
considerations falls under subsection 25(1) of the Act. This provision
reads as follows:
|
25. (1) The Minister shall, upon request of
a foreign national who is inadmissible or who does not meet the requirements
of this Act, and may, on the Minister’s own initiative, 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.
|
25. (1) Le ministre doit, sur demande d’un
étranger interdit de territoire ou qui ne se conforme pas à la présente loi,
et peut, de sa propre initiative, 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.
|
STANDARD OF JUDICIAL
REVIEW
[11]
The
Supreme Court of Canada established in Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817, that the standard of review that applies to decisions made
by immigration officers on applications based on humanitarian and compassionate
considerations is that of reasonableness.
[12]
When
the appropriate standard of review is that of reasonableness, this Court cannot
substitute its own assessment of the facts for that of the decision-maker. The
Court must rather determine “whether the
reasons, taken as a whole, are tenable as support for the decision” (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247,
at paragraph 56).
[13]
The
standard of reasonableness is also the appropriate standard of review for the question
of whether an immigration officer adequately considered the best interests of
the child. In Hawthorne v. Canada (M.C.I.), 2002 FCA 475, [2002] F.C.J. No. 1687
(QL), Mr. Justice John M. Evans states the following:
Counsel agreed that, under the legal test established by Baker
and Legault for reviewing officers' exercise of discretion, the refusal
to grant Ms. Hawthorne's H & C application could be set aside as
unreasonable if the officer had been "dismissive" of Suzette's best
interests. On the other hand, if the decision maker had been "alert, alive
and sensitive" to them (Baker, at paragraph 75), the decision could
not be characterized as unreasonable.
ANALYSIS
1. Did the officer adequately
examine the best interests of the child, specifically the interests of the
applicant’s daughter in the context of the risk of circumcision?
[14]
The
applicant submitted that it was unreasonable for the officer to determine that
the question of circumcision was not at issue since in the written letter that
she filed she had expressly raised her fear that her daughter would be
circumcised.
[15]
In
this letter, the applicant wrote:
[translation]
With regard to my
daughter, she is also at risk of being circumcised because, despite the ban and
international awareness campaigns, forcible circumcisions are still performed
in Africa’s Guinean society and as I was unable to protect myself from my
family’s wishes how can I protect my daughter? I do not think so since they can
take my daughter without my consent or behind my back to do so if I return to Guinea.
.
. .
Forced marriage and
circumcision are very routine in my family. My aunt said that my mother was
forced to marry when she was 15 years old and she had her first child two years
later and I was circumcised and forced to marry like her.
[16]
Although
the issue of circumcision was clearly raised by the applicant, the PRRA officer
determined that the risk of circumcision was not a determinative factor in this
application for exemption. The officer writes:
[translation]
Regarding the
allegations specific to her daughter, the applicant also failed to submit
credible or trustworthy evidence other than the general documentary evidence on
Guinea reporting
that circumcision takes place. As stated earlier, the practice of circumcision
in Guinea and its
significance are not considered issues in this application.
. . .
In this application for
exemption, the applicant filed general evidence regarding the situation of
women in Guinea and the substantial
presence of circumcision in that country despite it being illegal. The existence
of this practice does not in itself support a finding that it would apply
personally to her daughter, Fanta. The many contradictions and implausibilities
identified following the interview of July 27, led me to find that the
applicant is not credible and that her story was invented for the purpose of remaining
in Canada for reasons
other than those stated.
[17]
The
respondent argued that it was reasonable for the officer to find that the
application could not be allowed absent evidence of personal risk. The
respondent relied on Kaba v. Canada (M.C.I.), 2006 FC 1113, [2006] F.C.J. No. 1420
(QL), where Mr. Justice Yvon Pinard determined that the fact
that circumcision is still routinely practised in Guinea is not sufficient in
itself for a favourable decision, and that applicants must establish a
connection between the current situation in their country and their personal
situation.
[18]
Although
Kaba, supra,
dealt with a PRRA decision and not an HC application, in my opinion that
decision applies to this matter. Accordingly, in my opinion the PRRA
officer adequately considered the risk of circumcision.
[19]
In
fact, the PRRA officer examined the risk for the applicant’s daughter based on
the material evidence filed, which had already been found to lack credibility
by the Board as well as by the Federal Court. The officer nonetheless
recognized that the practice of circumcision in Guinea is
significant and is not disputed in the circumstances. However, the fact that
circumcision is routinely practised in Guinea does not
necessary mean that it would be the case for the applicant’s daughter, since
the applicant is firmly opposed to it and the very existence of the persecuting
agent (her mother-in-law) had been dismissed by the officer and by the Board as
lacking credibility.
[20]
As
for the best interests of the children, the officer also took into account the
submissions of many specialists in the health field who expressed their
reservations about an anticipated return to Guinea. However,
bear in mind that these specialists based their findings on the applicant’s
allegations, which were found to lack credibility, greatly reducing the value
of these findings. As Madam Justice Barbara Reed stated in Danailov v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 1019
(QL):
… to find that that
opinion evidence is only as valid as the truth of the facts on which it is
based, is always a valid way of evaluating opinion evidence. If the panel does
not believe the underlying facts it is entirely open to it to assess the
opinion evidence as it did.
[21]
The
officer also considered that the children, who are Canadian citizens, did not
have contact with their respective fathers and would therefore not be separated
from them if their mother decided to bring them to Guinea.
[22]
Accordingly,
I am satisfied that the PRRA officer was receptive, attentive and sensitive to
the best interests of the applicant’s children, as required by the Supreme
Court of Canada in Baker, supra.
2. Did the officer make an unreasonable
determination in regard to the differences in living conditions between Canada
and Guinea?
[23]
That
the situation is better in Canada than in Guinea is a euphemism.
That said, the officer examined the consequences of a return to Guinea for the
applicant and her children, and determined that to date the applicant has
adequately cared for her children. Indeed, she could not determine based on the
evidence that the applicant would be left alone and without means if she were
to return to Guinea.
[24]
It
is evident that the applicant’s adaptation and the ties she developed in Canada
are not sufficient to justify an exemption, i.e. to establish that her
departure from Canada to
apply for a visa from abroad would cause unusual and undeserved
or disproportionate hardship in the circumstances (Irimie v. Canada (M.C.I.),
[2000] F.C.J. No. 1906 (QL)).
[25]
Further,
the Federal Court of Appeal in Legault v. Canada (M.C.I.), 2002 FCA 125,
[2002] F.C.J. 457 (QL), at paragraph 12, stated that the presence
of children in Canada is not an obstacle to the removal of a parent who is in
Canada illegally:
The presence of
children, contrary to the conclusion of Justice Nadon, does not call for a
certain result. It is not because the interests of the children favour the fact
that a parent residing illegally in Canada should remain in Canada (which, as
justly stated by Justice Nadon, will generally be the case), that the Minister
must exercise his discretion in favour of said parent. Parliament has not
decided, as of yet, that the presence of children in Canada constitutes in
itself an impediment to any "refoulement" of a parent illegally
residing in Canada (see Langner
v. Minister of Employment and Immigration (1995), 184 N.R. 230 (F.C.A.),
leave to appeal refused, [1995] S.C.C.A. No. 241, SCC 24740, August 17, 1995).
[26]
The
respondent pointed out that the Court cannot reassess the weight assigned by the
PRRA officer to different factors considered in her decision to refuse the
application for visa exemption. On this point, we need only refer to the
comments of this Court in Mann v. Canada (M.C.I.), 2002 FCT 567,
[2002] F.C.J. No. 738 (QL), at paragraph 11:
I wish to note the able
submissions of counsel for the applicant and the sympathy that, in my view, the
applicant's case attracts. The sympathy evoked flows particularly from the
length of time that the applicant has been in Canada, the difficulties that he
has encountered and, it would appear, overcome while in Canada, his new
relationship in Canada and the Canadian born child of that relationship, and,
what I conclude must be an obvious reality, that the applicant is now closer to
his relatives and friends in Canada than he is likely to be to his family
members in India, particularly having regard to the length of time he has been
absent from India and the divorce proceedings that he has instituted in India.
That being said, I cannot conclude that the Immigration Officer ignored or
misinterpreted evidence before her, took into account irrelevant matters or
failed to consider the best interests of the applicant's Canadian born child. I
am satisfied that the Immigration Officer's notes, quoted earlier in these
reasons, reflect consideration of all of the factors placed before her by the
applicant and that she was bound to consider. That I might have weighed those
factors differently is not a basis on which I might grant this application for
judicial review.
[27]
The
PRRA officer had the duty to consider the evidence and to determine the weight
to be assigned to those various pieces of evidence. In my opinion, this is
exactly what she did and the applicant did not establish that the officer made
an error that could justify the intervention of this Court.
[28]
The
application for judicial review will therefore be dismissed.
[29]
The
parties did not submit any question for certification.
JUDGMENT
- The application for
judicial review is dismissed;
- No question will be
certified.
“Pierre
Blais”
Certified true translation
Kelley A. Harvey, BCL, LLB
Email this Content