Date: 20070619
Docket: IMM-4669-06
Citation: 2007 FC 653
Ottawa, Ontario, June 19, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
OLAWUNMI
RAJI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The
Applicant, Ms. Olawunmi Raji, is a citizen of Nigeria who has been
in Canada since May
2000. She has a young son, born in Nigeria, who came to Canada with the
Applicant. The Applicant’s claim for refugee protection and a first
application, on humanitarian and compassionate (H&C) grounds, for
consideration of her permanent resident application from within Canada, were both
denied. In May 2004, she submitted a second H&C application. In a decision
dated June 10, 2006, an Immigration Officer determined that there were
insufficient grounds to show that the Applicant would face unusual, undeserved
or disproportionate hardship if she were required to apply for permanent
residence from outside of Canada.
[2] The Applicant
seeks judicial review of the June 10, 2006 decision.
Key Elements
of the Decision
[3] The
Immigration Officer found that there was insufficient evidence provided to
demonstrate that the Applicant and her husband are in a genuine relationship.
After considering the submissions of the Applicant on the best interests of her
son, the Immigration Officer found that since he is only six years old, he can
easily adapt to a new environment, especially if his mother is with him. The
Immigration Officer was not satisfied that there was sufficient evidence to
show that there is a relationship between the Applicant’s son and his
step-father.
[4] Due to the
Applicant’s claim that there would still be a risk to her life if she returned
to Nigeria, a risk
opinion was prepared by a pre-removal risk assessment (PRRA) Officer. The PRRA
Officer concluded that neither the Applicant nor her son “would be subjected
personally to a risk to their lives or a risk to the security of their person
if returned to Nigeria”. The Immigration Officer agreed with the PRRA
Officer’s reasons and opinion.
[5] The
Immigration Officer considered the different doctors’ reports about the
Applicant’s mental state but found that there was insufficient evidence that
she could not be treated in Nigeria or any evidence that she
had pursued ongoing treatment for her alleged disorders. After reviewing all
the facts on establishment, the Immigration Officer was satisfied that the
Applicant has some level of establishment but did not find that this factor
outweighed the fact that she lacks other factors of hardship.
Issues
[6] The Applicant
raises the following issues:
1.
Did
the Immigration Officer err in assessing the best interest of the child?
2.
Did
the PRRA Officer err in not considering the Applicant’s evidence when she made
her determination regarding the risk opinion?
3.
Did
the Immigration Officer err in her assessment of establishment?
Analysis
[7] In
general, a person who wishes to apply for permanent residence status in Canada must do so
from outside the country. However, in exceptional circumstances, s. 25 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) authorizes the
Minister of Citizenship and Immigration (the Minister) to exempt a foreign
national from the requirement of having to apply for a visa from outside
Canada, where the Minister is satisfied that such exemption is justified by the
existence of H&C considerations. The H&C process is to provide relief
from “unusual, undeserved and disproportionate hardship” that extends beyond
the inconvenience and usual consequences of deportation (Lee v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 7, 103 A.C.W.S. (3d) 384, [2001]
F.C.J. No. 139 at para. 14 (F.C.T.D.) (QL)).
[8] The
standard of review of H&C decisions is that of reasonableness simpliciter
(Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2
S.C.R. 817, 174 D.L.R. (4th) 193 (S.C.C.)). Thus, the Immigration
Officer should be accorded “considerable deference” (Baker, above at
para. 62). The decision should stand unless it is not supported by any reasons
that can stand up to a somewhat probing examination (Canada (Director of
Investigation and Research, Competition Act) v. Southam Inc., [1997] 1
S.C.R. 748 at para. 56, 144 D.L.R. (4th) 1, 209 N.R. 20).
[9] Having
considered the written and oral submissions of the Applicant and reviewed the
Certified Tribunal Record, I am not persuaded that the decision of the
Immigration Officer was unreasonable.
Best Interests of the
Child
[10] The first
error alleged by the Applicant is that the Immigration Officer failed to
consider the best interests of her child. In her reasons for decision, the
Immigration Officer wrote:
The applicant states that her son, who is
a dependant on her application, has been raised here since infancy and it would
be a problem if he were to leave his step father. I have considered the best
interests of the applicant’s child. I am not satisfied that a child who is only
six years old, can not adapt to a new environment or surrounding, especially if
his principal caregiver (his mother) is with him. As for being separated from
his step father, I have also examined that factor. I am not satisfied that
sufficient evidence has been shown that there is a relationship between the two
of them. As such, I am not considering this to be much of a factor.
[11] It
is undisputed that the Officer must be “alert, alive and sensitive” to the best
interests of children affected by the decision (Baker, above at para. 75;
Hawthorne v. Canada (Minister of Citizenship and Immigration),
2002 FCA 475, [2003] 2 F.C. 555, [2002] F.C.J. No. 1687 at para. 10 (F.C.A.)
(QL)). For purposes of this analysis, I have assumed that the duty on the
Immigration Officer in respect of this foreign-born child would no differ from
that for a Canadian-born child.
[12] Although
the Court in Hawthorne (above, at para. 47) determined that, on the
facts of that case, the Immigration Officer was under a duty to make further
inquiries, there is no general duty to go beyond the material provided by an applicant.
The jurisprudence is clear (principally, Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635, [2004]
F.C.J. No. 158 (F.C.A.) (QL)) that the onus is on an applicant to adduce all
relevant information to support the application. As noted by the Court in Owusu,
above at para. 8, “since applicants have the onus of establishing the facts on
which their claim rests, they omit pertinent information from their written
submissions at their peril”.
[13] In
this case, the Applicant’s submissions on her son consisted of one paragraph.
The Immigration Officer took into consideration these submissions. The
Immigration Officer considered whether the child would be able to adapt to a
new environment. She also took into consideration his relationship with his
step father. I note that there was no evidence submitted about the relationship
between the step father and the child besides the one sentence in a March 16,
2006 submissions. For example, the step father provided no letter or document
in support of the application.
[14] On
this point, the Applicant argues that the Immigration Officer failed to consider
her mental state in connection with the child and how her mental instability
might impact on her son on their return to Nigeria. In her
H&C submissions dated March 16, 2006 there is no mention of the Applicant’s
mental state. In her further submissions dated May 20, 2004, there is a brief
mention of her being diagnosed with depression. But, there were no submissions
about how the Applicant’s mental state and her possible relocation would affect
her son. The only reference to the child in light of the Applicant’s alleged
medical problems was made several years earlier, apparently in connection with
a previous application. The Immigration Officer did not err by failing to refer
to possible difficulties the son might face in Nigeria, when none
were presented.
[15] Although the
Immigration Officer’s analysis of the best interest of the child is brief, in
my view, it was sufficient and responds directly and completely to the
submissions made by the Applicant. I find that the Immigration Officer was
“alert, alive and sensitive” to the interests of the child as taught by Baker,
Owusu and Hawthorne.
Risk Opinion
[16] As a second
error, the Applicant asserts that the PRRA Officer who prepared the risk
opinion ignored evidence. Because the H&C application alleged that the
Applicant would be at risk if returned to Nigeria, a PRRA Officer prepared a
risk opinion and provided that opinion to the Applicant for her to provide
corrections. In a risk opinion dated January 6, 2006, the PRRA Officer
concluded, mainly on the grounds of the availability of state protection, that
the Applicant had presented insufficient evidence to support a fear of risk if
returned to Nigeria. After
reviewing the further submissions of the Applicant, the PRRA Officer confirmed
this opinion on March 30, 2006.
[17] The Applicant
submits that the Officer ignored a medical report of her half-brother, who was
deported to Nigeria in April
2004, showing that he was brutally assaulted when he arrived back. She also
submits that the PRRA Officer did not mention the alleged errors and omissions
in her risk opinion which the Applicant had pointed out to her.
[18] In a letter
dated March 30, 2006, the PRRA Officer wrote:
As requested attached is a risk opinion
with regard to this case. I have reviewed the submissions received from the
applicant’s counsel on March 20, 2006, March 17, 2006, and March 13, 2006, in
particular the evidence provided with regard to the applicant’s half-brother
Waheed Morayo who has apparently been removed from Canada according to these submissions. Although
this person’s relevance to the applicant’s risk has now been established, I
find that this information and the additional submissions do not persuade me to
change my opinion in this case, and it therefore stands as written.
[19] The above
letter clearly demonstrates that the PRRA Officer considered the Applicant’s
evidence when she made her decision, including the evidence related to the
half-brother. The further submissions addressed some of the individual
circumstances of the Applicant and provided a medical letter on the Applicant’s
half-brother. However, the submissions did not dispute the fundamental finding
that there is “adequate and meaningful state protection and state funded
support available to the Applicant in Nigeria”. In any event, while
the medical report may have established a relationship of this person with the
Applicant and that he had suffered injuries, it did not explain the cause of
the injuries. In light of the lack of evidence linking these injuries to the
alleged danger faced by the Applicant, it was open to the Immigration Officer
to conclude that the report did not affect his conclusion on state protection.
There is no error.
Establishment
in Canada
[20] Finally, the
Applicant submits that the Immigration Officer’s general statement that there
is no evidence that she could not be treated in Nigeria missed the point made by
the reports of Dr. Pilowsky and the Heritage Behavioural Health Services which
speak to the problem of sending her back to the environment where she had been
traumatized. Thus, the Applicant submits that it was not a question of
obtaining medical care but whether it would be inhumane to send her back there,
especially so, when her half-brother who had been deported back to Nigeria had
been brutally assaulted by persons connected with her feared persecutors.
[21] Once again, I
can see no error. In effect, the Applicant is asking the Court to re-weigh the
evidence before the Immigration Officer. With respect to the Applicant’s
medical reports, in particular, I note that the reports submitted were dated in
2003. There was no evidence presented that they had been updated or that she
had been receiving on-going treatment for her alleged medical condition. If her
medical condition is so serious, surely the Applicant would have been
undergoing treatment between 2003 and 2006 and could have provided evidence of
her present condition. Absent that evidence, it was not unreasonable for the
Immigration Officer to give little weight to these dated reports.
[22] The fact that
the Applicant will have to leave a residence behind is not enough to justify
the exercise of discretion under s. 25 of IRPA (Irimie v. Canada (Minister of
Citizenship and Immigration), 10 Imm. L.R. (3d) 206, 101 A.C.W.S. (3d)
995, [2000] F.C.J. No. 1906 (F.C.T.D.) (QL)).
[23] I am
satisfied that the Immigration Officer did not err in weighing the evidence
before her with respect to the degree of establishment in Canada.
Conclusion
[24] As Justice
Pelletier pointed out in Irimie, above at para. 12:
If one 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 this case,
the Immigration Officer was not satisfied that the hardship the Applicant would
face rose to the level described by Justice Pelletier. The decision stands up
to a somewhat probing examination. I see no reason to intervene. The Application
for Judicial Review will be dismissed. There is no question of general
importance for certification.
ORDER
This Court orders that:
- The application for judicial review is dismissed; and
- No question of general importance is certified.
“Judith A. Snider”
_______________________
Judge
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