Date: 20071018
Docket: IMM-290-07
Citation:
2007 FC 1062
Ottawa, Ontario, the 18th day of
October 2007
Present:
the Honourable Mr. Justice Shore
BETWEEN:
ABDRAMANE
DIALLO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
PRELIMINARY
[1]
The burden
is on the applicant to show that he would encounter disproportionate, unusual
or undeserved hardship if he had to return to Guinea to make a permanent residence
application there.
[2]
[12] It is also a
well-recognized principle that it is insufficient simply to refer to country
conditions in general without linking such conditions to the personal situation
of an applicant (see, for example, Dreta v. Canada (Minister of Citizenship and Immigration), 2005 FC 1239, and Nazaire
v. Canada (Minister of Citizenship and Immigration), 2006 FC 416).
This was specified by J. François
Lemieux J. in Hussain v. Canada
(Minister of Citizenship and Immigration), 2006 FC 719,
[2006] F.C.J. No. 916 (QL).
[3]
The case
law on this point is clear. In Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] F.C.J.
No. 158:
[5] . . . an applicant has the burden of adducing proof of any claim
on which the H&C application relies. Hence, if an applicant provides no
evidence to support the claim, the officer may conclude that it is baseless.
INTRODUCTION
[4]
This is an
application for leave from a decision by the decision-maker, C. Rebaza, on
November 29, 2006 denying the applicant Abdramane Diallo his application for
permanent residence on humanitarian and compassionate grounds (H&C).
[5]
Mr. Diallo
is seeking an exemption from the requirement that he submit his application for
permanent residence from outside Canada,
as he alleges he is not safe in Guinea.
FACTS
[6]
Mr. Diallo
is 29 years old and single. He
lived in Mali from the age of nine onwards and
returned to Guinea in 1999. He has two brothers
who it appears are in Guinea with his mother.
[7]
Mr. Diallo
lived at N’Zérékoré, in Guinea, and had a grain business
with his father and his older brother Modibo.
[8]
In
September 2000 threats by the rebels of the Front Uni Révolutionnaire allegedly
caused the inhabitants of Mr. Diallo’s village to flee. In February 2001 he
said he was able to leave the area with his mother and younger brother and go
to Conakry. Mr. Diallo said he then left
for abroad alone, as his mother and brother did not have the means to accompany
him. He said that at that time they went to Mali, while his father and older brother
remained in Guinea.
[9]
He said he
left his country on account of [TRANSLATION] “the opposition of the rebels to
the existing government, and in particular to the power conferred on the current
President Lassane Conte”. He arrived in Canada on April 6, 2001 and claimed refugee status on
April 23, 2001.
[10]
The
hearing before the Refugee Protection Division (RPD) took place on August 29, 2002. Mr.
Diallo alleged a fear of persecution on account of his membership in a
particular social group, a risk of torture and danger to his life and a risk of
being subjected to cruel and unusual treatment or punishment. He explained he
feared being recruited by the rebels against his will and alleged he also
feared the army.
[11]
On September 23, 2002 the RPD dismissed Mr.
Diallo’s refugee status application on account of a lack of credibility in his
testimony. The panel considered that Mr. Diallo’s inability to prove his
identity had a direct effect on the credibility of the application and
concluded that he was not a Convention refugee nor a person in need of
protection.
[12]
Mr. Diallo
alleged persecution [TRANSLATION] “on account of the deterioration in the
existing situation in Guinea and forced recruitment”. He
also said he feared [TRANSLATION] “threats to his life and safety due to the
risk of attack and situations of distress and destitution and other disproportionate
hardships”. He also said he feared the poverty which was everywhere in the
country and being a victim of attacks as he would be seen as a foreigner when
he arrived.
Establishment in Canada
[13]
Mr. Diallo
began working in December 2001 shortly after his arrival, and is still employed
by the same employer. His annual employment income rose from $17,939 in 2003 to
$18,223 in 2005, according to his notices of assessment. He did not send the
copies for earlier years, but according to the immigration consultant’s
observations, he received last resort assistance benefits.
[14]
According
to Mr. Diallo’s affidavit, he provided financial help to his mother and two
brothers, who were in Guinea. The invoices indicated that
he had sent money to Mali regularly at least since July
2002 and since July of this year he had made remittances to Guinea. However, the names of the
addressees are always different and do not correspond to the names of the
members of his family indicated on his Personal Information Form (PIF).
Additionally, Mr. Diallo already stated on his PIF in June 2001 and in the
update of his permanent residence application (PRA) in March 2006 that he did
not know where his parents and brothers were. On account of these ambiguities,
even if Mr. Diallo is supporting his family in Guinea financially, this has not been the case
for very long as up to March of this year he did not know where they were.
IMPUGNED DECISION
[15]
The
pre-removal risk assessment officer (PRRA) assessed the humanitarian grounds to
determine whether Mr. Diallo should be exempted from the statutory requirement that
he apply for an immigrant visa before coming to Canada (subs. 11(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 – the Act).
[16]
The
officer concluded that the information submitted in support of the H&C
application did not establish that Mr. Diallo would encounter unusual, undeserved
or disproportionate hardship in filing his permanent residence application in
the usual way, that is from outside Canada.
ANALYSIS
Standard of review
applicable to H&C applications
[17]
The
standard of review applicable to H&C applications is reasonableness simpliciter.
This standard was formulated by Frank Iacobucci J. in Canada (Director of Investigation
and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748:
[56] . . . An unreasonable decision is one that, in the main, is not
supported by any reasons that can stand up to a somewhat probing
examination. Accordingly, a court reviewing a conclusion on the
reasonableness standard must look to see whether any reasons support it. The
defect, if there is one, could presumably be in the evidentiary foundation
itself or in the logical process by which conclusions are sought to be drawn
from it.
[Emphasis added.]
(See
also Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.)
[18]
In order
to benefit from the exceptional treatment referred to in section 25 of the Act,
an applicant must persuade an officer who has to make a decision on the H&C
application that he would encounter unusual, undeserved or disproportionate
hardship if he had to leave Canada and make his visa application from abroad.
[19]
According
to the Supreme Court of Canada, what is important for an officer making a
decision on an H&C application is to take all the relevant factors into
account and assess them in accordance with the Act. When he acts in keeping
with these precepts, the review panel must uphold his decision, even if its
assessment of the factors might have been different (Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817; Suresh v. Canada (Minister
of Citizenship and Immigration), 2002 SCC 1, [2002] S.C.J. No. 3 (QL)).
[20]
On the
burden which an H&C applicant must discharge, Lemieux J. repeated the
following in Hussain, supra:
[10] It is clear the applicants
have the onus of establishing the facts on which their H&C claim rests. As
pointed out by Justice Evans, on behalf of the Federal Court of Appeal in Owusu
v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No.
158, “they omit pertinent information from their written submissions at their
peril.” Justice Evans stated that an immigration officer in considering H&C
applications must be “alert, alive and sensitive” to and must not “minimize”
the best interests of children who may be adversely affected by a parent's
deportation. He added, “however, this duty only arises when it is
sufficiently clear from the material submitted to the decision-maker that an
applicant relies on this factor, at least in part. Moreover, an applicant has
the burden of adducing proof of any claim on which the H&C application
relies. Hence, if an applicant provides no evidence to support the claim, the
officer may conclude that it is baseless.”
[21]
In the
case at bar, the PRRA officer assessing Mr. Diallo’s application for an
exemption considered all the reasons alleged by him, made a complete analysis
of them and concluded that there was no humanitarian ground to justify an
exemption from enforcement of the Act.
[22]
The
criteria for assessing the degree of establishment are set out in section 11.2
of Guide IP5 of Citizenship and Immigration Canada, titled “Immigrant
Applications in Canada made on Humanitarian or
Compassionate Grounds” (Guide IP5 – Appendix A):
·
Does the
applicant have a history of stable employment?
·
Is there a
pattern of sound financial management?
·
Has the
applicant integrated into the community through involvement in community
organizations, voluntary services or other activities?
·
Has the
applicant undertaken any professional, linguistic or other study that show integration
into Canadian society?
·
Do the
applicant and family members have a good civil record in Canada?
[23]
In the case
at bar, it is clear that the officer considered the relevant factors in
assessing the H&C application. His decision was based on the following:
·
the
officer referred to the time the applicant has spent in Canada, namely five and a half years;
·
the officer
noted that the applicant had worked for the same employer since 2001 and
appeared to be self-supporting;
·
the
officer noted that the applicant claimed to be sending money to his family:
however, he observed that the remittances did not correspond to the names of
the members of his family entered on his PIF; further, the applicant had
indicated he did not know where the members of his family were; as a result of
these inconsistencies, the officer found that this point was not conclusive;
·
the
applicant had no family in Canada: however, he had put down
roots and had made friends; he was part of a soccer team.
[24]
In view of
the foregoing, the officer concluded that Mr. Diallo had made efforts to
support himself, had put down roots, but these factors were not extraordinary;
they were not conclusive as to the granting of an exemption; and making a visa
application would not cause him unusual, disproportionate or undeserved
hardship.
[25]
In using
the adjective [TRANSLATION] “extraordinary”, the officer did not require that
the degree of establishment be “extraordinary”. He simply indicated that the
degree of establishment would not cause him unusual, disproportionate or
undeserved hardship.
[26]
Mr. Diallo
considered that the officer had made an error in assessing the various factors
concerned in the degree of establishment. He maintained that he met all the
criteria, namely he was in a sound financial position, he paid his taxes, he
was part of a soccer team, he spoke French well and so on. In his submission,
the officer should have recognized that he had a sufficient degree of
establishment.
[27]
In fact, Mr.
Diallo is essentially asking this Court to reassess all the evidence and to
make a different decision.
[28]
However,
it is not the Court’s function to reassess facts which were put before the
officer (Legault v. Canada (Minister of Citizenship and
Immigration),
2002 FCA 125, [2002] F.C.J. No. 457 (QL), para. 11; Lim v. Canada (Minister of Citizenship and
Immigration),
2002 FCTD 956, [2002] F.C.J. No. 1250 (QL), para. 20).
[29]
It appeared
from the H&C decision that the PRRA officer reviewed all the evidence
submitted by Mr. Diallo in support of his H&C application.
[30]
It was
entirely a matter for the officer, not the applicant, to decide on the weight
to be given to each of the various points submitted by the applicant, based on
the evidence before him. Mere disagreement as to the weight given to the
various points submitted is not sufficient to warrant this Court’s
intervention.
[31]
The
officer’s conclusions were reasonable and were based on the evidence.
Assessment of the evidence is within the discretion of the officer, who is a
person with expertise.
[32]
In Uddin
v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 937, [2002] F.C.J.
No. 1222 (QL), Edmond Blanchard J. explained that H&C applications cannot
be based on the fact that the applicants have become model figures in Canadian
society. Instead, the test is to consider whether making a permanent residence
application from abroad would cause them disproportionate or undeserved
hardship:
[21] The applicant further contends
that the officer did not examine the totality of the evidence regarding
establishment. The applicant argues that the officer had sufficient evidence
before her to conclude that the applicant was established in Canada. In this
regard, the officer determined that the applicant had some level of
establishment but she was not satisfied that this level of establishment
outweighed other factors respecting hardship.
[22] The applicant has the onus of
proving that the requirement to apply for a visa from outside of Canada would
amount to unusual, undue or disproportionate hardship. The applicant assumed
the risk of establishing himself in Canada while his immigration status was
uncertain and knowing that he could be required to leave. Now that he may be
required to leave and apply for landing from outside of Canada, given that he
did assume this risk, the applicant cannot now contend, on the facts of this
case, that the hardship is unusual, undeserved or disproportionate. The
words of Mr. Justice Pelletier in Irmie v. M.C.I. (2000), 10 Imm. L.R.
(3d) 206 (F.C.T.D.), are applicable to this case:
I return to my observation that the
evidence suggests that the applicants would be a welcome addition to the
Canadian community. Unfortunately, that is not the test. To make it the test is to make the H&C
process an ex post facto screening device which supplants the screening
process contained in the Immigration Act and Regulations. This would
encourage gambling on refugee claims in the belief that if someone can stay in
Canada long enough to demonstrate that they are the kind of persons Canada
wants, they will be allowed to stay. The H&C process is not designed to
eliminate hardship; it is designed to provide relief from unusual, undeserved
or disproportionate hardship. There is no doubt that the refusal of the
applicants’ H&C application will cause hardship but, given the
circumstances of the applicants’ presence in Canada and the state of the
record, it is not unusual, undeserved or disproportionate hardship.
[Emphasis
added.]
[33]
As
indicated in paragraph 13 of that judgment: “The process is one which is highly
discretionary, and as such, the onus is on the applicant to satisfy the
immigration officer that there are sufficient humanitarian and compassionate
grounds to warrant a favourable recommendation”.
Officer
applied correct test in assessing H&C application
[34]
Mr. Diallo
argued that the officer misapplied the PRRA test, that is, the applicant should
present evidence of a personalized risk.
[35]
The
officer properly assessed Mr. Diallo’s H&C application by applying the
tests developed by the courts in this connection and the guidelines set out in Guide
IP-5.
[36]
It appears
from the officer’s reasons that the test applied was determining whether making
his permanent residence application from abroad would cause Mr. Diallo unusual,
undeserved or disproportionate hardship. The officer did not ignore the
evidence before him and did not apply the wrong test.
[37]
In Legault,
supra, the Federal Court of Appeal reviewed section 6.1 of Guide IP-5
under the old Immigration Act, R.S.C. 1985, c. I-2 (corresponding to
sections 6.5 to 6.7 of the present Guide) to determine the meaning that should
be given to the term “humanitarian and compassionate grounds” and how this
should be established:
[23] Paragraph 6.1 defines what is
meant by “humanitarian and compassionate grounds”:
Applicants making an application under
R2.1 are requesting processing in Canada
due to compassionate or humanitarian considerations. Subsection R2.1
provides the flexibility to approve deserving cases for processing within Canada, the circumstances of which
were not anticipated in the legislation.
Applicants bear the onus of satisfying
the decision-maker that their personal circumstances are such that the hardship
of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i)
unusual and undeserved or (ii) disproportionate. Applicants may present whatever facts they feel are
relevant.
The following definitions are not meant
as “hard and fast” rules; rather, they are an attempt to provide guidance to
decision makers when they exercise their discretion in determining whether
sufficient H&C considerations exist to warrant the requested exemption from
A9(1).
Unusual
and undeserved hardship
The hardship (of having to apply for an
immigrant visa
from outside of Canada) that the applicant would
face
should be, in most cases, unusual. In other words, a
hardship not anticipated by the Act or Regulations, and
The hardship (of having to apply for an
immigrant visa from outside of Canada) that the applicant would
face should be, in most cases, the result of circumstances beyond the person's
control.
[38]
In Monemi
v. Canada (Solicitor General), 2004 FC 1648, [2004] F.C.J. No. 2004 (QL),
Johanne Gauthier J. said the following regarding the test to be used in
assessing risk in connection with an H&C application:
[39] The main issue on this H&C
application is also quite different from the one to be determined on a PRRA
application under section 112. With respect to the H&C application, the
decision-maker had to determine if Mr. Monemi would experience unusual and
undeserved, or disproportionate hardship if he were to return to Iran to apply for a permanent resident visa.
This concept encompasses much more than the narrow requirements relevant to a
PRRA application [See Note 4 below], namely, those set out in sections 96 and
97 of IRPA. Not only does unusual, undeserved, or disproportionate hardship
include non-risk elements but it also includes risk elements that may not
qualify under sections 96 and 97, such as for example, discrimination that may
not amount to persecution.
[Emphasis
added.]
[39]
In view of
the foregoing, when an applicant makes an H&C application with allegations
of risk, there must be an analysis of that risk to determine whether making his
H&C application from outside of Canada
would cause him undue, unusual or disproportionate hardship. This is precisely
the analysis which the PRRA officer made in assessing Mr. Diallo’s H&C
application (Jeon v. Canada (Minister of Citizenship and
Immigration),
2006 FC 87, [2006] F.C.J. No. 105 (QL), para. 28).
[40]
Contrary
to what was argued by Mr. Diallo, the officer took into account all the
personal circumstances relating to allegations of risk and disproportionate
hardship made by him in his application pursuant to the principles set forth in
Legault, supra. The officer’s reasons contain the following:
[TRANSLATION]
Mr. Diallo alleged risks involved in a
return as a result of deterioration of the present situation in Guinea, and in particular he feared
forced recruitment, attacks and situations of distress . . .
. . . . .
. . . the alleged fears resulted from the
present situation in Guinea and are shared by all its
people. Moreover, the documentary evidence presented did not support the
existence of any risk to the applicant. It did not relate to his particular
situation and did not show that he was part of a group that was targeted or at
risk in his country. Accordingly, I consider that these documents do not have
any evidentiary force in supporting Mr. Diallo’s allegations.
. . . . .
. . . I consider that the
applicant has not shown that leaving Canada to file a visa application abroad would
cause him unusual, undeserved or disproportionate hardship.
[Emphasis
added.]
[41]
The burden
is on the applicant to show that he would encounter disproportionate, unusual
or undeserved hardship if he had to return to Guinea to make a permanent residence
application there.
[42]
The case
law on this point is clear. In Owusu, supra, John Maxwell Evans J. said
the following in this regard:
[5] .
. . an
applicant has the burden of adducing proof of any claim on which the H&C
application relies. Hence, if an applicant provides no evidence to support the
claim, the officer may conclude that it is baseless.
[43]
Weighing
the relevant factors is not a matter for a court which has to review the
exercise of ministerial discretion (Suresh, supra; Legault,
supra).
[44]
In Owusu,
supra, the Federal Court of Appeal said the following:
[12] In the absence of a reviewable
error by the immigration officer in rejecting Mr. Owusu's H&C
application, the Court cannot intervene. It is not the function of the Court
in judicial review proceedings to substitute its view of the merits of an H&C
application for that of the statutory decision-maker, even though, on the
record, Mr. Owusu's in-country claim to be granted permanent resident status on
H&C grounds might well have merit.
[Emphasis added.]
(See also Anaschenko v. Canada (Minister of Citizenship and Immigration), 2004 FC 1328, [2004] F.C.J.
No. 1602 (QL), para. 18.)
[45]
As this
Court noted in Lee v. Canada (Minister of Citizenship and Immigration), 2005 FC 413, [2005] F.C.J.
No. 507 (QL): “… this Court cannot lightly interfere with the discretion given
to the immigration officers. The H&C decision was a fact-driven analysis,
requiring the weighing of many factors.”
[46]
Accordingly,
in so far as the officer took into account all the evidence before him and assessed
all the relevant factors concerning humanitarian and compassionate grounds,
there is nothing to justify this Court’s intervention in the officer’s
decision.
CONCLUSION
[47]
There is
nothing to indicate that the PRRA officer’s conclusions were unreasonable.
[48]
In view of
the foregoing, Mr. Diallo’s arguments are not such as to persuade this Court
that there are good grounds for granting the relief sought by him.
JUDGMENT
THE COURT ORDERS that
1. the application for judicial review is dismissed;
2. no serious question of general importance is
certified.
“Michel M.J. Shore”
Certified
true translation
Brian
McCordick, Translator
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