Dockets: IMM-8253-13
IMM-8254-13
Citation:
2015 FC 462
Montréal, Quebec, April 14, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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MELEDJE CLÉMENT
ESMEL ESSIS
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP & IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This decision concerns applications for judicial
review of two decisions of a Senior Immigration Officer (the Officer) of
Citizenship and Immigration Canada. One decision rejected an application for
permanent residence from within Canada on humanitarian and compassionate
grounds (the H&C application). The other decision denied an application for
a Pre-Removal Risk Assessment (the PRRA application).
[2]
For the reasons set out below, I have concluded
that both applications should be dismissed.
I.
Background
[3]
The applicant is a citizen of Côte d’Ivoire who came to Canada in 2004. He left Côte d’Ivoire in 1998 and was in the United States until his arrival in Canada. He made a refugee claim upon his arrival in Canada which
was rejected in 2005.
[4]
The applicant belongs to the Adjukru ethnic
minority of the Akan group in Côte d’Ivoire, and is a Catholic Christian. He
also claims to be a member of the Ivorian Popular Front (FPI) and a supporter
of the former president of Côte d’Ivoire, Laurent Gbagbo. The applicant argues
that because of these factors he faces risks if returned to Côte d’Ivoire. He
cited these risks in support of both the H&C application and the PRRA
application.
II.
H&C Application
[5]
In support of the H&C application, the
applicant raised two additional issues over and above the asserted risks
mentioned above. These additional issues are his establishment in Canada and the best interest of his children.
A.
Applicable test for an H&C application
[6]
A key argument by the applicant in support of his
assertion that the rejection of his H&C application should be set aside is
that the Officer applied the wrong test in assessing the application. The
correct test is stated near the beginning of the Officer’s impugned decision: “The applicant has the burden of proving that his personal
situation is such that the hardships which would result from a refusal to grant
[the H&C application] would be unusual and undeserved or disproportionate.”
[7]
Unfortunately, on a couple of occasions in the
reasons for the impugned decision, the Officer suggested that the applicant had
the burden of proving not just that the risks he asserts if he is returned to
Côte d’Ivoire are personal to him, but also that they would affect him
differently than others in Côte d’Ivoire:
[…] this evidence describes general country
conditions and does not demonstrate that the applicant’s situation is specific
to him or different from that of other Ivorians. [p. 6 of the decision]
[…] he has not established to my
satisfaction that his personal situation is special and different from that of
the rest of the Ivorian population. [p. 7 of the decision]
[Emphasis added.]
[8]
The applicant argues that the Officer
inappropriately applied the requirement under subparagraph 97(1)(b)(ii) of the Immigration
and Refugee Protection Act that the asserted risks are “not faced generally by other individuals in or from the
country.” However, there is a distinction between this requirement that
the risks affect the applicant in a way that is different from the rest of the
population, and the requirement imposed in an H&C application that the
asserted risks have a personal effect on the applicant rather than a general
effect that may not actually impinge on the applicant. That is to say, even if
the effect is generalized, it must be shown to affect the applicant personally.
The former requirement is inapplicable in the present case, but the latter must
be considered. The subtleness of this distinction may be what led the Officer
to state the requirement in a way that was open to misinterpretation.
[9]
In the end, however, I am satisfied that,
despite the foregoing misstatements, the Officer understood the correct test
and applied it. The Officer quoted from the decision of Justice Frenette in Rahman
v Canada (Citizenship and Immigration), 2009 FC 138, which dealt with this
distinction. Moreover, the Officer’s analysis was correctly concerned with
whether the applicant was likely to be personally affected by the risks he
asserted.
[10]
Because I have concluded that the Officer applied
the correct test, it is not necessary for me to decide on the proper standard
of review for this issue.
B.
Assessment of risks
[11]
The parties are agreed that the standard or
review of the Officer’s assessment of the H&C application is
reasonableness. I agree: Kanthasamy v Canada (Citizenship and Immigration),
2013 FC 802 at paras 10-11.
[12]
As regards the assessment of the risks asserted
by the applicant, the Officer concluded that there was insufficient evidence
either to support the assertions or to indicate that the applicant would be
personally affected.
[13]
The Officer noted several articles describing
conditions in Côte d’Ivoire and accepted that the evidence indicated that the
human rights situation there is not ideal. However, the Officer was not
satisfied that the applicant risked being personally affected by this situation
if he was returned. He found that the evidence did not indicate that members of
his ethnic group or his religion are targeted for persecution or ill-treatment.
The applicant has not convinced me that this finding was unreasonable.
[14]
With regard to the applicant’s assertion that he
is a member of the FPI and a supporter of former president Gbagbo, the Officer
noted that there was no evidence to support either assertion. Though he claimed
to have participated in related forums and meetings, he failed to provide any
corroborating documentation. The applicant argues that the Officer made veiled
findings of a lack of credibility here and that the Officer’s decision should
be set aside because the applicant was not invited to respond to such
credibility concerns. The applicant argues that, in the absence of a
determination as to credibility (which is not present here), an applicant’s
evidence is presumed to be true: Cho v Canada (Citizenship and Immigration),
2010 FC 1299 at para 24. However, the respondent notes that this presumption of
veracity applies only to allegations made under oath, and further that the
presumption is rebuttable where corroborating evidence is insufficient: Adetunji
v Canada (Citizenship and Immigration), 2012 FC 708 at para 46. For these
reasons, it is my view that it was reasonable for the Officer to expect some
sort of documentary support for these assertions by the applicant.
[15]
The applicant also claims that his house in Côte d’Ivoire was expropriated by supporters of the current president, and that his family
was forced to flee. Again, the Officer was concerned about a lack of
documentation. I agree with the applicant that it may be unreasonable to expect
the applicant to obtain documentation concerning the extra-judicial
expropriation of his house by political opponents in a country like Côte
d’Ivoire. However, in my view, it was nonetheless reasonable for the Officer to
note the absence of any evidence at all concerning these events and to draw
conclusions from that absence.
[16]
The applicant also argues that he faces a risk
upon return to Côte d’Ivoire as a failed refugee claimant. At the hearing
before me, applicant’s counsel clarified that he is not asserting that failed
refugee claimants face a greater risk than others returning to Côte d’Ivoire.
Rather, I understand his argument to be a restatement of the assertion that
Côte d’Ivoire is a dangerous place and that he will face risks if he is
returned there. I have seen no evidence that failed refugee claimants face
risks as such upon return to Côte d’Ivoire.
C.
Establishment in Canada
[17]
The applicant argues that the Officer’s analysis
of the applicant’s establishment in Canada was inadequate. I disagree.
[18]
The Officer noted the applicant’s continued
employment, his ability to live in Canada without the support of the public and
to pay his taxes, his ownership of a car and other assets in Canada, his
involvement with his church, his volunteering, and his respect for the law.
However, the Officer found these to be insufficient to demonstrate that his
departure to Côte d’Ivoire would cause hardship that is unusual and undeserved
or disproportionate.
[19]
As mentioned above, the Officer was also not
satisfied with the evidence in support of the assertion that the applicant’s
house had been expropriated and his family displaced.
[20]
In my view, the Officer’s conclusions as regards
the applicant’s establishment in Canada were reasonable.
D.
Best interests of the children
[21]
The applicant claims that he supports a
step-daughter in Canada and a son in Côte d’Ivoire, and that he has built a
solid family relationship in Canada. The Officer noted that there is no
evidence of this support.
[22]
The applicant’s argument concerning the lack of
evidence here is similar to that discussed above. My conclusion is the same:
having recognized the obligation to consider the best interests of the
children, it was open to the Officer to conclude that the evidence was
insufficient to grant the H&C request on that basis.
III.
PRRA Application
[23]
The applicant’s arguments in respect of the PRRA
application are similar to those raised in the context of the H&C
application concerning the risks he faces if returned to Côte d’Ivoire. My
conclusions as to the reasonableness of the Officer’s findings of insufficiency
of the evidence and the adequacy of the Officer’s analysis apply equally here.
IV.
Conclusion
[24]
For the reasons provided above, I conclude that
the applications for judicial review of the H&C application and the PRRA
application should be dismissed.
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