Docket: IMM-8298-14
Citation:
2015 FC 745
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 12, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ROBERT
IMANIRAGUHA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Preliminary comments
[1]
“The determination of
whether the evidence presented meets the legal burden will depend very much on
the weight given to the evidence that has been presented,” as Justice Russell W. Zinn wrote in Ferguson v Canada (Minister
of Citizenship and Immigration), 2008 FC 1067 at para 24 [Ferguson].
[2]
The Court finds that the officer reasonably
weighed the applicant’s particular circumstances with respect to his degree of
establishment in Canada before concluding that there was insufficient hardship
to warrant the application of subsection 25(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA]. As Justice Johanne Gauthier
stated in Wazid v Canada (Minister of Citizenship and Immigration), 2006
FC 1415 at para 4 [Wazid] :
[14] While
establishment in Canada is acknowledged as a relevant factor in assessing an
H&C application, this Court has on numerous occasions stated that it is to
be evaluated through the lens of “unusual, undeserved or disproportionate
hardship” (see Legault, above). The practical implications of this are
described as follows by Justice Michel Shore in Hanzai v. Canada (Minister
of Employment and Immigration), 2006 FC 1108 at paragraph 22:
This Court has repeatedly held that
the hardship suffered by the applicant must be more than mere inconvenience or
the predictable costs associated with leaving Canada, such as selling a house
or a car, leaving a job or family or friends. (Irimie, above, at
paragraphs 12 and 17; Mayburov v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 953
(QL), at paragraph 7; Lee v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 7, [2001] F.C.J. No. 139
(QL), at paragraph 14.)
II.
Introduction
[3]
The applicant is seeking judicial review of a decision
of an Immigration Officer at Citizenship and Immigration Canada, dated November
24, 2014, refusing his application for permanent residence from outside Canada
on humanitarian and compassionate grounds, under the IRPA.
III.
Facts
[4]
The applicant is a Rwandan citizen of Hutu
origin.
[5]
The applicant alleges that he is targeted by the
Rwandan government as a member of the political opposition.
[6]
On May 31, 2013, the Refugee Protection Division
rejected the applicant’s claim for refugee protection, concluding that he was
neither a refugee within the meaning of section 96 of the IRPA, nor a person in
need of protection under subsection 97(1) of the IRPA.
[7]
On April 10, 2014, the Federal Court dismissed
the application for judicial review of that decision (Imaniraguha v Canada (Minister
of Citizenship and Immigration), 2014 FC 349).
[8]
On November 24, 2014, the immigration officer rejected
the application for an exemption from the requirement to apply for permanent
residence from outside Canada made by the applicant under subsection 25(1) of
the IRPA.
IV.
Analysis
[9]
The applicable standard of review for decisions
involving humanitarian and compassionate grounds is reasonableness (Hamida v
Canada (Minister of Citizenship and Immigration), 2014 FC 998 at para 36; Mikhno
v Canada (Minister of Citizenship and Immigration), [2010] AFC 583 at para
21; Kisana v Canada (Minister of Citizenship and Immigration), [2009] AFC
713 at para 18).
[10]
Subsection 25(1) of the IRPA, reproduced below,
confers upon the Minister and his or her delegates discretion to waive certain
requirements under the IRPA on humanitarian and compassionate grounds:
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Humanitarian and compassionate considerations — request of foreign
national
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Séjour pour motif d’ordre humanitaire à la demande de l’étranger
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25. (1)
Subject to subsection (1.2), the Minister must, on request of a foreign
national in Canada who applies for permanent resident status and who is
inadmissible — other than under section 34, 35 or 37 — or who does not meet
the requirements of this Act, and may, on request of a foreign national
outside Canada — other than a foreign national who is inadmissible under
section 34, 35 or 37 — who applies for a permanent resident visa, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
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25. (1) Sous réserve du paragraphe
(1.2), le ministre doit, sur demande d’un étranger se trouvant au Canada qui
demande le statut de résident permanent et qui soit est interdit de
territoire — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37
—, soit ne se conforme pas à la présente loi, et peut, sur demande d’un
étranger se trouvant hors du Canada — sauf s’il est interdit de territoire au
titre des articles 34, 35 ou 37 — qui demande un visa de résident permanent,
étudier le cas de cet étranger; il peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des considérations d’ordre humanitaire relatives à l’étranger
le justifient, compte tenu de l’intérêt supérieur de l’enfant directement
touché.
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[11]
The onus is on the applicant to adduce
sufficient evidence on which to support his or her application (Owusu v
Canada (Minister of Citizenship and Immigration), [2004] FCJ 158 at para
5).
[12]
Following an in-depth review of the officer’s
decision and the entire record that was before him, the Court finds that its
intervention is not required. The analysis of the evidence carried out by the
officer, which falls within his expertise, corresponds to the required criteria
of transparency, intelligibility and justification (Dunsmuir v New Brunswick,
[2008] ACS 9 at para 47).
[13]
First, in his reasons the officer considered the
factors related to the applicant’s degree of establishment in Canada. Among
other things, the officer assessed the evidence adduced by the applicant with
respect to friendship, employment, education and religious affiliation,
including his relationship with his girlfriend and his four adopted children.
[14]
The officer concluded that these factors would
not cause unusual and undeserved, or disproportionate hardship to the applicant
by reason of his establishment in Canada.
[15]
“The determination of
whether the evidence presented meets the legal burden will depend very much on
the weight given to the evidence that has been presented,” as Justice Zinn stated in Ferguson, above, at para 24.
[16]
The Court finds that the officer reasonably
weighed the applicant’s particular circumstances regarding his degree of
establishment in Canada before concluding that there was insufficient hardship
to warrant the application of subsection 25(1) of the IRPA. As Justice Gauthier
stated in Wazid, above, at para 4) :
[14] While
establishment in Canada is acknowledged as a relevant factor in assessing an
H&C application, this Court has on numerous occasions stated that it is to
be evaluated through the lens of “unusual, undeserved or disproportionate
hardship” (see Legault, above). The practical implications of this are
described as follows by Justice Michel Shore in Hanzai v. Canada (Minister
of Employment and Immigration), 2006 FC 1108 at paragraph 22:
This Court has repeatedly held that
the hardship suffered by the applicant must be more than mere inconvenience or
the predictable costs associated with leaving Canada, such as selling a house
or a car, leaving a job or family or friends. (Irimie, above, at
paragraphs 12 and 17; Mayburov v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 953
(QL), at paragraph 7; Lee v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 7, [2001] F.C.J. No. 139
(QL), at paragraph 14.)
[17]
In addition, the officer assigned little weight
to the fact that the applicant had remained in Canada since February 2011. Such
a finding is reasonable having regard to the fact that the applicant’s years of
establishment resulted from the ordinary working of the immigration and refugee
legislation (Mooker v Canada (Minister of Citizenship and Immigration),
[2008] FCJ 713 at para 34).
[18]
With respect to the adverse country conditions
in Rwanda and risks alleged by the applicant as a supporter of an opposition
political party, the Court considers the officer’s analysis to be reasonable
based on the evidence, which does not provide grounds for humanitarian and compassionate
relief. This is supported by a contextual reading of the evidence specifically
cited with regard to country conditions in order to gain an overall view of the
objective evidence.
[19]
In his reasons, the officer examined the
documentary evidence on country conditions in Rwanda. First, the officer
examined evidence regarding the high unemployment rate and found that the applicant’s
situation was different from that of the general population due to his academic
and professional training and in light of the fact that he had worked in the
Rwandan public service prior to leaving for Canada.
[20]
Furthermore, the officer considered the evidence
on inter-ethnic tensions which persist in Rwanda. The evidence shows that Hutus
may be discriminated against in terms of employment in the public service and
senior government positions. However, the law requires equal treatment for all
and there are mechanisms to counter discrimination. In addition, the officer
observed that Hutus (84 to 85 % of the population), who are the majority
in Rwanda, are not identified in the documentary evidence as being a
marginalized group.
[21]
The Court is of the view that it was reasonable
for the officer, in light of his analysis and reasons, to find that the
hardship cited by the applicant by reason of his Hutu ethnicity and the
socioeconomic conditions in Rwanda was not sufficiently demonstrated.
[22]
It is well-settled that applicants under
subsection 25(1) of the IRPA must show a link between the evidence of hardship
and their individual situations (Kanthasamy v Canada (Minister of
Citizenship and Immigration), 2014 FCA 113 at para 48 [Kanthasamy]).
[23]
With this in mind, in the absence of evidence
showing that unusual and undeserved hardship would affect the applicant “personally and directly” it was reasonable for the
officer to find that there were insufficient humanitarian and compassionate
grounds to warrant the application of subsection 25(1) of the IRPA (Nicayenzi
v Canada (Minister of Citizenship and Immigration), 2014 FC 595 at para 31;
Kanthasamy, above, at para 48).
V.
Conclusion
[24]
In view of the foregoing, the Court dismisses
the applicant’s judicial review application.
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