Docket: IMM-2342-16
Citation:
2017 FC 109
Ottawa, Ontario, January 27, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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V.S.
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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
[1]
The Applicant sought permanent resident status
in Canada on humanitarian and compassionate [H&C] grounds, pursuant to section
25 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
This is an application for judicial review, under subsection 72(1) of the IRPA,
of the Applicant’s second unsuccessful H&C application. The Applicant is a
citizen of Cameroon. She entered Canada in 2009 and claimed refugee protection
on the basis of fear of a forced marriage to her brother in law and the fear of
being forced to undergo Female Genital Mutilation [FGM]. Her refugee claim did
not proceed, as she misrepresented her travel history. Before being required to
leave Canada, the Applicant applied for a Pre-Removal Risk Assessment [PRRA]
based on her sexual orientation. Her PRRA was denied.
[2]
In her H&C claim, the Applicant claims she
is at risk in returning to Cameroon because of her sexual orientation. She also
fears that her Canadian born daughter, conceived in 2014 through in vitro-fertilization
[IVF], may be subjected to FGM. Additionally, she argues that the quality of
the health care in Cameroon puts her young daughter at risk. The Officer was
not convinced that there was reliable evidence on the risks identified by the
Applicant. Further, the Officer found that the Applicant was not credible with
respect to her sexual orientation claim. Her H&C application was denied.
[3]
On this judicial review, the Applicant argues
that the Officer failed to properly consider the evidence. She also claims that
her procedural fairness rights were breached. For the reasons that follow, I
conclude that the H&C decision is reasonable, and there were no breaches of
procedural fairness. This judicial review is dismissed.
I.
H&C Decision under review
[4]
The Officer considered the risks of forced
marriage and forced FGM on the Applicant by her late husband’s family. These risks
were previously raised by the Applicant in her refugee claim. However, the Officer
notes that the H&C application was silent on these issues. Therefore, the Officer
concluded that these risks had diminished.
[5]
With respect to the Applicant’s sexual
orientation, and her fear of adverse treatment in Cameroon, the Officer was concerned
that “sexual orientation” was not raised by the Applicant
in her original refugee claim. The Officer concluded that the Applicant’s
explanations for failing to do so were not reasonable, especially considering her
level of education and sophistication. The Officer also did not accept her explanations
for the discrepancies on the relationships she claims to have had with women in
Cameroon. He further questioned the reliability of her evidence on her sexual
orientation when she could not recall the name of the website where she found
her first Canadian girlfriend. Overall, the Officer found that there was
insufficient credible evidence to support her claim to be a lesbian.
[6]
With respect to her current same sex relationship,
the Officer was concerned with the dates of some of the evidence presented to
substantiate the relationship, as it was dated shortly after the denial of her
PRRA application. Additionally, the failure of her partner to play a
significant role in her decision to undergo IVF caused the Officer to question
the credibility of her claim to be in a common law same sex relationship. The
Officer expected that her partner would be involved in such an important
decision.
[7]
On the best interests of the child [BIOC] analysis,
the Officer found that the evidence demonstrated that the Applicant was the
child’s primary caregiver and sole legal parent. He did acknowledge that her
partner shared some of the parenting responsibilities. However, the Officer concluded
that whatever assistance her partner was providing could be undertaken by family
in Cameroon. On the risk of FGM, the Officer found that there was no threat
from anyone to subject the child to this procedure and that it was unlikely to
happen if the child went to Cameroon with her mother. While the Officer did acknowledge
the inferior quality of healthcare in Cameroon, there was no indication that the
child had an ongoing medical condition requiring care. On a balance of
probabilities, the Officer concluded that this risk was not established.
[8]
In denying the H&C application, although the
Officer noted that the Applicant was somewhat established in Canada, this was
outweighed by the negative factors, including “misrepresenting
her travel history in her refugee protection application”. Further, the Officer
found the Applicant “to be flexible in the truth in
order to fortify the adverse conditions she would face in Cameroon”.
II.
Issues
[9]
The following issues were raised by the
Applicant:
- Are the findings
with respect to the Applicant’s sexual orientation reasonable?
- Is the BIOC
analysis reasonable?
- Was there a
breach of procedural fairness?
[10]
The standard of review for an H&C
application is reasonableness (Kisana v Canada (Citizenship and
Immigration), 2009 FCA 189 at para 18).
[11]
Procedural fairness questions are assessed on a
standard of correctness (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43).
III.
Analysis
A.
Are the findings with respect to the Applicant’s
sexual orientation reasonable?
[12]
The Applicant argues that the Officer failed to
consider the totality of the evidence with respect to her sexual orientation. She
argues that her current relationship started in 2011 and that they started
living together in 2015. She argues that while they were not living together at
the time she underwent IVF, her partner was supportive of the Applicant’s
decision to have a child.
[13]
The Officer could not reconcile the failure of
the Applicant to disclose her sexual orientation at the time of her refugee
claim against the fact that the Applicant is well educated. Additionally, the
Officer found inconsistencies in the Applicant’s evidence regarding her past sexual
relationships. Furthermore, the Officer found the Applicant lacked credibility when
discussing her previous relationships with women in Cameroon. There were
inconsistencies in her evidence and the Officer found her explanations improbable.
This finding of the Officer is entitled to deference (N’Kuly v Canada
(Citizenship and Immigration), 2016 FC 1121 at para 20).
[14]
It is not this Court’s role to reweigh the
evidence or substitute its own view of a preferable outcome (Galamb v Canada
(Citizenship and Immigration), 2016 FC 1230 at para 52.)
[15]
Here, the Officer concluded that the Applicant
failed to submit sufficient evidence to support her claim for special relief on
H&C grounds. This is a reasonable conclusion.
B.
Is the BIOC analysis reasonable?
[16]
The Applicant argues that the Officer erred in
the BIOC analysis. She argues that her daughter is at risk of FGM in Cameroon
because of her (the Applicant’s) sexual orientation.
[17]
The Officer considered this risk and concluded that since the Applicant did not establish with
credible evidence that she is a lesbian, he was not convinced that there was a heightened
risk of FGM to her daughter on this factor alone. Furthermore, the Officer
noted that no threat of subjecting her daughter to FGM had been made and the
Officer was satisfied that the Applicant could adequately protect her daughter
from any such threat.
[18]
The Officer considered the other H&C factors
in his BIOC analysis. He found the evidence of hardship to be lacking. The
Officer did not set “unusual
and undeserved or disproportionate hardship” as
a threshold. The Officer considered each factor and then considered all the
factors cumulatively and was alive, alert and sensitive
to the Applicant’s daughter’s best interests.
[19]
With respect to the issue of medical care for
the Applicant’s daughter, the Officer noted that while the health care may be
inferior to the quality of health care offered in Canada, there was no evidence
that the child had special medical needs which could not be met in Cameroon.
[20]
The Officer acknowledged that the separation
from her Mother’s partner may cause hardship for the Applicant’s child; however,
the Officer noted that given her young age, she is adaptable and would have the
benefit of family relations in Cameroon.
[21]
The Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 noted that hardship is inevitable
with being required to leave Canada. However, hardship alone is not sufficient
to establish H&C grounds (see para 23).
[22]
Here, the Officer did not ignore any evidence,
and the Officer explained why the evidence was insufficient. The Officer did not err in the BIOC analysis.
C.
Was there a breach of procedural fairness?
[23]
The Applicant submits that the Officer committed
a breach of procedural fairness by making a negative credibility finding
regarding her common-law relationship, without having had the benefit of
hearing evidence from her partner. Her partner did not testify at the H&C hearing.
The Applicant argues that the Officer was advised that her partner was in
attendance at the hearing (held by videoconference) and available to be
interviewed.
[24]
The failure to allow a witness to testify or
discouraging a witness from testifying could constitute a breach of procedural
fairness (Kamtasingh v Canada (Citizenship and Immigration), 2010 FC 45).
[25]
Here however, there is no evidence that the
Applicant requested that her partner give evidence, nor is there any evidence
that the Officer refused to hear evidence from the Applicant’s partner. The
onus was on the Applicant to present her case and put forward the witnesses she
felt were necessary. The Officer is not required to ask for evidence from a
witness who has not been put forward by the Applicant. (See Owusu v Canada
(Minister of Citizenship and Immigration), 2004 FCA 38 at para 5; Mendiratta
v Canada (Minister of Citizenship and Immigration), 2005 FC 293 at para 7;
and Semana v Canada (Citizenship and Immigration), 2016 FC 1082 at para
16.)
[26]
Therefore there is no evidence that the
Applicant’s partner was either prohibited or discouraged from testifying by the
Officer. Therefore, there is no breach of procedural fairness.
IV.
Conclusion
[27]
The Officer’s decision is reasonable. The
Officer did not ignore evidence; the Officer assessed evidence and explained
why it was insufficient. The decision is justified, transparent and
intelligible. The decision is therefore entitled to deference.
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