Docket: IMM-1613-16
Citation:
2017 FC 3
[ENGLISH TRANSLATION]
Ottawa, Ontario, January 3, 2017
PRESENT: The Honourable Madam Justice Gagné
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BETWEEN:
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JEAN CLAUDE
MUHENDANGANYI
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CLAUDE STEPHANE
NICITEGETSE
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NATHALIE
NDAYISHIMIYE
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MICHAELLA ISHIMWE
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Applicants
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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.
Nature of the case
[1]
Mr. Jean Claude Muhendanganyi [Principal
Applicant], his adult son, Claude Stéphane, and his minor daughters, Nathalie
and Michaella, are seeking the judicial review of a decision by a Citizenship
and Immigration officer, dismissing their application to be exempted from the
requirement to file their application for permanent residence from outside
Canada, based on humanitarian and compassionate considerations, pursuant to
subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001,
c. 27 [IRPA].
II.
Facts
[2]
The applicants are citizens of Burundi. They
arrived in Canada on August 15, 2012, and filed a claim for refugee protection
on the day of their arrival. That claim and their application for judicial
review, filed before this Court, were dismissed.
[3]
A year later, they filed an application for
permanent residence based on humanitarian and compassionate considerations. This
application was dismissed for the first time, and their first application for
judicial review of that decision was allowed on consent of the parties, since
it did not contain any analysis regarding the best interests of the minor
children affected by the decision.
[4]
The application was dismissed for the second
time and, even though the applicants were in Canada without status and their
record was forwarded to the removal unit of the Canada Border Services Agency, they
are currently benefitting from the temporary suspension of removals to Burundi,
given the crisis that has prevailed in that country since the spring of 2015.
III.
Impugned decision
[5]
From the outset, the officer notes that the applicants
have the burden of proving that they will suffer exceptional hardship if their
application is not allowed. After weighing all the evidence submitted by the applicants,
he finds that the evidence is not sufficient to show that the applicants are well
established in Canada. He also finds that the evidence is not sufficient to
argue that the children’s best interests would counterbalance the other factors
considered. The officer states that he is aware of the very troubling situation
that currently prevails in Burundi. However, he finds that the applicants did
not show that their personal situation justifies the granting of an exemption
from the IRPA requirements and that, in any event, they will benefit from the temporary
suspension of removal to that country, until the social and political situation
improves.
IV.
Issues and standard of review
[6]
In my opinion, this application for judicial
review raises only one issue:
Did the officer
err in the assessment of the evidence and the various factors that justify the
granting of the application for permanent residence based on humanitarian and
compassionate considerations?
[7]
Decisions based on section 25 of the IRPA are, by
nature, discretionary. They are subject to the standard of review of
reasonableness (Kanthasamy v Canada (Citizenship and Immigration), 2015
SCC 61 at para 10; Terigho v Canada (Minister of Citizenship and Immigration),
2006 FC 835 at para 6).
[8]
When this standard of review applies, the Court
cannot substitute its own conclusion for the one reached by the decision-maker.
It must rather determine whether that conclusion falls within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47; Kanthasamy, supra, at para 111). Even
though there may be more than one acceptable outcome, “as
long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome.” (Canada (Citizenship
and Immigration) v Khosa, [2009] 1 S.C.R. 339 at para 59).
V.
Analysis
Did the officer
err in the assessment of the evidence and the various factors that justify the
granting of the application for permanent residence based on humanitarian and
compassionate considerations?
[9]
In my opinion, the officer’s decision is
reasonable. He analyzed in turn the best interests of the minor applicants, the
impact of the temporary suspension of removals to Burundi, and the applicants’ degree
of establishment and integration. He assessed these factors in light of the
evidence and reasonably determined that the applicants had not discharged their
burden to show that their circumstances justified an exemption under subsection
25(1) of the IRPA.
[10]
The IRPA confers to the Minister or the
Minister’s officers a broad discretionary power to grant such an exemption and
there are no prescribed circumstances that must lead to a positive exercise of
that discretion (Liang v Canada (Citizenship and Immigration), 2006 FC
967 at para 17).
[11]
The applicants must still show that they will
encounter “unusual or undeserved” or “disproportionate” hardship if their application is
not granted. Hardship is “unusual or undeserved”
if it is not anticipated by the Act or its regulations; it must be the result
of independent circumstances beyond the applicants’ control. Disproportionate
hardship is defined as “an unreasonable impact on the
applicant due to their personal circumstances” (Kanthasamy, above,
at para 26).
[12]
In Kanthasamy, the Supreme Court states
that what does warrant relief will clearly vary depending on the facts and
context of the case. An officer “making humanitarian
and compassionate determinations must substantively consider and weigh all the
relevant facts and factors before them” (Kanthasamy, above, at
para 25). In my opinion, that is what the officer did.
(1)
The best interests of the child
[13]
The officer did a detailed analysis of the minor
applicants’ situation. We can understand from his reasons that he was alert,
alive, and sensitive to their best interests (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 75; Kanthasamy,
above, at para 143).
[14]
The applicants rely on the decision of the
Federal Court of Appeal in Canada (Minister of Citizenship and Immigration)
v Hawthorne, 2002 FCA 475, and argue that the officer had to analyze the
advantages and inconveniences for the child according to whether or not the
child remained in Canada. Yet, although the facts in Hawthorne are very
different than those before me in that the child in question was Canadian, it is
my opinion that the officer carried out this exercise.
[15]
In Hawthorne, the Court notes that the
officer is not alert, alive and sensitive to the best interests of the affected
child simply because there is a statement to that effect in the officer’s reasons
(Hawthorne, above, at para 32; Canada (Minister of Citizenship
and Immigration) v Legault, 2002 FCA 125 at para 12; Kanthasamy, above,
at para 39). The best interests of the child must be “well identified and defined”, and examined “with a great deal of attention” in light of all of
the evidence (Kanthasamy, above, at para 39).
[16]
In the case at bar, the officer points out that the
applicants submitted very little evidence regarding the minor children. He
considers the fact that the children live in Canada only with their father, and
that the rest of their family lives in Burundi, while their mother lives in South
Sudan. He finds that the applicants did not show how it would be in the
children’s interest to remain in Canada; they did not submit a letter from the
children’s mother and do not put forward any personal circumstances or special
needs that would justify such a finding. Taking into account the special conditions
of Burundi, the officer finds that the applicants did not establish that the
children would be personally at risk for sexual abuse. The evidence shows,
rather, that they would benefit from the supervision and protection of their
father and the rest of their family.
[17]
Relying again on Hawthorne, the
applicants argue that before finding that there was insufficient evidence
regarding the minor children’s best interests, the officer ought to have
carried out “further inquiries” regarding the
issue (Hawthorne, above, at para 47). In my opinion, the
applicants are mistaken about the passage cited from that decision. In that
case, the officer determined that that it was not necessary to attach
particular importance to the allegations of the father’s sexual assault of his
stepdaughter, in the absence of evidence of the father’s indictment. The
concerns of the child affected by the decision, by the idea of living with her
father, were nevertheless supported by evidence of concern expressed by a
children’s aid society about the father’s parenting ability. According to the
court, it was this evidence that should have been the subject of further
inquiry.
[18]
We cannot infer from this passage that the
officer had a duty to inquire further in order to supplement evidence that was
non-existent or inadequate. The burden of proof undeniably rests on the
applicants (Lu v Canada (Citizenship and Immigration), 2016 FC 175 at
para 42). It was their responsibility to submit evidence regarding the impact
that the refusal of their application for exemption would have on the minor
applicants, based on their personal situation. They did not do so.
(2)
The temporary suspension of removals to Burundi
[19]
The applicants submit that the temporary
suspension of removals to Burundi should support their position since it
confirms that this country is in the grip of exceptionally dangerous social and
political conditions. They should therefore benefit “ipso
facto” from the exemption provided in the IRPA, in the absence of inadmissibility
or another legal obstacle.
[20]
The existence of dangerous conditions or the temporary
suspension of removals to a given country does not create a presumption that a
permanent residence applicant has the right to the exemption set out in subsection
25(1) of the IRPA (Alcin v Canada (Citizenship and Immigration), 2013 FC
1242 at para 55). The officer considered the current situation in Burundi and the
temporary suspension of removals to that country, factors that he weighed with
the rest of the humanitarian and compassionate considerations that he had to
consider. Contrary to what the applicants argue, the temporary suspension of
removals was not the only factor considered by the officer. He concluded,
however, that this suspension frustrated the applicants’ allegations that they
would suffer exceptional hardship based on the social and political conditions that
currently prevail in Burundi. This analysis of the evidence is, in my opinion,
reasonable.
(3)
Allegation regarding an alleged alternative
African country
[21]
Contrary to what the applicants suggest, the
officer did not find that the applicants could move to another country on the
African continent other than Burundi. The applicants clearly misinterpreted the
following passage from the officer’s reasons:
As noted earlier in this decision, the
applicants have a number of family members in Burundi and the children’s mother
reportedly resides in South Sudan. No letter from the children’s mother is on
file explaining why it would be in the children’s best interests to remain in
Canada. Without any evidence to the contrary, I find it reasonable to conclude
that the children may also benefit from living in closer proximity to their
mother and other relatives in Africa, allowing them to develop family relationships
and access support. (Decision of the CIC officer, p 5).
[22]
In the context of his analysis of the children’s
best interests, the officer simply considered the fact that in Canada, the
children are in the sole custody of their father and do not have any other
family network, while several members of their family live in Burundi and while
their mother lives in South Sudan, a country much closer to Burundi than Canada.
The officer does not at all suggest that the applicants live in an African
country other than Burundi and this argument by the applicants is without merit.
(4)
The degree of establishment and integration
[23]
On this point, the applicants only reiterate
certain facts and evidence analyzed by the officer, while hoping that this
Court gives them more weight than the officer did. The officer recognized that the
applicants had certain ties to Canada, in light of the short period since their
arrival; he considered the Principal Applicant’s two jobs, the fact that the
children attend school in Canada, the older son’s volunteer activities, and the
Principal Applicant’s involvement in a community organization.
[24]
However, the officer points out that the
evidence does not allow him to establish the nature or frequency of the
activities of the Principal Applicant and of his son. There is also very little
information about the management of the Principal Applicant’s finances in
Canada, other than the fact that his wife (who works for the United Nations in
South Sudan and who earns a good income) and he qualified for a mortgage to
purchase a house in Ottawa.
[25]
There is nothing in the officer’s reasons that
would allow me to find that he made a capricious finding regarding the applicants’
establishment and integration in Canada. The officer’s decision on this point
is, in my opinion, reasonable.
VI.
Conclusion
[26]
For the reasons given above, the applicants’ application
for judicial review will be dismissed. The applicants did not propose a
question of general importance for certification and this case does not raise
any.
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