Docket: IMM-4417-16
Citation:
2017 FC 517
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 19, 2017
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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RENE MUJANAYI
BAKENGE
&
GODELIVE
MUKENDI NDEKENYA
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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]
Rene Mujanayi Bakenge and Godelive Mukendi
Ndekenya, a Congolese couple who are 77 and 66 years old, respectively, are
seeking judicial review of the decision to refuse their application for an
exemption, based on humanitarian and compassionate considerations, from the
requirement to file their permanent residence application from outside Canada.
[2]
They alleged that the officer erred in his
analysis of the best interests of their oldest son’s children, and in his
analysis of the risks and the adverse conditions that prevail in the Democratic
Republic of the Congo [DRC].
II.
Preliminary issue
[3]
The respondent argued that the applicants’
application had a substantive defect that justified its dismissal, as the
applicants did not file their affidavit verifying the facts relied on in its
support, as required under paragraph 10(2)(d) of the Federal Courts
Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [Rules].
[4]
As the application for leave was granted despite
that substantive defect, I prefer to address the merit of the application for
judicial review, rather than dismiss it on that that ground alone.
III.
Facts
[5]
The applicants arrived in Canada on November 16,
2013, and filed a refugee claim on July 8, 2014. That claim was dismissed by
the Refugee Protection Division and by the Refugee Appeal Division, and their
application for leave and judicial review was dismissed by this Court.
[6]
On July 15, 2016, the applicants filed an
application for permanent residence based on humanitarian and compassionate
considerations, which was dismissed on September 30, 2016, and is the subject
of this application. They cited several grounds, only two of which are relevant
for the present purposes. Their oldest son is now a single father and, because
he works seven days a week, he counts on them to help him with the education
and supervision of his children, aged 16 and 13. Moreover, given the current
situation in the DRC that justifies a moratorium on removals to that country by
the Government of Canada, their removal would jeopardize their safety. As well,
on their return, they would be seen as being rich or as witches and would thus
be persecuted.
IV.
Impugned decision
[7]
The immigration officer concluded that the factors
cited by the applicants were not sufficient to support their application for an
exemption under subsection 25(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[8]
The officer considered the best interests of the
applicants, the possibility of them having access to health care in the DRC,
their degree of settlement in Canada and the risks and adverse conditions in
their country of origin. As the applicants are not challenging the analysis of
either of those factors, they will not be considered.
[9]
The officer placed importance on the letters
sent by the applicants’ grandchildren, who explained their attachment and the
positive impact that the applicants have on their lives. However, he noted that
the applicants have been in Canada for less than three years and have not shown
that their grandchildren would suffer any harm, other than the normal
consequences of separation, if hey were to return to the DRC. If that were to
happen, they would still be able to maintain a long-distance relationship
through social networks and information technology. After weighing all the
evidence submitted by the applicants, the officer concluded that it did not
demonstrate that the best interests of the applicants’ grandchildren would be
compromised by their return to the DRC.
[10]
The officer then considered the applicants’
allegations regarding the risks they would face if they were removed. Apart
from the disastrous general conditions in the country, the officer noted that
the applicants claim that they fear returning to the DRC primarily for two
personal reasons: they could be seen as being rich or as witches and they are
wanted by the Congolese police. However, the officer noted an absence of any
evidence in support of those two allegations. Although he recognized the
general insecurity that prevails in the DRC, the officer concluded that the
applicants had not demonstrated a link between that insecurity and their
personal situation.
V.
Issue and standard of review
[11]
In my view, this application for judicial review
only raises one issue:
Did the officer err in his
assessment of the evidence and the various factors justifying the granting of
an application for permanent residence based on humanitarian and compassionate
considerations?
[12]
Decisions based on section 25 of the IRPA are
intrinsically discretionary and, as such, are subject to the standard of
reasonableness (Kanthasamy v Canada (Citizenship and Immigration), 2015
SCC 61, at para 10).
[13]
When the standard of reasonableness applies, the
Court must determine whether the decision “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). If “the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility”,
this Court cannot substitute its own view of a preferable outcome (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339, at
para 59).
VI.
Analysis
Did the officer err in his
assessment of the evidence and the various factors justifying the granting of
an application for permanent residence based on humanitarian and compassionate
considerations?
[14]
In my opinion, the officer’s decision is
reasonable. He assessed the best interests of the children, all the applicants’
allegations regarding the risks and adverse conditions in the DRC, the
applicants’ degree of settlement in Canada, and their argument that they would
not have sufficient access to medical care in the DRC. He assessed it all in
light of the evidence and reasonably concluded that the applicants did not
discharge the burden of showing that their circumstances justify the granting
of an exemption under subsection 25(1) of the IRPA.
[15]
An application under that provision is an
exceptional measure. It places the burden on applicants to show that they would
face “unusual and undeserved” or disproportionate
hardship if their application were not granted and if they had to file their
application for permanent residency from outside Canada (Kanthasamy,
above, at para 26). The Supreme Court stated:
[…] “Unusual and undeserved hardship” is
defined as hardship that is “not anticipated or addressed” by the Immigration
and Refugee Protection Act or its regulations, and is “beyond the person’s
control”. “Disproportionate hardship” is defined as “an unreasonable impact on
the applicant due to their personal circumstances” […]
[16]
The Supreme Court added that the expression “unusual and undeserved or disproportionate” does not
create three separate thresholds. Rather, these factors “should be seen as instructive but not determinative,
allowing s. 25(1) to respond more flexibly to the equitable goals of the
provision” (Kanthasamy, above, at para 33). The elements that
justify an exemption thus vary based on the facts and context of each
application (Kanthasamy, above, at para 25).
[17]
In my opinion, that is what the officer did in
this case.
(1)
The best interests of the children
[18]
The applicants alleged that the officer erred in
his examination of the best interests of the children on two grounds: first,
they submitted that the officer failed to consider that the father of the minor
children is a single father and that the children enjoy having their
grandparents near them; second, they alleged that the officer erred in
considering that the applicants had not demonstrated that they would be unable
to have a relationship with their grandchildren through information technology.
In support of that point, they cited Somera Duque v Canada (Citizenship and
Immigration), 2007 FC 1367, in which this Court found that it was
unreasonable for an immigration officer to conclude that a father could remain
in contact with his daughter for two years by telephone.
[19]
With respect, I do not share the applicant’s
position. In my view, the officer appropriately analyzed the impact of the
applicants’ return to the DRC on their grandchildren, based on the evidence
before him. He was alert, alive and sensitive to the interests of the
applicants’ grandchildren (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at para 75; Kanthasamy, above, at
para 38).
[20]
Although the applicants’ son says he is a single
parent, the evidence on record shows instead that he has shared custody of his
children with their mother. In my view, that is very different from being a
single parent. Despite that fact, the officer noted the following:
[translation]
I note that the applicants are involved in
the family of their oldest son, who is a single parent (Decision, Tribunal
Record, at p. 5).
[21]
The officer therefore considered the evidence on
record and the fact that the applicants could provide some assistance to their
son when his children were with him. He also noted that the children testified
that, over the last three years, they have come to know their grandparents and
enjoy their presence. He clearly recognized the grandparents’ role in the lives
of their grandchildren and their son.
[22]
However, the officer noted that the applicants
have been in Canada for less than three years and that no evidence on record
shows that their grandchildren would suffer any particular harm if they were to
return to the DRC.
[23]
The officer also concluded that there was no
indication that the applicants would be unable to maintain a relationship with
their grandchildren through information technology.
[24]
In that regard, I have difficulty seeing the
parallel that the applicants tried to draw between their situation and that of
a father of a two-year-old child in Somera Duque. The need of a
two-year-old child to be in close and constant contact with the father cannot
be compared to the need of teenagers to maintain equally close contact with
their grandparents. In the situation before us, the children in question would
remain in Canada in the joint and shared custody of both their parents. We therefore
cannot infer from Somera Duque that it was unreasonable to conclude that
the relationship that the applicants developed over the last few years with
their grandchildren could be continued over a long distance.
[25]
Indeed, the applicants asked me to reassess the
evidence and adopt their preferred solution, which is not the role of this
Court (Khosa, above, at para 59).
[26]
I am therefore of the opinion that the officer
could reasonably conclude that he was not satisfied that the best interests of
the applicants’ grandchildren would be compromised by their return to the DRC.
(2)
Risks and adverse conditions in the DRC
[27]
The applicants also argued that the officer
erred in his analysis of the risks and adverse conditions in the DRC, by
applying criteria developed in section 97 of the IRPA or applied as part of a Pre-removal
Risk Assessment application. They submitted that the officer relied on the
absence of a link between the alleged risks and the applicants’ personal
situation to give little weight to the evidence filed. In their opinion, that
amounted to placing a higher standard than appropriate for an application for
humanitarian and compassionate considerations (Diabate v Canada (Citizenship
and Immigration), 2013 FC 129, at para 34; Shah v Canada (Citizenship and
Immigration), 2011 FC 1269, at para 73).
[28]
I am rather of the opinion that the officer
considered the evidence presented and the prevailing conditions in the DRC, and
that he did not conduct an analysis using the criteria developed in sections 96
and 97 of the IRPA.
[29]
It must be recalled that the applicants alleged
that they feared for their safety on three specific grounds:
➢
They could be seen as being rich or as witches;
➢
They would be wanted by Congolese police; and
➢
They would be victims of the general insecurity
that prevails in the DRC.
[30]
The applicants did not challenge the officer’s
examination of the first two grounds.
[31]
Regarding the third ground, the officer stated
that he was aware of the unstable situation in the DRC, but noted that the
applicants did not demonstrate how that situation would affect them in particular.
[32]
The burden of proof was unquestionably on the
applicants to demonstrate that their fear was well-founded. In Piard v
Canada (Citizenship and Immigration), 2013 FC 170, this Court concluded
that the analysis under subsection 25(1) of the IRPA must be in light of an
applicant’s personal situation (Piard, above, at para 18). In it,
Justice Richard Boivin cites with approval the words of Justice Michel M.J.
Shore in Lalane v Canada (Citizenship and Immigration), 2009 FC 6, at
para 38:
[38] The allegation of risks made in an
H&C application must relate to a particular risk that is personal to the
applicant. The applicant has the burden of establishing a link between that
evidence and his personal situation. Otherwise, every H&C application made
by a national of a country with problems would have to be assessed positively,
regardless of the individual’s personal situation, and this is not the aim and
objective of an H&C application. That conclusion would be an error in the
exercise of the discretion provided for in section 25 of the IRPA which is
delegated to, inter alia, the PRRA officer by the Minister
[Citations omitted.]
[33]
I am of the opinion that that is exactly what
the officer did in the case before us. The officer identified the factors
raised by the applicants, he considered the evidence submitted in support of
them, and he concluded that, without a link between the adverse conditions in
the DRC and the applicants’ personal situation, he could not give a lot of
weight to the objective evidence submitted. In other words, the evidence of the
overall situation in the DRC did not allow him to determine that the applicants
would face “unusual and undeserved” or “disproportionate” hardship if their application was
not granted.
[34]
There is nothing in the officer’s reasons to
allow me to conclude that he drew an incorrect conclusion based on criteria
normally reserved for application of section 97 of the IRPA.
[35]
The officer’s decision is therefore reasonable
in all aspects.
VII.
Conclusion
[36]
For the reasons above, the applicants’
application for judicial review is dismissed. The parties did not submit any
questions of general importance for certification, and I am of the opinion that
this case did not raise any.
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