Docket: IMM-1951-17
Citation: 2018 FC 297
[ENGLISH TRANSLATION]
Ottawa, Ontario, March 15, 2018
PRESENT: The Honourable Mr. Justice Bell
| BETWEEN:
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| BRIAN STIVEND PENA MORA
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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.
Nature of the case
[1]
This judgment concerns an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], of an immigration officer’s decision dated April 7, 2017, to reject the applicant’s application for permanent residence on humanitarian and compassionate grounds, which was made under section 25 of the IRPA. I dismiss the application for the following reasons.
II.
Background
[2]
The applicant, twenty-four (24) years old, is a Colombian citizen. He arrived in Canada with his parents on February 7, 2015.
[3]
The applicant and his parents claimed refugee status when arriving in Canada, claiming that they were persecuted by a group of drug traffickers due to their involvement with disadvantaged children. Their refugee claim was rejected by the Refugee Protection Division [RPD]. The Federal Court then refused to allow their application for leave and judicial review of the RPD’s decision on August 28, 2015.
[4]
On October 12, 2016, the applicant filed an application for permanent residence on humanitarian and compassionate grounds under section 25 of the IRPA to be exempted from the statutory requirement that applications for permanent residence must be filed from outside of Canada. The application was rejected on April 7, 2017. This is the judicial review of that decision.
III.
Decision under review
[5]
On April 7, 2017, an immigration officer rejected the applicant’s application for permanent residence on humanitarian and compassionate grounds. After taking into consideration his establishment in Canada, the situation and the conditions in Colombia, as well as the combined effect of the factors analyzed, she determined that the applicant did not raise sufficient factors justifying exemption from the requirements of the IRPA for the application to be processed in Canada.
[6]
Concerning the applicant’s establishment, the officer considered the applicant’s period of establishment in Canada, just over two (2) years, to be short. She was satisfied that the applicant had a girlfriend, but was unable to find that they were living together or that the girlfriend could not follow the applicant if he had to leave Canada.
[7]
The officer also noted that the applicant lives with his older brother, a permanent resident of Canada, and his parents. She found that there is no interdependence between the applicant and his brother, that his parents have no status in Canada and that they could stay in contact through various means of electronic communication.
[8]
Lastly, the officer gave some positive weight to the fact that the applicant is employed, does volunteer work and is learning French, as well as to the letters of support provided by his colleagues and friends. However, she found that leaving his friends, job and activities in Canada to travel outside Canada in order to file an application for an immigrant visa did not raise any difficulties justifying an exemption under section 25 of the IRPA.
[9]
The officer then focused on the conditions in Colombia and noted that the applicant used the same facts on which he had based his refugee claim, which was rejected by the RPD after being found not credible. She gave more weight to the RPD’s findings than to the letter by the applicant’s brother stating the events that occurred, evidence that she considered to be partial. The officer noted that the applicant did not provide other evidence allowing her to assess the credibility of the allegations, or evidence of the applicant’s specific situation regarding the general conditions in Colombia.
[10]
The officer found that the combined effect of the various factors considered did not justify the exemption set out in section 25 of the IRPA.
IV.
Issue
[11]
The applicant raises several issues to be decided. The respondent raises only one: is the officer’s refusal to grant the exemption sought under section 25 of the IRPA reasonable? In my opinion, the answer to this issue resolves this application.
V.
Relevant provisions
[12]
Section 25 of the IRPA provides that:
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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VI.
Standard of review
[13]
According to the consistent jurisprudence of the Court, the immigration officer’s decision to grant or refuse an exemption from the requirements of the IRPA on humanitarian and compassionate grounds is a discretionary decision that raises questions of facts and law. Thus, it is reviewable on the reasonableness standard, which requires judicial deference (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] F.C.J. No. 39 at para 62). The Court will not intervene 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 SCC 12, [2009] 1 S.C.R. 339 at para 59).
VII.
Parties’ position on the relevant issues
[14]
The parties disagree with the unreasonableness of the officer’s decision on two points, specifically the applicant’s establishment in Canada, and the situations and conditions in his country of origin. The applicant claims that the findings on these two issues are unreasonable, while the respondent claims they are completely reasonable.
A.
Establishment
[15]
The applicant claims that the officer did not understand the degree of establishment in Canada, saying that she did not give sufficient weight to the evidence that he submitted relating to his job, his volunteer commitment and his social circle. He refers to Lauture v. Canada (Citizenship and Immigration), 2015 FC 336, [2015] F.C.J. No. 296 for the articulation of factors that an officer must take into consideration. The applicant criticizes the officer for incorrectly setting aside the evidence relating to his establishment due to the short duration of his stay in Canada and [translation] “solely using the test of unusual and undeserved or disproportionate hardship to deny that the applicant’s life is now in Canada”
.
[16]
On the contrary, the respondent claims that the officer weighed each of the elements raised by the applicant and that the decision made after exercising her discretionary power is reasonable, in that it falls within the range of possible outcomes (Dunsmuir at para 47). The respondent claims that the officer did not use the test of “unusual and undeserved or disproportionate”
hardship, but rather performed an overall analysis of the humanitarian and compassionate grounds cited by the applicant. The respondent recalls that a certain degree of establishment, in itself, is not enough to grant an application for permanent residence on humanitarian and compassionate grounds (Ramos Tarayao v. Canada (Citizenship and Immigration), 2008 FC 250, [2008] F.C.J. No. 439 at para 16; Buio v. Canada (Citizenship and Immigration), 2007 FC 73, [2007] F.C.J. No. 205 at para 37; Kawtharani v. Canada (Citizenship and Immigration), 2006 FC 162, [2006] F.C.J. No. 220 at para 20). Further, the mere fact of needing to leave Canada to file his visa application from outside Canada implies inherent hardship that is insufficient to justify exemption from the requirements of the IRPA (Walker v. Canada (Citizenship and Immigration), 2012 FC 447, [2012] F.C.J. No. 479 at para 34; Jiang v. Canada (Citizenship and Immigration), 2010 FC 580, [2010] F.C.J. No. 686 at para 41).
B.
Conditions in Colombia
[17]
The applicant claims that the officer [translation] “broke down her analysis to indicate that the situation in Colombia are general country conditions”
. He criticizes the officer for having confused her role, reviewing the credibility of his refugee claim. The applicant criticizes the officer’s decision to set aside his brother’s letter and [translation] “solely using the test of unusual and undeserved or disproportionate hardship to deny that the applicant’s life is now in Canada”
.
[18]
The respondent rather argues that a request for exemption from the requirements of the IRPA is not an appeal from the RPD’s decision regarding the alleged risks that have been found not credible (Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751, 97 A.C.W.S. (3d) 726 at para 12; Kouka v. Canada (Citizenship and Immigration), 2006 FC 1236, [2006] F.C.J. No. 1561 at paras 26–28; Nkitabungi v. Canada (Citizenship and Immigration), 2007 FC 331, [2007] F.C.J. No. 449 at para 8). Further, as the applicant did not show the link between the country’s overall situation and his personal situation, the officer’s decision cannot be considered unreasonable (Piard v. Canada (Citizenship and Immigration), 2013 FC 170, [2013] F.C.J. No. 165 at para 16; Lalane v. Canada (Citizenship and Immigration), 2009 FC 6, [2009] F.C.J. No. 658 at paras 38, 42–44; Rahman v. Canada (Citizenship and Immigration), 2009 FC 138, [2009] F.C.J. No. 187 at para 39; Jakhu v. Canada (Citizenship and Immigration), 2009 FC 159, [2009] F.C.J. No. 203, at para 27).
VIII.
Analysis
[19]
The applicant has not shown any mistakes in the officer’s reasons that could justify the Court’s intervention. The officer took into account all the elements raised by the applicant in his application and analyzed their combined effect. The applicant clearly disagrees with the officer’s findings, but this is not enough for the decision to be considered as not falling within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir at para 47). The IRPA does not create a parallel immigration system:
[23] There will inevitably be some hardship associated with being required to leave Canada. This alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1): see Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463, at para. 13 (CanLII); Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. 206 (F.C.T.D), at para. 12. Nor was s. 25(1) intended to be an alternative immigration scheme: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40 (Peter MacDougall); see also Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001, at 9:55 to 10:00 (Joan Atkinson).
(Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 at para 23)
[20]
I consider that the officer’s decision is reasonable.
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