Date:
20121018
Docket: IMM-955-12
IMM-957-12
Citation:
2012 FC 1216
Ottawa,
Ontario, October 18, 2012
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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SOMAEL CHOWDHURY
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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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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
These reasons
address two applications for
judicial review arising from decisions of a senior immigration officer, dated
December 2, 2011. The officer refused the applicant’s request for an exemption from
the in-Canada selection criteria for permanent residence on humanitarian and
compassionate [H&C] grounds
under subsection 25(1) of the Immigration and Refugee Protection Act,
SC, 2001, c 27 [IRPA], and found, in a pre-removal risk assessment [PRRA], that he would not be at risk
of persecution or harm upon return to his country of origin.
[2]
For the
reasons that follow, both applications for judicial review are hereby
dismissed. The issues raised by the applicant are not sufficient, individually or
cumulatively, to justify this Court’s intervention.
Background
[3]
The
applicant is 30 year old citizen of Bangladesh who worked as a manager-partner
in an audio-video store in Dhaka. He came to Canada on a false passport on May
5, 2006, and claimed refugee protection. The applicant alleged that from
January 2003 to May 2006, he was an active member of the Jatiya Party in Bangladesh and that, as a result of his political affiliations; he was harassed, extorted,
and attacked by goons from the Bangladesh Nationalist Party/Jamaat-e-Eslami who
wanted him to quit the Jatiya Party and join their party.
[4]
The
applicant said that he went to live in another town hoping things would calm
down, and while he was there his business partner, who was associated with the
Bangladesh Nationalist Party, took advantage of his absence and stole money
from him. As he was trying to negotiate a settlement with his business partner,
the latter informed him that the police were looking for him under what the
applicant believed to be false charges. The applicant then left his hometown
again and went to another city where he lived for four months before coming to Canada and seeking refuge.
[5]
On
July 15, 2010, the Refugee Protection Division [RPD] determined that due to
major credibility concerns, including the credibility of the documentary
evidence before it, the applicant’s political affiliation and profile as an
active member of the Jatiya Party was not satisfactorily established. On
November 5, 2010, the applicant was denied leave to have the RPD decision
judicially reviewed before this Court.
[6]
On
January 11, 2011, the applicant filed an application for an immigration visa
exemption for H&C considerations, and on February 21, 2011, he applied for
a PRRA. In support of these applications, he filed new evidence to be
considered. This evidence included newspaper articles dealing with current
country conditions in Bangladesh, as well as:
a. A
letter from the applicant’s lawyer in Bangladesh, dated March 8, 2011,
indicating that a false charge was laid against the applicant on January 30,
2011, and that he risks being detained and punished upon return to Bangladesh;
b. A
copy of a warrant for the applicant’s arrest dated March 7, 2011, and an
undated First Information Report [FIR] issued in his name;
c. An
affidavit from the applicant’s father, dated March 8, 2011, in which the latter
states that his son owned a business in Bangladesh and that his former business
partner maintained good relations with terrorists to protect his own interest
and profits. He also states that his son was an active member of the Jatiya
Party and was strongly involved in various development projects organized by
his party relating to human rights, employment and education; he reiterates the
incidents that allegedly made the applicant leave the country and asserts that
his son is still at risk because of the charge more recently laid against him
in January of 2011.
[7]
The
applicant alleged that although his problems occurred several years ago, the
2011 charge was most likely laid as his lawyer was trying to follow up on a
previous warrant that was issued against the applicant, which brought him to
the attention of the police again.
Negative
PRRA Decision
[8]
The
officer noted that the RPD had found the applicant’s principal allegations to
lack credibility and stated that no further proof from a reliable and objective
source was presented to allow a finding that, on a balance of probabilities,
the applicant is or was an influential member of the Jatiya Party or that he is
pursued by terrorists, the police or the Bangladeshi authorities. Similarly, no
convincing proof was presented to establish that the applicant was involved in
development activities in Bangladesh or that he was business partners with
someone named Shoy(h)eb Chowdhury.
[9]
The
officer declined to consider evidence which was
available or could reasonably have been made available before the RPD decision, and gave little to no probative value to
the applicant’s new evidence. The officer stated:
I note first of all that no photocopy of the
original documents was presented together with the warrant and the FIR.
Similarly, the photocopied document that is supposed to accompany the FIR was
not presented and translated. As well, the spaces reserved for signature and/or
identification of the signatories are not signed by the person certifying that
the copy is true and that the document was verified and declared to be correct.
I note that the certified copy of the FIR indicated the date on which the
incident occurred; however, it does not indicate on what date the FIR document
was issued. I note as well an incongruity between the legislative provisions
referred to in the arrest warrant and the FIR. Indeed, in the arrest warrant
the legislative article cited is the “Emergency Rules Section-34/6(1)(2) of
2007, dated 03-03-2011”; in the FIR, the legislative article is “Section-3/4/6(1)(2)
breaking of Government and private assets.”
[...]
Considering the lack of evidence from an objective and reliable source in
support of the allegations contained in this affidavit; considering the finding
of the RPD with respect to the allegations and fears raised previously by the
applicant and analyzed by the RPD; and considering that the affidavit comes
from a subjective source not independent from the applicant, very little
probative value will [be] assigned to it.
[10]
The
officer also rejected the news articles submitted by the applicant, stating
that while those reports rendered an account of the overall climate of
violence, corruption and political confrontation in Bangladesh, the applicant
failed to show a connection between the general documentation and the personal
risks he allegedly faced. Thus, as a result of serious
credibility issues in relation to the factors set out in sections 96 and 97 of IRPA
and concerning the new documentary evidence, the applicant’s PRRA application
was rejected.
Negative
H&C Decision
[11]
In
regard to the applicant’s H&C application, the officer first reviewed the
applicant’s establishment in Canada, noting his involvement as the president, director,
or chief executive officer of three businesses in Canada at different points in
time, in one of which he held a 25% share. The applicant also submitted
evidence of bank transactions from the companies he was involved in but no
personal tax returns. The officer concluded that the evidence did not support a
finding as to the applicant’s income or financial self-sufficiency in Canada
and did not lead to an inference that the departure would cause unusual and
undeserved or disproportionate hardship to the applicant, to his business
partners in Canada (who were not unaware of the fact that the applicant’s
status in this country was uncertain), or to the Canadian community. The
officer stated that though favourable, the applicant’s beneficial economic ties
in Canada are not automatically deemed sufficient grounds for granting a
favourable H&C decision (Irimie
v Canada (Minister of Citizenship and Immigration), [2000] FCJ 1906 at para 26, 10
Imm L R (3d) 206 [Irimie]).
[12]
The
officer further stated that the applicant had his own company in Bangladesh, and since his arrival in Canada he has demonstrated strong adaptation skills and
entrepreneurial qualities. This suggests the applicant will be able to utilize
these skills and qualities in the country where he has lived the majority of
his life. Accordingly, the officer concluded this would not impose unusual,
undeserved or disproportionate hardship on the applicant.
[13]
For
the same reasons as those stated in the PRRA decision, the officer stated that
little to no probative value was assigned to the applicant’s new evidence. The
Court notes that part of the reasons provided in the H&C decision, more
specifically the paragraphs dealing with the probative value to be given to the
new evidence, refers to the applicant’s alleged risks and fears in returning to
Bangladesh. In fact, this part of the reasons seems to have been copied from
the PRRA decision, with minor adjustments.
[14]
Similarly,
the officer noted that he gave slight probative value to a psychological report
of Dr. Pilowsky, dated December 10, 2008, stating that the applicant suffers
from post-traumatic stress syndrome. The officer rejected this evidence because
it is addressed to a lawyer and is based on a single meeting with the applicant
in December of 2008, while no other evidence was provided that the applicant
followed up the therapy recommended to him by the psychologist.
Issues
[15]
The
following issues are raised in these applications for judicial review:
i.
Whether
the officer erred in law, or reached an unreasonable decision, in rejecting the
arrest warrant issued against the applicant in January 2011, the letter from
his lawyer in Bangladesh, and the affidavit from his father, for the purposes
of both the PRRA and the H&C decisions;
ii. Whether the H&C
officer erred in law by failing to consider relevant hardship factors, and
instead addressed the risk factors which are irrelevant to an H&C decision;
iii. Whether the H&C
officer erred in law by using a standard of establishment which exceeds the
test of unusual, undeserving or disproportionate hardship; and,
iv. Whether the H&C
officer erred in law by discounting the hardship caused to the applicant.
Review
of the Impugned Decisions
The officer’s assessment of the
new evidence
[16]
The
applicant submits that the officer’s requirement of a photocopy of the original
complaint documents referred to in the FIR was contrary to this Court’s
jurisprudence which establishes that evidence must be considered for what it
says and not for what it does not say (Mahmud
v Canada (Minister of Citizenship and Immigration), [1999] FCJ 729 at para 11; Bagri
v Canada (Minister of Citizenship and Immigration), [1999] FCJ 784 at para
11).
[17]
The
applicant takes issue with the officer’s finding of disparity between the
legislative provisions referred to in the arrest warrant and the FIR, arguing
that the officer has no expertise in matters of criminal proceedings in foreign
jurisdictions. It is also submitted that the officer’s assessment of the evidence
lacks contextualization. According to the applicant, the errors noted by the
officer were of no significant import as they are minor and not unusual in
documents from Bangladeshi authorities.
[18]
The
respondent argues that this disparity between the two documents reinforces the
officer’s decision to deny the documents probative value considering that no
photocopy of the original document that should have been attached to the FIR
was translated and presented. The FIR was also undated, and neither the FIR nor
the warrant was duly certified as a true copy.
[19]
In
the Court’s view, these issues suffice to shed doubt on the probative value of
those documents on a balance of probabilities. Even if the officer’s expertise
does not allow him to determine the authenticity of foreign documents, the
irregularities that he noted were material and his analysis was reasonable. The officer was not precluded from
requiring a copy of the documents referred to in the FIR. The purpose of the FIR was for
the applicant to establish that he faces an ongoing risk of persecution upon
return to Bangladesh. Even if the “written charge sheet” or other documents
originally attached to the FIR were not necessary to establish the alleged
facts, they were reasonably necessary to make sense of the FIR and,
consequently, of the arrest warrant.
[20]
The applicant
has cited a number of cases arguing that credibility findings should be stated
in clear and unmistakable terms, and that the officer failed to make such a
finding with respect to the letter of the applicant’s lawyer to which the FIR
and the arrest warrant were attached. The letter refers to the applicant’s
pending case in Bangladesh and since the officer clearly stated the reasons why
he did not give weight to the documentary evidence which was intended to
establish the existence of the pending case, he was not required to explicitly
address the lawyer’s letter in a separate finding.
[21]
The
applicant also takes issue with the officer’s characterization of his father’s
affidavit as self-serving evidence which falls short of being “objective and
reliable”, as required by the officer. The applicant argues that according to
the jurisprudence, a sworn affidavit cannot be rejected on the sole basis that
it comes from a family member (Grama
v Canada (Minister of Citizenship and Immigration), 2004 FC 1030, [2004] FCJ 1254; Shafi
v Canada (Minister of Citizenship and Immigration), 2005 FC 714, [2005] FCJ 896; Sukhu
v Canada (Minister of Citizenship and Immigration), 2005 FC 1662, [2005]
FCJ 2036).
[22]
I
agree with the applicant that there is nothing prohibiting new evidence from
family members from being taken into account. However, the evidence submitted
by the applicant will still be assessed as a whole. The affidavit of the
applicant’s father points to ongoing credibility problems, particularly in
regards to the 2011 warrant and the applicant’s pending case. The affidavit is
unsupported by any exhibits while the officer provided valid reasons to
disbelieve the veracity of the many facts stated therein. In fact, contrary to
the cases cited by the applicant, the Court cannot identify a lack of analysis
of the content of the affidavit in this case. In the circumstances, it was
reasonable for the officer to consider that an affidavit from the applicant’s father
was insufficient to restore the applicant’s credibility and establish a number
of otherwise questionable facts.
[23]
I
conclude that the officer’s evaluation of the applicant’s new evidence was
neither incorrect in law nor unreasonable.
The
officer’s consideration of relevant hardship factors
[24]
The
applicant contends that the officer engaged in a detailed analysis of risk
factors in relation to the grounds of protection set out in sections 96 and 97
of IRPA, and even purported to assess whether the applicant would face
discrimination in Bangladesh, but failed to assess whether the conditions in
Bangladesh would give rise to hardship in the broader sense of an H&C application.
The applicant argues that this constitutes an error of law because the officer
failed to conduct an
assessment of the relevant hardship factors.
[25]
The
test to be met for H&C applicants is whether they would face “unusual,
undeserved, or disproportionate hardship” in having to apply for a permanent
resident status from outside of Canada. The CIC manual
entitled “Immigrant Applications in Canada made on Humanitarian and
Compassionate Grounds” (IP5), s.
5.11, lists a series of non exhaustive factors relevant to a hardship
assessment. These include:
- establishment
in Canada;
- ties to Canada;
- the best
interests of any children affected by their application;
- factors in
their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that
does not amount to persecution, harassment or other hardships that are not described in A96 and A97);
- health
considerations;
- family
violence considerations;
- consequences
of the separation of relatives;
- inability to
leave Canada has led to establishment; and/or
- any other
relevant factor they wish to have considered not related to A96 and A97.
[26]
As
stated earlier, part of the reasons provided in the H&C decision,
specifically the paragraphs dealing with the probative value of the applicant’s
new evidence, incidentally refer to the applicant’s alleged risks and fears in
returning to Bangladesh. However, this is not what the officer based his
H&C analysis on. He considered the applicant’s establishment and ties in Canada, the alleged health and discrimination issues, and
country conditions. The officer did note, on more than one occasion,
that he was precluded from considering the risk/persecution factors
contemplated in sections 96 and 97 of IRPA and there is no indication in the
reasons that such factors were taken into consideration when assessing the
applicant’s hardship.
[27]
Furthermore,
the officer did not fail to assess hardship in relation to adverse country
conditions. He simply found that the objective evidence submitted on this issue
reported general conditions rather than ones that concerns the applicant’s
personal situation. Overall, I see no error of law in the officer’s H&C
analysis.
The officer’s assessment of the
applicant’s establishment in Canada
[28]
The
applicant submits that the officer applied the wrong legal test by elevating a
consideration of “establishment” in Canada to a test of being “essential” to Canada’s economy, while acknowledging the applicant’s efforts and contribution to the launch of
various businesses in Canada.
[29]
A
close reading of the impugned reasons leaves no room for doubt that the
officer’s statement that “the documents presented in support of [the
applicant’s] application do not lead to an inference that the applicant is
essential to the Canada’s economy” was in response to the applicant’s
submission that “it would be beneficial for our country to keep him in Canada”
because he allegedly “contributes to the economic growth and future employment
of permanent residents and Canadian citizens”. Having assessed the level of the
applicant’s establishment in Canada, the officer made explicit that the evidence
did not establish “that his departure would cause unusual and undeserved or
disproportionate hardship to the applicant, his business partners or this
country.” In view of the reasons provided in support of this finding, I do not
agree that the officer’s impugned statement reflects a different test or a
higher threshold of establishment.
[30]
It
is not for the Court to reassess the applicant’s evidence of establishment. It
is sufficient to say that the officer’s conclusion is supported by the evidence
and falls within the “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, [2008] 1 S.C.R. 190).
The officer’s assessment of the
applicant’s hardship
[31]
The
applicant also contends that the officer erred in law, and unreasonably
exercised his discretion, by discounting the hardship caused to the applicant
or other positive factors of establishment that supported the applicant’s
exemption request.
[32]
The
Court has no reason to find that the officer did not apply the correct H&C
factors or discounted any relevant considerations. The officer correctly found
that, in light of this Court’s jurisprudence, including Justice Pelletier’s decision in
Irimie,
above, at para 26, an applicant’s economic ties in Canada are not automatically
deemed sufficient grounds for granting a favorouble H&C decision, as this
would result in the H&C process serving as “an ex post facto
screening device which supplants the screening process contained in the Immigration Act and Regulations”. Irimie also makes clear that “[t]he H&C process is not designed to eliminate hardship; it is designed to provide relief from unusual,
undeserved or disproportionate hardship.” A similar
determination was made in Willson
v Canada (Minister of Citizenship and Immigration), 2007 FC 488 at para 22, [2007]
FCJ 657, where the Court stated:
[T]he
applicant’s representative submitted to the officer that the applicant had been
in Canada for a significant period of time due to circumstances beyond his
control. While I agree that the civil war in Liberia would have made it
difficult for him to return, one must be careful when considering this
particular argument. As I noted in Lee v. Canada (Minister of Citizenship
and Immigration), 2005 FC 413, [2005] F.C.J. No. 507 (QL), H&C
applications should not be interpreted in such a way as to encourage applicants
to gamble on the fact that if they can stay in Canada long enough to
demonstrate that they are the kind of persons Canada wants, they will be
allowed to stay.
[33]
In
my view, this rationale squarely applies in the applicant’s case. The applicant
acknowledges that the H&C consideration is not meant to be another
selection program for purposes of immigration, but yet argues that the
officer’s exercise of his discretion was inequitable because the establishment
achieved by the applicant is a positive, not a negative, factor in the
assessment. I do not find this to be the case. The question before me is not whether it is more equitable for the applicant
to stay in Canada but whether the officer’s decision
falls outside the acceptable range of outcomes defensible, based on the facts
and the law.
The applicant failed to convince me that it does, just as
he failed to identify any specific equitable principle that would have been
breached in the impugned H&C decision.
[34]
This application for judicial review is accordingly
dismissed. No questions of general importance were proposed for certification
and none arise from this case.
JUDGMENT
THIS
COURT’S JUDGMENT IS THAT:
1.
The applications for judicial
review in Court files IMM-955-12 and IMM-957-12 are dismissed.
2.
No questions
are certified.
“Jocelyne
Gagné”
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