BRIAN STIVEND PENA MORA Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2018 FC 297

Date: 20180315 Docket: IMM-1951-17 Citation: 2018 FC 297 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, March 15, 2018 PRESENT: The Honourable Mr. Justice Bell BETWEEN: BRIAN STIVEND PENA MORA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Nature of the matter [ 1 ] This is 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. For the reasons that follow, I am dismissing the application. II. Facts [ 2 ] The applicant, age twenty-four (24), is a citizen of Colombia. He arrived in Canada with his parents on February 7, 2015. [ 3 ] The applicant and his parents claimed refugee protection when they arrived in Canada, alleging that they were being persecuted by a group of drug traffickers because of their involvement with disadvantaged youth. Their refugee claim was rejected by the Refugee Protection Division [RPD].

The Federal Court subsequently 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. That application was dismissed on April 7, 2017. That decision is the subject of this application for judicial review. 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 conditions in Colombia, as well as the combined effect of the factors analyzed, she determined that the applicant had not raised sufficient factors to warrant exemption from the IRPA requirements in order to allow his application to be filed from within Canada. [ 6 ] Concerning the applicant’s establishment, the officer considered his period of establishment in Canada of just over two (2) years to be short.

She was satisfied that the applicant had a girlfriend, but was unable to conclude that they were living together or that the girlfriend could not accompany 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 electronic means of 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 to a different country in order to file an application for an immigrant visa would not cause any difficulties warranting an exemption under

section 25 of the IRPA . [ 9 ] The officer went on to examine the conditions in Colombia and noted that the applicant used the same facts as those on which he had based his refugee claim, which the RPD rejected after deeming it not credible. She gave more weight to the RPD’s findings than to the letter from the applicant’s brother describing the events that occurred, evidence that she considered to be biased.

The officer noted that the applicant had not provided other evidence allowing her to assess the credibility of the allegations, or any evidence demonstrating the applicant’s specific situation regarding the general conditions in Colombia. [ 10 ] The officer found that the combined effect of the various factors examined did not justify granting 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 exemptionsought under

section 25 of the IRPA reasonable? In my opinion, the answer to that question resolves this application. V. Relevant provisions [12]

Section 25 of the IRPA provides that: 25

(1) Subject to subsection(1.2), the Minister must, onrequest of a foreign national inCanada who applies forpermanent resident status andwho is inadmissible — otherthan under

section 34, 35 or 37— or who does not meet therequirements of this Act, andmay, on request of a foreignnational outside Canada — otherthan a foreign national who isinadmissible under

section 34, 35or 37 — who applies for apermanent resident visa, examinethe circumstances concerning theforeign national and may grantthe foreign national permanentresident status or an exemptionfrom any applicable criteria orobligations of this Act if theMinister is of the opinion that itis justified by humanitarian andcompassionate considerationsrelating to the foreign national,taking into account the bestinterests of a child directlyaffected. 25

(1) Sous réserve duparagraphe (1.2), le ministredoit, sur demande d’un étrangerse trouvant au Canada quidemande le statut de résidentpermanent et qui soit est interditde territoire — sauf si c’est enraison d’un cas visé aux articles34, 35 ou 37 —, soit ne seconforme pas à la présente loi, etpeut, sur demande d’un étrangerse trouvant hors du Canada —sauf s’il est interdit de territoireau

titre des articles 34, 35 ou 37— qui demande un visa derésident permanent, étudier le casde cet étranger; il peut luioctroyer le statut de résidentpermanent ou lever tout ou partiedes critères et obligationsapplicables, s’il estime que desconsidérations d’ordrehumanitaire relatives à l’étrangerle justifient, compte tenu del’intérêt supérieur de l’enfantdirectement touché. VI.

Standard of review [13] The Court has consistently held that an immigration officer’s decision to grant or refuse an exemption from the IRPA requirementson humanitarian and compassionate grounds is a discretionary decision that raises questions of fact and law. Thus, it is reviewable on thereasonableness standard, which requires judicial deference (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 atparagraph 47 [Dunsmuir]; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817,[1999] F.C.J. No. 39 at paragraph 62).

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 paragraph 59). VII. Parties’ position on the relevant issues [14] The parties disagree with respect to the reasonableness of the officer’s decision on two points, specifically the applicant’sestablishment in Canada and the situation and conditions in his country of origin.

The applicant argues that the findings on these twofactors are unreasonable, while the respondent submits they are completely reasonable. A. Establishment [15] The applicant submits that the officer did not understand his degree of establishment in Canada, since she did not give sufficientweight to the evidence he submitted relating to his job, his volunteer work and his social circle. He refers to Lauture v. Canada(Citizenship and Immigration), 2015 FC 336, [2015] F.C.J.

No. 296 for a list of the factors that an officer must take into consideration.The applicant criticizes the officer for having incorrectly disregarded the evidence relating to his establishment because of his limitedtime in Canada and for using [translation] "“only the unusual and undeserved or disproportionate hardship test to deny that theapplicant’s life is now in Canada.”"

[16] On the contrary, the respondent submits that the officer weighed each of the factors the applicant raised and that the decision madeafter exercising her discretion is reasonable, in that it falls within the range of possible outcomes (Dunsmuir at paragraph 47). Therespondent argues that the officer did not use the "“unusual and undeserved or disproportionate hardship test”", but rather performed anoverall analysis of the humanitarian and compassionate grounds cited by the applicant.

The respondent points out that a certain degree ofestablishment, in itself, is not sufficient to warrant granting an application for permanent residence on humanitarian and compassionategrounds (Ramos Tarayao v. Canada (Citizenship and Immigration), 2008 FC 350, [2008] F.C.J. No. 439 at paragraph 16; Buio v.Canada (Citizenship and Immigration), 2007 FC 157, [2007] F.C.J. No. 205 at paragraph 37; Kawtharani v. Canada (Minister ofCitizenship and Immigration), 2006 FC 162, [2006] F.C.J. No. 220 at paragraph 20).

Moreover, the mere fact of needing to leave Canadato file his visa application from outside Canada implies inherent hardship that is insufficient to warrant exemption from the requirementsof the IRPA (Walker v. Canada (Citizenship and Immigration), 2012 FC 447, [2012] F.C.J. No. 479 at paragraph 34; Jiang v. Canada(Citizenship and Immigration), 2010 FC 580, [2010] F.C.J. No. 686 at paragraph 41). B.

Conditions in Colombia [17] The applicant submits that the officer [translation] "“broke down her analysis to indicate that the situation in Colombia representsgeneral conditions in the country.”" He criticizes the officer for having mistaken her role, reviewing the credibility of his refugee claim.The applicant criticizes the officer’s decision to disregard his brother’s letter and for using [translation] "“only the unusual andundeserved or disproportionate hardship test to deny that the applicant’s life is now in Canada.”" [18] On the contrary, the respondent argues that a request for exemption from the requirements of the IRPA is not an appeal of theRPD’s decision regarding the alleged risks that have been deemed not credible (Hussain v.

Canada (Minister of Citizenship andImmigration), [2000] F.C.J. No. 751, 97 A.C.W.S. (3d) 726 at paragraph 12; Kouka v. Canada (Citizenship and Immigration),2006 FC 1236, [2006] F.C.J. No. 1561 at paragraphs 26–28; Nkitabungi v. Canada (Citizenship and Immigration), 2007 FC 331, [2007]F.C.J. No. 449 at paragraph 8). Furthermore, since the applicant did not demonstrate a connection between the general situation in thecountry and his personal situation, the officer’s decision cannot be considered unreasonable (Piard v. Canada (Citizenship andImmigration), 2013 FC 170, [2013] F.C.J. No. 165 at paragraph 16; Lalane v.

Canada (Citizenship and Immigration), 2009 FC 6, [2009]F.C.J. No. 658 at paragraphs 38, 42–44; Rahman v. Canada (Citizenship and Immigration), 2009 FC 138, [2009] F.C.J. No. 187 atparagraph 39; Jakhu v. Canada (Citizenship and Immigration), 2009 FC 159, [2009] F.C.J. No. 203, at paragraph 27). VIII. Analysis [19] The applicant has not demonstrated any errors in the officer’s reasons that could justify the Court’s intervention. The officer tookinto account all the factors raised by the applicant in his application and analyzed their combined effect.

The applicant clearly disagreeswith the officer’s findings, but that is not enough for the decision to be considered as not falling within the range of possible, acceptableoutcomes which are defensible in respect of the facts and law (Dunsmuir at paragraph 47). The IRPA does not create an alternativeimmigration scheme: [23] There will inevitably be some hardship associated with being required to leave Canada. This alone will not generally besufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1): see Rizvi v.

Canada (Minister ofCitizenship and Immigration), 2009 FC 463, at para. 13 ; Irimie v. Canada (Minister of Citizenship andImmigration) (2000), (FC), 10 Imm. L.R. 206 (F.C.T.D), at para. 12. Nor was s. 25(1) intended to be analternative 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., March13, 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 paragraph 23) [20] I consider the officer’s decision to be reasonable. JUDGMENT in IMM-1951-17 THIS COURT’S JUDGMENT is that: 1. The application is dismissed without costs; 2. No question is certified for consideration by the Federal Court of Appeal. “B. Richard Bell” Judge Certified true translation This 1st day of October 2019 Lionbridge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-1951-17 STYLE OF CAUSE: BRIAN STIVEND PENA MORA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: November 7, 2017 REASONS FOR JUDGMENT AND JUDGMENT: BELL J. DATED: March 15, 2018 APPEARANCES : Alfredo Garcia FOR THE APPLICANT Guillaume Bigaouette FOR THE RESPONDENT SOLICITORS OF RECORD : Alfredo Garcia Avocats Semperlex, L.L.P. Montréal, Quebec FOR THE APPLICANT Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT