Joseph v. Canada (Minister of Citizenship and Immigration), (2015) 481 F.T.R. 236 (FC)

• Judge: Annis, J.
• Court: Federal Court (Canada)
• Case Date: April 14, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 481 F.T.R. 236 (FC);2015 FC 661

Joseph v. Can. (M.C.I.) (2015), 481 F.T.R. 236 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JL.001

Bernard Joseph (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1106-14; 2015 FC 661)

Indexed As: Joseph v. Canada (Minister of Citizenship and Immigration)

Federal Court

Annis, J.

May 22, 2015.

Summary:

Joseph fled Haiti in 2004, fearing political persecution. In 2010, he entered Canada. In 2012, the Refugee Protection Division of the Immigration and Refugee Board dismissed Joseph's refugee protection claim. Joseph was subject to a removal order, but the government instated a temporary suspension of removals to Haiti. Joseph applied for permanent residence on humanitarian and compassionate (H&C) grounds. In 2013, the application was dismissed. Joseph applied for judicial review.

The Federal Court dismissed the application. The court certified the following questions for appeal:

"(1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the IRPA?

(2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on removal are not those generally faced by others in their country of origin?

(3) If the answer to question (2) is no, can the conditions in the country of origin support a reasoned inference as to the challenges any applicant would face on return to his or her country of origin, and thereby provide an evidentiary foundation for a meaningful, individualized analysis of hardships that will affect the applicant personally and directly as required by Kanthasamy v. Canada (Citizenship and Immigration), 459 N.R. 367; 2014 FCA 113, leave to appeal to the SCC granted, [2014] S.C.C.A. No. 309?"

Aliens - Topic 4

Definitions and general principles - Children - [See second Aliens - Topic 1206 ].

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Joseph fled Haiti in 2004, fearing political persecution - In 2010, he entered Canada - In 2012, the Refugee Protection Division of the Immigration and Refugee Board dismissed Joseph's refugee protection claim - Joseph was subject to a removal order, but the government instated a temporary suspension of removals to Haiti - Joseph applied for permanent residence on humanitarian and compassionate (H&C) grounds - In 2013, the application was dismissed - Joseph applied for judicial review - The Federal Court dismissed the application - The H&C officer had not erred in his assessment of the evidence of Joseph's establishment in Canada and there was no breach of natural justice or procedural fairness - Joseph provided little supporting evidence other than his own statements - The officer reasonably concluded that the limited evidence provided was insufficient to determine the extent of Joseph's financial independence and integration in the economy - The officer was not required to provide Joseph with an opportunity to supplement the insufficient evidence - The onus was on the applicant to provide complete evidence - See paragraphs 25 to 31.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Joseph fled Haiti in 2004, fearing political persecution - In 2010, he entered Canada - In 2012, the Refugee Protection Division of the Immigration and Refugee Board dismissed Joseph's refugee protection claim - Joseph was subject to a removal order, but the government instated a temporary suspension of removals to Haiti - Joseph applied for permanent residence on humanitarian and compassionate (H&C) grounds - In 2013, the application was dismissed - Joseph applied for judicial review - The Federal Court dismissed the application - The H&C officer had not erred in his assessment of the best interests of Joseph's four children who were still in Haiti - The officer's conclusion that he could not make a meaningful assessment of the children's best interests due to a lack of probative evidence was reasonable - There was no explanation for the lack of evidence - While there was evidence that Joseph was providing financial support to his family in Haiti, it was within the officer's discretion to conclude that the evidence was insufficient where there was no information as to the family's status in Haiti - See paragraphs 32 to 37.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Joseph fled Haiti in 2004, fearing political persecution - In 2010, he entered Canada - In 2012, the Refugee Protection Division of the Immigration and Refugee Board dismissed Joseph's refugee protection claim - Joseph was subject to a removal order, but the government instated a temporary suspension of removals to Haiti - Joseph applied for permanent residence on humanitarian and compassionate grounds - In 2013, the application was dismissed on the basis, inter alia, that the adverse conditions in Haiti did not demonstrate a personal risk for Joseph but represented a common reality in that country - Joseph applied for judicial review - The Federal Court dismissed the application - Permanent residency was only granted to individuals based on their personal circumstances and not simply on the evidence of conditions that were faced generally by all of the population in the country of origin - If, as here, evidence of general conditions was all that was put forward, the claim would be defeated for lack of sufficient evidence demonstrating exceptional personal circumstances that caused the general conditions to directly affect the applicant - The onus was on the applicant to demonstrate that he or she was "personally experiencing unusual, undeserved or disproportionate hardship in comparison with the circumstances of all the members of society" in his or her country of origin - Nor could personal circumstances be reasonably inferred from country conditions - See paragraphs 38 to 57.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Joseph fled Haiti in 2004, fearing political persecution - In 2010, he entered Canada - In 2012, the Refugee Protection Division of the Immigration and Refugee Board dismissed Joseph's refugee protection claim - Joseph was subject to a removal order, but the government instated a temporary suspension of removals to Haiti - Joseph applied for permanent residence on humanitarian and compassionate (H&C) grounds - In 2013, the application was dismissed - Joseph applied for judicial review - At issue was whether evidence of kidnapping and other acts of violence were relevant to an H&C analysis - Joseph had asserted that, as someone who had lived in Canada, he would be at risk of kidnapping if returned to Haiti - The Federal Court dismissed the application -"Torture, kidnapping, violent assaults, threats of violent assaults, or unjustified imprisonment" was "clear intrinsic risk evidence" that could "only have a life under sections 96 or 97 of the [Immigration and Refugee Protection] Act" - If an applicant had not demonstrated sufficient risk in a refugee protection claim where allegations of kidnapping were advanced, it was contrary to common sense that the same evidence was relevant to an assessment against the lower threshold of hardship - Here, the officer ought to have included at the first instance that evidence of the risk of kidnapping and other threats of violence associated with returning to Haiti was clear intrinsic risk evidence that was not relevant to an assessment of hardship under s. 25 of the Act - However, the failure to reject the evidence of kidnapping did not affect the officer's conclusion which was otherwise not unreasonable - See paragraphs 58 to 68.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See first Aliens - Topic 1206 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 21].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 21].

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 459 N.R. 367; 2014 FCA 113, refd to. [para. 21].

Lemus et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 310; 2014 FCA 114, refd to. [para. 21].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 22].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 22].

Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C. 635; 318 N.R. 300; 2004 FCA 38, refd to. [para. 25].

Din et al. v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 208; 2013 FC 356, refd to. [para. 25].

Beharry et al. v. Canada (Minister of Citizenship and Immigration) (2011), 383 F.T.R. 157; 2011 FC 110, refd to. [para. 35].

Diabate v. Canada (Minister of Citizenship and Immigration) (2013), 427 F.T.R. 87; 2013 FC 129, refd to. [para. 41].

Aboubacar v. Canada (Minister of Citizenship and Immigration) (2014), 460 F.T.R. 84; 242 A.C.W.S.(3d) 924; 2014 FC 714, refd to. [para. 41].

Lauture et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 107; 250 A.C.W.S.(3d) 674; 2015 FC 336, refd to. [para. 41].

Guerrero v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 736; [2013] 3 F.C.R. 20; 2011 FC 1210, refd to. [para. 44].

Lalane v. Canada (Minister of Citizenship and Immigration) (2009), 338 F.T.R. 224; 2009 FC 6, refd to. [para. 49].

Wan v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 39; 243 A.C.W.S.(3d) 955; 2014 FC 124, refd to. [para. 54].

Gomez et al. v. Canada (Minister of Citizenship and Immigration) (2011), 397 F.T.R. 170; 2011 FC 1093, refd to. [para. 54].

Guifarro v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 104; 198 A.C.W.S.(3d) 470; 2011 FC 182, refd to. [para. 54].

Pineda v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 234; 65 Imm. L.R.(3d) 275; 2007 FC 365, refd to. [para. 54].

Authors and Works Noticed:

Canada, Citizenship and Immigration Canada, IP-5 Immigrant Applications in Canada Made on Humanitarian or Compassionate Grounds (2011), generally [para. 30].

Counsel:

Raoul Boulakia, for the applicant;

Charles Julian Jubenville, for the respondent.

Solicitors of Record:

Raoul Boulakia, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on April 14, 2015, by Annis, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on May 22, 2015.