Kaneza v. Canada (Minister of Citizenship and Immigration), (2015) 476 F.T.R. 174 (FC)

• Judge: Fothergill, J.
• Court: Federal Court (Canada)
• Case Date: January 19, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 476 F.T.R. 174 (FC);2015 FC 231

Kaneza v. Can. (M.C.I.) (2015), 476 F.T.R. 174 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.011

Arlene Kaneza (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-637-14; IMM-640-14; 2015 FC 231)

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

Federal Court

Fothergill, J.

February 24, 2015.

Summary:

Kaneza was a citizen of Burundi. She entered Canada from the U.S. at the age of 17. Her request for an exemption on humanitarian and compassionate grounds to enable her to apply for permanent resident status (the H&C decision) was denied. Her request for a pre-removal risk assessment was denied (the PRRA decision). Kaneza sought judicial review of both decisions.

The Federal Court dismissed the application regarding the PRRA decision and allowed the application regarding the H&C decision. That matter was remitted to a different officer for redetermination.

Aliens - Topic 4

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

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Kaneza was a citizen of Burundi - She entered Canada from the U.S. at the age of 17 - Her request for an exemption on humanitarian and compassionate grounds to enable her to apply for permanent resident status was denied - The Federal Court allowed Kaneza's application for judicial review - The officer failed to apply the correct test for assessing the best interests of the child (BIOC) - The officer did not specifically evaluate Kaneza's interests as a minor child, how they would be affected by removal and the suffering that could result from an adverse decision - There was no mention in the officer's BIOC analysis of the risk of psychological harm arising from Kaneza's deportation to Burundi despite the existence of some evidence to that effect - Nor was any serious consideration given to the impact of removal on Kaneza's education or matters related to her gender in light of the prevalence of sexual and gender based violence in Burundi - The matter was remitted to a different officer for redetermination - See paragraphs 34 to 44.

Aliens - Topic 1588

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Evidence (IRPA, s. 113(a)) - [See Aliens - Topic 1589 ].

Aliens - Topic 1589

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - When hearing required (IRPA, s. 113(b)) - Kaneza was a citizen of Burundi - She entered Canada from the U.S. at the age of 17 - Her request for an exemption on humanitarian and compassionate grounds to enable her to apply for permanent resident status was denied - Her request for a pre-removal risk assessment was denied (the PRRA decision) - Kaneza sought judicial review of both decisions - The Federal Court dismissed the application regarding the PRRA decision - The immigration officer applied the correct legal test, properly directing attention toward whether Kaneza faced more than a mere possibility of persecution if she was returned to Burundi - The court rejected Kaneza's argument that the officer had made implicit adverse credibility findings and that an oral hearing should have been convened to address those - It was reasonably open to the officer to conclude, without making an adverse credibility finding, that the evidence did not establish Kaneza's claims - An oral hearing was not required - See paragraphs 25 to 33.

Cases Noticed:

Talipoglu et al. v. Canada (Minister of Citizenship and Immigration) (2014), 448 F.T.R. 270; 2014 FC 172, refd to. [para. 25].

Chan v. Minister of Employment and Immigration, [1995] 3 S.C.R. 593; 187 N.R. 321, refd to. [para. 25].

Josile v. Canada (Minister of Citizenship and Immigration) (2011), 382 F.T.R. 188; 2011 FC 39, refd to. [para. 25].

Latifi v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 776; 2006 FC 1388, refd to. [para. 29].

Herman v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 412; 2010 FC 629, refd to. [para. 29].

Ferguson v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 750; 2008 FC 1067, refd to. [para. 30].

Judnarine v. Canada (Minister of Citizenship and Immigration) (2013), 425 F.T.R. 312; 2013 FC 82, refd to. [para. 34].

Mandi v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 149; 2014 FC 257, refd to. [para. 34].

Kolosovs v. Canada (Minister of Citizenship and Immigration) (2008), 323 F.T.R. 181; 2008 FC 165, refd to. [para. 35].

Williams v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 79; 2012 FC 166, refd to. [para. 36].

Chandidas v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 55; 2013 FC 258, refd to. [para. 36].

Hawthorne v. Canada (Minister of Citizenship and Immigration) (2002), 297 N.R. 187; 2002 FCA 475, refd to. [para. 36].

E.B. v. Canada (Minister of Citizenship and Immigration) (2011), 383 F.T.R. 157; 2011 FC 110, refd to. [para. 42].

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. 44].

Counsel:

Jacqueline J. Bonisteel, for the applicant, Arlene Kaneza;

Matina Karvellas, for the respondent, Minister of Citizenship and Immigration.

Solicitors of Record:

Perley-Robertson, Hill & McDougall LLP, Ottawa, Ontario, for the applicant, Arlene Kaneza;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Minister of Citizenship and Immigration.

These applications were heard at Ottawa, Ontario, on January 19, 2015, by Fothergill, J., of the Federal Court, who delivered the following reasons for judgment on February 24, 2015.