Suleiman v. Canada (Citizenship and Immigration)

Suleiman v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-04-21
Neutral citation
2017 FC 395
File numbers
IMM-3065-16
Decision Content
Date: 20170421
Docket: IMM-3065-16
Citation: 2017 FC 395
Ottawa, Ontario, April 21, 2017
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
RAHMA MANENO SULEIMAN
TAHJAIRA ABDULLA SALEH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION [1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review of the decision of an Immigration Officer in the Backlog Reduction Office in Vancouver [Visa Officer], dated June 28, 2016 [Decision], which denied Rahma Maneno Suleiman’s [Principal Applicant] application for permanent residence from within Canada on humanitarian and compassionate [H&C] grounds.
II. BACKGROUND [2] The Principal Applicant is a 44-year-old citizen of Tanzania and has resided in Canada since August 4, 2010. She has eight children, two of whom reside in Canada and six of whom reside in Tanzania under the care of her sister. Of the two children that reside in Canada, one has US citizenship and the other has Canadian citizenship.
[3] In 1995, the Principal Applicant met her male common-law partner, Abdulla Mandero, with whom she had five children. After Mr. Mandero’s death in 2005, she married her husband Abdulla Saleh Ussi.
[4] In 2007, the Principal Applicant and her husband fled to the US, where their daughter Tahjaira was born. On August 4, 2010, the Principal Applicant left Mr. Saleh Ussi and arrived in Canada with Tahjaira.
[5] On August 31, 2010, the Principal Applicant claimed refugee protection on the basis of political opinion and religion, which was refused on December 7, 2011 by the Refugee Protection Division [RPD]. The Principal Applicant’s application for leave to seek judicial review of the decision was refused on March 14, 2012.
[6] On November 3, 2011, the Principal Applicant and Tahjaira applied for permanent residence in Canada as dependents of Abdulla Saleh Fatawi under the Protected Persons class. The Principal Applicant and Mr. Saleh Fatawi had a daughter, Zunaira, on December 9, 2012. The application for permanent residence was refused on September 7, 2014. The Principal Applicant then commenced a pre-removal risk assessment [PRRA] application on October 7, 2014 on the basis of sexual orientation, gender, ethnicity, religion, and political opinion. However, this was rejected on March 23, 2015 and an application for leave to seek judicial review of the decision was denied on August 12, 2015.
[7] On January 14, 2015, the Principal Applicant initiated an application for permanent residence based on H&C grounds, which was refused on March 18, 2015. She sought judicial review of the decision on April 10, 2015, but the matter was discontinued on the basis that the application would be reconsidered by another visa officer. That reconsideration is the subject of this judicial review.
III. DECISION UNDER REVIEW [8] The Decision sent from the Visa Officer to the Principal Applicant by letter dated June 28, 2016 determined that the Principal Applicant did not qualify for an exemption from legislative requirements that would allow her application for permanent residence to be processed from within Canada.
A. Background [9] In rendering the Decision, the Visa Officer first reviewed the Principal Applicant’s background. This review included: her membership in the Civic United Front [CUF], a political party opposed to the ruling political party of Tanzania; political violence against the Principal Applicant and her family; and the Principal Applicant’s sexual orientation and prior incidents involving her relationships with women. With regards to the latter, the Visa Officer noted, in particular, an incident relating to an affair with a woman who was publicly exposed and which resulted in attacks against both individuals, and the Principal Applicant’s departure to the United States [US] with her husband. The Visa Officer also noted the circumstances in which the Principal Applicant left the US and entered Canada.
B. Establishment [10] The Visa Officer then considered the degree of establishment in Canada, noting that the Principal Applicant had lived in Canada for nearly six years, volunteered in the lesbian, gay, bisexual, and transgender [LGBT] community, and had obtained a certificate in cash register skills. These considerations, along with her efforts to seek assistance from others, led the Visa Officer to conclude that the Principal Applicant was a resourceful individual with a demonstrated ability to assimilate. Based on the Principal Applicant’s successful integration into the Canadian society, the Visa Officer found that she would be able to adapt to the environment in Tanzania, especially since she had a large network of family members there. Additionally, the Visa Officer noted the volunteer work that the Principal Applicant had performed in the LGBT community; however, while this was viewed positively, it was insufficient to warrant an exemption from the legislative requirements of completing an application for permanent residence outside of Canada.
C. Sexual Orientation [11] As part of the assessment of the risks and adverse country conditions, the Visa Officer examined the Principal Applicant’s alleged sexual orientation as a lesbian. The Principal Applicant said she had experienced discrimination and violence based on her sexual orientation while in Tanzania, citing several incidents. However, she had not provided this information to the RPD in her prior refugee claim. Although the Principal Applicant had explained that she was advised to omit the information by her interpreter, the Visa Officer noted that the interpreter was not present at the RPD hearing and was not her representative. Due to the delay in seeking protection on the basis of sexual orientation, the Visa Officer found the Principal Applicant lacked subjective fear.
[12] Moreover, although the Visa Officer accepted the existence of societal discrimination and violence against sexual minorities in Tanzania, little weight was assigned to the Principal Applicant’s claims of experiencing personal discrimination and violence on this ground. Several of the incidents, such as the corrective rape that was reported to the authorities and the murder of her same-sex partner, would have resulted in documentation such as a police report and a death certificate; however, the Principal Applicant did not provide any supporting documents. Based on the lack of documentary evidence to substantiate her claims, the Visa Officer found that the Principal Applicant had not proven she was targeted and sought by the Tanzanian authorities due to her sexual orientation.
[13] Also, with regards to the matter of the Principal Applicant’s sexual orientation, the Visa Officer reviewed documentary evidence including a psychotherapeutic assessment by Dr. Patricia Durish, a letter from the director of counselling services at the Barbara Schlifer Commemorative Clinic [BSCC], and a letter from the vice chairman of Jukumuletu, an organization that the Principal Applicant volunteers with.
[14] There were several issues with Dr. Durish’s assessment; most notably, the determination that the Principal Applicant’s presentation was consistent with her declared sexual orientation as a lesbian. The Visa Officer found that Dr. Durish’s assessment was based on information provided by the Principal Applicant and that the Principal Applicant had focused on female partners during the interview due to her vested interest in the outcome; as such, the Visa Officer afforded little weight to the assessment.
[15] The BSCC letter was then discussed; however, like Dr. Durish’s assessment, the Visa Officer afforded little weight to it because it was based on information solely provided by the Principal Applicant, rather than objective evidence. It was also noted that the letter did not detail the physical and sexual violent incidents that the Principal Applicant had allegedly experienced in Tanzania.
[16] The Visa Officer also noted the Principal Applicant’s volunteer activities within the LGBT community. However, the Principal Applicant’s volunteer work was found not to demonstrate that she was a lesbian because the organizations she was involved with were open to people of all sexual orientations. The Visa Officer also dismissed the letter from Jukumuletu that stated the Principal Applicant was a lesbian on the basis that the vice chairman could not have learned about her sexual orientation in a manner other than through the Principal Applicant’s own statements. As such, little weight was assigned to the vice chairman’s letter. Ultimately, the Visa Officer accepted that the Principal Applicant had PTSD and depression, but not that she was a lesbian.
[17] The Principal Applicant had also provided a number of articles and reports on the treatment of sexual minorities in Tanzania. While the Visa Officer accepted that societal discrimination and violence against sexual minorities occurred, the documentary evidence was given little weight because the Principal Applicant had not provided sufficient evidence to demonstrate how the issues would affect her return to Tanzania.
D. Political and Religious Violence [18] In both the Principal Applicant’s previous application for refugee status and the current application for permanent residence, the Principal Applicant had stated that she had faced political and religious violence on a number of occasions in Tanzania. In the refusal of the refugee claim, the RPD had rejected the Principal Applicant’s allegations on the basis that the claims were not adequately explained and that she lacked credibility. In addition to the RPD’s finding, the Visa Officer also noted the lack of documentary evidence to support the allegations, such as medical reports, police reports, or letters from family members. Based on this lack of supporting evidence, the Visa Officer did not find the Principal Applicant had demonstrated that she was a victim of political and religious violence. As a result, little weight was assigned to these grounds.
E. Gender Based Violence [19] The Principal Applicant also claimed that she suffered abuse from her Tanzanian husband, Mr. Saleh Ussi. However, the Visa Officer noted that Mr. Saleh Ussi had entered the US with the Principal Applicant and there was no indication that he would return or had returned to Tanzania. Thus, the Principal Applicant had not established that she would face hardship due to violence from Mr. Saleh Ussi.
[20] Similarly, the Visa Officer did not find that the Principal Applicant would face hardship due to violence from Mr. Saleh Fatawi, her Canadian husband, who was also alleged to have abused her. It was noted that the couple no longer lived together and there was no evidence that demonstrated he would follow her to Tanzania.
[21] The Visa Officer recognized that gender-based violence was an existing problem in Tanzania; however, the Principal Applicant had not provided sufficient evidence to demonstrate how she would suffer hardship from such violence upon her return. Consequently, little weight was afforded to this ground of concern.
[22] Likewise, little weight was assigned to a report on the effects of family violence on children. The Principal Applicant had not provided sufficient evidence to demonstrate that her daughters had suffered from the two previous abusive relationships, or how their departure from Canada would further complicate their lives in this regard.
F. Mental Health Issues [23] The Principal Applicant had provided evidence that she was in treatment for post-traumatic stress disorder [PTSD] and depression. The Visa Officer found that the Principal Applicant may have mental health issues due to her prior abusive relationships, but was not convinced that a return to Tanzania would prevent her from receiving appropriate counselling services. The IRB Research Directory Document was cited to demonstrate that “one-stop” centers in Tanzania provide counselling and other resources. As such, the Visa Officer found there were accessible resources in Tanzania to help the Principal Applicant with any emotional, mental health, and medical needs. Accordingly, the Visa Officer did not find that the Principal Applicant’s mental health issues would cause her to suffer from any hardship upon her return to Tanzania due to a lack of treatment options or for other reasons.
G. Best Interests of the Children [BIOC] [24] Only six of the Principal Applicant’s children were considered, because two of them were over the age of 18 at the time of the application for permanent residence. Additionally, the analysis focused on Tahjaira and Zunaira, the two children in Canada, because the Principal Applicant did not indicate how the best interests of the children in Tanzania would be affected by her return to Tanzania.
[25] The Visa Officer recognized that violence against children in Tanzania was a problem. This was clear from the US Department of State’s 2015 Human Rights Report that specifically identified corporal punishment in schools. The Visa Officer found that the Principal Applicant could overcome this problem and protect her children because she was a loving and nurturing mother who could provide a loving and caring environment for her children upon her return. Although the Principal Applicant had stated that her children in Tanzania had previously been raped there, the Visa Officer found the lack of evidence to substantiate these statements, such as police reports or court documents, did not demonstrate these incidents had occurred and, as a result, little weight was assigned to them. The Visa Officer also noted that the Principal Applicant’s sister had provided a violence-free home to six children in Tanzania for six years and could also extend this support to Tahjaira and Zunaira.
[26] The Visa Officer also found that education was not an unsurmountable issue for Tahjaira and Zunaira. Tanzania provides compulsory and free education up to the age of 15, with fees required only for books, uniforms, and lunches. While the system is not perfect, the Tanzanian authorities are training teachers and parents on the issues of corporal punishment and child abuse. Thus, the Visa Officer concluded it was unlikely that the Principal Applicant’s children would be subjected to corporal punishment in Tanzania, particularly if they were enrolled in specific schools that had suspended such punishment.
[27] The Principal Applicant had also expressed worries that her daughters would be kidnapped or killed on the basis of holding western citizenships. However, this statement was not substantiated by sufficient evidence and little weight was assigned to it. Additionally, the Visa Officer did not see how the identity of the children’s citizenships would be revealed in Tanzania.
[28] The Visa Officer then assessed the issue of sexual exploitation of children, particularly girls in Tanzania. While the incidence of child rape is recognized as rising in Tanzania, the Visa Officer did not find that the Principal Applicant had provided sufficient evidence to demonstrate that her daughters would be the victims of sexual exploitation upon their return to Tanzania. The Visa Officer viewed the Principal Applicant as a loving and nurturing mother who would be able to shield her children from unsafe environments. Likewise, the Principal Applicant’s abilities were cited as sufficient to demonstrate that she could protect her children from general country violence in Tanzania. These abilities, in addition to insufficient evidence regarding how the children would be personally subjected to violence, led to the conclusion that the best interests of the Principal Applicant’s daughters would not be directly compromised if they returned to Tanzania.
[29] In additional support for the finding that the daughters’ interests would not be directly compromised, the Visa Officer noted that the young ages of Tahjaira and Zunaira indicated they would be able to assimilate to a new environment after an initial period of adjustment. It was also found that it would be in the best interests of all the children in Tanzania to have their mother with them. Moreover, it would be in the best interests for Tahjaira and Zunaira to build a relationship with their other siblings.
[30] The Visa Officer noted that the Principal Applicant’s sister allegedly had financial problems and was aided by the Principal Applicant. However, the Principal Applicant’s alleged financial assistance was not corroborated by documentation such as remittance slips or bank transfers and little weight was given to it. Moreover, the Visa Officer reasoned that the financial problems were not a barrier because education was free in Tanzania. As a result, the Visa Officer did not conclude that the best interests of the children were directly compromised by the return of the Principal Applicant, along with Tahjaira and Zunaira, to Tanzania.
[31] After consideration of all the factors raised, the Visa Officer was not satisfied that the H&C considerations justified an exemption under s 25(1) of the IRPA.
IV. ISSUES [32] The Applicants submit that the following are at issue in this application:
1. Was the Visa Officer’s BIOC analysis unreasonable?
2. Was the Visa Officer’s analysis of the mental health evidence unreasonable?
3. Was the Visa Officer’s analysis of the evidence regarding the Principal Applicant’s sexuality unreasonable?
4. Did the Visa Officer reach an unreasonable conclusion regarding the Principal Applicant’s ability to re-establish herself in Tanzania?
[33] The Respondent submits that the following is at issue in this application:
Did the Visa Officer err in exercising discretion to find that the Primary Applicant’s circumstances did not justify an exemption under s 25(1) of the IRPA from the normal requirement to apply for permanent residence status from outside Canada?
V. STANDARD OF REVIEW [34] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[35] A visa officer’s decision rendered under s 25(1) of the IRPA is reviewable on a standard of reasonableness: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] at para 44; Madera v Canada (Citizenship and Immigration), 2017 FC 108 at para 6.
[36] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Khosa v Canada (Citizenship and Immigration), 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS [37] The following provisions from the IRPA are relevant in this proceeding:
Application before entering Canada
Visa et documents
11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
11 (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la présente loi.
…
…
Humanitarian and compassionate considerations —request of foreign national
Séjour pour motif d’ordre humanitaire à la demande de l’étranger
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.
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.
[38] The following provisions from the Federal Courts Rules, SOR/98-106 [Rules] are relevant in this proceeding:
Content of affidavits
Contenu
81 (1) Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for summary judgment or summary trial, in which statements as to the deponent’s belief, with the grounds for it, may be included.
81 (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils sont présentés à l’appui d’une requête – autre qu’une requête en jugement sommaire ou en procès sommaire – auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui.
[39] The following provisions from the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [CIRP Rules] are relevant in this proceeding:
Affidavits
Affidavits
12 (1) Affidavits filed in connection with an application for leave shall be confined to such evidence as the deponent could give if testifying as a witness before the Court.
12 (1) Tout affidavit déposé à l’occasion de la demande d’autorisation est limité au témoignage que son auteur pourrait donner s’il comparaissait comme témoin devant la Cour.
VII. ARGUMENT A. Applicants (1) Best Interests of the Child [40] The Applicants submit that the BIOC analysis was unreasonable and inconsistent with the governing jurisprudence. The BIOC analysis did not adequately identify the children’s interests as required by Kanthasamy, above. Instead, the Decision was focused on the two children in Canada, Tahjaira and Zunaira.
[41] With regards to Tahjaira, the Visa Officer did not consider the prospect of her removal to the US but, instead, focused on the preferred outcome of her joining her mother in Tanzania. The Principal Applicant had stated that she feared Tahjaira would be forced to grow up in state care or an abusive home in the US, yet this possibility was not addressed.
[42] Zunaira is a Canadian citizen, which distinguishes her from her sister, who is a US citizen. Yet, the Visa Officer did not devote individual attention to Zunaira’s citizenship by considering the prospects of her removal from her country of citizenship, nor did the Visa Officer compare her prospects to Tahjaira’s. The Applicants contend that, as part of the BIOC analysis, Zunaira’s citizenship should have been explicitly addressed.
[43] The BIOC analysis devoted an excessive amount of space to challenging claims concerning the adverse country conditions of Tanzania, which fettered the analysis to an unduly narrow focus. The analysis was structured to rebut the Applicants’ arguments concerning the country conditions, and failed to adequately identify the children’s interests. This is similar to the case of Chandidas v Canada (Citizenship and Immigration), 2013 FC 258 at para 69, where the officer did not identify the best interests involved, other than stating that the child should remain with her parents. In the current case, the Visa Officer presumed that the two children will be removed with their mother, which is not a proper BIOC analysis. The Court also found in Sahyouni v Canada (Citizenship and Immigration), 2014 FC 352 at paras 4-5 that a failure to take into account the deceased mother’s plea to be admitted to Canada was a reviewable error in the BIOC analysis.
[44] In the conclusion to the BIOC analysis, the Visa Officer observes that there was insufficient evidence to demonstrate that having to depart Canada for the purpose of applying for permanent residence would have a significant impact on the best interests of the children. The Applicants submit that this is an application of the unusual and undeserved or disproportionate hardship tests that was found to be unreasonable in the BIOC context in Kanthasamy, above, at para 59.
[45] As for the children in Tanzania, the Applicants argue that the analysis was slanted to favour a negative decision. The Visa Officer found that it was in the best interests of these children to have their mother with them in Tanzania, which leaves unexamined the possibility that the Principal Applicant could, if the H&C exemption was granted, sponsor them to Canada after acquiring permanent residence.
[46] A BIOC analysis should favour non-removal, yet the Visa Officer takes the opposite view: Hawthorne v Canada (Citizenship and Immigration), 2002 FCA 475 [Hawthorne]. The Applicants submit that the Visa Officer seemed intent on demonstrating that conditions in Tanzania were not sufficiently poor to justify not removing the children and their mother. But as an H&C application for permanent residence, the analysis should have been focused on whether the decision was good for the children: Li v Canada (Public Safety and Emergency Preparedness), 2016 FC 451 at para 1.
(2) Mental Health Issues [47] The Applicants take issue with the Visa Officer’s focus on whether resources for the treatment of mental health are available in Tanzania. This ignores the effect of the removal from Canada on the Principal Applicant’s mental health. The Applicants argue that the Principal Applicant’s mental health would likely worsen with removal, which is a relevant consideration that must be identified and considered.
[48] The Decision also discusses irrelevant issues, most notably that there was insufficient evidence to demonstrate the Principal Applicant was targeted due to sexual orientation, or was a victim of political and religious violence. These issues, which are addressed earlier in the Decision, are not relevant to mental health issues.
[49] The Visa Officer also did not contemplate, beyond emotional difficulty, the effect of the removal on the Principal Applicant. Instead of solely comparing the mental health resources between Tanzania and Canada, the Applicants argue that there should have been consideration of the impact of the removal process, which can be traumatic and pose mental health challenges.
[50] Additionally, the mental health evidence was treated in isolation. Dr. Durish had explained that the Principal Applicant’s narrative was difficult to follow because of the mental health issues. The Applicants contend that, had the Visa Officer considered Dr. Durish’s evidence, there would have been more empathy and understanding that could have enriched the Decision.
(3) Sexual Orientation [51] Although not explicitly stated, the Visa Officer was skeptical that the Principal Applicant was a lesbian. Despite the Principal Applicant’s devotion of her free time to participating in the LGBT community, the Visa Officer finds this insufficient to demonstrate she is a lesbian on the basis that the community accepts people of all sexual orientations. While this is presumably true, there is no evidence to support such a claim. Additionally, common sense dictates that, although open to everyone, LGBT organizations are likely to attract LGBT individuals.
[52] Minimal weight was assigned to all third party evidence concerning the Principal Applicant’s sexuality on the basis that it was hearsay or obtained via sources that were personally close to the Principal Applicant. For instance, the Visa Officer discounted the vice chairman’s letter that said the Principal Applicant would be persecuted or killed due to her sexual orientation on the basis that he could not have personally witnessed her sexual preferences or obtained first-hand knowledge of her sexual orientation. Instead, the statement was found to have been based on the accounts of other members who had likely formed relationships with the Principal Applicant after four years of participation.
[53] The Visa Officer does not state what evidence would have been sufficient. It is possible to infer that a same-sex relationship would have demonstrated evidence of the Principal Applicant’s sexual orientation, but the Principal Applicant does not have a long-term partner. Notably, Dr. Durish’s assessment stated that the Principal Applicant would like to be in a same-sex relationship but has been held back by her personal challenges.
[54] The Applicants also argue that certain aspects of the Principal Applicant’s personal history counted against her in the assessment, namely the fact that she has been married three times and has eight children. However, this is also addressed in Dr. Durish’s report, which explains that the Principal Applicant’s history with men was not inconsistent with her being a lesbian due to the extreme homophobia present in Tanzania.
[55] The Applicants also take issue with the finding that the Principal Applicant lacked subjective fear of persecution and discrimination as a lesbian, which was grounded on the absence of sexual orientation as a ground in her prior refugee claim. The Principal Applicant explained that this ground was omitted based on the advice of members from her linguistic community. The Principal Applicant does not speak English or French and relied on the evidence of others. Additionally, as a Member of a sexual minority from an intensely homophobic society, the Principal Applicant’s decision to not disclose her orientation to strangers, including authority figures, echoes the case of Fah Ng v Canada (Citizenship and Immigration), 2012 FC 583.
[56] The Applicants also cite VS v Canada (Citizenship and Immigration), 2015 FC 1150 [VS] for support. The Visa Officer found insufficient evidence to demonstrate how the issues of discrimination and violence against sexual minorities in Tanzania would affect the Principal Applicant upon her return, but the Applicants note that the implications for a gay woman entering an intensely homophobic environment should be clear.
(4) Re-Establishment [57] The Visa Officer found that the Principal Applicant’s successful establishment in Canada demonstrated she could assimilate with equal success in Tanzania. However, the mental health evidence demonstrates that the Principal Applicant has limitations that would affect her ability to assimilate. Additionally, the Principal Applicant’s success in Canada within the LGBT community is unlikely to be duplicated in Tanzania due to societal discrimination and violence.
[58] The Decision also states that the Principal Applicant is a resourceful and adaptable individual who was able to escape from an abusive relationship after years of suffering. The Applicants argue that this successful establishment was dependent on the goodwill of a variety of civil society organizations and free legal representation and counselling. While the Principal Applicant may have adequately established herself in Canada, this does not prove she is a resourceful individual who would be able to thrive in a difficult environment after nine years away.
[59] In summary, the Applicants submit that the Decision is unreasonable. The Applicants also say that the Visa Officer breached the principles of fundamental justice, but do not elaborate further.
B. Respondent [60] As a preliminary matter, the Respondent takes issue with paragraphs 12, 14-21 of the Applicants’ affidavit, which contains argument and conclusions not within their knowledge and which should be afforded little or no weight: Rule 81 of the Rules; Rule 12 of the CIRP Rules.
[61] The Respondent submits that the denial of the H&C exemption in this case does not involve the determination of an applicant’s legal rights; rather, it is a refusal of a request for an exemption from the applicable requirements with which foreign nationals applying for permanent residence must comply. In this context, the Visa Officer appropriately considered all the factors, but the Applicants were unable to meet the onus upon them due to insufficient evidence. Thus, the Decision does not warrant judicial intervention.
(1) Best Interests of the Children [62] The Respondent submits that the Visa Officer provided a detailed analysis of the BIOC based on the information provided. The evidence simply did not demonstrate that the BIOC required the children to stay in Canada; this finding was based on the fact that they should remain with their mother and join their siblings in Tanzania.
(2) Mental Health Issues [63] With regards to the Visa Officer’s treatment of the mental health evidence, the Respondent submits that there was no error in focusing on the treatment options available in Tanzania because there was little evidence regarding the effect of the removal on the Principal Applicant. The psychotherapist’s assessment did not assess the effect of the return and only noted the behaviour exhibited by the Principal Applicant when asked about the possibility of return. The Principal Applicant’s PTSD is not a sole justification for an H&C exemption.
(3) Sexual Orientation [64] There was no error in the assessment of the evidence regarding the Principal Applicant’s sexual orientation, which was never raised as a fear before the RPD, where it could have been examined. The evidence provided was insufficient to establish that the Principal Applicant would be adversely affected by country conditions based on her sexual orientation. In particular, involvement with LGBT organizations does not suffice to establish that she is a lesbian.
[65] While the Principal Applicant provided an explanation for omitting her sexual orientation in her refugee claim, the Respondent contends that the Visa Officer was not obliged to find the explanation sufficient. The Principal Applicant has not demonstrated an error in the consideration of her failure to cite sexual orientation as a ground in her refugee claim.
[66] Since the Visa Officer did not accept that the Principal Applicant was a lesbian, this case is distinguishable from VS, above.
[67] Moreover, the Visa Officer was entitled to look at past behaviour, including the Principal Applicant’s past personal history in heterosexual relationships. The Principal Applicant could have provided sufficient evidence to demonstrate she was a lesbian but failed to do so.
(4) Establishment [68] The finding that the Principal Applicant could re-establish herself in Tanzania is not unreasonable. There was evidence, including the existence of a family network, to support the conclusion.
[69] In summary, the Visa Officer assessed the evidence as a whole and found it insufficient to justify an exemption on H&C grounds. Thus, the Decision should stand.
C. Respondent’s Further Memo [70] The Respondent reiterates and relies on prior submissions and adds the following arguments.
(1) Breach of Natural Justice [71] The Respondent takes issue with the Applicants’ assertion that the Decision was unfair as the assertion carries no evidentiary support aside from statements in the affidavit that disagree with the Visa Officer’s conclusion. This submission has no merit and does not show how the conclusions were not based on evidence or common sense.
(2) Reasonableness [72] The Respondent continues to take the position that the Decision is reasonable. While the Principal Applicant says that the inconsistences regarding her evidence at the RPD hearing were due to her inability to focus and concentrate, there does not appear to be evidence presented to the RPD to explain her difficulties. As such, the RPD’s credibility findings must stand, which make them available and relevant for consideration in the context of the Visa Officer’s Decision.
[73] Moreover, the Visa Officer’s conclusion that the Principal Applicant was resourceful and adaptable was based on the material presented, including her statutory declaration that she participated in many volunteer activities.
(3) Onus for H&C Relief [74] The Applicants failed to demonstrate that they had achieved a degree of establishment in Canada sufficient to warrant an exemption under s 25 of the IRPA. The Principal Applicant argued that her establishment was dependent upon the goodwill of various organizations, which supports the Visa Officer’s finding. However, the Respondent submits that since most of the Applicants’ family is present in Tanzania, they can aid the Principal Applicant in her re-establishment.
(4) Best Interests of the Child [75] In Hawthorne, above, at paras 5-8, the FCA found that a BIOC analysis requires the determination of the likely degree of hardship to the child caused by removal of the parent and the weighing of this together with other factors militating in favour of or against the removal of the parent. Additionally, Kharlan v Canada (Citizenship and Immigration), 2016 FC 678 at paras 25-26, found that Kanthasamy, above, did not change the nature of H&C determinations; the onus remains on applicants to justify the exemption, which was not done in this case. Furthermore, the Respondent cites Puna v Canada (Public Safety and Emergency Preparedness), 2016 FC 1168 and Fernando v Canada (Citizenship and Immigration), 2016 FC 1372 at para 16 for additional jurisprudential support of the BIOC analysis in the context of the IAD.
VIII. ANALYSIS [76] The Applicants have raised four principal issues which I will deal with in turn.
A. Best Interests of the Child [77] Given the evidence adduced and the submissions made by the Applicants, it is difficult to understand some of the allegations of error which she now says were made with regard to the Visa Officer’s BIOC analysis.
[78] The Applicants complain that the Visa Officer focussed his decision on the Principal Applicant’s two children in Canada, thus effectively excluding the overseas children.
[79] The Visa Officer explains why the two children in Canada are the necessary focus:
The applicant has a total of eight chi