Date: 20061116
Docket: IMM-225-06
Citation: 2006 FC 1389
Ottawa, Ontario, this 16th day of November, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MEHDI
LATIFI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
In
this application for judicial review, made pursuant to sections 18 and 18.1 of
the Federal Courts Act, R.S.C. 1985 c. F-7, the Applicant, Mehdi Latifi,
challenges the decision of the Pre-Removal Risk Assessment Officer (Officer) dated
December 8, 2005 (Decision). The Officer refused to grant the Applicant’s
application for an exemption from the requirements of the Immigration and
Refugee Protection Act, S.C. 2001 c. 27 (IRPA) so that the Applicant’s
application for permanent residence could be made from within Canada on
humanitarian and compassionate grounds (H&C Application).
BACKGROUND
[2]
The
Applicant is a citizen of Iran. He arrived in Canada on March 7, 2001 and
made a claim for refugee protection on the basis of his political opinion. The
Applicant alleges that he faces persecution in Iran as a result
of his political activism in support of the Fedayeen (Minority) faction. In its
decision dated January 7, 2002, the then Convention Refugee Determination
Division (CRDD) of the Immigration and Refugee Board denied the Applicant’s
refugee claim.
[3]
On
January 23, 2002, the Applicant applied for consideration under the
Post-Determination Refugees in Canada Class; that application was subsequently
converted to a Pre-Removal Risk Assessment (PRRA) when the IRPA came into force
on June 28, 2002 (PRRA Application).
[4]
In
March 2005, the Applicant filed the H&C Application requesting that he be
granted an exemption from the requirement under IRPA that he must apply for
permanent residence from outside Canada. The Applicant states
that there are two factors militating against requiring that he return to Iran to make his
application for permanent residence. The first factor is the Applicant’s risk
of persecution as described in his claim for refugee protection. The second
factor is his employment as a welder and the hardship it would cause his
employer to lose his skills.
[5]
The
H&C Application and the Applicant’s PRRA Application were considered by the
same Officer. On December 6, 2005, the Officer rendered a negative decision
with respect to the Applicant’s PRRA Application. That decision is subject to a
separate application for judicial review (IMM-224-06) which was heard
concurrently with this matter. After reviewing the circumstances of the H&C
Application, the Officer informed the Applicant on December 8, 2005 that she
had decided not to grant the exemption.
[6]
On
March 7, 2006, Justice Edmond Blanchard issued an order staying the removal of
the Applicant pending final disposition of his application for leave and for
judicial review in this matter and in IMM-224-06. Leave for judicial review was
subsequently granted in respect of the H&C Decision on May 18, 2006 by
Justice Robert Barnes.
RELEVANT LAW
[7]
Decisions
respecting H&C applications are made by the Minister of Citizenship and
Immigration, or her or his delegate, pursuant to section 25 of the IRPA. In
particular, subsection 25(1) provides the Minister with the discretion to
exempt a foreign national from any requirement under the IRPA if humanitarian
and compassionate considerations justify an exemption:
|
25. (1) The Minister shall, upon request of
a foreign national who is inadmissible or who does not meet the requirements
of this Act, and may, on the Minister’s own initiative, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligation of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to
them, taking into account the best interests of a child directly affected, or
by public policy considerations.
|
25. (1) Le ministre doit, sur demande d’un étranger interdit de
territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre
initiative, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
DECISION UNDER REVIEW
[8]
In
her reasons, the Officer stated that the Applicant had not established that the
hardship he would face if required to apply for permanent residence outside
Canada would be “unusual and undeserved or disproportionate.” In coming to that
conclusion, the Officer set out the considerations which were either supportive
or non-supportive of the Applicant’s H&C Application. In support, the
Officer noted that the Applicant was employed and self-supporting, that he had
a good civil record in Canada, and that he had
demonstrated some community involvement. As for the non-supportive
considerations, the Officer referred to the Applicant’s negative refugee
protection and PRRA decisions, the fact that he has family in Iran, and that
his demonstrated establishment in Canada is moderate.
[9]
The
Officer considered the factors relevant to H&C applications: 1) spousal,
family or personal relationships that would create hardship if severed; 2)
children of the applicant in Canada; 3) hardship or sanctions upon return to
country of origin; 4) degree of establishment in Canada demonstrated; and 5) establishment, ties
or residency in any other country. The Officer noted that the first two factors
were not relevant in the Applicant’s case. Regarding the fifth factor, the
Officer noted that the Applicant’s mother, four sisters and brother reside in
Iran, and that he had worked as a welder in Iran. The focus of the Officer’s Decision was on the
other two factors: hardship or sanctions upon return to Iran, and demonstrated
establishment in Canada.
[10]
Regarding
hardship or sanctions if returned to Iran, the Officer stated that in her capacity as a
PRRA Officer, she had conducted an assessment of the evidence respecting the
Applicant’s personalized risk against the criteria of sections 96 and 97 of the
IRPA. In her H&C Decision, the Officer specifically referred to the reasons
for rejecting the Applicant’s PRRA Application. In particular, the Officer
pointed to the absence of any objectively verifiable evidence surrounding the
Applicant’s alleged history as a political prisoner. The Officer also reviewed
the documentary evidence and concluded that each of the documents was of little
probative value. Further, in respect of his political activities in Canada, the Officer noted that
the Applicant had supplied no tangible evidence of these activities and, as a
result, she gave little weight to his submission that his profile as a
political activist in Canada would place him at risk in Iran. Finally, the Officer
acknowledged that the documentary evidence related to the country conditions in
Iran indicates that basic
human rights are seriously compromised in Iran. However, the Officer concluded that the
country conditions do not, by themselves, establish a risk to the Applicant’s
life or security of the person.
[11]
With
respect to establishment, the Officer concluded that the Applicant had not demonstrated
that he had attained a degree of establishment during his five years in Canada such
that an application from outside Canada would constitute an unusual and undeserved or a
disproportionate hardship. As evidence supporting the Applicant’s establishment
in Canada, the Officer referred to his full-time employment as a welder and his
good civil record. However, the Officer also noted that she had little evidence
before her of his ability in either English or French, or of any accumulated
assets or significant social or community integration. Finally, although the
Officer accepted that the Applicant was a highly valued employee, she held that
any hardship accruing to his employer from a loss of his skill would be largely
of the employer’s own making if he had not acted to hire and train welders for
his operation during the period that had passed.
[12]
In
her final analysis, the Officer concluded that there was not sufficient
reliable evidence to support a finding that the Applicant would face a probable
risk to his life or the security of his person in Iran. Moreover, the Officer
stated that, given the lack of reliable evidence on risk, she was also of the
view that there was little compelling evidence of associated hardship. The
Officer also concluded that the Applicant had demonstrated only a moderate
degree of establishment in Canada and that his vocational skills and family support would
assist him in re-establishing himself in Iran.
ISSUES
[13]
The
Applicant says that the Officer made the following errors in considering his H&C
Application:
1.
She
failed to distinguish between the test for a PRRA and the lower test of
“unusual, undeserved or disproportionate hardship” in an H&C application;
2.
She
failed to disclose extrinsic evidence upon which she relied for her Decision,
namely country conditions on Iran;
3.
She
erred by requiring corroboration in the form of “tangible” evidence.
STANDARD OF REVIEW
[14]
Since
the Supreme Court of Canada’s decision in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 243 N.R. 22 the Courts
have held that the appropriate standard for reviewing H&C decisions is
reasonableness. With respect to the application of this standard of review,
Justice Danielle Tremblay-Lamer’s reasons at paragraph 7 of her decision in Singh
v. Canada (Minister of Citizenship and Immigration) 2005 FC 718, are
instructive and, in my view, applicable in this case.
In
this respect, it is critical to keep in mind the nature of the Court’s inquiry
when applying the standard of reasonableness simpliciter. Although the
Court is entitled to engage in a “somewhat probing examination” of the decision
(Canada (Director of Investigation and Research)
v. Southam Inc., [1997]
1 S.C.R. 748 at para. 56), the Court is not licensed, by virtue of the ruling
in Baker, supra, for example, to reweigh the considerations
relevant to a humanitarian and compassionate grounds application … Equally,
the Court cannot grant judicial review because it would have arrived at a
different result […].
ARGUMENTS
The Applicant
[15]
The
Applicant argues that the Officer failed to turn her mind to the distinction
between the tests for a PRRA and an H&C Application. He says the Officer
appears to have simply repeated her PRRA Decision in her Decision on his H&C
Application. Moreover, the Applicant says that the Officer erred in concluding
that, because there is little reliable evidence of risk, there is also little
compelling evidence of associated hardship, without considering whether forcing
him to return to a country where basic human rights are seriously compromised
might be a basis for meeting the test of “unusual, undeserved or
disproportionate hardship.” In deciding that there was no hardship simply on
the basis of the absence of personal risk, the Officer committed a reviewable
error, according to the Applicant. In support of this position, he cites Liyanage
v. Canada (Minister of Citizenship and Immigration) 2005 FC 1045; and Melchor
v. Canada (Minister of
Citizenship and Immigration) (2004), 39 Imm. L.R. (3d) 79 2004 FC 1327.
[16]
The
Applicant also maintains that, as a matter of law, the Officer had an
obligation to disclose to the Applicant the extrinsic evidence he used in
coming to the Decision to the Applicant. He submits that “the material used may
have had portions upon which the Applicant would have wished to comment.” While
acknowledging that the material appears to be supportive, the Applicant states
that there may have been some passages which were much stronger and he should
have been given the opportunity to distinguish those passages or bring them to
the attention of the Officer.
[17]
Finally,
the Applicant argues that the Officer erred by requiring corroboration in the
form of “tangible” evidence. First, he submits that no one knows what tangible
evidence is. Second, he says that there was “a plethora of letters and a
petition confirming the essentials” of what he said.
The
Respondent
[18]
The
Respondent submits that the Officer carefully considered the H&C
Application and that it was reasonable for her to conclude that there were not
sufficient humanitarian and compassionate grounds to grant an exemption.
[19]
Regarding
the first error alleged by the Applicant, the Respondent states that the
Applicant himself submitted that the hardship he would face, if required to
apply for permanent residence from outside of Canada, was his risk of
persecution in Iran. Since the Officer had carefully reviewed the
Applicant’s claim and had concluded that he would not be at risk if returned to
Iran, the
Respondent argues that it was reasonable for the Officer to find that the
Applicant would not suffer any hardship associated with that alleged risk.
[20]
As
to the second error, the Respondent notes that the documents relied on by the
Officer were either submitted by the Applicant or were publicly available. As
such, the Officer did not breach the principles of procedural fairness by not
providing the Applicant with an opportunity to review and respond to
documentary materials.
[21]
Finally,
with respect to the third error, the Respondent submits that it was reasonable
for the Officer to consider that the Applicant had not provided any tangible
evidence of his political activities in determining whether he would suffer
hardship if he had to apply for permanent residence from outside Canada.
ANALYSIS
[22]
The
burden of adducing proof of any claim on which an H&C application is made
rests with the Applicant: see Owusu v. Canada (Minister of Citizenship and
Immigration), [2004] 2 F.C.R. 635, 2004 FCA 38. In this case, the Applicant
had the onus of satisfying the Officer that being required to obtain a
permanent resident visa from outside Canada would cause him unusual
and undeserved or disproportionate hardship.
[23]
The
primary argument advanced by the Applicant is that the Officer erred by relying
upon her own PRRA Decision and by not applying the lower standard of “unusual
and undeserved or disproportionate hardship” in assessing the risk he allegedly
faces.
[24]
The
Applicant relies upon the decision in Melchor in emphasizing the
distinction between the assessment of risk in the context of a PRRA decision
and the assessment of hardship in the context of an H&C Application. In Melchor,
Justice Gauthier made the following distinctions at paragraphs 19 to 21:
The officer does not discuss
whether living “closeted” because of the social stigma attached to homosexual
couples in Mexico and the discrimination they suffer, qualifies as undue or
disproportionate hardship, especially considering the medical opinion on file,
which indicates that a return to Mexico in such conditions would result in
significant physical and psychological damage to Mr. Ponce Melchor. There was
documentary evidence supporting the view that everywhere in Mexico, life was “difficult”
for homosexuals.
As indicated in the PRRA
decision, the situation In Mexico may not amount to a risk under sections 96
and 97 because there was an internal flight alternative and state protection
was available against actual mistreatment. But this does not mean that the
difficult situation the applicants would face even in larger cities should not
be assessed or neglected at all.
I am not satisfied that the
officer applied her mind to this subtle difference between what she had to do
in evaluating the H&C application as opposed to what she had done in
reviewing the PRRA. As she said it herself, the situation that the applicants
will face upon their return was a crucial factor in assessing their H&C
application. I, therefore, find that the decision in that respect was not
reasonable and that this decision is material and it should be set aside.
[25]
The
Applicant also relies heavily upon the decision in Liyanage at
paragraphs 38 to 45 where Chief Justice Lutfy pointed out crucial distinctions between
the standard in H&C applications and PRRA applications:
In her humanitarian and compassionate consideration
decision, the same immigration officer relied on her factual analysis in the
PRRA decision concerning her acceptance of the alleged harassment by the
applicant's former in-laws, her scepticism concerning the warrant of arrest and
her view that there was insufficient evidence to connect the violent incidents
of 2004 with the family of her first husband.
In the view of the immigration officer, there was no
unusual and undeserved or disproportionate hardship that would be suffered by
the applicants upon their return to Sri Lanka.
In reviewing the best interests of the applicant’s
daughter, Erandi de Silva, the immigration officer did not consider that her
natural father’s family would cause her harm. She also noted that the applicant
and her current husband have extended families in Sri Lanka who could care for
Erandi.
In my view, the immigration officer could adopt the factual
conclusions in her PRRA decision to the analysis she was making in the H&C
Application. However, it was important that she apply those facts to the test
of unusual and undeserved or disproportionate hardship, a lower threshold than
the test of risk to life or cruel and unusual punishment which was relevant to
the PRRA decision.
The immigration officer was alert to this distinction in
her analysis of the impact of returning the applicants to face the harassment
and resentment of the de Silva family:
With respect to the issue of the applicant facing unusual,
excessive, or undeserved hardship as a result of the previous situation with
the former in-laws, I am cognizance [sic] and respectful of the fact
that family conflicts can be difficult and emotionally trying, and I can well
understand that a dispute occurred over the financial needs of the estate, the losing
party may harbour resentment towards the successful party. However, I do not
find that the situation [sic] to be unusual, excessive or undeserved to warrant
exceptional consideration within the context of the H&C Application.
Here, I cannot conclude that the decision of the
immigration officer was unreasonable.
However, the immigration officer does not appear to have
demonstrated the same care in analyzing the impact of the violent incidents
which occurred in 2004 in the context of the unusual and undeserved or
disproportionate hardship test. In the paragraph of her decision considering
these events and the warrant of arrest, the immigration officer stated:
After reviewing and assessing the available research and
the allegations of risk in a context of risk to life and stroke or security, I
find the PRRA conclusions have bearing on the conclusions of risk component of
this H&C Application.
…
The PRRA decision concluded, which I find to be applicable
within the context of risk on this H&C Application, is that there appears
to be state protection available to the applicants in the form of a functioning
judicial system and access to counsel. [Emphasis added]
This analysis does not provide the immigration officer’s
assessment of the relevant facts against the threshold of unusual and
undeserved or disproportionate hardship. She erred, in my respectful view, in
linking her PRRA decision to “...the context of risk on this H&C
Application.” She was required to assess all the facts in the
context of the relevant test for an application for humanitarian and
compassionate consideration. She failed to do so. In my view, this constitutes
an error of law which requires the Court's intervention.
More specifically, in addition to considering the impact of
returning the applicants to Sri Lanka to face the potential ongoing harassment
of the de Silva family, the immigration officer was also required to assess the
impact of their return to the country where the applicant’s brother and
brother-in-law were the victims of violent crimes and, the possibility of
facing a warrant of arrest - unless the genuineness of that document was
totally discounted. It was the cumulative effect of these factors that was not
considered by the immigration officer in the context of undue and undeserved or
disproportionate hardship.
[26]
On
the facts before me, I conclude that the Decision must be examined to see if
the Officer relied inappropriately upon her own PRRA Decision to determine
risk, and made her determination with due consideration to “the subtle
difference between what she had to do in evaluating the H&C Application as
opposed to what she had done in reviewing the PRRA,” to use Justice Gauthier’s
words in Melchor. Thus, in accordance with Chief Justice Lutfy’s
decision in Liyanage, I must determine whether, in relying upon her own
PRRA decision in this case, the Officer applied the facts to the test of
unusual and undeserved or disproportionate hardship.
[27]
The
Officer deals with the connection between the PRRA assessment and the H&C
assessment in two crucial paragraphs of the Decision:
There is little reliable evidence to
support a finding that the applicant is or has been a notable supporter of the
Organization of Fedaian (Minority), that he was imprisoned as a political
activist, or that he would now be an object of interest to police as a result
of political activities engaged in either abroad or in Canada. I do not find
sufficient reliable evidence to support a finding that he would face a probable
risk to his life or to the security of his person in Iran.
I have similarly considered hardships
which may accrue from the risks identified and I find that as there is little
reliable evidence of risk, so there can be little compelling evidence of
associated hardships.
[28]
The
critical finding is the Officer’s statement that “as there is little reliable
evidence of risk, so there can be little compelling evidence of associated
hardships.” Ostensibly, this would appear to fall within the error described by
Justice Gauthier and Chief Justice Lutfy. However, Chief Justice Lutfy made it
very clear in Liyanage that an officer can adopt the factual conclusions
in her PRRA decision for purposes of the analysis under the H&C grounds
provided “she apply those facts to the test of unusual and undeserved or
disproportionate hardship, a lower threshold than the test of risk to life or
cruel and unusual punishment which was relevant to the PRRA decision.”
[29]
In
the case before me, the Officer says in the Decision that “I have similarly
considered hardships which may accrue from the risks identified …”
[30]
The
Applicant submits that this is not sufficient consideration because the Officer
did not look at all the evidence and apply the H&C test. Instead she merely
concluded that because there was no evidence of risk, so there could be “little
compelling evidence of associated hardships.”
[31]
I
have read the Decision as a whole. In relation to risk, the Officer indicates
that she has considered all of the evidence before her, and not just arguments
put forward by counsel for the Applicant. It is clear that when the Officer
refers to “risks identified” she is referring to the risks identified in the
evidence as a whole. It is also clear that when she says “I find that as there
is little reliable evidence of risk, so there can be little compelling evidence
of associative hardships,” she is not saying that she equates risk with
hardship or that she is applying the same test as she did in the PRRA Decision.
She is merely saying that, of the hardships that might accrue from the risks
identified in the evidence, there is little compelling evidence of associated
hardships. In other words, it seems to me that she relies upon the facts in her
PRRA Decision but she applies the correct H&C test to those facts.
[32]
So
the issue becomes whether there were any possible unusual or undeserved or
disproportionate hardships identified in the evidence that were separate and
apart from the evidence of risk.
[33]
In
Melchor, Justice Gauthier points out in paragraph 17 of her decision
that “[o]ften, the risks raised by an applicant in a PRRA are exactly the same
raised in his or her H&C Application. But it is not always so.”
[34]
Justice
Gauthier allowed the application in Melchor because there was evidence
of hardship that was not coterminous with evidence of risk. I have reproduced
the relevant passage again for clarity:
The officer does not discuss whether
living “closeted” because of the social stigma attached to homosexual couples
in Mexico and the discrimination they suffer, qualifies as undue or disproportionate
hardship […] (para. 19).
[35]
Similarly,
in Liyanage, Chief Justice Lutfy expressed his concern at paragraph 43
that “the immigration officer does not appear to have demonstrated the same
care in analyzing the impact of the violent incidents which occurred in 2004 in
the context of the unusual and undeserved or disproportionate hardship test.”
[36]
In
the present case before me, there is neither evidence of hardship that was
unaccounted for in the Decision, or any indication that the Officer failed to
apply the hardship test to any particular portion of the evidence.
[37]
On
these facts, the evidence of risk under the PRRA Application was the same
evidence for the determination of hardship under the H&C Application. As
Chief Justice Lutfy said in Liyamage, the factual conclusions from the
PRRA can be adopted to the H&C analysis, provided the correct test is
applied. I see nothing before me in this application to suggest that the
Officer did anything other than follow the process that the jurisprudence of
this Court states is permissible, at least as regards applying the correct test
or standard for an H&C application.
[38]
The
Applicant further seeks to avoid this conclusion by arguing that the evidence on
country conditions in the H&C Application is never considered by the
Officer in relation to disproportionate hardship because the Officer did not
regard the Applicant as a reliable witness as a result of the CRDD negative
credibility findings. The Applicant says that the country conditions in
themselves were a disproportionate hardship and should have been considered as
such.
[39]
I
cannot agree with this argument. The Officer certainly makes it clear that the
country conditions are considered from the perspective of risk:
I have also considered a wealth of
documentary evidence submissions relative to country conditions in Iran. Those submissions ably demonstrate that
basic human rights are seriously compromised in Iran, and that serious abuses are known to
occur. While these circumstances are justifiably the target of international
censure, they do not, by themselves, establish a risk to the applicant’s life
or to the security of his person.
[40]
The
real area of concern with the H&C Decision, as far as I can see, is the
extent to which it relies upon the same Officer’s decision dealing with the
Applicant’s PRRA application. I have dealt with that decision in IMM-224-06 and
my conclusion is that it cannot stand because the Officer did not deal
appropriately with credibility issues in accordance with subsection 113(b) of
IRPA and section 167 of the Immigratino and Refugee Protection Regulations,
SOR/2002-227 (Regulations). Since the Officer’s assessment of risk under the
H&C Decision was based upon her own PRRA Decision, it seems to me that she
might easily have reached an entirely different conclusion on her H&C
assessment if her PRRA assessment had not contained a reviewable error.
Consequently, I do not see how this Decision can stand, given my conclusions
that the PRRA Decision must be sent back for reconsideration. This is the
factor which, in my view, renders the H&C Decision unreasonable.
[41]
With
respect to the other issues raised by the Applicant, I am of the view that they
have no merit. The Applicant argues that the Officer was required to disclose
“extrinsic evidence” that she relied on in making her Decision, namely evidence
of country conditions in Iran. On this issue, I agree with the
Respondent that such evidence is not extrinsic. Although the Applicant does not
point to any specific document as “extrinsic,” all of the country condition
documents in the record appear to be from public sources. In supporting his H&C
Application, it was open to the Applicant to refer to any country condition
documents that would support his claim. Moreover, I note that the Officer’s determinations
on hardship are based upon an insufficiency of evidence and the lack of any
connection between country conditions in Iran and the personalized
hardship faced by the Applicant. The situation on country conditions put
forward by the Applicant appears to have been accepted by the Officer. The
problem was that, as far as the Officer was concerned, the Applicant could not
show how this would result in a disproportionate hardship to him.
[42]
Finally,
I cannot accept the Applicant’s contention that the Officer erred in noting
there was no “tangible” evidence in support of his submission that he is at
risk or will suffer a disproportionate hardship because of his high-profile as
a political activist in Vancouver against the Iranian
government. In my view, it was entirely reasonable for the Officer to note that
there was no evidence of the Applicant’s political involvement aside from some
generalized statements in letters of support and a petition. Once again,
however, this issue may well have been considered differently if the risk
assessment conducted under the PRRA application had not contained a reviewable
error.
JUDGMENT
1.
This
application for judicial review is allowed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
Email this Content