Date: 20100429
Docket: IMM-3441-09
Citation: 2010 FC 456
Ottawa, Ontario, this 29th
day of April 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
TIGIST DAMTE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) of the decision dated
June 10, 2009 of the Pre-Removal Risk Assessment (“PRRA”) Officer Marilyn
Campbell (the “Officer”) who found that there were insufficient humanitarian
and compassionate (“H&C”) grounds to grant an exception to the application
requirements so as to allow Ms. Damte to apply for permanent residence from
within Canada.
[2]
Ms.
Damte’s application was for an exemption to the requirement that an application
for permanent residence be made from outside the country (section 11 of the
Act) on humanitarian and compassionate grounds. It was based on her significant
degree of establishment in Canada and unusual and underserved hardship if
required to apply from Ethiopia.
* * * * * * *
* * *
[3]
At
the outset of the decision, the Officer acknowledged that the applicant bears
the onus of satisfying the decision-maker that her personal circumstances are
such that the hardship of not being granted the requested exemption would be i)
unusual and undeserved, or ii) disproportionate.
[4]
The
factors which the Officer identified included: hardship or sanctions upon return
to Ethiopia; spousal,
family or personal relationships that would create hardship if severed; degree
of establishment in Canada; and ties or residency in any other country.
[5]
The
Officer’s decision on an H&C application should be subject to a high degree
of deference by this Court and thus reviewed on a standard of reasonableness (Mooker
v. Minister of Citizenship and Immigration, 2008 FC 518, at paragraph 13; Jung
v. Minister of Citizenship and Immigration, 2009 FC 678, at paragraph 19).
[6]
As
explained by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, the question for this Court is not whether another
outcome would have been possible or even preferable, but whether the qualities
of a decision, namely, the process of articulating the reasons and the outcomes
are reasonable. Reasonableness is concerned “mostly with the existence of
justification, transparency and intelligibility” but also with “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at paragraph 47).
[7]
In
denying the PRRA application, the Officer found that the risk the applicant
faced as an opposition party activist was not well-founded. The Officer related
the PRRA to the H&C as follows:
With respect to the hardship factors
cited, it is noted that these are the same assertions of hardship put forth in
the applicant’s refugee claim and PRRA applications. . . .
[8]
The
parties are in agreement that the applicant also presented non-political
opinion hardship factors in support of her H&C application. The applicant
claimed that she would face hardship based on gender and endemic poverty in Ethiopia. As a
forty-two-year-old woman with no family support returning after nineteen years
to an impoverished country where society views women as “second class citizens”
she alleged that she would face gender discrimination in the labour market. The
applicant asserts this is hardship which is unusual and undeserved, and
disproportionate.
[9]
Under
the heading “Hardship or Sanctions Upon Return to Ethiopia”, the Officer does
not once mention “gender”, “sex”, “poverty”, “women”, “female”,
“discrimination”, or any of the documents the applicant submitted in support of
this part of her H&C application. This section is entirely devoted to an
analysis of whether the applicant’s political opinion will put her at risk for
hardship in Ethiopia and if so,
what level of risk is presented.
[10]
According
to the respondent, the absence of non-political opinion risk factors does not
indicate that the Officer mischaracterized the applicant’s claim but rather reflects
an analysis which was proportional to the content of the applicant’s
submissions, the balance of which was in support of political opinion resulting
in hardship. The respondent submits that we can infer that the Officer
considered the issue of gender discrimination because she mentions the
applicant’s likely employability. Under the heading “Return to Country of
Nationality”, the Officer discusses the advantage the applicant has in
returning to Ethiopia given the skills she acquired in Canada. These
abilities “are transferable employment skills and it would be reasonable for
her to pursue similar opportunities in Ethiopia”. According
to the Federal Court of Appeal in Owusu v. The Minister of Citizenship and
Immigration, 2004 FCA 38, at paragraphs 6 to 11, the Officer cannot be
faulted from not providing a more intensive analysis.
[11]
In
response, the applicant submits simply: the finding of transferability was
unreasonable. The evidence establishes that Ethiopia has an 81%
poverty rate where women are “second class citizens” with “very restricted
employment opportunities […], particularly in the private sector”. Thus, it was
unreasonable for the Officer to conclude that a female graphic designer – let
alone one with no family support who has been outside of the country for
nineteen years – would be able to find “similar opportunities” for work in Ethiopia.
[12]
The
applicant did indeed submit over 100 pages of evidence in support of her claim
that on the basis of her gender, she would face hardship in Ethiopia.
Specifically:
-
CEDAW,
“Consideration of Reports Submitted by States Parties under Article 18 of the
Convention of the Elimination of All Forms of Discrimination against Women”,
dated 2005;
-
Ethiopian
Women’s Lawyers Association: “The Political Participation of Women in Ethiopia: Challenges and Prospects” by
Tigist Zelenke, dated April 2005 (Chapter three: “Obstacles to Women’s
Political Participation”);
-
Ethiopian
Women’s Lawyers Association: “The Legal Status of Ethiopian Women at the
Workplace” by Daniel Haile, dated October 2004;
-
The
Ethiopian Journal of Health Development: “Women’s Health and Life Events Study
in Rural Ethiopia” by Yegomawork Gossaye et al., dated 2003; and
-
Ethiopian
Women’s Lawyers Association: “Discrimination Norms and Application Against
Women in Ethiopian Family Law” by Hilina Tadesse.
[13]
In
addition, the evidence submitted to substantiate her claim regarding her likely
hardship due to poverty included:
-
Foreign
and Commonwealth Office (UK): Country Profile Ethiopia, dated April 17, 2008;
-
UNDP Human
Development Index Ranking 2007/2008; and
-
The World
Bank: Country Brief Ethiopia, dated August 2008.
[14]
The
respondent correctly points out that the Officer had no obligation to list each
and every piece of evidence brought before her and it is not for this Court to
re-weigh the evidence. Furthermore, the respondent posits that it was possible
for the Officer to conclude that gender discrimination in the Ethiopian
workplace is primarily the result of the imbalance in education levels. Because
the applicant is an educated woman the barriers are eliminated. Thus, the
respondent submits that the Officer’s decision was open to her, the applicant’s
evidence of gender-based discrimination being insufficient to demonstrate
hardship.
[15]
I
disagree with the respondent and consider that a plain-reading of the evidence
suggests that gender-discrimination is a multi-faceted problem with both demand
and supply side variables. Under-education is clearly one factor interfering
with women’s participation in the labour market but certainly not the
determinative factor. It is clear from the reports that location and sector of
employment, as well as one’s profession are significant factors as well.
[16]
It
is obvious from the way the Officer chose to structure the decision that she
did not turn her mind to the claim that the applicant’s gender was a risk
factor for hardship. I recognize that the Officer commented on the
transferability of the applicant’s employment skills in light of “all the
evidence”. Fundamentally, the Officer’s comments could have been made with
respect to a male applicant with otherwise, the same personal traits. It does
not show that the Officer considered whether gender discrimination would
constitute a hardship for this applicant. This inference is further problematic
when the Officer does not even mention the words “gender” or “discrimination”
or explicitly acknowledge that the risk of the hardship alleged by the
applicant included a risk on the basis of her gender.
[17]
Thus,
I find that the Officer’s decision was unreasonable as it overlooked the
applicant’s evidence regarding hardship on the basis of her gender.
* * * * * * *
* * *
[18]
For
all the above reasons, the intervention of the Court is warranted, the decision
of the Officer will be quashed and the matter, sent back for redetermination by
another Officer.
JUDGMENT
The application for judicial
review is allowed. The decision dated June 10, 2009 of the Pre-Removal Risk
Assessment (“PRRA”) Officer Marilyn Campbell is quashed and the matter is sent
back for redetermination by a different PRRA Officer.
“Yvon
Pinard”
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