Date: 20070228
Docket: IMM-3812-06
Citation: 2007 FC 231
Montréal,
Quebec, February 28, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ERNESTINE
SHA'ER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act), for judicial review of a decision of an officer dated June 15,
2006, which rejected the applicant’s application for a visa exemption based on
humanitarian and compassionate considerations (H&C application), and forms
the basis for the present review.
[2]
The applicant had also made a pre-removal risk
assessment application (PRRA) on the same grounds as the H&C application.
It was denied by the officer, on the same date the H&C application was
denied, on the basis of an absence of new evidence within the meaning of
paragraph 113(a) of the Act, and a lack of evidence supporting the applicant’s
allegations. No application for leave was made for this PRRA decision.
[3]
The most relevant facts relating to the present
proceeding are as follows:
[4]
Ernestine Sha’er (the applicant) is a Christian
Arab citizen of Israel. She
made a refugee claim in Canada in April 2004, on the grounds of threats from
her fiancé’s family in Israel.
The Immigration and Refugee Board (IRB) refused this claim, finding that her
allegations were not credible. This Court denied her application for leave for
judicial review of that decision (IMM‑758-05).
[5]
In April 2005, the applicant made an H& C
application (amended in April 2006), submitting that she would face undue
hardship if removed to Israel due to her degree of integration in Canada,
alleged threats from her fiancé’s family and because of discrimination against
Arabs in Israel. This H&C application was denied by the officer on June 15,
2006.
[6]
In considering the discrimination alleged by the applicant in her
H&C application, the officer essentially inquired as to whether this
discrimination satisfied the requirements of section 97 of the Act, thereby
applying the test for a PRRA application.
[7]
It is well established, and the parties agree,
that the proper test for H&C decisions is: considering all of the relevant
circumstances, would the general obligation put on all foreign nationals to
apply for permanent residence from abroad cause the applicant unusual,
undeserved or disproportionate hardship (Baker v. Canada (M.C.I.),
[1999] 2 S.C.R. 817 at para. 17; Legault v. Canada
(M.C.I.), [2002] 4 F.C. 358, 2002 FCA 125 at para. 23). Unusual,
undeserved or disproportionate hardship encompasses the risk the applicant
allegedly faces in her country of nationality, her level of integration in
Canadian society and the consequences of her removal from Canada.
[8]
There are significant analytical differences between H&C and
PRRAs, as clearly stated by Chief Justice Allan Lutfy in Pinter v. Canada (M.C.I.), [2005] F.C.J. No. 366 (QL), 2005 FC 296 at paragraphs 3-4:
3 In an application for humanitarian and compassionate
consideration under section 25 of the Immigration and Refugee Protection Act
(IRPA), the applicant's burden is to satisfy the decision-maker that there
would be unusual and undeserved or disproportionate hardship to obtain a
permanent resident visa from outside Canada.
4 In a pre-removal risk assessment under sections 97, 112
and 113 of the IRPA, protection may be afforded to a person who, upon removal
from Canada
to their country of nationality, would be subject to a risk to their life or to
a risk of cruel and unusual treatment.
[9]
I note that though the tests for H&C and PRRA matters are
distinct, they are related, as held by
Chief Justice Lutfy in Liyanage v. Canada
(M.C.I.), [2005] F.C.J. No.
1293(QL), 2005 FC 1045 at paragraph 41:
[…]
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.
[10]
Thus, the issue in the present matter is whether the officer’s
analysis reveals an assessment of the relevant facts against the threshold of
unusual, undeserved or disproportionate hardship as required in the context of
an H&C application (Liyanage, above, at para. 44).
[11]
On
one hand, the respondent submits that whether the officer applied the
wrong legal test is only theoretical in this matter, as there were no accepted
grounds upon which the H&C application could have been granted. The H&C
application depended on the same allegations the applicant made to the IRB,
deemed not to be credible. These allegations were also raised in relation to her
PRRA application, which the officer did not accept on the basis that she had
not sufficiently substantiated her alleged fears. Therefore, the respondent
submits, there was no accepted evidence upon which the H&C application
could have been accepted, and therefore its result was not affected.
[12]
On
the other hand, the applicant submits the officer accepted that the
discrimination against Arabs in Israel alleged by the applicant was a “fact of
life” in Israel. Given this acceptance, he erred in law by not considering this
discrimination in the framework of unusual
and undeserved or disproportionate hardship, instead dismissing its
significance through a PRRA “persecution” analysis. I agree with the
applicant.
[13]
While the officer clearly addressed the evidence relating to the
alleged discrimination suffered by the applicant and gave it little weight, the
reasons for rejecting its applicability were made through a purely PRRA
analysis, not mentioning unusual and
undeserved or disproportionate hardship for the applicant. This is clear
in the relevant extract of the decision:
… I ascribe limited weight to the
applicant’s documents concerning discrimination against Arabs in Israel, which
largely discusses issues of civic life (land ownership, employment
opportunities, etc.) unrelated to the risks invoked by the applicant or her
alleged inability to obtain police protection. I also note that in her PIF,
the applicant…does not mention that she has been exposed to discrimination in Israel
on the basis of her Arab or Christian origin, other than from her fiancé
family.
[Emphasis added]
[14]
Furthermore, the officer’s decision shows that he accepted the
applicant’s allegations of discrimination, and then discounted their
significance through the wrong legal analysis:
[w]hile it is true that
discrimination is a fact of life for ethnic and religious minorities in Israel,
this does not in itself constitute persecution, nor demonstrate that the
Israeli government is unwilling an unable to protect the applicant. The
documentary evidence indicates that Israeli citizens can expect the protection
of the police and the courts, and that official recourses exist for
individuals who feel they have been the object of discrimination by police
officers.
[Emphasis added]
[15]
The officer essentially accepted the fact of discrimination, but
failed to properly consider whether it constituted unusual and undeserved or disproportionate hardship
for the applicant in the circumstances, as required in the context of an
H&C application. Instead, his analysis reveals that he applied a PRRA
analysis in rejecting the discrimination as a valid ground for granting the
H&C application. This is an error in law, and warrants the intervention of
this Court (Pinter, above, at para. 6; Liyanage, above,
at para. 44).
[16]
In
light of the above there is no need to address the issue of reasonable
apprehension of bias as the matter will be sent back to a different officer for
redetermination.
[17]
For these reasons, the application for
judicial review of the H&C decision will be granted and referred back for
redetermination by a different immigration officer.
JUDGMENT
The application for judicial review of the H&C decision is granted
and the matter is referred back for redetermination by a different immigration
officer.
“Danièle
Tremblay-Lamer”
Email this Content