Date: 20080403
Docket: IMM-3811-07
Citation: 2008 FC 428
Montréal, Quebec, April 3,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
MOHAMAD KHALIL MARKIS
&
AMAL HUSSEIN HACHEM
Applicants
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 by a Pre-Removal Risk Assessment Officer (the officer), dated July 17,
2007, whereby the applicants’ request to be exempted from the requirement to
obtain an immigration visa prior to coming to Canada on the basis of
humanitarian and compassionate grounds pursuant to section 25 of the Act (the H & C
application) was refused.
Facts
[2]
The
applicants are a married couple of Lebanese origin who came to Canada in July 2001
and sought asylum in February 2002.
[3]
On
January 9, 2003, their claim was rejected by the Refugee Board Tribunal (the
Tribunal) and on April 30, 2003, they addressed the Federal Court for leave to
apply for Judicial Review and this request was also refused.
[4]
The
applicants decided on April 7, 2004, to submit an H & C
application that they updated on February 22, 2007.
The H & C
Decision
[5]
In
a decision dated July 17, 2007, an officer determined that considering the
applicants’ personal circumstances and the current situation in Lebanon, she was
not satisfied that the applicants would experience unusual and undeserved or
disproportionate hardship if they applied for permanent residence status at a
Citizenship and Immigration Canada mission abroad as prescribed by the Act.
[6]
First,
the officer notes that the male applicant supports his family alone, and
considers being positive factors in his integration in Canada the fact
that he has a stable address and stable employment. However, the officer feels
that this factor carries little weight and cannot justify an exemption. Further,
the officer indicates that the male applicant has paid his taxes, has been renting
a 4 ½ apartment for a year, purchased furniture, has a bank account, and owns a
car.
[7]
The
officer notes that while the updated H & C application states
that the male applicant lives with his sister, he does not however answer the
question regarding the people with whom he lives. He states that he has a
sister and sister-in-law in Canada, however, the officer considers that the
evidence on file does not allow her to evaluate the relationship with them.
Consequently, it does not appear that the male applicant would suffer
particular hardship if he had to leave his sister and sister-in-law behind to
return to Lebanon, where the
majority of his siblings live.
[8]
The
officer therefore concludes that, if they had to return to Lebanon for the time
required to comply with the Act, the applicants would be able to obtain moral and
logistical support while waiting for a response to their visa application. Further,
the male applicant did not present evidence of his integration into the
community through involvement in community or religious organizations,
volunteer work, study or other similar activities.
[9]
The
officer is of the view that the applicants have developed only weak ties to
Canadian society.
[10]
With
respect to the best interests of the three Canadian‑born children, the
officer indicates that there is no evidence on file indicating whether the
children go to school or daycare or whether they participate in any social,
sporting, or cultural activities. From this, the officer concluded that they
stay with their parents. The officer feels that their return to Lebanon with their
parents to a milieu where they would be in contact with other members of their
family (grandparents, aunts, and uncles) would not cause them unusual,
undeserved or disproportionate hardship. The evidence on file does not allow
the officer to determine whether the applicants’ children have Lebanese citizenship
or whether they could obtain it. The officer indicates that there is no
evidence on file that the children are sick or in need of special treatments
and that they would have access to existing Lebanese health care services and
could attend school should they return to Lebanon.
[11]
With
respect to the issue of personalized risk, the officer cites the Tribunal’s decision
of January 9, 2003,
in
which the applicants are found to be neither Convention refugees nor persons in
need of protection, and also refers to the fact that in that decision the male applicant’s
allegations as to his problems with Hezbollah are found to be not credible due
to omissions and contradictions in his explanations.
[12]
While
a letter is submitted from the mayor of Shebaa, signed March, 17, 2007, and
stating that the applicant is being threatened by “partisan forces who were
looking for him and that his life and the lives or his family were in danger”,
the officer indicates that this letter adds nothing new and does not contain
any details regarding how the mayor learned about the threats to the male
applicant. Thus, the officer gives little weight to this letter.
[13]
The
officer concludes that the applicants did not provide any further evidence to
allow her to come to a different conclusion than that of the Tribunal. And
that although the risk assessment of an H & C application is more
general than that carried out for a claim for refugee protection or an application
for a PRRA, the fact remains that the applicants did not present any credible
or reliable evidence of risk should they have to return to their country to
apply for immigrant visas as required by the Act.
[14]
Further,
the officer states that while the situation in the country was worrying, documentary
sources indicate that the situation in Lebanon has stabilized
since the ceasefire and that the nature of the political tensions still existing
are no longer a threat to the life or security of the applicants.
[15]
In
light of this information, and the fact that the officer gives little weight to
the male applicant’s alleged problems with Hezbollah, it is the officer’s
opinion that he failed to demonstrate that he would face a personalized risk to
his life or security if returned to Lebanon.
ISSUES
[16]
This
application raises the following issues:
a.
Did the
officer apply the wrong standard when assessing risk and unusual, undeserved or
disproportionate hardship?
b.
Did the
officer err in her analysis of the best interests of the children?
c.
Did the
officer provide sufficient reasons?
STANDARD OF REVIEW
[17]
In the recent Supreme Court of Canada decision of Dunsmuir v. New Brunswick, 2008 SCC 9, the
standard of review analysis was altered, from three to two standards of
review: reasonableness and correctness. The Court states in Dunsmuir at
para. 51, that:
[…] questions of fact, discretion and
policy as well as questions where the legal issues cannot be easily separated
from the factual issues generally attract a standard of reasonableness while
many legal issues attract a standard of correctness. Some legal issues,
however, attract the more deferential standard of reasonableness.
[18]
Further,
at para. 62, the Court emphasizes the two-stage character of the process of
judicial review:
First, courts ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
defence to be accorded with regard to a particular category of question.
Second, where the first inquiry proves unfruitful, courts must proceed to an
analysis of the factors making it possible to identify the proper standard of
review.
[19]
With respect to the first issue, the question of
whether the officer applied the correct legal test is one of law and has
previously been found to be reviewable on the standard of correctness (Mooker
v. Canada (Minister of Citizenship and Immigration), 2007 FC 779, [2007]
F.C.J. No. 1029 (QL), at para. 16; Pinter v. Canada (Minister of
Citizenship and Immigration), 2005 FC 296, [2005] F.C.J. No. 366 (QL)). In
light of Dunsmuir, above, and the Court’s prior jurisprudence, the Court
finds correctness to be the appropriate standard.
[20]
Regarding the second issue, the question of
whether the decision maker has been alert, alive and sensitive to the best
interests of the child, involves a question of mixed fact and law within the
context of a highly discretionary H & C determination. In light
of the Dunsmuir decision and the prior jurisprudence, the Court finds
the applicable standard of review to be that of reasonableness.
[21]
Accordingly, pursuant to this standard, the analysis
of the Board’s decision 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.” (Dunsmuir,
above, at para. 47).
[22]
Finally, the applicants challenge the
sufficiency of the reasons provided in the H & C decision. A question relating to the sufficiency of reasons raises
an issue of procedural fairness (Adu v. Canada (Minister of
Citizenship and Immigration), 2005 FC 565, [2005] F.C.J. No. 693 (QL),
at para. 9). Pursuant to Canadian Union of Public
Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R.
539, [2003] S.C.J. No. 28 (QL), at para. 100, “[i]t is for the courts, not the
Minister, to provide the legal answer to procedural fairness questions.” Thus, questions
of procedural fairness are not subject to the standard of review.
ANALYSIS
Did the officer apply
the wrong standard when assessing risk and unusual, undeserved or
disproportionate hardship?
[23]
The
applicants submit that the officer applied the incorrect legal test in the
evaluation of hardship. Instructively, this Court asserts in Sahota v. Canada (Minister of
Citizenship and Immigration), 2007 FC 651, [2007] F.C.J. No. 882 (QL),
at para. 1:
Although the distinction in fact may not
always be apparent, there is a clear distinction in law between a pre-removal
risk assessment and an application for permanent residence from within Canada
on humanitarian and compassionate grounds.
[24]
Indeed,
while both applications take risk into account, in the context of a PRRA, the
consideration of the ““risk” as per section 97 of IRPA involves assessing
whether the applicant would be personally subjected to a danger of torture or
to a risk to life or to cruel and unusual treatment or punishment” (Sahota,
above, at para. 7) while in the context of an H & C application,
“risk should be addressed as but one of the factors relevant to determining
whether the applicant would face unusual, and undeserved or disproportionate
hardship. Thus the focus is on hardship, which has a risk component, not
on risk as such.” (Emphasis added.) (Sahota, above, at para. 8).
[25]
Similarly,
this Court notes in Pinter, above, at para. 5, that “[t]here may well be
risk considerations which are relevant to an application for permanent
residence from within Canada which fall well below the higher threshold
of risk to life or cruel and unusual punishment.” Thus, the concepts of
“hardship” in an H & C application and “risk” in a PRRA application
must be assessed according to a different standard (Akinbowale v. Canada
(Minister of Citizenship and Immigration), 2007 FC 1221, [2007] F.C.J. No.
1613 (QL), at para. 20; Ramirez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1404, [2006] F.C.J. No. 1763
(QL), at para. 42).
[26]
An
H & C application must be evaluated with a view of determining
whether the “risk factors” amount to unusual, undeserved or disproportionate
hardship (Gallardo v. Canada (Minister of
Citizenship and Immigration), 2007 FC 554, [2007] F.C.J. No. 749 (QL),
at para.12). The expression of the standard as “unusual, undeserved or
disproportionate hardship,” is instructive: “[t]he H & C process
is not designed to eliminate hardship; it is designed to provide relief from
unusual, undeserved or disproportionate hardship.” (Irimie v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1906 (QL), at para.
26). Indeed, it has been held repeatedly by this Court that the “[h]ardship
that is inherent in having to leave Canada is not enough” to ground an H & C
claim (Doumbouya v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1186, [2007] F.C.J. No. 1552
(QL), para. 10; Kawtharani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 162, [2006] F.C.J. No. 220 (QL),
at para. 16).
[27]
With
respect to the present case, in the sections of the H & C
decision entitled “Humanitarian and compassionate grounds and ties to Canada” and the
“The best interests of children”, the officer evaluates whether removing the
applicants and their children from Canada would constitute unusual,
undeserved or disproportionate hardship. This is the correct expression of the
test, which was carried out with reference to the separation from relatives in
Canada, location of relatives in Lebanon, and the children’s
access to education and health services.
[28]
In
the section of the H & C decision entitled “Personalized Risk”,
the officer refers repeatedly to risk to the life and security of the applicant
which is an incorrect formulation of the hardship test in the context of an H & C.
However, the officer does state that “[a]lthough the risk assessment of this
application is more general that that carried out for a claim for refugee
protection or an application for a PRRA, the fact remains that the applicant
did not present any credible or reliable evidence of risk”. Subsequently, the
officer briefly reviews the general security situation in Lebanon but
concludes that the natures of the political tensions that do exist are not a
threat to the life or security of the applicants. The officer concludes her reasons
by stating that she is not satisfied that the applicants would experience
unusual, undeserved or disproportionate hardship if they applied for permanent
residence abroad.
[29]
The
Court is aware that the applicants themselves raised the issue of personalized
risk in their H & C submissions, both in the April 7, 2004
application, and the February 22, 2007 update. For example, in the April 7th
submissions, on the supplementary information form, in answer to the question
“Explain why there might be special reasons to exempt you from this requirement
and allow you to apply from within Canada for permanent residence”,
the male applicant indicates:
I fear for my safety and that of the
safety of my two Canadian children. It is not safe for me to be in Lebanon. It is a very dangerous
place. My Canadian children would be deprived of proper healthcare and
education which they would have in Canada.
The Hezbollah terrorists are still after me, as I refused to spy for them.
[Emphasis added.]
[30]
Further,
in response to the question “What excessive hardship will you suffer if you
have to submit your application at a visa office outside Canada as required
by law?”, the applicant writes:
As mentioned above, my life would be in
danger and so would my Canadian children. They would be too young to leave behind
and my children who are Canadians would not have the benefits of medicine and
education that they have in Canada. [Emphasis added.]
[31]
Thus,
overall, the officer employs in her decision language that is indicative both
of the proper H & C hardship analysis and of the PRRA risk
analysis. In the present case, given that the applicants raised the issue of
risk to life, it is not fatal to the decision that the officer responds to the applicants’
fear by evaluating this risk (El Doukhi v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1464, [2006] F.C.J. No. 1843 (QL), at para. 26).
[32]
However,
the officer not only carries out a PRRA-type risk to life analysis in the
context of the Hezbollah allegations, but also employs the same terminology
when focusing on the general country conditions. Given this inconsistency, The
Court is unable to determine which standard was in fact employed. The hardship
evaluation must include whether the country conditions may expose an applicant
to unusual, undeserved or disproportionate hardship. As the exact test employed
by the officer for this evaluation remains unclear, this Court finds that this
constitutes a reviewable error sufficient to grant the application.
Did the officer err in her analysis of
the best interests of the children?
[33]
The
best interests of the child are an important factor to be considered in the
analysis of an H & C application. Accordingly, the officer must
be “alert, alive and sensitive” to these interests, however “once she has well
identified and defined this factor, it is up to her to determine what weight,
in her view, it must be given in the circumstances” (Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (F.C.A.) (QL),
at para. 12). Further, the best interests of affected children are not
determinative and will not always outweigh other factors involved (Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
para. 75).
[34]
Indeed,
the Federal Court of Appeal indicated in Hawthorne v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, [2002] F.C.J. No. 1687 (F.C.A.) (QL), at
para. 6, that:
To
simply require that the officer determine whether the child’s best interests
favor non-removal is somewhat artificial – such a finding will be a given in
all but a very few, unusual cases. For all practical purposes, the officer's
task is to determine, in the circumstances of each case, the likely degree of
hardship to the child caused by the removal of the parent and to weigh this
degree of hardship together with other factors, including public policy considerations,
that militate in favor of or against the removal of the parent.
[35]
In
the present case, the Court finds that the officer was alert, alive, and
sensitive to the best interests of the children. The officer took into
consideration their ages, activities, location of wider family circle, and
cognizant that no medical problems or special treatments had been alleged by
the applicants. No evidence was submitted before the officer describing the
children’s involvement in any activities outside of the household. The Court is
satisfied that the officer sufficiently analyzed the material before her and
that the applicants cannot now fault the officer for failing to consider
factors or information that was not before her (Potikha c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2008 CF 136, [2008] A.C.F. no 167 (QL),
at para. 40; Owusu
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004]
F.C.J. No. 158 (F.C.A.) (QL), at para. 8).
Did
the officer provide sufficient reasons?
[36]
With
respect to the sufficiency of reasons, it is well established that a simple
review of factors considered followed by a conclusion will be insufficient to
constitute a valid assessment of the application (Bajraktarevic v. Canada (Minister of
Citizenship and Immigration), 2006 FC 123, [2006] F.C.J. No. 178 (QL),
at para. 18; Adu, above, at para. 14). However, while an H & C
decision must be supported by reasons, it is “inappropriate to require […]
administrative officers to give as detailed reasons for their decisions as may
be expected of an administrative tribunal that renders its decisions after an
adjudicative hearing” (Ozdemir v. Canada (Minister of Citizenship and
Immigration), 2001 FCA 331, [2001] F.C.J. No. 1646 (F.C.A.) (QL), at para.
11).
[37]
Finally, when reviewing administrative
decisions, the reasons provided are not to be read microscopically (Boulis
v. Minister of Manpower and Immigration, [1974] S.C.R. 875 at 885). The
decision must be assessed as a whole and within the context of the evidence (Miranda
v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81,
para. 3).
[38]
In
spite of the applicants’ contention that the reasons reveal no link between the
factors considered and the conclusion reached, the Court disagrees. The
officer recognizes the fact that the male applicant has stable employment and a
stable address as being a positive factor relating to integration in Canada, yet
indicates that it carries little weight and cannot justify a visa exemption. Further,
the officer highlights that the applicant had not provided evidence of
community integration through involvement in community or religious
organizations, volunteer work, study, or other similar activities and that only
weak ties to Canadian society are proven to exist.
[39]
While
the Court may not necessarily agree with the officer’s assessment of
establishment, it was certainly one opened to her to make, and taken in the
context of the decision as a whole, the finding is substantiated. The Court
also notes that the degree of establishment is only one factor to be considered
in an H & C application and is not determinative (Mooker, above,
at para 15; Klais v. Canada (Minister of
Citizenship and Immigration), 2004 FC 785, [2004] F.C.J. No. 965 (QL),
at para. 11).
[40]
The
officer is also of the view that the evidence on file does not allow her to
evaluate the applicant’s relationship with his sister and sister-in-law, and
that it did not appear he would suffer particular hardship if he had to return
to Lebanon where the majority of his siblings live and they could provide moral
and logistical support while he relocates to wait for a response to his visa application.
[41]
Further,
as indicated above, the best interests of the Canadian‑born children were
examined and it was determined that given their young ages, the fact that there
was no evidence provided indicating that they participated in any activities
outside of the sphere of their parents, and they should they return to Lebanon
they would be in contact with other members of their family, it appeared that
they would not experience undue and undeserved or disproportionate hardship.
The evidence did not allow the officer to determine whether the children have
Lebanese citizenship or whether they could obtain it, but there was reason to
believe that they would have access to Lebanese health care services and
schools.
[42]
Thus,
the decision read as a whole, the Court is unable to conclude on this issue that
the reasons provided are insufficient since the relevant factors were
identified and analyzed.
[43]
However,
in view of the Court’s conclusion on the first issue concerning the exact test
employed by the officer for her evaluation of the risk, which allowed her to
conclude that the applicants would not experience unusual, undeserved or
disproportionate hardship if they were to apply for permanent residence at a Citizenship
and Immigration Canada mission in their country as prescribed by the Act, the
application will be allowed.
[44]
Neither
party recommended certification of a question. This Court is satisfied that no
serious question of general importance not already decided arises in this
affair that would be determinative of an appeal herein.
JUDGMENT
FOR THE FOREGOING
REASONS THIS COURT:
GRANTS the
application for judicial review,
SETS aside the H & C
decision, and
REFERS the matter
back for re-determination by a different officer.
"Maurice
E. Lagacé"
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