Date: 20080313
Docket: IMM-2702-07
Citation: 2008 FC 340
Toronto, Ontario, March 13, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
DIPESH
KUMAR THALANG
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Thalang is an adult male citizen of Nepal. He entered
Canada on a work
permit and when that permit expired in 2002 he claimed refugee protection.
That claim was denied; judicial review was sought and also denied. The Applicant
made an application for a pre-removal risk assessment (PRRA) and for an
exemption from the in-Canada selection criteria for permanent residence based
on humanitarian and compassionate (H&C) grounds. Both the PRRA and H&C
applications were denied. The Applicant sought and obtained leave to have both
decisions judicially reviewed. On the consent of the Minister, the application
in respect of the PRRA judicial review was allowed and remitted for a new
consideration. It remains pending. This is a judicial review of the H&C
decision communicated to the Applicant by letter dated May 28, 2007.
[2]
For
the reasons that follow, I find that the application is allowed and the matter
is sent back for redetermination by a different Officer who is not the Officer who
is to redetermine the PRRA application.
[3]
Briefly
the Applicant’s history is that he was born and raised in the countryside in Nepal. His wife
and children fled Nepal and reside in India. The
Applicant’s parents continue to reside in Nepal but have moved to the main city,
Kathmandu where they
remain. The Applicant, since arriving in Canada, has become engaged with two
or three others in a small business specializing in Nepalese goods located in Toronto. He is a
good citizen, pays his taxes and has not been in trouble with any police
authorities.
[4]
The
Applicant, as previously stated, made both a PRRA application and an H&C
application both of which were apparently considered by the same Officer at the
same time. This practice, I am advised by Counsel, is not unusual whereby the
same Officer reviews both such applications. This may be the reason for the
difficulties experienced in this case.
[5]
In
rejecting the H&C application, the Officer gave, as the reason for so
doing, the following at page 4:
I have reviewed this and
counsel’s submissions, as well as publicly available documentary evidence on
country conditions in Nepal and how the [sic] pertain to the applicant
or a person in similar circumstances, and having done so, I am not satisfied
that sufficient humanitarian and compassionate grounds exists to approve this
application on the basis of personalized risk to the applicant. There is
insufficient evidence to suggest that requiring the applicant to apply abroad
in the normal manner would amount [sic] unusual, undeserving, or
disproportionate hardship with respect to a risk to the applicant’s life or
personal security. This finding has been made based on the following reasons.
[6]
In
so doing, the Officer based the H&C assessment on the wrong test. The
Officer’s assessment was based on risk, which was a PRRA criteria, not an
H&C criteria. The proper H&C criteria are unusual and undeserved or
disproportionate hardship (Liyanage v. Canada (MCI) 2005 FC 1045 per the
Chief Justice at para. 41, Pinter v. Canada (MCI) 2005 FC 296 per the
Chief Justice at paras. 2-7). This is an error of law in respect of which the
standard of review is that of correctness as stated in Pinter, supra
as well as by the Supreme Court of Canada in their recent decision of Dunsmuir
v. New
Brunswick,
2008 SCC 9 at paras. 41-64.
[7]
Given
the error of law it must be emphasised that an officer considering an H&C
application should, as stated by the Chief Justice in Pinter, supra
at paragraph 6, have an open mind as to all matters that need to be taken into
account when considering unusual and undeserved or disproportionate hardship.
A review of the record in this present matter strongly suggests that the
previous Officer did not give sufficient consideration as to the evidence as to
what was happening “on the ground” in Nepal as may affect an everyday person endeavouring
to carry on a life there, as opposed to treaties and settlements that were
signed but may not have been efficiently implemented as between warring parties
within the country. Nor did the Officer give sufficient weight to the fact
that, as a returnee to Nepal, the Applicant may suffer greater
hardship.
[8]
It
is appropriate not only to allow this judicial review application but to ensure
that another Officer consider the matter and, to avoid confusion as between PRRA
and H&C criteria, that this Officer not be the one to consider the
Applicants PRRA application.
[9]
There
is no reason to certify a question or to award costs.
JUDGMENT
For the Reasons above:
THIS COURT ADJUDGES that:
1. The
application is allowed;
2. The
H&C application shall be returned to be considered anew by a different
Officer who is also not the Officer considering the Applicant’s PRRA
application;
3. There is no question
for certification;
4. No Order as to
costs.
"Roger
T. Hughes"
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