Date: 20080820
Docket: IMM-
4430-07
IMM-4431-07
Citation: 2008
FC 962
Ottawa, Ontario, August 20, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
TONI TOUFIC BARRAK, SONIA EL-KHOURY,
DENISE BARRAK,
MICHELLE BARRAK (by her litigation guardian,
TONI TOUFIC BARRAK), and CHARBEL BARRAK (by his litigation guardian, TONI
TOUFIC BARRAK)
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants seek the judicial review of two decisions made the same day and by
the same Pre-Removal Risk Assessment (PRRA) Officer. In file number
IMM-4431-07, it was found that the applicants would not face more than a mere
possibility of persecution and that they would not likely face a risk of
torture, or a risk to life, or of cruel and unusual punishment, pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act (2001,
c. 27 ) (IRPA). The officer also found, in file number IMM-4430-07,
that there were insufficient humanitarian and compassionate (H&C) grounds
to approve the applicants’ request for an exemption from the requirement of the
IRPA.
[2]
These two
related applications for judicial review have not been consolidated under Rule
105 of the Federal Courts Rules (SOR/98-106) but were scheduled for
hearing one immediately following the other. These reasons will therefore
serve for each of the two proceedings and will be placed in each of the files.
I. Background
[3]
The
principal applicant, Toni Toufic Barrak, his wife, Sonia El-Khoury, and their
two oldest children, Denise and Charble Barrak, are Maronite Christian citizen
of Lebanon. Michelle Barrak, their
youngest child, is a citizen of the United States where she was born on December 10, 1997.
[4]
The main applicant,
Mr. Barrak, was a member of the Phalangist Party (Party) and the Lebanese
Forces, a Christian militia, which was formed to protect the Christian sectors
of the country during the Lebanese Civil War. He joined the Party in 1977 as
an ordinary member; the Party merged with the Lebanese Forces in 1979. He
received training with the Lebanese Forces in 1986 and was in charge of 90 men
but received no monetary compensation from the Lebanese Forces. From about
1977 to 1993, the applicant fought against Muslim and Syrian groups.
[5]
Mr. Barrak
recounts that he was detained and tortured three times by the authorities in
the country. In 1978, Syrian Army members kidnapped him at a checkpoint. He
was detained, beaten and tortured for four months. He says that he was of
interest to them as they wanted information about the Christian sector and
leadership. After his release from jail, he received medical treatment.
[6]
In 1990,
he was kidnapped again while fighting on the lines that divided the Christian
and Muslim sectors. When word spread that their leader had given up his arms,
he tried to run for home but was captured by the Syrians. He was detained for
62 days and tortured with electrical shocks. He was subsequently released with
other Lebanese Forces after the intercession of the patriarch of the Maronite Church.
[7]
Lastly, he
was arrested and detained by Syrian Intelligence in 1993. He was taken from
his home in the middle of the night, in front of his family, and kept in
detention for 13 days. When the applicant’s wife tried to intervene, she was
physically assaulted. The applicant was interrogated and beaten by the
authorities who were trying to find information about the killing of two Syrian
men in the area. He was released after the authorities were convinced that he
knew nothing about the incident. He claims that the incident caused his mother
to have a nervous breakdown and his older daughter was traumatized.
[8]
All the
applicants fled to the United
States and
entered as visitors in January 1994. They made asylum claims which were
eventually denied in 2000, as well as their appeal in 2003.
[9]
In May
2003, they came to Canada where they asked for refugee
protection. On November 10, 2005, the Refugee Protection Division (RPD) found
that they were neither Convention refugees nor persons in need of protection.
The RPD did not believe that Mr. Barrak was a political member of the Party or
a member of the Lebanese Forces. It also found that there has been a change in
the country conditions since their departure from the country. Finally, the
RPD came to the conclusion that the risk posed by terrorist groups is
generalized to all Lebanese citizens and thus, that they did not have a
personalized risk in this regard.
II. The impugned decisions
A. The PRRA decision
[10]
Although
the PRRA officer found that the situation in Lebanon was not perfect, she concluded that it
has improved significantly since April 2005 when the Syrian military forces
withdrew from the country. Therefore, she held that there was insufficient
documentation showing that the applicant would be targeted in the event of a
return based on his political profile and membership in the Lebanese Forces.
[11]
The PRRA
officer also concluded that the applicants would not be at risk from being
Christians in Lebanon. She noted that the
president of Lebanon is a Maronite Christian; that the Constitution provides
for freedom of religion which is generally respected by the government; that
Maronite Christians are the largest Christian community in the country; and
that the state is committed to preventing acts of religious persecution, even
if the situation for Christians in Lebanon
is not ideal.
B. The H&C
decision
[12]
The PRRA
officer reiterated her PRRA conclusions in the H&C decision. She concluded
that the principal applicant would not be targeted as a result of his political
profile and membership in the Lebanese Forces. She also found that the
applicants would not face risk as Maronite Christians.
[13]
The PRRA
officer acknowledged that the children have few ties to Lebanon but she stated that they will
have their parents and extended family to assist them in their integration to
the country. She noted that Denise, the eldest child, is a scholarship student
at the University of Windsor and married to a Canadian citizen; the
other two children have exemplary grades.
[14]
Finally,
the PRRA officer noted that the applicant is the owner of a business known as
S&T Automotive Distributors and that his wife is gainfully employed. She
also mentioned the positive character of the family as shown by letters of
reference. However, she concluded that the applicants’ employment is not
unusual for persons who spent four years in Canada. Further, she held that the principal
applicant’s skills acquired by owning businesses in Canada and in the United States can be transferred to Lebanon. She therefore concluded
that there were insufficient H&C grounds to allow an exemption to the
applicants.
III. Issues
[15]
The
applicants raised several issues in relation to both the PRRA and to the
H&C decisions. With respect to the PRRA, counsel for the applicants
contended that the officer erred in applying the wrong test for state
protection and conducted a selective review of the country documents before
her, failed to take into consideration the risk to the children, and ignored
their best interest. With respect to the H&C decision, counsel for the
applicants submitted that the PRRA officer applied the PRRA test to the H&C
risk assessment, that she failed to engage in a proper analysis of the
children’s best interests, that she applied a too onerous test for
establishment, and that she ignored relevant factors in assessing hardship. I
will now turn to each of these grounds.
IV. Analysis
A. Standard of review
[16]
Prior to
the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, 329 N.B.R. (2d) 1, a PRRA decision was considered
globally and as a whole was assessed on a standard of reasonableness simpliciter:
Figurado v. Canada (Solicitor General), 2005 FC 347; Demirovic v. Canada (MCI), 2005 FC 1284, 142 A.C.W.S. (3d) 831.
It was also held that questions of fact were to be reviewed on a standard of
patent unreasonableness, questions of mixed fact and law on a standard of
reasonableness, and questions of law on a standard of correctness: Kim v.
Canada (MCI), 2005 FC 437, 272 F.T.R. 62.
[17]
As a
result of the Supreme Court decision in Dunsmuir, the reasonableness
standards have been merged into one. In doing so, the Supreme Court made it
clear that deference was still called for in applying the reasonableness standard.
As the Court stated:
49. …deference
requires respect for the legislative choices to leave some matters in the hands
of administrative decision makers, for the processes and determinations that
draw on particular expertise and experiences, and for the different roles of
the courts and administrative bodies within the Canadian constitutional system.
As a result, this Court will only
intervene to review a PRRA officer’s decision if it does not fall “within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (para. 47).
[18]
In Dunsmuir,
the Supreme Court also mentioned that an exhaustive analysis was not always
required to determine the applicable standard of review. If the review has already
been performed, it need not be repeated in a similar case. Paying heed to this
advice, I am of the view that the appropriate standard of review post-Dunsmuir
with respect to an H&C decision has been thoroughly canvassed by my
colleague Justice Eleanor Dawson in Zambrano v. Canada (MCI),
2008 FC 481, [2008] F.C.J. No. 601 (QL). The question of whether the officer
applied the correct test in assessing risk in the context of the H&C
decision will therefore be reviewed on the standard of correctness, whereas the
deferential standard of reasonableness will be applied to the other issues
raised by the applicant.
i. The PRRA
decision
[19]
The applicants contend that the PRRA
officer applied the wrong test for state protection. They argue that the state
protection conclusion was based on a selective review of the country
documentation and focused on the PRRA officer’s finding that 441 extremists
were arrested by the police in 2005 and that Lebanon
was a parliamentary republic. The applicants assert that the arrests of people
who killed citizens do not amount to state protection. They then rely on a
number of cases from this Court to argue that state protection should be
practical, real and effective, and that the establishment of legislative and
procedural framework is not sufficient.
[20]
I agree
with counsel for the respondent that the applicants completely mischaracterize
the officer’s conclusion by limiting it to two evidentiary findings and by
suggesting that she ignored evidence. The PRRA officer rejected the
applicants’ PRRA as she concluded that there was insufficient objective
evidence to show that the principal applicant would be targeted owing to his
political profile and membership in the Lebanese Forces.
[21]
The gist
of the country documentation is that there has been a remarkable change in Lebanon since April 2005, when the
Syrian forces left. The officer acknowledged the fact that the situation was
far from perfect and did indeed note the arbitrary arrests, torture and killing
that went on when the Syrians were in control of the country. But the
objective documentation also shows that things have considerably improved over
the last few years. It was therefore not unreasonable for the officer to
conclude, in light of these changes and of the fact that the applicants have
left their country almost fifteen years ago, that they would not likely face a
risk of torture, risk to life or a risk of cruel and unusual punishment.
[22]
The PRRA
officer also found that the applicants would not face more than a mere possibility
of persecution under section 96 of the IRPA on the basis of their being
Maronite Christians. Again, this conclusion is based on a thorough review of
the objective evidence and is not unreasonable.
[23]
The PRRA
officer is entitled to a high degree of deference in the weighing of the
evidence and may base her decision on all the relevant information and the
necessary inferences. Provided the inferences drawn are not unreasonable to
the point of warranting the Court’s intervention, the officer’s findings are
not open to judicial review. In the case at bar, the officer’s reasons and
decision are logical, coherent and contextual, and based on the submitted
evidence.
[24]
The
applicant also contended that the PRRA officer erred in not considering two
photographs showing him in the uniform of the Lebanese Forces. These photos
were produced to corroborate the principal applicant’s political profile, which
was one of the key issues in the RPD decision. However, his profile was not
questioned by the PRRA officer. She accepted his profile but found that there
was a lack of objective evidence showing that a person with his profile would
be at risk.
[25]
Finally,
counsel for the applicants contended in her written submissions that the PRRA
officer failed to address the best interests of the children. She was well
advised, however, to abandon this argument at the hearing. It is now well
established that an assessment under sections 96 and 97 of the IRPA does
not necessitate consideration of the best interests of the children. As the
Federal Court of Appeal wrote in Varga v. Canada (Minister of Citizenship and
Immigration),
2006 FCA 394, [2007] 4 F.C.R. 3, at para. 13:
Neither the Charter nor the Convention
on the Rights of the Child requires that the interests of affected children
be considered under every provision of IRPA: de Guzman v. Canada (Minister of Citizenship and
Immigration),
[2006] 3 F.C.R. 655, 2005 FCA 436 at para. 105. If a statutory scheme provides
an effective opportunity for considering the interests of any affected
children, including those born Canada [sic], such as is provided by subsection
25(1), they do not also have to be considered before the making of every
decision which may adversely affect them. Hence, it was an error for the
Application Judge to read into the statutory provisions defining the scope of
the PRRA officer’s task a duty also to consider the interests of the adult
respondents’ Canadian-born children.
[26]
For all
these reasons, I am therefore of the view that the application for judicial
review of the PRRA decision must be dismissed.
ii. The
H&C decision
[27]
Pursuant
to section 25 of IRPA, the Minister is authorized to exempt a foreign
national from any obligation under that Act or to grant permanent residence
where the Minister is of the opinion that it is justified by H&C
considerations. It is trite law that a decision made on H&C grounds is an
exceptional measure and a discretionary one. It offers an individual special
and additional consideration for an exemption from Canadian immigration laws
that are otherwise universally applied: see, for ex., Legault v. Canada
(MCI), 2002 FCA 125, [2002] 4 F.C. 358 at para. 15; Pannu v. Canada
(MCI), 2006 FC 1356, 153 A.C.W.S. (3d) 195 at para. 29; Hamzai v.
Canada (MCI), 2006 FC 1108, 152 A.C.W.S. (3d) 137 at para. 19.
[28]
An
applicant has the burden of adducing proof of any claim on which the H&C
application relies and makes a scant application at his or her own peril. An
officer is not obliged to gather evidence or make further inquiries but is
required to consider and decide on the evidence adduced before him: see Owusu
v. Canada (MCI), 2004 FCA 38, [2004] 2 F.C.R. 635 at para. 5; Selliah
v. Canada (MCI), 2004 FC 872, 256 F.T.R. 53 at paras. 21-22,
affm’d 2005 FCA 160.
[29]
The denial
of an H&C application does not involve the determination of an applicant’s
legal rights but rather an exemption from the normal requirement that all
persons seeking admission to Canada must make their application before entering
Canada: Gautam v. Canada (MCI) (1999), 167 F.T.R. 124, 88
A.C.W.S. (3d) 652 at paras. 9-10; Pashulya v. Canada (MCI),
2004 FC 1275, 257 F.T.R. 143 at para. 42.
[30]
The
applicants do not take issue with the foregoing principles, but submit that the
PRRA officer applied the wrong test in assessing the unusual and undeserved or
disproportionate hardship. They contend that the officer applied a test of
personalized risk and then proceeded to conduct what was essentially a PRRA
analysis of risk rather than the broader test appropriate for H&C consideration.
[31]
It is not
disputed that the test to be applied in the context of a PRRA is much stricter
than the one used for the purposes of an H&C application. In the context
of a PRRA, risk implies assessing whether the applicants would be personally
subjected to a danger of torture or to a risk to life or to cruel and unusual
treatment or punishment. An H&C application necessitates the assessment of
risk but as one of the factors to determine if the applicants would face
unusual and undeserved or disproportionate hardship in the event of a return to
his or her country of origin. As this Court stated in Pinter v. Canada
(MCI), 2005 FC 296, 44 Imm. L.R. (3d) 118:
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.
5 In my view, it was an error in
law for the immigration officer to have concluded that she was not required to
deal with risk factors in her assessment of the humanitarian and compassionate
application. She should not have closed her mind to risk factors even though a
valid negative pre-removal risk assessment may have been made. There 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.
[32]
While the
officer was entitled to rely on the same facts for the PRRA and the H&C
assessments, she was required to apply the test of unusual and undeserved or
disproportional hardship to those facts, a lower threshold than the test of
risk to life or cruel and unusual punishment relevant to a PRRA decision. As I
stated in Ramirez v. Canada (MCI), 2006 FC 1404, 304
F.T.R. 136 “…it is perfectly legitimate for an officer to rely on the same set
of factual findings in assessing an H&C and a PRRA application, provided
that these facts are analyzed through the right analytical prism” (para. 43).
[33]
In the
case at bar, the officer reiterated the exact same analysis that she conducted
for the PRRA in the context of her H&C assessment. Except for the first
and the last paragraphs of the H&C assessment, her reasons are identical.
Moreover, she collapsed into one test the distinct concepts of “hardship” and
“risk”, as is apparent in these first and last paragraphs of her risk
assessment:
I turn to the applicants’
allegations of risk should they be returned to Lebanon. As such, I look to their personal
circumstances and the evidence before me to see if they would face a
personalized risk to life or a risk to the security of the person that would
amount to being unusual and undeserved or disproportionate hardship if returned
to Lebanon.
(…)
The documentary evidence I
have reviewed shows that although the situation for all Christians in Lebanon is not ideal, the state is
committed to preventing acts of religious persecution towards all faiths,
including Christians. The objective evidence shows that religious freedom for
Maronite Christians is enshrined in the constitution. Based on the above, I am
not satisfied that the applicants would face a personalized risk to life or a
risk to the security of the person that would amount to being unusual and
undeserved or disproportionate hardship if returned to Lebanon owing to their
religious beliefs.
[34]
Of course,
it may well be that the result would have been no different had the officer
applied the correct standard. Indeed, the respondent alleges that the officer
considered all the allegations of risk advanced by the applicants. That
argument, however, begs the question. The officer may well have dealt with the
main applicant’s fear of arrest, of torture, of being killed or beaten, or with
the religious intolerance towards Christian Maronites. But she did not explain
why these fears fall short of amounting to unusual and undeserved or
disproportionate hardship, even if they do not rise to the threshold of
personalized risk to the applicants. There being no certainty that the result
of her analysis would have been the same had she applied her mind to the proper
test, the file must be returned for a new determination.
[35]
There will
always be a greater risk of confusion when the same officer rules on a PRRA and
an H&C application involving the same individuals. While there may be
valid policy and administrative reasons to proceed in this manner, such a
course of action is obviously fraught with peril. I cannot but reiterate what
I wrote in Ramirez, supra, at para. 47:
Officers who rule on both the
PRRA and the H&C applications of the same applicants will obviously be at
greater risk of confusing the two separate and distinct analyses required by
these procedures. Even if well aware of the different rationales underlying
these two kinds of applications, they may be drawn to the same conclusions,
perhaps inadvertently, if only because it is often difficult, if not conceptually
at least in practice, to disregard a previous determination made on the basis
of the same facts. This is not to say that the practice of having the same
officer reviewing both applications should be discouraged. Consistency is also
a virtue, and there is no better way to achieve coherence than by having the
same officer assessing the same person’s PRRA and H&C applications. But
extra care should be taken to ensure the two processes are kept separate.
[36]
Counsel
for the applicants also argued that the officer failed to engage in any
substantive analysis of these children’s best interests. It is true that the
officer’s reasons in that respect are rather sketchy, and consists in three
short paragraphs describing their ages and schooling. But in fairness, the
applicants presented little in the way of submissions or evidence to
demonstrate why unusual and undeserved or disproportionate hardship would
result if the children were to accompany their parents back to Lebanon.
[37]
In light
of the limited submissions, the officer’s assessment of the children’s
interests was entirely adequate. In particular, the officer noted the
children’s limited attachment to Lebanon,
their time in the West since 1994, and their success in schooling, as well as
the eldest child’s recent marriage. Having weighed the factors, the officer
determined that they were insufficient to demonstrate unusual and undeserved or
disproportionate hardship. The officer was not obliged to conduct elaborate
assessments of matters where the applicants themselves failed to.
[38]
Aside from
the well-established presumption that an officer has considered all of the
evidence before him/her, the officer’s reasons support the application of this
presumption. She explicitly mentioned the children’s success in school, their
concerns about returning to Lebanon after a long absence and
residence in the West since that time, the lack of facility in the Arabic
language and their ties to Canada, including friends. These
factors are considered within the factor of attachment or ties to Lebanon referred to by the officer.
And while the officer accepted that the children had little attachment or ties
to Lebanon, in their particular
circumstances, given the presence of parents and extended family that could assist
in their integration into the community, these considerations were insufficient
to meet the required necessary threshold for hardship. The assessment of
weight to be given is a matter within the officer’s discretion and expertise.
[39]
As this
Court has indicated a number of times following Hawthorne v. Canada
(MCI), 2002 FCA 475, [2003] 2 F.C. 555 it would elevate form over substance
to require an officer to specifically identify the obvious disadvantages faced
by children in not remaining in Canada:
I do not agree with the
applicants’ submission that the immigration officer was dismissive of the
children’s interests. Rather, I agree with the respondent’s submission that
the immigration officer need not have specifically identified the benefits that
would be enjoyed by the children if allowed to remain in Canada since, as
Justice Décary noted in Hawthorne, above, the officer is presumed to
know that a child living in Canada with her parents is generally better off
than a child living in Canada without her parent. Similarly, it would elevate
form over substance, in my view, to require the immigration officer to
specifically identify the obvious disadvantages faced by children in not
remaining in Canada.
Sant'anna v. Canada (MCI), 2006 FC 1454, 153 A.C.W.S.
(3d) 1220.
[40]
Finally,
the applicants submitted that the officer erred in discounting their
establishment in Canada on the basis that it was not
sufficiently significant and that it did not go beyond what could be expected
of persons living in Canada as long as had. According to
their counsel, the guidelines found in Chapter IP5 of the Immigration Manual do
not limit consideration of employment or volunteer work or other forms of
establishment as positive factors only if the person has established beyond that
which is expected of a person living in Canada for a certain period of time,
and the officer had erred in inserting a more onerous test for establishment.
[41]
The
officer was sensitive to the fact that the principal applicant started a
business, that his wife works in retail, that they attend church and that they
have made friends in the community. After reviewing the applicants’
circumstances as a whole, however, the officer was essentially of the view that
their establishment was not of a sufficiently significant nature that the
hardship caused from having to apply for a permanent residence visa from
outside Canada would amount to unusual and
undeserved or disproportionate hardship.
[42]
I am
unable to find the officer at fault for so concluding. The hardship identified
by the applicants amounts to the usual hardship faced by all applicants who
establish themselves to a certain degree during the period of time that they
pursue various avenues that would permit them to remain in Canada after having
arrived without legal status. The refusal of an H&C application will
always cause hardship, but this is not the test; otherwise, an H&C
application would become the back door entrance to Canada and just another
method to remain in Canada.
[43]
Further,
it is absurd to suggest, as did the applicants, that a delay in processing an
H&C application necessarily warrants favourable consideration, or that
Citizenship and Immigration Canada is to blame for the applicants’
establishment in Canada. The fact remains that the
applicants were required by the IRPA to leave Canada when their removal orders became
enforceable; they did not do so, and thus received an added benefit to which
they were not entitled. As I said in Serda v. Canada (MCI),
2006 FC 356, 146 A.C.W.S. (3d) 1057 at para. 23, “[a] failed refugee claimant
is certainly entitled to use all the legal remedies at his or her disposal, but
he or she must do so knowing full well that the removal will be more painful if
it eventually comes to it”.
[44]
Moreover,
establishment is not determinative of an H&C application. It is only one
factor to be considered. The purpose of assessing establishment is to
determine whether the claimant is established to such a degree that removal
would constitute disproportionate hardship. This Court has repeatedly affirmed
the hardship which would trigger the exercise of a favourable H&C a
discretionary decision should be something other than that which is inherent in
being asked to leave after one has been in Canada for a period of time.
[45]
For all
the foregoing reasons, I am of the view that the application for judicial
review in file IMM-4431-07 should be dismissed, and that the application for
judicial review in file IMM-4430-07 should be granted. I have not been
convinced that the PRRA officer applied the correct test in her assessment of
unusual and undeserved or disproportionate hardship.
[46]
Counsel
for the applicants proposed two questions for certification:
Question 1: In light of the Supreme
Court of Canada’s judgement in Baker v. M.C.I., [1999]
S.C.J. No. 39 and the requirement in s. 25(1) of the Immigration and Refugee
Protection Act that the determination of humanitarian and compassionate
applications require the “taking into account the best interests of a child
directly affected” by the decision, does fairness impose a duty on the
immigration officer to inquire about the child’s best interests, beyond what is
submitted by the applicant?
Question 2: Is it an unreasonable
limitation or fetter on the exercise of the humanitarian and compassionate
discretion under s. 25 of the IRPA for an officer to discount establishment
which does not go beyond that which is naturally expected of the person?
[47]
Counsel
for the respondent opposes certification of either question. I agree that the
first question has already been addressed by the Federal Court of Appeal in the
case of Owusu v. Canada (MCI), 2004 FCA 38, [2004] 2
F.C.R. 635 at para. 5, where the Court made it clear that the burden of
adducing proof of any claim on which an applicant rests on the applicant.
Indeed, I note that a similar proposed question was rejected by my colleague
Justice Dawson in Ahmad v. Canada (MCI), 2008 FC 646, [2008]
F.C.J. No. 814 (QL).
[48]
I also
agree with the respondent that the second question does not meet the test for
certification as it would not factually be determinative of the appeal.
Establishment is but one factor considered by the officer, and it was not
identified as a determinative issue. Moreover, the test applied by the officer
broadly conforms to the jurisprudence of this Court (see, for ex., Mooker
v. Canada (MCI), 2007 FC 779, 62 Imm. L.R. (3d) 311 at para. 15; Mackiozy
v. Canada (MCI), 2007 FC 1106, 164 A.C.W.S. (3d) 851 at para.
31).
ORDER
THIS COURT ORDERS that the application for judicial
review is dismissed in file IMM-4431-07, and granted in file IMM-4430-07. No
question of general importance is certified.
"Yves
de Montigny"
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