Date: 20080903
Docket: IMM-4706-07
Citation: 2008 FC 989
Calgary, Alberta, September
3, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
AYESHA
SIDDIQUI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ayesha Siddiqui is a Pakistani citizen whose application for permanent
residence in Canada based on humanitarian and compassionate grounds was refused
on the grounds that she would not suffer undue, undeserved or disproportionate
hardship if she were to return to Pakistan.
[2]
Ms. Siddiqui seeks judicial review of the H&C officer’s decision,
asserting that the officer erred by applying the wrong test in assessing the
risk that she claims to face in Pakistan. Ms. Siddiqui also says that the
reasons given by the H&C officer for refusing her application were
inadequate.
[3]
For the reasons that follow, I find that the officer did err as
alleged. As a consequence, the application for judicial review will be
allowed.
Background
[4]
Ms. Siddiqui was raised in Pakistan, but left that country for the United
States following her marriage in 1993. She returned to Pakistan with her
husband in 1994, where her marriage broke down. After she was divorced, Ms.
Siddiqui says that her uncle tried to kill her, as he believed that her divorce
had brought dishonor to her family.
[5]
Ms. Siddiqui returned to the United States on her own in 1995, where she
remained until 2003. She then came to Canada, where she joined her parents and
siblings, who had come to this country while Ms. Siddiqui was living in the United
States. Shortly after her arrival in Canada, Ms. Siddiqui filed an
application for refugee protection.
[6]
Following a hearing before the Refugee Protection Division of the
Immigration and Refugee Board, Ms. Siddiqui’s refugee claim was refused. The
Board did not believe that Ms. Siddiqui’s uncle had tried to kill her.
Moreover, while the Board considered the difficult conditions for single women
in Pakistan, it was satisfied that as a well-educated woman, Ms. Siddiqui could
live safely in Pakistan if she relocated to a large urban centre such as
Karachi or Islamabad. Ms. Siddiqui sought leave of this Court to judicially
review the Board’s decision, but leave was refused.
[7]
Ms. Siddiqui then filed her H&C application, asserting that she
would face undue, undeserved or disproportionate hardship for a number of
reasons if she were returned to Pakistan. Her H&C application was based,
in part, on the risk that she says that she faces in Pakistan, which is essentially
the same risk that was assessed by the Refugee Protection Division.
[8]
Ms. Siddiqui also asserted that she had become well-established in
Canada, and that she would suffer hardship if she were returned to Pakistan
because of separation from her family in Canada, because she had not lived in
Pakistan for many years, because of her current psychological state, and
because she had no family members left in Pakistan who were in a position to
assist her.
[9]
Ms. Siddiqui submits that the decision is unreasonable because even
though the H&C officer used the language of “undue, undeserved or
disproportionate hardship” at several points in his analysis, a close reading
of the decision discloses that this was not the test actually applied by the
officer. Ms. Siddiqui argues that the officer actually applied the test of
“risk to life” and “risk to the security of the person” in determining that she
would not face undue hardship based upon risk, if she were returned to Pakistan.
[10]
In support of her contention that the officer erred by focusing his
analysis on risk rather than hardship, Ms. Siddiqui points, in particular, to the
following statement in the officer’s reasons:
Given all of the foregoing, I find on a balance of
probabilities that information before me pertaining to women indicate[s] that
there are attitudinal biases and gender discrimination against women but there
is insufficient evidence to indicate that the Applicant faces a risk to her
life from honour killing or will be subject to a risk to her security as a
person if she were to return to Pakistan. I therefore find on a balance
of probabilities that leaving Canada in order to apply for permanent residency from
outside Canada would not impose (i) unusual and undeserved or (ii)
disproportionate hardship to the Applicant. [Emphasis added].
[11]
According to Ms. Siddiqui, the use of the word “therefore” in the
analysis indicates that the officer equated the test of undue hardship with
that of risk to life and/or risk to the security of the person. This, she
says, is an error, as evidence which may not satisfy the test of risk to life
or risk to the security of the person may nonetheless amount to undue,
undeserved, or disproportionate hardship: see, for example, Thalang v.
Canada (Minister of Citizenship and Immigration), 2007 FC 742.
Analysis
[12]
This Court must be careful not to read a decision such as this
microscopically, or to take a word or sentence out of context, in an effort to
identify an error on the part of the officer. That said, and having considered
the decision as a whole, I am satisfied that the officer did err in applying
the wrong test in relation to the risk-based aspect of Ms. Siddiqui’s H&C
application..
[13]
While Ms. Siddiqui’s risk-based hardship arguments were largely tied to
her claim to have been the victim of an attempted honour killing at the hands
of her own uncle, she also claimed that she would suffer undue, undeserved, or
disproportionate hardship if she were forced to return to Pakistan because of
the oppressive conditions in that country for young divorced Muslim women.
[14]
It is true that the Refugee Protection Division had found that there
were no serious economic or social barriers to Ms. Siddiqui relocating to
Karachi or Islamabad. However, after carrying out his own analysis of the updated
country condition information provided by Ms. Siddiqui in support of her
H&C application, the H&C officer found that there was significant
discrimination against women in Pakistan, and that Ms. Siddiqui could indeed
face unidentified “difficulties” if she were to return to Pakistan.
[15]
The officer then went on to find, on a balance of probabilities, that
the difficulties that Ms. Siddiqui might experience in Pakistan would be due to
general country conditions that were unrelated to the issue of honour killings.
This may be so, but it was still incumbent on the officer to then consider
whether these difficulties could nonetheless result in undue, undeserved, or
disproportionate hardship to Ms. Siddiqui.
[16]
In this case, the officer simply goes on to conclude that the discrimination
and difficulties that Ms. Siddiqui may face in Pakistan do not amount to undue,
undeserved, or disproportionate hardship, without providing any reasons as to
why this is the case.
[17]
A question as to the adequacy of reasons involves an issue of procedural
fairness, which is reviewable on the standard of correctness: see Canada
(Attorney General) v. Clegg, [2008] F.C.J. No. 853. In my view, the
reasons of the officer are thus clearly deficient on this point.
[18]
That is, a review of the positive factors militating in favour of
granting an H&C application, followed by the conclusion that the factors do
not amount to an undue, undeserved, or disproportionate hardship without any
analysis to back it up, is insufficient, as it leaves the applicants in the
unenviable position of not knowing why their application was rejected: see, for
example, Adu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 565.
[19]
Furthermore, the officer then follows this portion of the decision with the
statement quoted earlier in these reasons. Read in context, the officer’s
statement also suggests that he approached this aspect of Ms. Siddiqui’s claim
from an analytical perspective better suited to a refugee claim or a
Pre-removal Risk Assessment rather than an H&C application, as the focus of
the officer appears to be on the risk to Ms. Siddiqui’s life, rather than an
examination of the question of hardship.
[20]
I am also troubled by the officer’s treatment of the doctors’ reports
relating to Ms. Siddiqui’s mental health, and, in particular, the report from
Ms. Siddiqui’s family doctor. This report indicates that she is suffering from
a major depression and excessive anxiety, for which she has been receiving
treatment with psychotherapy and medication.
[21]
While the H&C officer was clearly aware of the family doctor’s
report, as it is referenced in the decision, the officer does not address Ms.
Siddiqui’s psychological state in terms of its significance with respect to the
question of hardship. Nor does the officer address the implications of the
psychologist’s finding that separating Ms. Siddiqui from her family would
likely prove traumatic for her, as it relates to the issue of hardship.
[22]
As a consequence, I find that the decision taken as a whole does
not meet the reasonableness standard described by the Supreme
Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9.
[23]
That is, the decision lacks
the necessary justification, transparency and intelligibility required of the
decision-making process. Moreover, having failed to properly address relevant
considerations, it cannot be said that the decision falls within the range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir at paragraph 47.
Conclusion
[24]
For these reasons, the application for judicial review is allowed.
Certification
[25]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. This application for judicial review is allowed,
and the matter is remitted to a differently constituted officer for
re-determination; and
2. No serious
question of general importance is certified.
“Anne Mactavish”
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