Docket: IMM-1138-13
Citation:
2014 FC 803
Ottawa, Ontario, August 18, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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DANIEL NEWMAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], the applicant
requested an exemption on humanitarian and compassionate (H&C) grounds from
his application for permanent residence from outside of Canada. His request was
refused. He now applies for judicial review under subsection 72(1) of the Act.
[2]
The applicant asks the Court to set aside the
refusal and return the matter to another officer for redetermination.
I.
Background
[3]
The applicant is a citizen of the Czech Republic who has schizophrenia. He claims that his family institutionalized him for
his illness in the past and he left the country out of fear. He made
unsuccessful refugee claims in Holland, Germany, Norway and Poland before coming to Canada on January 20, 2008.
[4]
Here, he made another refugee claim and that too
was rejected on July 21, 2010. His request for judicial review failed. He
applied for consideration on H&C grounds on October 19, 2010.
II.
Decision
[5]
By a letter dated December 3, 2012, a senior
immigration officer refused the application.
[6]
After summarizing the applicant’s claims and the
Refugee Protection Division’s decision, the officer said that there was no
evidence that the applicant was ever forcibly institutionalized in the Czech Republic. As well, the officer dismissed counsel’s submissions with respect to the
applicant’s personal circumstances as speculative and unsubstantiated. The
officer then observed that subsection 25(1.3) of the Act forbids the consideration
of the same factors used in refugee protection and therefore gave the
applicant’s submissions regarding risk no weight.
[7]
The officer then went on to summarize counsel’s
submissions regarding the applicant’s degree of establishment. Although
acknowledging that the applicant has made many friends in Canada and has submitted many letters in support of that, the officer was not satisfied that these
relationships would be severed if he left Canada since there are other ways to
maintain contact with people. Further, the officer was not satisfied that the
applicant would be unable to make similar friendships if he returned to the Czech Republic.
[8]
Since the applicant had spent four years in Canada, the officer noted that some establishment could be expected but in this case, the
applicant had not established himself in any meaningful way. The officer
commended the applicant for integrating himself into his community, but did not
give any special weight to it because the applicant could not have had a
reasonable expectation that he would be allowed to stay in Canada permanently. Although it might be hard to readapt to life in the Czech Republic, the officer found that it would not be an unusual and undeserved or
disproportionate hardship. Ultimately, the officer decided that the applicant’s
personal circumstances were nothing other than what was inherent in being asked
to leave after having been here for four years and they did not warrant an
exemption.
III.
Subsequent History
[9]
The applicant also made a pre-removal risk
assessment (PRRA) application, which was rejected by the same officer on the
same day. That decision is not under review.
IV.
Issues
[10]
The applicant submits two issues for
consideration:
1.
Did the officer fail to properly assess the
applicant’s establishment?
2.
Did the officer fetter her discretion by failing
to assess the hardship of the applicant’s return to the Czech Republic?
[11]
The respondent replies that there is only one
issue: has the applicant established a reviewable error
made by the immigration officer?
[12]
For the sake of analytical convenience, I prefer
the applicant’s separation of the issues and will address them under the
following headings:
A.
What is the standard of review?
B.
Did the officer assess establishment
unreasonably?
C.
Did the officer misinterpret subsection 25(1.3)
of the Act?
V.
Applicant’s Written Submissions
[13]
The applicant submits that reasonableness is the
standard of review for the second issue, but correctness is the standard for
the third.
[14]
The applicant quotes from a number of the
letters presented to the officer, including one written by the applicant
himself. They describe his activities repairing bikes, learning English,
volunteering, attending church and more. The applicant submits that “the above sounds like the activities of a person who has fully
integrated into Canadian society.” For that reason, he says that the
officer’s conclusion that he has not established himself in any meaningful way
is contradicted by the evidence and that is enough to warrant setting aside the
decision.
[15]
In particular, the applicant points out two
things. First, he criticizes the officer’s conclusion that the applicant could
maintain contact with his friends through electronic means. The applicant says
this ignores the fact that almost all of the letters showed that the applicant
maintained his relationships by physical contact and he points out that the
affidavit from Constance Nakatsu said that the applicant would not call her on
the telephone because he believed it might be tapped. The applicant infers from
this that the officer never read any of the letters.
[16]
Second, the applicant argues that the officer
unreasonably decided that no amount of establishment would suffice since the
applicant had no reasonable expectation of staying in Canada permanently. The applicant says this reasoning is perverse and quotes from a few
decisions which support his argument (see Sebbe v Canada (Minister of
Citizenship and Immigration), 2012 FC 813 at paragraphs 23 and 24, 414 FTR
268 [Sebbe]).
[17]
The applicant also argues that the officer’s discretion
was fettered by refusing to assess the hardship faced by the applicant if he
returned to the Czech Republic. In particular, the applicant fears that he will
be institutionalized and the applicant again reiterates his submissions that
mental health treatment in the Czech Republic is degrading. The applicant
claims that the officer had acknowledged that the applicant had been
institutionalized (though not by force) and yet failed to address the hardship
he would face if institutionalized upon his return. The applicant says the
officer also failed to consider a court document stating that a competency
hearing would resume upon the applicant’s return to the country.
VI.
Respondent’s Written Submissions
[18]
The respondent emphasizes that H&C grounds
applications allow flexibility to deal with cases not otherwise anticipated by
the legislation, but are not an alternative immigration stream. The test is
whether it would cause unusual and undeserved or disproportionate hardship to
make the applicant apply from out of the country.
[19]
Here, the respondent notes that the officer
considered the risk issue when reviewing the Refugee Protection Division’s
decision and then concluded that the applicant’s concerns were speculative. The
respondent submits that the applicant therefore failed the test and did not
provide enough evidence to show hardship.
[20]
Further, the respondent asserts that
establishment is but one of many factors and the ultimate question is hardship.
Here, the officer acknowledged that the applicant made friends and established
some community, but it simply was not enough to show unusual and undeserved or
disproportionate hardship. The weight assigned to this factor should therefore
be granted deference.
VII.
Applicant’s Written Reply
[21]
The applicant replied that the officer barely
considered risk and only did so through the lens of state protection. This was
inappropriate since state protection is irrelevant. Further, the officer did
not deal at all with the other hardship factors, especially regarding the
inhumanity of mental health treatment in the Czech Republic. Besides, the
officer explicitly ignored those issues by saying that consideration was
precluded by subsection 25(1.3), which the applicant contends was an error.
[22]
As well, the applicant says the case law shows
that where establishment is inadequately assessed, the analysis of hardship is
necessarily flawed. He says that the officer should not be accorded any
deference on the weight given to this factor. Rather, recent case law shows
that the Court can intervene if an officer failed to appreciate the level of
establishment and the applicant claims that this is not a matter of weight but
of proper assessment of the evidence.
VIII.
Respondent’s Further Written Memorandum
[23]
The respondent says that the standard of review
is reasonableness for all issues before the Court.
[24]
The respondent said the documentary evidence
about the treatment of patients with mental illnesses did not establish the
applicant would be treated poorly. The officer also did not accept that the
applicant had ever lost personal freedom while in the Czech Republic. He has been living on his own for a decade and a half, and has adapted to five
new countries over that time period. The officer reasonably concluded that the
hardship of having to return to the Czech Republic would not meet the test
required by subsection 25(1) of the Act.
[25]
Finally, the respondent reiterates its
submissions that the officer understood that the applicant was mildly
established, but that establishment is a wide spectrum and the officer deserves
deference.
IX.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[26]
Where previous jurisprudence has determined the
standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190 [Dunsmuir]).
[27]
For questions of fact or mixed fact and law
decided on an H&C grounds application, the standard is reasonableness (see Kisana
v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at
paragraph 18, [2010] 1 FCR 360; Dunsmuir at paragraph 53; Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paragraphs 57 to 62, 174 DLR (4th) 193). This means that I should not intervene
if the decision is transparent, justifiable, intelligible and within the range
of acceptable outcomes (see Dunsmuir at paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59,
[2009] 1 S.C.R. 339 [Khosa]). As the Supreme Court held in Khosa at
paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
[28]
For questions of statutory interpretation, the
Federal Court of Appeal has said that the application of standard of review
only matters if the provision is ambiguous (see Qin v Canada (Minister of Citizenship and Immigration), 2013 FCA 263 at paragraphs 32 to 34,
[2013] FCJ No 1264). Here, it could be, so I will assess the standard of
review.
[29]
In Toussaint v Canada (Minister of
Citizenship and Immigration), 2011 FCA 146 at paragraph 29, [2013] 1 FCR 3
[Toussaint], leave to appeal to SCC refused, 34336 (November 3, 2011),
the Federal Court of Appeal said that the Minister’s delegates in these
applications are owed no deference on questions of statutory interpretation.
Other jurisprudence from this Court confirms that (see Caliskan v Canada (Minister of Citizenship and Immigration), 2012 FC 1190 at paragraph 3, [2012] FCJ No
1291; Guxholli v Canada (Minister of Citizenship and Immigration), 2013
FC 1267 at paragraph 17, [2013] FCJ No 1369).
[30]
However, in Diabate v Canada (Minister of
Citizenship and Immigration), 2013 FC 129 at paragraphs 9 to 17, [2013] FCJ
No 124 [Diabate], Madam Justice Mary Gleason observed that this sits
uncomfortably with Supreme Court jurisprudence that says that reasonableness
should be presumed where a decision-maker is interpreting its enabling
legislation (Dunsmuir at paragraph 54; Khosa at paragraph 44). I
share Justice Gleason’s unease. The analysis in Toussaint is summary and
does not explain why the presumption of reasonableness was rebutted. Further,
in Agraira v Canada (Minister of Public Safety and Emergency Preparedness),
2013 SCC 36 at paragraph 50, [2013] 2 S.C.R. 559, the Supreme Court of Canada said
that reasonableness was the standard when the Minister interpreted a similar
discretionary exemption power under subsection 34(2) of the Act.
[31]
However, although Dunsmuir allows courts
to revisit the standard of review when previous analysis was unsatisfactory, it
does not override the hierarchy of courts. Toussaint remains a binding
decision of the Court of Appeal that is directly on point. It was decided after
Dunsmuir and assumedly considered the presumption. I am also not
satisfied that it has been overtaken by later cases. Agraira only
applied the law from Dunsmuir; it did not change it. Arguably, the
Supreme Court did strengthen the presumption of reasonableness by questioning
the true questions of jurisdiction category in Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at
paragraphs 37 to 42, [2011] 3 S.C.R. 654. However, Toussaint did not rely
on characterizing the question as one of true jurisdiction, but rather
generalized its conclusion to all questions of statutory interpretation. As
such, I am bound by it and will apply the correctness standard.
B.
Issue 2 - Did the officer err in assessing
establishment?
[32]
At paragraph 15 of his reply memorandum, the
applicant argued that the Court may intervene “where the
officer failed to appreciate the level of establishment before him”. I disagree.
In order to do that, I would need to independently evaluate the level of
establishment, compare my answer to that given by the officer and set aside the
decision if they do not match up. That is correctness review and I would be
wrong to do so.
[33]
Indeed, the cases relied on by the applicant do
not say that I should. The language of “appreciation” is lifted from El
Thaher v Canada (Minister of Citizenship and Immigration), 2012 FC 1439 at
paragraph 52, [2012] FCJ No 1658, [El Thaher], but at paragraph 56, Mr.
Justice James Russell clarifies that what was missing in that case was “an analysis of the degree of establishment in this case”
[emphasis added]. The Court did not set aside the decision only because it felt
that the officer was wrong about the degree of establishment; it set it
aside because the officer did not explain his or her conclusions.
[34]
No such error was made in this case. Rather, the
officer expressly acknowledged that the applicant had made many friends, but
discounted that for two reasons. First, there was no evidence that he could not
maintain contact through electronic means. Second, there was no evidence that
he would be unable to make new friends if he returned to the Czech Republic. As his integration into the community was really the only thing supporting the
applicant’s claim of establishment, the officer concluded, “I am not satisfied that he has established himself in Canada in any meaningful way.” That is an analysis and I understand why the officer came
to this conclusion, so the objection from El Thaher does not apply.
[35]
I also reject the applicant’s assertion that the
officer did not read the letters submitted by the applicant. The officer
expressly acknowledged that many letters of support had been submitted from “friends, support worker, volunteer agencies, churches, company
workers, co-workers amongst many others”. Decision-makers are presumed
to have weighed and considered all the evidence before them (see Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 at paragraph 1, ACF
No 598 (FCA)). Although it may be possible to infer from a failure to
specifically mention contrary evidence that it was overlooked, a Court’s
willingness to do so depends on its importance (see Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at
paragraphs 15 to 17, 157 FTR 35).
[36]
Here, the evidence to the contrary was not so
compelling that it required specific comment. The applicant’s argument is all
the letters showed that the applicant maintained his relationships through
physical contact. That is hardly unusual. Most people do maintain personal
contact with their friends when they are geographically close and one would
expect such evidence presented to prove establishment. It does not mean that it
is the only way they can keep in touch.
[37]
That said, the letter from Ms. Nakatsu does
suggest that the applicant may distrust telephones and there was also a
psychiatric report stating that the applicant believed the Czech secret police
had planted a monitoring device in his radio walkman. However, neither says
anything about the means of communication identified by the officer in the
decision (mail, e-mail, instant messaging and Facebook) and I see no reason to
infer that the officer ignored any evidence.
[38]
Also, though I agree with the applicant that
someone with his illness could be unusually established without having anything
other than community support, I see no reason to infer that the officer ignored
this possibility. The officer was cognizant of the applicant’s illness in other
ways and the reasons he gave for minimizing the applicant’s level of
establishment do not suggest any inappropriate comparison to a person of ordinary
health.
[39]
As such, the officer’s decision that the
applicant’s establishment was minimal was reasonable.
[40]
The applicant also submits that the officer
further discounted the applicant’s establishment because it was within his
control. In particular, he relies on Sebbe where Mr. Justice Russel Zinn
said the following at paragraph 23:
The Officer has taken a perverse view of the
evidence of establishment forwarded by the applicants. Is every investment,
purchase, business established, residence purchased, etc. to be discounted on
the basis that it was done knowing that it might have to be given up or left
behind? Is the Officer suggesting that it is the preference of Canadians that
failed claimants do nothing to succeed and support themselves while in Canada? Is he suggesting that any steps taken to succeed will be worthless, because they
knew that they were subject to removal? In my view, the answers to these
questions show that it is entirely irrelevant whether the persons knew he or
she was subject to removal when they took steps to establish themselves and
their families in Canada.
[41]
I agree that a person’s actual establishment
cannot be viewed with less significance because he or she was only able to do
so as a result of the refugee process. Arguably, that is inconsistent with Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4
FC 358 [Legault]. At paragraph 19 of that decision, the Federal Court of
Appeal spoke about the predecessor to subsection 25(1) in the old Immigration
Act, RSC 1985, c I-2, and said that “the Minister is
at liberty to take into consideration the fact that the humanitarian and
compassionate grounds that a person claims are the result of his own actions.”
However, the examples given largely dealt with policy reasons and subsection
25(1) was amended in 2010 to delete the reference to “public policy” (Balanced
Refugee Reform Act, SC 2010, c 8, s 4).
[42]
In any event, I do not think there is any real
inconsistency. Ultimately, it is still up to the officer to give proper weight to
each factor in the overall analysis (see Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at paragraph 37, [2002] 1 S.C.R. 3)
and that includes establishment (see Irimie v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 1906 at paragraph 20, 10 Imm LR
(3d) 206 [Irimie]; Diabate at paragraph 29). That weighing can be
rationally affected by the choices the applicant has made, particularly when it
comes to assessing whether hardship is undeserved. As Mr. Justice J.D. Denis
Pelletier said in Irimie at paragraph 17, whether a hardship is
undeserved “may well vary with the circumstances but in
general, one would think that if one assumes a certain risk, the occurrence of
the eventuality giving rise to the risk does not create undeserved hardship.”
Similarly, if a person had no choice in coming to Canada, then that could
suggest that the hardship in disturbing his or her establishment is more
undeserved than it might otherwise be. Sebbe ultimately does not change
that.
[43]
Here, the officer said the following: “I am not satisfied that the applicant had a reasonable
expectation that he would be allowed to remain in Canada permanently and as
such, I do not grant significant weight to the applicant’s length of time or
establishment in Canada.” All this means is that the establishment
factor did not attract any more weight because of the circumstances surrounding
the applicant’s stay in Canada than it would otherwise. In my view, this was
reasonable.
C.
Issue 3 - Did the officer misinterpret
subsection 25(1.3)?
[44]
In Rizzo & Rizzo Shoes Ltd (Re),
[1998] 1 S.C.R. 27 at paragraph 21, 154 DLR (4th) 193, the Supreme Court of Canada
adopted the following approach to the interpretation of legislation:
Today there is only
one principle or approach, namely, the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of Parliament.
[45]
Subsection 25(1.3) provides as follows:
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25. …
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25. …
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(1.3) In examining the request of a
foreign national in Canada, the Minister may not consider the factors that
are taken into account in the determination of whether a
person is a Convention refugee under section 96 or a person in need of protection
under subsection 97(1) but must consider elements related to the hardships
that affect the foreign national.
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(1.3) Le ministre,
dans l’étude de la demande faite au titre du paragraphe (1) d’un étranger se
trouvant au Canada, ne tient compte d’aucun des facteurs servant à établir la
qualité de réfugié — au sens de la Convention — aux termes de l’article 96 ou
de personne à protéger au titre du paragraphe 97(1); il tient compte,
toutefois, des difficultés auxquelles l’étranger fait face.
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[46]
The statement in subsection 25(1.3) that the
Minister “may not consider the factors that are taken
into account in the determination of whether a person is a Convention refugee
under section 96 or a person in need of protection under subsection 97(1)”
seems clear, but conflicts somewhat with the command that the Minister “must consider elements related to the hardships that affect
the foreign national.” Claims that a person would be returned to
persecution or any of the risks in subsection 97(1) could almost always be relabeled
as hardship and thus it is unclear when subsection 25(1.3) would actually
operate to preclude consideration of factors relevant to refugee protection.
[47]
This problem was considered in Caliskan
and there, Mr. Justice Roger Hughes reviewed the circumstances surrounding the
adoption of this provision. He observed at paragraph 20 that an application on H&C
grounds was essentially “a plea to the executive branch
of government for special consideration not otherwise provided in the
legislation.” Interpreting subsection 25(1.3) in light of that, he
concluded at paragraph 22 that the ultimate focus was on hardship and that the
use of refugee protection concepts like personalized or generalized risk must
be abandoned when considering H&C grounds applications.
[48]
I largely agree. Subsection 25(1) exists to
grant relief for situations where the ordinary operation of the Act might cause
hardship and it should not be used for situations that the Act itself
contemplates, like refugee protection. As a corollary, however, if a refugee
claim has failed or would fail for reasons related to the limitations of the
refugee protection provisions, such as where discrimination does not amount to
persecution, then the hardship caused by those conditions must still be
considered. Practically, this means that an officer cannot refuse to consider
evidence that could speak to hardship only because it could also be relevant to
refugee protection. Rather, all the evidence relevant to hardship should be
considered and subsection 25(1.3) mainly operates to emphasize that hardship,
not the factors from section 96 and subsection 97(1) is the focus.
[49]
That supports the applicant’s argument that
subsection 25(1.3) only precludes analysis of the risk, but not any hardships
arising from the risk. However, it is not a complete answer. In particular, I
cannot see how an officer could assess the hardship arising from a risk without
determining that there is some risk to begin with. After all, if the applicant
will not be institutionalized, then no hardship can arise from it.
[50]
In that regard, the provision itself restricts
consideration only to the “elements related to the
hardships that affect the foreign national.” This means that not every
hardship that a person in the country of origin could conceivably suffer needs
to be dealt with. Rather, the applicant must show either that it will probably
affect him or, at the very least, that living in conditions where it could
happen to him is itself an unusual and undeserved or disproportionate hardship.
Indeed, in Kanthasamy v Canada (Minister of Citizenship and Immigration),
2013 FC 802 at paragraph 33, [2013] FCJ No 848, [Kanthasamy], Madam
Justice Catherine Kane said the same, observing that “the
considerations, including adverse country conditions and discrimination, should
have a direct and negative impact on the particular applicant.”
[51]
In this case, the officer decided that the
applicant had never been forcibly institutionalized in the Czech Republic and that counsel’s comments about the applicant’s personal circumstances
were speculative and unfounded. Only after that did the officer quote
subsection 25(1.3) of the Act and say the following:
Given that the risk factors raised by the
applicant in this application pertain to a fear of persecution, torture, risk
to life, or cruel and unusual punishment, I find that the assessment of these
factors is beyond the scope of a humanitarian and compassionate application as
defined by the IRPA and consequently, I have given them no weight in this
assessment.
[52]
Strictly speaking, if a person would be
institutionalized in the Czech Republic for an illness for which he would not
be here, that is a relevant thing to consider even if the institutionalization
itself is not persecutory.
[53]
However, the applicant bore the onus to show
that this purported hardship would affect him (see Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at paragraph 8, [2004] 2
FCR 635). In this case, the officer expressly found that the applicant had
never been forcibly institutionalized and that the applicant’s claims that he
might be were speculative and unfounded. Although a competency hearing was
adjourned after he left the country, it was reasonable not to attach much
weight to that since the applicant has been living on his own for more than a
decade and could likely defend himself. The applicant’s submissions regarding
the country conditions are really just submissions that, generally, the
mentally ill are persecuted in institutions in the Czech Republic and the
officer did not err by rejecting them. Having already found that the applicant
would not be institutionalized, there was no reason to consider whether it
would have been a hardship if he was.
[54]
The applicant also submitted in his reply that
the officer inappropriately considered state protection. However, the officer’s
only reference to state protection was when summarizing the Refugee Protection
Division’s decision. It did not factor into the analysis.
[55]
All that said, I do think the officer’s refusal
to consider evidence that could be related to persecution was problematic. The
record includes a psychiatric report on the applicant that was prepared by Dr.
Levy on January 30, 2008. The doctor observed the following: “His thought content revealed concerns about the Czech police
having planted devices inside his electronic equipment in the Czech Republic. However, he denied any paranoid ideation about his current environment or his
current radio walkman.” In his affidavit, the applicant says at
paragraph 7 that “… psychiatrists in the Czech Republic are not like in Canada. They mistreat patients and force treatment on them, like
ECT and mind-numbing medications. I saw this with my own eyes.” Similar
statements are found in the record, most evidently in the request he made for a
legal aid lawyer on April 25, 2011.
[56]
Although that fear may not be objectively
well-founded, there could be situations where a subjective fear in a person
with a mental illness like the applicant’s could have serious effects on his or
her health. For instance, if the applicant has paranoid ideations about the Czech Republic’s government but not Canada’s, then his mental health could conceivably deteriorate
if forced to return. Similarly, if he fears psychiatrists in the Czech Republic, he may not go to them to renew his medications. That would not trigger
refugee protection but it is potentially a hardship that ought to be considered
when assessing an H&C grounds application.
[57]
Of course, the applicant has not provided any
medical or psychiatric reports that predict the effect of returning to the Czech Republic on his mental health. Further, the report from Dr. Levy was dated shortly
after the applicant’s arrival in Canada, so its continuing validity is
questionable. As well, the applicant did not advance this particular argument
very strongly before the officer, instead dropping only hints about it when
discussing background and then mentioning that “Canada is the first country where Mr. Newman feels welcome and safe.” Still, there
was evidence that it was problematic, however weak, and the officer dismissed
it only because it was also relevant to a refugee protection analysis. That
error resulted from an incorrect interpretation of subsection 25(1.3) and I
cannot guess what the officer might have decided had it not been made. For that
reason, I would allow the application for judicial review.
[58]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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