Docket: IMM-2150-14
Citation:
2016 FC 95
Ottawa, Ontario, January 27, 2016
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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ARHET
TECLEMARIAN TOCRURAI
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Ms Arhet Teclemariam Tocrurai arrived in Canada
in 2005 from Eritrea and obtained refugee status here. In 2009, she was denied
permanent residency after she was found to be inadmissible based on her prior
connection with the Eritrean Liberation Front (ELF), a group allegedly involved
in terrorist activities whose objective was to obtain independence for Eritrea
from Ethiopia. Her involvement with the ELF amounted to providing, on demand,
food, shelter, and a nominal financial contribution to ELF members in her
remote village. She felt she had no choice but to comply with those demands.
[2]
Ms Tocrurai asked an immigration officer to reconsider
the inadmissibility decision. She also asked for a waiver based on humanitarian
and compassionate factors (H&C). The request for reconsideration was denied
and no decision was made on the H&C request.
[3]
While she has raised several arguments, Ms
Tocrurai’s main concern is the lack of determination on her H&C. She
maintains that the immigration officer had an obligation to consider her
request. She asks me to quash the officer’s decision and order another officer
to reconsider her application for permanent residence.
[4]
I agree that the officer had a duty to consider
her H&C request and I must, therefore, allow this application for judicial
review. The sole issue is whether the officer was obliged to consider Ms
Tocrurai’s H&C request.
A.
Did the officer have a duty to consider H&C
factors?
[5]
The Minister maintains that the officer had no
duty to consider H&C factors arising from Ms Tocrurai’s permanent residence
application since her counsel had stated that further submissions would be
provided later. In a letter to the officer, Ms Tocrurai’s counsel wrote:
We hope to be in a
position to send you our materials in the next few weeks. We would ask that no
decision be made on the waiver request until such time as you have received our
submissions. If the decision maker is ready to render a decision and our
materials are not yet in, then please advise us so that we can provide what is
currently available.
[6]
The anticipated submissions were never made.
Therefore, says the Minister, the officer was entitled to ignore H&C
considerations.
[7]
I disagree.
[8]
In her written submissions, Ms Tocrurai alerted
the officer to H&C factors in her favour, including the following facts:
•
She has been separated from her husband since
her arrival in Canada in 2005;
•
She has no criminal record and has lived a quiet
life;
•
She lives under contract stress and anxiety due
to her lack of status;
•
She worked at a poultry factory in Windsor,
Ontario until she was hit by a car in 2009.
•
She suffered physical injuries that have
prevented her from working since the accident.
[9]
In the circumstances, the officer had an
obligation to consider the H&C factors in front of him even though there
were further submissions that were outstanding. Indeed, even if Ms Tocrurai had
not expressly requested consideration of those factors (which she did), the
officer was obliged to consider evidence that would be relevant to her protection
as a Convention refugee (Kathirgamathamby v Canada (Minister of Citizenship
and Immigration), 2013 FC 811 at para 26; Abid v Canada (Minister of Citizenship
and Immigration), 2011 FC 164 at para 35, 36).
[10]
Similarly, I do not agree with the Minister’s
submission that the officer was precluded from considering the H&C factors
because the letter asked him to hold off on making a determination. I do not
read the letter as waiving Ms Tocrurai’s right to an H&C determination.
[11]
Therefore, the officer erred in failing to
consider the relevant H&C factors identified in Ms Tocrurai’s permanent
residence application, making the denial of her application unreasonable.
II.
Conclusion and Disposition
[12]
The officer failed to take into account H&C
factors when deciding Ms Tocrurai’s permanent residence application. In the
circumstances, the officer’s decision denying that application does not
represent a defensible outcome based on the facts and the law. I must,
therefore, allow this application for judicial review and order another officer
to reconsider Ms Tocrurai’s application. Neither party proposed a question of
general importance for me to certify, and none is stated.
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