Docket:
IMM-2087-12
Citation: 2013 FC 1267
Ottawa, Ontario, December
19, 2013
PRESENT: The Honourable Mr. Justice de Montigny
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BETWEEN:
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BESIM GUXHOLLI
YLVIE GUXHOLLI
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
This is an application for judicial review
pursuant to section 72.1 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA, or the Act] of a decision made by an immigration
officer of Citizenship and Immigration Canada dated January 26, 2012 rejecting
the Applicants’ application for permanent residence from within Canada on humanitarian
and compassionate [H&C] grounds. For the reasons that follow, I have come
to the conclusion that this application ought to be dismissed. The Officer
applied the correct legal test in assessing the H&C application, and his or
her decision was entirely reasonable.
FACTS
[2]
The Applicants, Besim and Ylvie Guxholli, are
husband and wife and citizens of Albania. They were issued temporary resident
visas in Rome in July 2008 and arrived in Canada in August 2008. In September
2008, they filed a refugee claim based on the risk they would face at the hands
of people, including corrupt government officials, who opposed their claim to
recover family land seized by the former Albanian communist regime in the
1940’s.
[3]
The Applicants’ claim was rejected by the
Refugee Protection Division in March 2011. The Applicants sought judicial
review of that decision but leave was denied by this Court in July 2011.
[4]
On August 31, 2011, the Applicants submitted a
Pre-removal risk assessment [PRRA] and an H&C application. Both
applications were refused by the same CIC officer on January 26, 2012. On
February 29, 2012, the Applicants filed an application for judicial review of
both decisions. On March 14, 2012, the Applicants were issued a direction to
report for removal, scheduled for March 31st, 2012. On March 16,
2012, the Applicants submitted a deferral request, which was denied on March
27, 2012.
[5]
By Order dated March 29, 2012, Justice Gleason
granted a stay of removal. Leave concerning the PRRA decision was refused on
June 11, 2012, while leave concerning the H&C decision was granted on
September 5, 2012. In a separate file heard the same day as the present
application for judicial review, I dismissed the Applicants’ challenge of the
Canadian Border Services Agency’s decision of March 27, 2012 not to defer their
removal (IMM-2874-12).
THE H&C
APPLICATION
[6]
In their H&C application, the Applicants
explain that Mr. Guxholli had suffered a heart attack in August 2011, which
requires regular follow-up. They argue that his health condition would be
jeopardized if he was to return to Albania and rely on that country’s ineffective
healthcare system.
[7]
The Applicants also claimed they would face
hardship resulting from the land claim which was at the core of their failed
refugee claim. They fear being killed by the leader of the Union of Miners,
Gezim Kalaja, and his associates, from whom he and his family have tried to
take back the land that had been confiscated by the Communist regime in 1946.
[8]
The Applicants mentioned the following incidents
which they claim occurred as a result of the land dispute:
•
In 1999, Mr. Guxholli was detained and beaten by the police;
• In 2002, Mr. Guxholli’s cousin Fatjon was arrested
on false allegations and beaten by police. He suffered brain damage;
• In 2008, Mr. Guxholli’s cousin Artur was
intentionally struck and killed by an automobile while riding his motorcycle;
•
In 2010, the Applicants’ son was attacked; and
•
In 2011, Mr. Guxholli’s cousin Albert was killed by gunfire.
[9]
With regards to the best interests of the child
[BIOC], the Applicants argued that they have two sons currently residing in Albania who are also in danger as a result of the land dispute.
[10]
As for the establishment factor, the Applicants
explained that they have both learned English, have made many friends in
Canada, and are employed full-time; Mr. Guxholli in the construction industry
and Ylvie as a kitchen assistant in a restaurant. They also do some volunteer
work. They submitted six letters of reference from friends and employers.
THE IMPUGNED
DECISION
[11]
The Officer gave positive consideration to the
establishment factor. The Officer noted, however, that there was no indication
that the degree of hardship imposed on any party would be significant and that
the Applicants had the option of maintaining contact with their friends through
telephone or mail.
[12]
In a section entitled “Risk”, the Officer noted
that the Applicants had presented the same risk that was presented in their
refugee claim and their concurrent PRRA application (a risk to their life or
risk of harm related to the land dispute). The Officer wrote that risks that
fall under sections 96 or 97 of IRPA are now excluded from the H&C
analysis pursuant to subsection 25(1.3) and that no consideration is to be
given to those risks. The Officer did however go on to address the hardships
resulting from those risks and concluded that little additional information was
provided with regard to hardship.
[13]
The Officer gave no consideration to the BIOC
because both of the Applicants’ children are over the age of 18 and are
considered adults.
[14]
Finally, with regard to Mr. Guxholli’s medical
condition, the Officer accepted that Mr. Guxholli required medical check-ups
following his heart attack. However, the Officer concluded that the Applicants
provided no corroborating evidence of the ineffectiveness of the prohibitive
cost of healthcare in Albania and gave little weight to this factor.
[15]
Overall, the Officer concluded that, although
positive consideration was given to Mr. Guxholli’s health condition and
establishment, the evidence submitted does not demonstrate that the Applicants
would experience unusual and undeserved or disproportionate hardship if they
were to return to Albania.
ISSUE
[16]
This case raises only one issue, that is,
whether the Officer applied the correct legal test in assessing the H&C
application.
ANALYSIS
[17]
This Court has consistently held that the
standard of correctness applies to the issue of whether the correct legal test
was applied in the context of an H&C application. The following quote from
Justice Russell in Awolope v Canada (Minister of Citizenship and
Immigration), 2010 FC 540, is but one illustration of this long line of
cases in that respect:
[30] In Dunsmuir,
the Supreme Court ruled that questions of law may be reviewable on a
reasonableness standard, if they are not “legal questions of central importance
to the legal system as a whole and outside a decision-maker’s specialized area
of expertise.” See Dunsmuir at paragraphs 55 and 60. Jurisprudence of
this Court, however, has determined that an Officer’s application of the
correct test in assessing risk in a humanitarian and compassionate application
is reviewable on a standard of correctness. See Zambrano v Canada (Minister of Citizenship and Immigration), 2008 FC 481, [2008] F.C.J. No. 601.
As stated by Justice Dawson in Zambrano,
Having regard to the
absence of a privative clause, the relative lack of expertise on the part of an
officer to appreciate whether he or she has applied the wrong test at law, and
the importance of ensuring that officers apply the test that Parliament has
prescribed, I conclude that the question of whether the officer applied the
correct test is reviewable on the correctness standard.
[18]
As such, correctness is the appropriate standard
of review in considering whether the Officer applied the correct legal test and
legal threshold in assessing risk in the context of the H&C application: see
also Hillary v Canada (Minister of Citizenship and Immigration), 2010 FC
638 at para 20; Okoye v Canada (Minister of Citizenship and Immigration),
2008 FC 1133 at para 3; Walcott v Canada (Minister of Citizenship and
Immigration), 2011 FC 415 at para 58; KMP v Canada (Minister of
Citizenship and Immigration), 2011 FC 981 at para 18; Premnauth v Canada
(Minister of Citizenship and Immigration), 2009 FC 1125 at para 20; Barrak
v Canada (Minister of Citizenship and Immigration), 2008 FC 962 at para 18;
Jogia v Canada (Minister of Citizenship and Immigration), 2009 FC 596 at
para 39; Ambassa v Canada (Minister of Citizenship and Immigration),
2012 FC 158 at para 24.
[19]
There is no dispute between the parties that
pursuant to subsection 25(1.3) of the Act, an immigration officer does
not have the authority to take into account allegations of persecution that
fall under sections 96 and 97. Subsections 25(1) and (1.3) of IRPA read
as follows:
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Humanitarian and compassionate
considerations — request of foreign national
25. (1)
Subject to subsection (1.2), the Minister must, on request of a foreign
national in Canada who applies for permanent resident status and who is
inadmissible — other than under section 34, 35 or 37 — or who does not meet
the requirements of this Act, and may, on request of a foreign national
outside Canada — other than a foreign national who is inadmissible under
section 34, 35 or 37 — who applies for a permanent resident visa, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
Non-application of certain factors
(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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Séjour pour motif d’ordre humanitaire
à la demande de l’étranger
25. (1)
Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger
se trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire — sauf si c’est en raison d’un cas visé aux
articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit
de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de
résident permanent, étudier le cas de cet étranger; il peut lui octroyer le
statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
Non-application de certains facteurs
(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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[20]
The Applicants argue that the Officer applied
the wrong legal test and wrongly interpreted subsection 25(1.3) by not
considering the hardship that the Applicants might face on account of the
ongoing property dispute and by considering that it is improper to assess any
hardship factors which could also relate to an analysis under sections 96 or 97
of the Act. The Applicants further contend that subsection 25(1.3)
merely codifies the existing jurisprudence with regard to the distinction
between an H&C analysis and a section 96 and 97 analysis. In other words,
subsection 25(1.3) does not excuse the H&C Officer from assessing hardship
associated to a fear of persecution or to a risk of torture, a risk to life or
a risk of cruel and unusual punishment.
[21]
There exists some uncertainty with regard to the
effect of subsection 25(1.3). Indeed, a question has been certified in three
cases with respect to the nature of the risk, if any, to be assessed in the
context of H&C considerations under section 25 of IRPA: see Caliskan
v Canada (Minister of Citizenship and Immigration), 2012 FC 1190; JMSL v
Canada (Minister of Citizenship and Immigration), 2012 FC 1274; Kanthasamy
v Canada (Minister of Citizenship and Immigration), 2013 FC 802. Only the
last of these three decisions was appealed, and the Federal Court of Appeal
heard oral arguments in that case in early November of this year.
[22]
Having carefully considered the Applicant’s
record and the decision of the H&C Officer, however, I am of the view that
the answer to the certified question put to the Federal Court of Appeal will be
of no impact on the resolution of the case at bar. The Officer considered the
risk to life and the risk of harm at the hands of Gezim Kalaja as a risk
falling under sections 96 and 97 and excluded by subsection 25(1.3). This is
consistent with the objectives of the H&C application as well as with the
wording of subsection 25(1.3). Such a risk falls squarely within section 97 of
the Act, and is to be excluded from the H&C assessment. The
Applicants do not really submit that the Officer wrongly excluded that risk
factor per se.
[23]
What the Applicants argue, though, is that
subsection 25(1.3) does not go as far as excluding hardship elements arising
from excluded risk factors, and that the Officer therefore had to assess
elements of hardship whether or not they were associated with or originated
from the excluded risks. Yet, on close reading, it is apparent that the Officer
did just that and considered hardship elements associated with the excluded
risks, as is made clear from the following quote of the decision:
Regarding hardship
arising from the risk presented, the applicant’s provide very little
information. The principal applicant states that he “will suffer various,
excessive hardships that would put my life in imminent danger.” However, the
hardship he presents (i.e. “my life and well being and the life of my wife
would also be at risk”) are considered risk factors rather than hardship
factors. As I am unable to assess risk, and because the applicant provides
little additional information about the hardship he may face as a result of
living in the same country as the persons he fears, I give little positive
consideration to the hardship arising from the risk factor presented.
Decision at p 6.
[24]
This citation clearly establishes two things.
First, the Officer considered the issues of risk and hardship separately. After
having rightly considered that the hardship alleged were risks to the principal
Applicant’s life and his wife’s life which fall under sections 96 and 97 of IRPA,
the Officer went on to note that little positive consideration could be given
to the hardship arising from the risk factor presented, as the Applicants
provided little information about the hardship. This is distinguishable from
the cases cited by the Applicants where the officers made no reference to
hardship in their decisions: see e.g. Singh Sahota v Canada (The Minister of Citizenship and Immigration), 2007 FC 651; Sha’er v Canada (The Minister of Citizenship and Immigration), 2007 FC 231. As the issues of
hardship and risk were considered separately, it is clear that the Officer
applied the correct test in assessing hardship and was well aware of the
distinction between risk and hardship.
[25]
Second, the Officer correctly noted that the Applicants
provided very little information regarding hardship arising from the risk
presented. It is the responsibility of an applicant to satisfy the
decision-maker that there are grounds for an exemption. An officer is only
required to consider and decide on the evidence adduced before him or her.
There is no obligation on an officer to gather and seek additional evidence or
make further inquiries: see Robertson v Canada (Minister of Citizenship and
Immigration), [2002] FCJ No 1028 at para 12; Gallardo v Canada (Minister of Citizenship and Immigration), 2003 FCT 45 at para 29.
[26]
The extent of the analysis in the within
proceeding was commensurate with the extent of the submissions put forth by the
Applicants. Regarding any hardship arising from the risk presented, the
Applicants only mentioned the risk to their lives in their H&C
submissions. In those circumstances, the Officer had no obligation to infer
hardship. In the absence of sufficient evidence, it was open for the Officer to
draw the conclusions reached in this decision.
[27]
For all of the above reasons, this application
for judicial review is therefore dismissed. No question was proposed for
certification, and none will be certified.
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