Dockets: IMM-1382-17
IMM-1383-17
Citation:
2018 FC 73
Ottawa, Ontario, January 25, 2018
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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SAREDO
SOULEIMAN MIYIR
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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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Docket: IMM-1383-17
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AND BETWEEN:
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SINAN SOULEIMAN
MIYIR
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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.
Background
[1]
The Applicant sisters, both Djibouti nationals,
are ethnically Somalian and members of the Issa tribe. They state that if they
return to Djibouti, their religious and domineering mother will send them to an
extremist Koranic school and force them to marry “good
Muslim men”. The Applicants depose that they traveled to Canada on July
5, 2014, aided by their sympathetic father, for the purpose of fleeing Djibouti
and their mother’s coercion.
[2]
The sisters’ claims for refugee status in Canada
were rejected by the Refugee Protection Division [RPD] and Refugee Appeal
Division [RAD] of the Immigration and Refugee Board, which both rendered
negative decisions on the basis of credibility. Leave for judicial review was also
refused by this Court.
[3]
Following the rejection of their refugee claims,
the Applicants each pursued humanitarian and compassionate applications
[H&Cs] under section 25(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA]. The H&Cs, accompanied by detailed submissions from
counsel, relied on two factors: (i) the hardship the Applicants would face if
returned to Djibouti, and (ii) their establishment in Canada.
[4]
The officer who reviewed the two H&Cs [Officer]
found that the Applicants had not demonstrated circumstances warranting relief
[Decisions]. The Decisions are almost identical, except for certain personal
identification differences. Although each Decision became the subject of a
different application for judicial review, those applications were advanced
upon identical written submissions and argued before me concurrently.
Therefore, this judgment, which will be filed in both IMM-1382-17 and
IMM-1383-17, resolves both applications and all points herein refer to both
Decisions equally.
[5]
For the reasons that follow, I find that the Officer
did not analyze how adverse conditions facing women and Issa tribe members in
Djibouti might result in hardship to the Applicants. The Decisions are, thus,
unreasonable and will be returned for reassessment.
II.
The Parties’ Positions
[6]
I note at the outset that, while the Applicants’
written materials impugned the Officer’s “establishment”
analyses, this position was not advanced at the hearing and will not be dealt
with in this judgment.
[7]
Aside from “establishment”,
the Applicants raise two grounds of review. First, they argue that the Officer refused
to consider any of the circumstances which were dismissed as not credible in
the Applicants’ refugee claims, thereby effectively fettering discretion.
Specifically, the Applicants submit that, while the Officer correctly
identified that the RPD and RAD’s refugee analyses could not be re-conducted as
part of the H&C analysis, the Officer should have nevertheless considered
those same circumstances under a “hardship” lens.
[8]
Second, the Applicants submit that the Officer erred
in the manner identified in Diabate v Canada (Citizenship and Immigration),
2013 FC 129, by requiring them to demonstrate that country conditions in
Djibouti would affect them in ways distinct from the general experiences of women
in Djibouti. These two issues are interrelated because they both focus this
Court’s attention on the Officer’s analysis of the alleged “hardship” the Applicants would experience if returned
to Djibouti. The Applicants argue that both errors are of a legal nature, raising
a correctness standard of review.
[9]
The Respondent counters by referring to Raza
v Canada (Citizenship and Immigration), 2007 FCA 385 [Raza].
Although Raza concerned a Pre‑Removal Risk Assessment [PRRA], the
Respondent submits that Raza applies equally to H&Cs on the point
that while H&Cs are not appeals or reconsiderations of failed refugee
claims, they may raise some or all of the same factual and legal issues as
claims for refugee protection. In such cases there is thus a risk of wasteful
and potentially abusive relitigation (Raza at para 12).
[10]
Here, the Respondent argues that the Officer
reasonably refused the Applicants’ attempt to use “updated”
evidence to relitigate their failed refugee claims. The Respondent contends
that the Officer was simply not persuaded that the Applicants’ new,
corroborative evidence overcame the determinations made by the RPD, upheld by
the RAD, and ultimately by this Court when leave was denied. The Respondent
further argues that Diabate does not apply since the Applicants advanced
their case on the basis of circumstances that would affect them personally.
[11]
The Respondent argues that the Applicants’
H&Cs turned on credibility and not on the correct legal analysis of
accepted facts. Accordingly, it submits that the issues raised in these
Applications attract a reasonableness standard of review.
III.
Analysis
A.
Standard of Review
[12]
As noted by Justice Brown in a series of three recent
decisions in this area, the H&C exemption is an exceptional and highly
discretionary remedy, in the nature of extraordinary or special relief (Nguyen
v Canada (Citizenship and Immigration), 2017 FC 27 at para 29). Significant
deference is owed to the deciding officer (Li v Canada (Citizenship and
Immigration), 2017 FC 841 at para 15; Herman v Canada (Citizenship and
Immigration), 2017 FC 842 at para 10)).
[13]
That said, deference is not a blank cheque and
there must be reasoned reasons to ground a justified outcome (Njeri v Canada
(Citizenship & Immigration), 2009 FC 291 at para 12, cited in Varatharasa
v Canada (Citizenship and Immigration), 2017 FC 11 at para 6). In light of these
observations, I am not persuaded that either issue raised by the Applicants
attracts a correctness review.
[14]
I will examine the issues raised on a
reasonableness standard, staying within the strictures of exceptionality and
deference while ensuring that the Decisions are indeed justified.
B.
Assessing the “Hardship” of Adverse Country
Conditions in H&C Applications
[15]
In Kanthasamy v Canada (Citizenship and
Immigration, 2015 SCC 61 [Kanthasamy], the Supreme Court
of Canada clarified how the factor of “hardship”
fits into an H&C analysis. Prior to Kanthasamy, the Ministerial
Guidelines on H&Cs directed decision-makers to consider whether applicants
would face “unusual and undeserved or disproportionate
hardship” if not granted an exemption. However, in Kanthasamy the
Supreme Court held that the words “unusual and
undeserved or disproportionate hardship”, which do not appear in section
25(1), should not limit a decision-maker’s ability to consider all factors that
may be relevant in a particular case (Kanthasamy at para 33). Rather, an
H&C decision-maker must apply section 25(1) with regard to its equitable goals,
which means considering whether the applicant’s “circumstances
as a whole” justify exemption (Kanthasamy at paras 32, 45).
[16]
For the purposes of the Applications now before
this Court, it is notable that Kanthasamy did not reject the concept of “hardship” in H&C applications altogether; to the
contrary, the Supreme Court’s analysis in Kanthasamy indicates that “hardship”, assessed equitably, flexibly, and as part
of the applicant’s circumstances as a whole, remains important to H&C
analyses (Mulla v Canada (Citizenship and Immigration), 2017 FC 445 at para 13;
Nwafidelie v Canada (Citizenship and Immigration), 2017 FC 144 at para
22 [Nwafidelie]).
[17]
This shift in the legal framework for H&C analyses,
and the continuing role of “hardship”, is
reflected in the updated Ministerial Guidelines on H&Cs, which were amended
after the publication of Kanthasamy on December 10, 2015. As of the date
of this judgement, the Guidelines’ “hardship”
section reads as follows:
As of December
10, 2015, there is no hardship “test” for applicants under subsection 25(1);
however the determination of whether there are sufficient grounds to justify
granting an H&C request will generally include an assessment of hardship. Therefore,
hardship continues to be an important consideration in determining whether
sufficient humanitarian and compassionate considerations exist to justify
granting an exemption and/or permanent resident status.
In many cases,
hardship will arise as a result of the requirement in section 11 that foreign
nationals apply for a permanent resident visa before entering Canada. In other
words, a decision maker would consider the extent to which the applicant, given
their particular circumstances, would face hardship if they had to leave Canada
in order to apply for permanent residence abroad. Although there will
inevitably be some hardship associated with being required to leave Canada,
this alone will not generally be sufficient to warrant relief on humanitarian
and compassionate grounds under subsection 25(1) (Kanthasamy v. Canada
(Citizenship and Immigration), 2015 SCC 61; Rizvi v. Canada (Minister
of Citizenship and Immigration), 2009 FC 463).
[Emphasis
added]
[18]
Under the heading “[f]actors
to consider in a humanitarian and compassionate assessment”, the updated
Guidelines direct decision-makers to consider the applicant’s ties to Canada, as
well as factors in the applicant’s country of origin, including adverse country
conditions. The updated Guidelines also instruct decision-makers to:
… consider the
applicant’s circumstances relative to others living in their country when
considering whether sufficient H&C grounds exist to justify an exemption.
The assessment is not a comparison of life in Canada versus life in the country
of origin. It is an assessment of the hardship that would result if the
applicant is not granted the exemption or a permanent resident visa.
[Emphasis
added]
[19]
Therefore, where adverse conditions in an
applicant’s country of origin form part of an applicant’s H&C
circumstances, the decision-maker must consider those conditions in determining
whether an equitable exemption is warranted. Typically, this will mean
assessing the “hardship” of returning to those
conditions.
[20]
However, a decision-maker must not confuse (i)
the H&C analysis with (ii) the refugee analysis required under sections 96/97
of IRPA. These two analyses are sometimes erroneously conflated because both
may require a decision-maker to consider conditions in a claimant’s country of
origin. This is improper, as the 2012 legislative revisions to section 25(1)
make clear:
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25(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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25(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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[21]
One error that this Court has identified in this
area is the erroneous consideration of “personalized”
risk in H&C applications. For refugee purposes, the claimant must show that
he or she faces a “personalized” risk of
persecution not borne by members of the general population. However, the “personalized risk” required in a refugee claim
analysis has no place in an H&C analysis, as explained by Justice Gleason: “[i]t is both incorrect and unreasonable to require, as part
of [the H&C] analysis, that an applicant establish that the circumstances he
or she will face are not generally faced by others in their country of origin”
(Diabate at para 36), a principle that this Court continues to follow (see
Martinez v Canada (Citizenship and Immigration), 2017 FC 69 at para 12).
[22]
In summary, the refugee and H&C analyses are
distinct, but they need not be based on distinct factual circumstances. Nothing
precludes a claimant in an H&C application from adducing evidence of facts
argued in a failed refugee proceeding. In such cases, the H&C
decision-maker is prohibited from repeating the refugee analysis or improperly
importing its standards, but nevertheless must still determine whether the same
facts, insufficient to ground a refugee claim, justify H&C relief. The
Supreme Court specifically recognized this point in Kanthasamy:
51 […] s. 25(1.3) does not prevent
the admission into evidence of facts adduced in proceedings under ss. 96 and
97. The role of the officer making a determination under s. 25(1) is to ask
whether this evidence, along with any other evidence an applicant wishes to
raise, though insufficient to support a s. 96 or s. 97 claim, nonetheless
suggests that “humanitarian and compassionate considerations” warrant an
exemption from the normal application of the Immigration and Refugee
Protection Act. In other words, the officer does not determine whether a
well-founded fear of persecution, risk to life, and risk of cruel and usual
treatment or punishment has been established — those determinations are made
under ss. 96 and 97 — but he or she can take the underlying facts into account
in determining whether the applicant’s circumstances warrant humanitarian and
compassionate relief.
C.
The Officer’s “Hardship” Analysis
[23]
The Applicants asked the H&C Officer to
consider the hardship they would experience if returned to Djibouti from two
perspectives. Their first argument was based on the same facts advanced in
their refugee claims: they submitted that, if returned to Djibouti, they would
face forced marriage and extremist religious schooling at the hands of their
mother. However, the Applicants’ second argument was that they would experience
hardship in Djibouti for reasons wholly unconnected to their mother, namely,
simply because they were women and members of the Issa tribe.
[24]
With respect to the first argument, I agree that
the Applicants, in substance, were asking the Officer to revisit determinations
made by the RPD and RAD. Indeed, in their written representations to the Court in
these Applications, the Applicants explicitly dispute the reasonableness of the
RPD and RAD decisions, saying that the RPD decision was based on minor
evidentiary inconstancies, a selective reading of the materials, and stereotypic
reasoning, and that the RAD was a mere “rubber stamp”
of the RPD decision.
[25]
Although it was open to the Applicants to pursue
their first argument, they faced a difficult task in attempting to overcome the
RPD and RAD’s credibility determinations in the particular factual backdrop in
this matter. As the Respondent points out, the Applicants’ new evidence was
merely corroborative of a story already found not to be credible (Gomez v
Canada (Citizenship and Immigration, 2005 FC 859 at para 5).
[26]
The Officer considered the Applicants’ new
evidence but did not believe that it was sufficiently credible to establish
that the Applicants’ mother would force them to marry or to attend an extremist
religious school if they returned to Djibouti. I agree with the Respondent that
this finding is entitled to deference. It follows, therefore, that the Officer
was not required to consider the “hardship” the
Applicants said they would face at the hands of their mother, or if they fled
their mother’s coercion, because the underlying factual circumstances were
found not to be credible. In other words, where an H&C applicant does not
establish certain facts relied upon, any hardship those facts might lead to need
not be considered by the H&C officer.
[27]
However, that does not end matters. The Officer
in this case accepted the Applicants’ second submission, which was that women in
Djibouti generally face unfavourable circumstances. In fact, the Officer expressly
acknowledged some of these conditions, finding that women in Djibouti « souffrent en effet de violence conjugale et aussi de discrimination
en matière d'emploi et d'héritage » ([translation] “are victims of spousal violence and discrimination based on
employment and heritage”). The Applicants’ counsel submitted several
pages of written representations before the H&C Officer squarely and
centrally addressing the hardship the Applicants said they would face as women and
Issa tribe members if returned to Djibouti, but the Officer did not consider
these arguments.
[28]
The Decisions that followed were organized under
only three subtitles: (i) « Identité »”
([translation] “Identity”), (ii) “Risques et
conditions défavorables dans le pays d’origine” ([translation] “Risks and unfavorable
conditions in the country of origin”), and (3) « Etablissement
et liens au Canada » ([translation] “Establishment and ties to Canada”). Of course, form
is not determinative, and the Decisions could have been considered reasonable
if they implicitly addressed the Applicants’ submissions on the hardship they
would face in Djibouti as women and members of the Issa tribe (including in the
Decisions’ pro forma sections). But the Decisions do not even mention
the word “hardship”.
[29]
While accepting that women in Djibouti face
adverse conditions, the Officer noted that the situation in Djibouti affected women
“in general” and not the Applicants “personally”, concluding that:
Je partage l'opinion de la requérante que la
situation générale des femmes à Djibouti notamment au niveau économique et
social est préoccupante. Les femmes souffrent en effet de violence conjugale
et aussi de discrimination en matière d'emploi et d'héritage. Cependant, la
requérante ne démontre pas que cette situation l'affecte elle à titre personnel
plutôt qu'indistinctement la majorité de la population de sexe féminin. Je suis
donc d'avis que les conditions défavorables à Djibouti ne justifient la
dispense ici demandée.
[translation] I share the applicant’s opinion that the overall situation of women
in Djibouti, especially at the economic and social level, is worrisome. Indeed,
women are victims of spousal violence and discrimination based on employment
and heritage. However, the applicant does not show that this situation affects
her personally, but rather most of the female population in general. It is
therefore my view that the unfavourable conditions in Djibouti do not justify
the waiver requested here.
[30]
While the precise meaning of this finding is
unclear (did the Officer mean that the Applicants would be sheltered from the
conditions faced generally by women, or that the Applicants would merely face
conditions borne by all women in Djibouti?), I accept the Applicants’ argument
that the Officer’s language evokes the error identified in Diabate. I
further agree with the Applicants that there was no need for them to lead
direct evidence showing they would “personally”
experience discrimination (Kanthasamy at paras 53-54). The Officer
should have inferred discrimination in the areas noted based on the Applicants’
membership in a group that faces discrimination. The amended Guidelines
underline this point:
In assessing
whether an applicant will be affected by discrimination, discrimination can be
inferred where an applicant shows that they are a member of a group that is
discriminated against. Evidence of discrimination experienced by others who
share the applicant’s profile is relevant under subsection 25(1), whether or
not the applicant has evidence that they have been personally targeted.
[Emphasis added]
[31]
This should have thus led the Officer to comment
on “hardship”, even if only briefly. But to omit
any such comment entirely was to provide — at least in this area — “unreasoned reasons”, and for me to simply accept
these reasons on account of deference would be tantamount to endorsing a blank
cheque.
[32]
In conclusion, I find that the Officer did not
engage with the Applicants’ evidence and submissions that they would experience
hardship as women and Issa tribe members if returned to Djibouti. This
component of the Applicants’ argument did not depend upon the Officer’s
acceptance of the facts found not to be credible by the RPD and RAD, and it was
squarely addressed in their written materials. The Officer’s Decisions were
therefore unreasonable.
[33]
Having regard to the above analysis, I would
summarize the key takeaways for the purposes of these Applications as follows:
1.
An H&C applicant may allege that he or she
will face “hardship” upon return to his or
country of origin, and such a circumstance must then be factored into the
consideration of whether to grant H&C relief;
2.
Where the alleged “hardship”
in the country of origin is based on facts found not to be credible in a failed
refugee claim, nothing precludes the applicant from raising those same facts in
an H&C application. However, it is the applicant’s onus to overcome those prior
negative credibility determinations;
3.
If “hardship” is
argued based upon facts that the H&C officer indeed accepts, the officer must
then consider whether “hardship” justifies
H&C relief, in a holistic, flexible, and equitable manner as required by Kanthasamy;
and
4.
The H&C officer must be careful not to
conflate the refugee analysis with the “hardship”
the applicant may face applying from abroad. For instance, an H&C applicant
need not show that adverse country conditions affect him or her more severely
than the general population. Further, an applicant need not lead direct
evidence of discrimination if he or she belongs to a group that experiences
discrimination.
IV.
Conclusion
[34]
Because the Officer did not consider whether the
Applicants would experience hardship in applying from Djibouti as women and
members of the Issa tribe, the Decisions were unreasonable. The Applications are
accordingly allowed. No questions for certification were argued and none arise.
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