Date: 20061207
Docket: IMM-2577-06
Citation: 2006 FC 1464
Montreal, Quebec, December 7,
2006
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
FADI
EL DOUKHI
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, ch. 27 (IRPA) of a decision by a
delegate of the Minister of Citizenship and Immigration (Officer) finding that
there were insufficient grounds to warrant exempting Mr. Fadi El Doukhi’s
(Applicant) from the requirement that he obtain a permanent resident visa from
outside of Canada for humanitarian and compassionate considerations pursuant to
subsection 25(1) of the IRPA.
I. Facts
[2]
The
Applicant is a stateless Palestinian. He was born in 1976 in Saudi Arabia, the country
in which he lived until 1996. Between 1996 and 1998 he studied in Jordan. In 1998,
he attempted to return to Saudi Arabia, where his parents
still resided, but was denied entry as under Saudi Arabian law all persons who
have attained the age of majority require a work permit to be allowed to enter
the country. Having been refused entry to Saudi Arabia, the
Applicant travelled to Lebanon to the Ein el-Hilweh
refugee camp where he stayed with his paternal grand-parents.
[3]
In
2000, the Applicant moved to the United Arab Emirates. In June
2001, the Applicant returned to the Ein el-Hilweh refugee camp in Lebanon. On July
31, 2001, the Applicant left Lebanon and moved to Texas to study
English. In December 2001, the Applicant was made aware that his father could
no longer pay for his studies in the United States due to illness.
Moreover, around the same time the Applicant learnt that he could not continue
to study in the United States due to policy changes affecting foreign
students in the wake of the September 11, 2001 attacks.
[4]
Even
though his student status was revoked, the Applicant stayed in the United
States
until December
19, 2002.
During his stay of about 16 months in the United States the Applicant took no
steps to obtain asylum nor did he take any steps to obtain any type of status
during the period of about one year when he was illegally in the United
States.
On December
19, 2002,
the Applicant entered Canada via the Philipsburg, Quebec land border
and claimed refugee protection.
[5]
On
December
24, 2003
the Immigration and Refugee Board (IRB) rejected the Applicant’s refugee
protection claim.
[6]
On
April 22, 2004 this Court rejected his application for leave to commence a
judicial review of the IRB’s decision. On April 20,
2006,
the Applicant’s humanitarian and compassionate (H&C) application was
rejected by the Officer and on April 21, 2006 the same Officer rejected the
Applicant’s application for a pre-removal risk assessment (PRRA).
[7]
The
H&C application is the decision under judicial review.
[8]
It
is also important to note that the Applicant claims that after learning of the
rejection of his refugee protection claim in December 2003, he lapsed into a
bout of severe depression which prevented him from functioning normally and at
its worse led to him living on the streets of Montreal and
attempting to take his own life. He also claims to still be affected by this
illness.
II. Issues
(1) What are the
appropriate standards of review applicable to the issues raised in this
judicial review?
(2) Did the
Officer err by failing to take into account the Applicant’s statelessness in
his assessment of the Applicant’s H&C application?
(3) Did the Officer
violate procedural fairness by making findings relating to events that occurred
after the H&C application was submitted without having provided the
Applicant the opportunity to submit relevant evidence?
(4) Did the
Officer err in law by applying the threshold test to be used in the PRRA
context instead of the threshold test applicable in the H&C context?
(5) Did the
Officer err by finding that being returned to Lebanon would not
cause the Applicant unusual and undeserved or disproportionate hardship?
III. Analysis
(1) What are the
appropriate standards of review applicable to the issues raised in this
judicial review?
[9]
In
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 857-858, the Supreme Court of Canada determined
that the standard of review applicable to a decision of a delegate of the
Minister to reject an H&C application is that of reasonableness
simpliciter. Although Baker was decided under the previous Immigration Act,
R.S.C. 1985, c. I.2, the jurisprudence of this Court indicates that the
standard of review of reasonableness simpliciter is equally applicable to
decisions to reject H&C applications under IRPA (See Kaur v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1192 at para. 13; Liang
v. Canada (Minister of Citizenship and Immigration), 2006 FC 967 at para.
7; Dharamraj v. Canada (Minister of Citizenship and Immigration), 2006
CF 674). Thus, issue 5 will be reviewed on the standard of reasonableness
simpliciter.
[10]
Issues
2 and 3 both raise procedural fairness arguments. They will consequently be
reviewed on the standard of correctness as the Federal Court of Appeal has
determined that all allegations concerning procedural fairness are to be reviewed
on the correctness standard (Sketchley v. Canada (Attorney General), 2005 FCA 404 at
para.46).
[11]
Finally,
issue 4 will be reviewed on the correctness standard as it has been determined by
this Court that questions of law in the H&C context are reviewable on such
a standard (Yun
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1062 at para. 8; Masanganise v. Canada (Minister of
Citizenship and Immigration), 2004 FC 993 at para. 4).
(2) Did the
Officer err by failing to take into account the Applicant’s statelessness in
his assessment of the Applicant’s H&C application?
[12]
The
Applicant submits that the government created a legitimate expectation that his
statelessness would be taken into account during the Officer’s consideration of
his H&C application. This argument is premised on what was written by Mr.
Vito Vassallo, Region Director, Operations, Citizenship and Immigration Canada
(CIC), and Mr. Albert Deschamps, Acting Director General, CIC (Quebec Region), to
the Coalition Against the Deportation of Palestinian Refugees (Coalition), in
response to the Coalition’s request that statelessness be considered a
sufficient condition for finding that removal from Canada would constitute an
unusual and undeserved or disproportionate hardship. In his letter, Mr.
Vassallo stated that (Applicant’s Record, Affidavit of Jordan Topp, Exhibit C,
p.73):
…although
statelessness is a factor to consider in an H&C application, the officer
must take into consideration all of the circumstances of the case in order to
arrive at a decision, on a case by case basis.
Whereas Mr. Deschamps in his letter stated (Applicant’s
Record, Affidavit of Jordan Topp, Exhibit D, p.74):
Our
Immigration Officers are trained and required to take into account unusual,
underserved and disproportionate hardship, and although statelessness is a
factor to consider in an H&C application, our officers must also take into
consideration all of the circumstances of the case in order to arrive at a decision,
on a case by case basis.
[13]
The
Applicant submits that the letters written by Mr. Vassallo and Mr. Deschamps
respectively, which state that statelessness is a factor to consider in an
H&C application, are representations by the government that statelessness is
to be considered while assessing H&C applications. Thus, in the
Applicant’s view, an officer’s failure to consider statelessness while
assessing an H&C application would amount to a violation of procedural
fairness under the doctrine of legitimate expectation.
[14]
The
doctrine of legitimate expectation is based on the principle that the regular practices
of decision makers must be followed since it would be unfair for decision
makers to act in contravention of representations as to procedure. Moreover,
it has been accepted by the Supreme Court of Canada that where a legitimate
expectation is found to exist it would amount to a violation of procedural
fairness if the representations as to procedure were not followed (Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 26).
[15]
This
being said, Mr. Vassallo’s and Mr. Deschamps’ statements cannot be considered the
equivalent of a government representation as to how H&C applications will
be decided. The main reason being that the letters were sent for the sole
reason of rejecting the Coalition’s request that CIC consider statelessness, on
its own, a sufficient condition for finding that an applicant would face
unusual and underserved or disproportionate hardship if made to apply for a
permanent resident visa from outside Canada, the threshold required to succeed
in an H&C application (Inland Processing Manual 5, Immigrant Applications
in Canada made
on
Humanitarian or Compassionate Grounds, section 5.1). Thus, the letters
cannot be said to be “clear, unambiguous and unqualified” representations
as to the procedure to be followed by agents of the Minister when they are
accessing H&C applications, as is required by the Supreme Court of Canada
case law (see C.U.P.E. v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539 at para.
131).
[16]
Even
if the letters were meant to be representations as to the procedure to be
followed when accessing H&C applications, it is questionable that Mr.
Vassallo and Mr. Deschamps have the authority to procedurally tie all delegates
who assess H&C applications. This is especially true given that the
Minister issues Inland Processing Manuals for the precise purpose of detailing
the procedure that should be followed by Minister delegates when dealing with
immigration and refugee applications. Thus, accepting that letters
written by CIC employees can dictate the procedure that delegates must follow
when assessing applications would void the Inland Processing Manuals of all
purpose. Moreover, accepting that Mr. Vassallo’s and Mr. Deschamps’ letters dictated
the procedure that must be followed in assessing H&C applications would be
to allow the letters to fetter the discretion of all officers who determine
H&C applications.
[17]
Contrary
to the Applicant’s assertions, it is clear that the Officer did consider the
fact that the Applicant was stateless. The Officer notes the Applicant’s
citizenship as “stateless” (Tribunal Record, H&C Applications - Notes to
File, p.14), he then states (Tribunal Record, H&C Application Notes to
File, p.15): “The applicant is a 30 year-old stateless man, who is registered
as a Palestinian Refugee with the United Nations Relief and Works Agency
(UNWRA) in Lebanon.” Moreover,
the Officer conducts a very thorough analysis of the situation the Applicant
will face upon returning to Lebanon as a Palestinian
refugee living in a refugee camp, an analysis that in my opinion could only have
been conducted had the Officer been aware that by definition Palestinian
refugees are stateless.
[18]
Given
the reasons above, the doctrine of legitimate expectation has not been
triggered.
(3) Did the
Officer violate procedural fairness by making findings relating to events that
occurred after the H&C application was submitted without having provided
the Applicant the opportunity to submit relevant evidence?
[19]
The
Applicant argues that his right to be heard was violated because he was never
invited to submit an update to his file even though the Officer made
significant negative findings relating to events that are said to have occurred
between the time of the Applicant’s initial H&C application and the
Officer’s decision.
[20]
It
is to be noted that, the “significant negative findings” relate to the
Applicant’s bout of severe depression and his treatment of this condition. As
the bout of depression began three months prior to the initial filing of the
H&C application, the Applicant has only himself to blame for failing to
submit any information relating to this condition. It is well established in
the H&C context, that the burden is on the Applicant to submit all the
pertinent information to support his position. In the case at hand, the
Applicant failed to do so. Thus, the Applicant’s failure to present relevant
information cannot be blamed on the Officer.
[21]
To
this effect, in Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, the Federal
Court of Appeal determined that an officer reviewing an H&C application has
no duty to elicit evidence or to warn the applicant of the weaknesses of his or
her case. In the words of the Federal Court of Appeal (Owusu, above, at
para. 8):
…since applicants have
the onus of establishing the facts on which their claim rests, they omit
pertinent information from their written submissions at their peril.
[Emphasis added]
Moreover, more recently, Justice Shore wrote in Hamzai
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1108 at paragraphs 19-20:
19
A decision made on H&C grounds is an
exceptional measure and, moreover, a discretionary one. The existence of an
H&C review offers an individual special and additional consideration for an
exemption from Canadian immigration laws that are otherwise universally
applied. (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002]
F.C.J. No. 457 (QL), at paragraph 15.)
20
The onus is thus on an Applicant to satisfy the officer that there
are sufficient humanitarian and compassionate grounds to warrant a favourable
decision. The decision of an immigration official not to recommend an
exemption under s. 25 (1) of IRPA takes no right away from an individual, and
does not impede that person’s ability to apply for permanent residence in Canada from abroad.
[Emphasis added]
[22]
Consequently, as is
clear from the case law, the fact that the Officer did not invite the Applicant
to submit further evidence relating to his H&C application does not
constitute a violation of procedural fairness.
(4) Did the
Officer err in law by applying the threshold test to be used in the PRRA
context instead of the threshold test applicable in the H&C context?
[23]
The
Applicant submits that the Officer erred in applying the threshold test
applicable in the PRRA context instead of the one applicable to H&C
determinations. In the context of H&C applications, to be successful an
applicant must demonstrate that they would suffer ‘unusual and underserved or
disproportionate hardship’ if forced to apply for a permanent resident visa
from abroad (Inland Processing Manual 5, Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds, section 5.1). In contrast, in the context of a PRRA,
an applicant must demonstrate that they face a risk to life or cruel and unusual punishment if returned to
their country of origin, for their PRRA to be granted. The case law
clearly establishes that where a H&C decision maker applies the higher
threshold used in PRRAs in the context of an H&C application, the decision
maker erred in law and the Court must intervene (see Uddin v. Canada (Minister of Citizenship
and Immigration), 2003
FCT 316; Melchor v. Canada (Minister of Citizenship and Immigration),
2004 FC 1327; Liyanage v. Canada (Minister of Citizenship and Immigration),
2005 FC 1045).
[24]
As
evidence that the Officer applied the higher threshold applicable in PRRAs instead
of the lower threshold applicable in the H&C context, the Applicant points to
page 3 of the H&C Applications - Notes to File where the Officer writes (Tribunal
Record, H&C Applications - Notes to File, p.16):
… the
objective documentary evidence does not support the applicant’s conclusions
that the nature and severity of the situation amounts to persecution, or that Lebanese
State
policies or practices amount to persecution against the Palestinians.
The Applicant also points to page 5 of the H&C
Applications - Notes to File where the Officer states (Tribunal Record, H&C
Applications - Notes to File, p.18):
Although, the
conditions in the refugee camps are unfavourable, and although the Lebanese
government levies certain legal discriminations against Palestinians refuges,
in light of the their lack of Lebanese citizenship, these conditions are not of
such an intensity or nature as to constitute persecution.
[25]
Before
addressing whether this evidence is proof that the Officer applied the higher threshold
applicable in PRRAs instead of the one applicable in the H&C context, it is
essential to note that the Applicant raised the issue of persecution in his
submissions in support of it’s H&C Application as indicators that he would
face ‘unusual and underserved or disproportionate hardship’. This is
demonstrated in the following portions of the Applicant’s letter in support of
his application for permanent residence from within Canada based on
Humanitarian and Compassionate Grounds, dated March 21, 2005 (Applicant’s
Record, pp. 19-45) :
During this time, he was
also exposed to grievous hardship. Conditions in Ein el Hilweh refugee camp
were such that his security and his life were in danger. There, Mr. El Doukhi,
as a Palestinian refugee in Lebanon was subject to persecution by the Lebanese state….
[Emphasis Added]
(Applicant’s Record, page
20 at para. 5)
The cumulative
discrimination against Palestinian refugees by the Lebanese state amounts to
persecution…
(Applicant’s Record,
page 23 at para. 20)
The IRB, in reaching
this conclusion, failed to consider the persecution and grievous conditions
faced by Mr. El Doukhi, which are well supported by various reports on Ein El
Hilweh refugee camp and for Lebanon.
(Applicant’s Record,
page 24 at para. 23)
…The IRB erred in law in
failing to consider the Lebanese government’s treatment of Palestinian refugees
as acts of persecution imposed on Mr. El Doukhi.
(Applicant’s Record,
page 25 at para. 28)
[26]
Taking
into account the Applicant’s own submissions as to his risk of persecution, in
my view it is logical that the Officer would undertake an analysis as to
whether the Applicant would face persecution if returned to Lebanon. Furthermore,
the Officer was justified in using the term “persecution” in his decision, even
though he was dealing with an H&C application. Having read the Officer’s
decision, I can note that the Officer does not use the term “persecution” or
conduct an analysis as to whether persecution exists other than to respond to
the Applicant’s suggestion that he would face persecution as a Palestinian
refugee living in a refugee camp in Lebanon. Consequently, it is
acceptable, even though in the context of an H&C decision, that the Officer
arrived at the following conclusion (Tribunal Record, H&C Applications -
Notes to File, p.17):
… the
applicant has not satisfied me that conditions in the camp would amount to
unusual and underserved or disproportionate hardship. Although the conditions
in refugee camps are unfavourable, and although the Lebanese government levies
certain legal discrimination against Palestinian refugees, in light of their
lack of Lebanese citizenship, these conditions are not of such an intensity or
nature as to constitute persecution.
This being said, reading the Officer’s
decision as a whole it is clear that the proper threshold was applied. The
Officer on many occasions repeats the threshold applicable in the H&C
context and applies this standard to his review of the factual evidence.
Having
familiarised myself with the documents submitted by the applicant and with the
objective documentary evidence, I grant greater weight to the latter, as it
tends to make objective findings of fact based on first-hand observation and
expertise. Finally, I note that the applicant did not seek to obtain asylum
during the sixteen months he spent in the United States; this
appears incompatible with a subjective fear of persecution which the applicant
declares. In light of the information available to me, I conclude that the
applicant is not exposed to a level of risk that would constitute unusual and
underserved or disproportionate hardship.
And again on the same page, the Officer
writes (Tribunal Record, H&C Applications - Notes to File, p.18):
Although the
applicant has limited family in Lebanon, he has no family in
Canada, and he has not submitted evidence to support the claim that he has
developed “strong emotional, economic and familial bonds with his community
here in Canada”. While I
am sensate to the fact that the applicant would prefer to remain in Canada to
submit his application and that a return to Lebanon represents a certain degree
of inconvenience inherent in resettlement, in light of the information
submitted by the applicant, he has not demonstrated that he has developed a
significant degree of integration, or that he has developed links of such a
nature that his return to Lebanon would expose him to unusual, underserved or
disproportionate hardship.
[27]
Thus,
the so-called evidence pointed to by the Applicant does not demonstrate that
the Officer applied the higher threshold applicable in PRRAs instead of the lower
threshold applicable to H&C determinations. It is clear from reading the
decision as a whole that the Officer’s decision was made in the context of
evaluating the relevant factors raised by the Applicant and evaluating these
factors using the proper threshold applicable in the H&C context, namely
that an “unusual and undeserved or disproportionate hardship” must be
demonstrated.
(5) Did the
Officer err by finding that being returned to Lebanon would not
cause the Applicant unusual and undeserved or disproportionate hardship?
[28]
The
Applicant submits that since the Officer found that the “Lebanese government
levies certain legal discriminations against Palestinians” (Tribunal Record,
H&C Application Notes to File, p.17), the “overall conditions for Palestinian
refugees in Lebanon are indeed unfavourable and difficult for a majority of
Palestinians” (Tribunal Record, H&C Application Notes to File, p.17), and
that “Lebanese authorities harass and detain Palestinians” (Tribunal Record,
H&C Application Notes to File, p.17) it was unreasonable for the Officer
to determine that the Applicant would not be subject to unusual, underserved or
disproportionate hardship if returned to the Ein el-Hilweh refugee camp in
Lebanon.
[29]
It
must be noted that case law emanating from this Court has established that a
decision maker in the immigration process is not required to refer to each
piece of evidence that is before them and that only where evidence exists that
contradicts a delegate’s finding must such evidence be acknowledged (Thavachelvam
v. Canada (Solicitor General), 2004 FC 1604 at para. 13;
Figurado v. Canada (Solicitor
General), 2005 FC 347 at
para. 56).
In the case at hand, the Officer acknowledged the documentary evidence that
contradicted his findings. For instance, the Officer states (Tribunal Record,
H&C Application Notes to File, p.17):
The objective
documentary evidence partly corroborates the applicant’s documents, insofar as
it indicates that overall conditions for Palestinian refugees in Lebanon are indeed unfavourable
and difficult for a majority of Palestinians. It also indicates that, in its
efforts to control armed Palestinian militant groups operating from with the
refugee camps, Lebanese authorities harass and detain Palestinians….
[30]
Moreover,
the lack of reference to the Amnesty International Public Statement of April
2004 (Applicant’s Record, Amnesty International Public Statement dated April
13, 2004, “UN Committee’s recommendations to Lebanon: Need for
effective measures to protect the human rights of Palestinian refugees, page
57) is not fatal. The Amnesty International Public Statement of April 2004 reflects
the CERD 2003 Report to which the Officer made explicit reference in his
decision (Tribunal’s Record, H&C Application Notes to File, p. 18). As
stated in my analysis of issue 1, the standard of review applicable to H&C
decisions is that of reasonableness simpliciter. In other words, the Court on
judicial review can only overturn a negative H&C decision where “the reasons,
taken as a whole, are tenable as support for the decision” (Law Society of
New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 56). In the case at
hand, it appears to me that the Officer considered a variety of factors and the
evidence before him to conclude that the Applicant would not suffer unusual and
underserved or disproportionate hardship if he were to file his application for
permanent residence from abroad.
[31]
The
parties were invited to suggest questions for the purpose of certification, and
they have declined.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for
judicial review is dismissed.
- No questions will be
certified.
“Simon
Noël”
FEDERAL
COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE
NO.: IMM‑2577-06
STYLE OF CAUSE: FADI EL
DOUKHI
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL,
QUEBEC
DATE OF HEARING: NOVEMBER
28th, 2006
REASONS FOR JUDGMENT: The
Honourable Mr. Justice Simon Noël
DATED: December
7, 2006
APPEARANCES:
ME. JARED WILL FOR
THE APPLICANT
ME. EVAN LIOSIS FOR
THE RESPONDENT
SOLICITORS ON THE RECORD:
ME JARED WILL FOR
THE APPLICANT
MONTREAL, QUEBEC
MR. JOHN H. SIMS FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA