Date: 20100323
Docket: IMM-4568-09
Citation: 2010 FC 329
Ottawa, Ontario, March 23, 2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
NELICA
LURETTA DURRANT
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The Applicant applies pursuant to s.72 (1) of
the Immigration and Refugee Protection Act, S.C. 2002 c. 27 (IRPA)
for judicial review of the July 28, 2009 decision of Immigration Officer A.
Dello (Officer) refusing her application to apply for permanent residence from
within Canada on humanitarian and compassionate grounds (H&C).
[2]
For
reasons that follow, I am granting the application for judicial review.
BACKGROUND
[3]
The
Applicant moved to Canada in 1998 from St. Vincent. She was fleeing abuse
at the hands of her common-law partner. She is a 36 year old woman who aspires
to become a registered nurse. She is currently working as lead hand with a
cleaning/janitorial service company.
[4]
The
Applicant says she left St. Vincent because her former
common-law partner is a threat to her safety. She alleges he beat her,
threatened her and abused her emotionally. She says she sought the help of
police, but they did nothing to protect her.
[5]
The
Applicant was denied refugee status in Canada. She had
applied for a pre-removal risk assessment (PRRA) which was also denied.
[6]
Ms.
Durrant sought to apply for permanent residency from within Canada on H&C
grounds. Since arriving here the Applicant has integrated into life in Canada. Her
application includes letters of support from her employers, colleagues,
friends, landlord and pastor. She volunteers regularly as a member of her church
congregation. Except for her first six months in Canada the
Applicant has been continuously employed.
[7]
The
Officer who decided the H&C application at issue here had also conducted
the pre-removal risk assessment (PRRA). The Officer denied the H&C
application.
[8]
The Officer considered the evidence before her
in reaching her decision. She reviews it in her reasons and bases her
conclusion on the following findings, some of which are contested by the
Applicant:
·
Given the opportunity to “update” her
application, the Applicant did not provide any details
of risk in St. Vincent.
·
The Applicant has not established herself to
such a degree in Canada that
applying from outside Canada
for permanent residency would result in undeserved, unusual, or
disproportionate hardship.
·
No evidence demonstrates her emotional ties in Canada are greater than those overseas.
·
While the Applicant may face some difficulty in
reintegrating in St. Vincent, there is insufficient evidence that it would
amount to hardship.
·
It is not unreasonable to assume some support
from her mother and four siblings would be forthcoming should the need arise.
·
There is insufficient evidence to suggest the
Applicant would not be able to continue to support her mother financially
should she be returned to St. Vincent because she has acquired skills in Canada that would increase her chances of
employment and opportunity in St. Vincent.
ISSUES
[9]
The
Applicant raises two issues:
a.
Did the
Officer make reviewable errors of fact based on findings unsupported by the
evidence?
b.
Did the
Officer err in law by ignoring evidence of possible hardship faced by the
Applicant?
STANDARD
OF REVIEW
[10]
The parties agree the applicable standard of
review is reasonableness.
[11]
In Kastrati v. Canada (Minister of Citizenship
and Immigration), 2008 FC 1141 at paras. 9-10, the court stated:
The Supreme Court of Canada in Dunsmuir
v. New Brunswick, 2008 1 S.C.R. 190, determined that there are now
only two standards of review: correctness and reasonableness (para. 34).
The standard of correctness
applies to questions of law, of natural justice, or of procedural fairness
while the standard of reasonableness applies to questions of fact or mixed
facts and law.
[12]
I find this application involves questions of mixed fact and law
and fact reviewable on a standard of reasonableness.
[13]
In addition, I keep in mind in Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 59 where the
Supreme Court of Canada stated:
“Reasonableness
is a single standard that takes its colour from the context. One of the
objectives of Dunsmuir was to liberate judicial review courts from what came to be seen
as undue complexity and formalism. Where the reasonableness standard applies,
it requires deference. Reviewing courts cannot substitute their own
appreciation of the appropriate solution, but must rather determine if the
outcome falls within "a range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (Dunsmuir, at para. 47). There might be more than one reasonable outcome.
However, as long as the process and the outcome fit comfortably with the
principles of justification, transparency and intelligibility, it is not open
to a reviewing court to substitute its own view of a preferable outcome.”
ANALYSIS
[14]
The
Applicant submits the H&C Officer:
a.
made
findings based on errors of fact and speculation;
b.
overlooked
the Applicant’s letter shedding more light on her fear of returning to St. Vincent; and
c.
ignored information
in the application concerning her fear of returning to St. Vincent;
Did the Officer make findings
based on errors of fact and speculation?
[15]
The
Officer found in error that the Applicant has four siblings in St. Vincent. It is clear
from the application Ms. Durrant has only two sisters in St. Vincent. Her three
brothers all live away from the island.
[16]
The
Officer also speculates the Applicant’s mother and siblings could support her
in St.
Vincent.
This is an awkward conclusion given the Applicant’s evidence in her application
indicates her two sisters suffer from mental illness and require burdensome
attention provided by their mother who in turn receives support from Ms.
Durrant.
[17]
Applicants
for H&C exceptions must meet a high threshold. A change in economic
circumstances does not justify the exception. Mr. Justice James Russell found
in Pashulya v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1275 at para. 43:
“This Court
has repeatedly held that the H&C process is designed not to eliminate the
hardship inherent in being asked to leave after one has been in place for a
period of time, but to provide relief from "unusual, undeserved and
disproportionate hardship" caused if an applicant is required to leave
Canada and apply from abroad in the normal fashion. That the Applicant must
sell a house or car or leave a job or family is not necessarily undue or
disproportionate hardship; rather it is a consequence of the risk the Applicant
took by staying in Canada without landing (Irimie v. Canada (Minister of
Citizenship and Immigration) (2000), 10 Imm. LR. (3d) 206 at paras. 12, 17,
26 (F.C.T.D.); Mayburov v. Canada (Minister of Citizenship and Immigration) (2000), 183
F.T.R. 280 at para. 7; Lee v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J.
No. 139, 2001 FCT 7 at para. 14).”
[18]
While
the Officer’s errors are problematic, they are not sufficient to justify
reviewing the Officer’s decision. Given the high threshold for humanitarian and
compassionate consideration, I am not convinced the Officer would have
concluded in favour of the Applicant on these grounds alone had her findings of
fact been accurate.
Did
the Officer overlook the Applicant’s letter?
[19]
The
record contains an undated letter signed by the Applicant which amplifies on
her experiences of abuse. The Applicant contends this letter was included in
her updated submissions. The Officer has sworn in an affidavit that the letter was
not in the applicant’s H&C file and she therefore could not have referred
to it in the process of making her decision.
[20]
I
make no findings with respect to the credibility of this letter. But, I cannot
conclude it was a part of the file as the Applicant urges me to. The
Applicant’s file was assembled in various steps and submitted in parts at
different times. The Respondent notes there is a second H&C application
from the Applicant and that some documents do not necessarily correspond to the
H&C application presented to the Court. It seems to me to be more probable
the letter was not properly submitted in this application and therefore was
never before the Officer.
Did the Officer ignore information in the
application concerning her fear of returning to St. Vincent?
[21]
It
is not uncommon for one Immigration Officer to determine an immigrant’s PRRA
and H&C application. As was done here, the assessment of one follows on the
heels of the other. Ideally, the officer’s familiarity with the file leads to
better decisions. However, this Court has expressed concern on occasion from
some adverse consequences of this practice.
[22]
One
source of errors is in the assessment of risk factors between the two applications
because the standard in each is different. PRRAs assess the risk of removal to
a person’s life or the potential for cruel and unusual treatment, whereas H&C
considerations contemplated in section 25 of the Act concerns “unusual
or undeserved hardship” which can include an element of risk on return.
[23]
Mr.
Chief Justice Allan Lutfy found in Pinter v. Canada (Minister of
Citizenship and Immigration), 2005 FC 296 at para. 5, an officer should
not “close her mind” to risk factors in an H&C application because they
didn’t meet the standard in the PRRA application. The Chief Justice found to do
so is an error of law.
[24]
In Ramirez v. Canada (Minister of Citizenship and Immigration), 2006 FC 1404, Mr. Justice Yves de Montigny also considered the
difference between risk factors as they relate to PRRAs and how those same
factors affect an H&C analysis pursuant to section 25 of the Act. He
found at paras. 45 and 46:
While it may
be that violence, harassment and the poor health and sanitary conditions may
not amount to a personalized risk for the purposes of a PRRA application, these
factors may well be sufficient to establish unusual, undeserved or
disproportionate hardship…
…What is crucial…is
that the assessment be done against the proper standard and criteria relevant
to each analysis. In the context of an H&C application, Chapter IP 5 of the
Immigration Manual published by Citizenship and Immigration Canada provides
useful guidance. Unusual and undeserved hardship is described as a hardship
"not anticipated by the Act or Regulations" or resulting of
"circumstances beyond the person's control," while disproportionate
hardship is described as a hardship that "would have a disproportionate
impact on the applicant due to their personal circumstances."
[25]
The
initial H&C application in this case was received by Citizenship and
Immigration Canada (CIC) in April of 2006. It was not decided until 2009.
During that time the CIC sent a letter to the Applicant dated October 16, 2008
asking for an updated application. The letter included:
Before a decision is made about exempting
you from the requirements of the Immigration and Refugee Protection Act, we
are giving you an opportunity to update your H&C submissions. Also, please
provide an updated application…Please send the requested
information/documents to this office within thirty (30) days of the date of
this letter. If you do not, the decision about your exemption will be
made, based upon the information on your file.
(emphasis added)
[26]
The
CIC received “updated submissions” on June 29, 2009. At this point, there were
two H&C application forms before the officer.
[27]
In
her April, 2006 application the Applicant entered the following under the
question, “What excessive hardship will you suffer if you have to submit your application
at a visa office outside Canada as required by law?”:
I WILL LOSE ALL THE ADVANTAGES, I HAVE
GAINED IN THIS COUNTRY.
I FEAR IF I RETURN TO ST. VINCENT, I WILL BE HARMED. I INITIALLY MADE A CLAIM FOR
REFUGEE PROTECTION BUT WAS UNSUCCESSFUL.
INSPITE [sic] OF THIS NEGATIVE DECISION, I
STILL FEAR FOR MY SAFETY
IN ST.
VINCENT.”
(emphasis added)
[28]
The
updated 2009 application contains updated employment information and more
letters of support. It does not include the allegations of abuse and fear for
her safety.
[29]
The
Applicant sent handwritten letters from herself, her mother and a friend in
November of 2007. These letters outlined some of the abuse the Applicant
suffered at the hands of her common-law partner. In addition to allegations of
beatings including one sending the Applicant to the hospital, she wrote: “I recently
received threats from [the ex-common law partner] stating that he is still
waiting for me and if ever I do came back to St. Vincent and refuse to be with
him; he will kill me.”
[30]
The
letters from the Applicant’s mother and friend both indicate they have
witnessed the former common-law partner beat the Applicant. These letters were
stamped with their date of receipt by the Pre-Removal Risk Assessment Office
and presumably taken into account in the eventual refusal of the PRRA
application on July 27, 2009.
[31]
A
day later after issuing the PRRA decision, the Officer rendered her decision
with respect to the H&C application. She wrote:
The applicant was asked to provide
updated submissions on October 16, 2008 which clearly states that the risk and
non-risk elements would be considered in the H&C application. Updated
information was provided on June 26, 2009, however no statements or evidence of
a risk was presented. I also acknowledge statements made in the applicant’s
PRRA submission and letters written by her friend and mother with respect to
her fear of physical, sexual and psychological abuse if she returns to St.
Vincent. However, as stated above the information pre-dates the request for
more current information on her request for an exemption and as such was not
considered within this application. The concept of risk is forward looking
and it would be reasonable to expect the applicant to provide information about
her risk of return when she asked for updates if she felt it was a crucial
factor to consider.
(emphasis added)
[32]
The
Officer compartmentalized the evidence used for the July 27, 2009 PRRA decision
and the July 28, 2009 H&C decision. The effect of this distinction is that
risk was assessed in one case, but not the other.
[33]
The
Officer acknowledges the risk the Applicant says she faces if returned to St. Vincent but does not
consider it in her assessment of hardship in the H&C application. Instead,
she explicitly ignores the Applicant’s evidence of risk because it pre-dates
the request for more current information. The Officer provides no justification
for this distinction besides her expectation the Applicant should have
re-provided the same information if it was critical.
[34]
The
Applicant submits she provided an updated application pursuant to the request
for such, but relied on her previous submissions concerning fear of abuse as a
ground of “excessive hardship”. I find this is a reasonable conclusion, even
more so because of the wording of the October 16, 2008 letter. The letter
states the CIC is offering the Applicant a chance to update her submissions,
and it asks her to submit an updated application. Where the Applicant has new
information, such as her place of employment, she provides an update. The
letter does not state everything must be resubmitted or information in the
first application becomes irrelevant. It was reasonable for the Applicant to
conclude her report of risk made initially would be considered.
[35]
I
find that by ignoring evidence submitted by the Applicant initially because it
was not “updated”, the Officer has “closed her mind” to relevant information.
This is a reviewable error of law.
CONCLUSION
[36]
I
allow the application for judicial review. The H&C application is to be
remitted to a different officer for re-determination.
[37]
The
Applicant may submit the excluded letter in the re-determination if it is
properly signed and dated. She may also enter any other information to ensure a
complete H&C application is before the Immigration Officer.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application for judicial review is allowed.
2. The decision
of Officer A. Dello is set aside.
3. The matter is
to be remitted to another officer for consideration.
4. The Applicant
may properly submit her details of abuse and fear of returning to St. Vincent,
in addition to whatever other information, for scrutiny by the new officer.
“Leonard
S. Mandamin”
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