Date: 20100512
Docket: IMM-4982-09
Citation: 2010 FC 523
Toronto, Ontario, May 12, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
daojian
lin
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a citizen of China whose request for humanitarian
and compassionate relief under s.25 of the IRPA was rejected by the same
person (the H&C Officer) who decided both his pre-removal risk assessment
and his humanitarian and compassionate application.
[2]
In
the decision under review, the H&C Officer examined the Applicant’s case
history, including his establishment and ties in Canada but, importantly, also
the risks he would face should he return to China. There is no disagreement
that the risk considerations stated in the Applicant’s PRRA assessment are
duplicated in the H&C consideration. The primary risk considerations are
the Applicant’s loss of his hukou, and also the fact that, since he left China illegally, he would be subject to a criminal offence possibly punishable by up to one
year’s imprisonment upon his return. The facts related to these considerations
were quoted extensively in the decision under review with the single statement
of conclusion being as follows:
Consequently, I do not find that the applicant has
demonstrated that he would face unusual and undeserved or disproportionate
hardship in the event of a return to his country of origin.
(Decision, p.5)
[3]
Counsel
for the Applicant argues that the facts related to the risk have no essential
meaning without an analysis of how they relate to whether the Applicant should
receive humanitarian and compassionate relief. I agree with this argument.
[4]
It
is agreed that all humanitarian and compassionate factors, including risk, must
be considered together in a contextual manner in order to arrive at a
reasonable decision as to whether a particular person should be granted
humanitarian and compassionate relief. In my opinion, to arrive at a
reasonable decision, it is necessary for an H&C officer to exhibit an
empathetic understanding of the problems that a particular person would face
should he or she be required to return to his or her country of origin. In the
present case, the significant problems that Mr. Lin will face due to the loss
of his hukou, and the possibility that he will be imprisoned upon his return were
required to be addressed by the H&C Officer in an empathetic way. No such
analysis is provided in the present decision. Indeed, apart from the identification
of the risk considerations, and statements of fact with respect to those
considerations, there is no analysis as to why the Applicant would not suffer
undeserved or disproportionate hardship should he return to China. As a result, I find that the decision under review is unreasonable.
ORDER
THIS COURT ORDERS that:
The decision under review is set aside
and the matter is referred back to a differently constituted panel for
re-determination.
There is no question to certify.
“Douglas
R. Campbell”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4982-09
STYLE
OF CAUSE: DAOJIAN
LIN v. the minister of citizenship
and
immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 12, 2010
REASONS FOR ORDER
AND ORDER: CAMPBELL J.
DATED: MAY 12, 2010
APPEARANCES:
|
Andrew Brouwer
|
FOR THE APPLICANT
|
|
|
|
|
Veronica Cham
|
FOR THE RESPONDENT
|
|
|
|
SOLICITORS OF RECORD:
|
Jackman & Associates
Barristers & Solicitors
Toronto, Ontario
|
FOR THE APPLICANT
|
|
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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