Date: 20091222
Docket: IMM-2556-09
Citation: 2009 FC 1300
Ottawa, Ontario,
December 22, 2009
PRESENT: The
Honourable Madam Justice Snider
BETWEEN:
SHARAN PAUL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant, Mr. Sharan Paul, is a Hindu citizen of Bangladesh. He
arrived in Canada in August 2002, with a student visa. Prior to his departure
from Bangladesh, the Applicant allegedly began a relationship with the daughter
of a powerful Muslim man. He returned to Bangladesh in 2003 and 2004 and, he
submits, continued his relationship with this woman. The Applicant returned to Canada
and made a refugee claim on August 27, 2004 based on persecution from his
girlfriend’s Muslim family. In a decision dated August 18, 2005, the Refugee
Protection Division (RPD) of the Immigration and Refugee Board rejected the
claim on the basis that the Applicant was not credible.
[2]
In December 2006, the Applicant submitted an application for a
pre-removal risk assessment (PRRA) and, in August 2007, he submitted an
application for permanent residence from within Canada, pursuant to s. 25 of
the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (IRPA), on humanitarian and compassionate (H&C)
grounds. Both these applications were dismissed in two decisions made by the
same pre-removal risk assessment officer (the PRRA Officer). The Applicant has
sought judicial review of both decisions. The PRRA decision is considered by
this Court in Court File No. IMM-2558-09 and the application for judicial
review has been dismissed. The following constitutes my reasons for dismissing
the application for judicial review of the negative H&C decision.
[3]
Having determined that the judicial review of the PRRA decision should
be dismissed, the sole issue raised by this application is whether the Officer
erred by applying the wrong test for assessing risk.
[4]
While the overall decision of the Officer is reviewable on a
standard of reasonableness, the issue of whether the Officer applied the
correct test is a question of law reviewable on a standard of correctness (see Ramotar v. Canada (Minister of Citizenship and Immigration), 2009 FC 362, [2009] F.C.J. No. 472 at para. 12 (Ramotar); Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 47 and 50).
[5]
In an assessment of an H&C application, the
deciding officer must determine whether there is sufficient evidence to show
that an applicant would face unusual, undeserved or disproportionate hardship
in obtaining a permanent resident visa from outside Canada. Thus, the factual basis of a PRRA and H&C application may be
the same in respect of risk. However, in the context of an H&C application,
the decision-maker is required to consider whether a return to the country of
origin to apply for permanent residence would constitute unusual, undeserved or
disproportionate hardship. Although this test is not set out in the words of s.
25 of IRPA, it is well established in the jurisprudence (see Ahmad v. Canada
(Minister of Citizenship and Immigration), 2008 FC 646, [2008] F.C.J. No. 814 at para. 37; Ramotar,
above, at para. 13; Pinter v. Canada (Minister of Citizenship and
Immigration), 2005 FC 296, 44 Imm. L.R. (3d) 118 at
para. 3).
[6]
In this case, it is clear from the reasons that the Officer recognized that
a different test applied for H&C considerations:
Risk analysis in an H&C
application is based on criteria that are quite different from those assessed
by the RPD. We must be satisfied that there is an objectively identifiable
personalized risk to the applicant’s life or safety and that it results in
unusual and underserved or disproportionate hardship for the applicant.
[7]
The Applicant points out that the PRRA Officer
concluded that the Applicant indeed faces a generalized risk faced by Hindu
citizens of Bangladesh. He
argues that, while a determination of risk under s. 97 of IRPA requires
a personalized risk, risk assessed as part of an H&C application is not so
limited. In other words, the Applicant submits that unusual, undeserved or
disproportionate hardship can be found even where the risk to a person is
generalized.
[8]
I acknowledge a generalized risk can lead
to a determination that a person would suffer unusual, undeserved or
disproportionate hardship. However, recent jurisprudence of this Court has
indicated that there must be something more to a person’s allegation of risk
than a generalized risk. The decision of Justice Harrington in Chand v. Canada (Minister of Citizenship and
Immigration), 2009 FC 964, [2009] F.C.J. No. 1175
is illustrative. In Chand, Justice Harrington was considering a negative
H&C decision for a family from Guyana who claimed that they would be subject to the generalized risk
faced by all persons of Indo-Guyanese ethnicity. At paragraph 6, Justice
Harrington stated:
[T]he point the
officer made, which was quite reasonable, is that there are a great many
victims of crime in Guyana and
if, as country reports indicate, abuses are rampant in the schools, the Chands
would not find themselves in an unusual situation. They should not be in a
better position because they left Guyana, while others had to stay behind. As stated in [Ramotar,
above], it is not enough to be a likely victim of generalized crime. There
must be something more. [Emphasis added.]
[9]
In this case, because the Applicant’s allegations of
personalized risk were rejected, all that remained was his generalized risk as
a member of the Hindu minority in Bangladesh. With respect to the generalized risk, in the words of the PRRA
Officer: “Even though there are human rights problems in Bangladesh, I conclude
that he did not demonstrate that the risk could result in unusual and
undeserved or disproportionate hardship in his case”.
[10]
In sum, the Officer weighed all factors (alleged risk,
establishment, family factors) to find that “the hardship which he could face
is not unusual and underserved or disproportionate”. I am not persuaded that
there is a reviewable error.
[11]
For these reasons, the application for judicial review will be
dismissed.
[12]
Neither party proposes a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for leave and judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith A. Snider”
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