Date: 20091117
Docket: IMM-5573-08
Citation: 2009 FC 1169
Montréal, Quebec, November 17, 2009
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
HATEM
ASHOUR ISSA ABOUDAIA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001 c. 27 (the Act), for judicial review of a
decision by a pre-removal risk assessment officer (the officer). In a decision
dated October 30, 2008, the officer rejected the application by Hatem Ashour
Issa Aboudaia (the applicant) for exemption from the requirement to submit a
permanent resident visa application from outside Canada, based on humanitarian
and compassionate grounds (the H&C application).
FACTS
[2]
The
applicant is a Libyan citizen of Amazigh origin.
[3]
Travelling
on a student visa, he arrived in Canada on May 12, 2000, and
claimed refugee status. The Immigration and Refugee Board (the IRB) rejected
his claim.
[4]
In
2003, the applicant submitted the H&C application that is the basis of this
dispute.
[5]
The
applicant stated that he had had a series of jobs and managed his own business
in Canada, but he
never declared income of more than $5,000. He does not appear to have taken any
language or vocational training courses and did not otherwise integrate into
Canadian society (for example, through volunteer work).
[6]
The
officer rejected the applicant’s application, concluding that he would not face
unusual, undeserved or disproportionate hardship should he return to Libya. After setting
out the above-noted facts, she determined that the applicant’s ties to Canada and his
degree of establishment here were insufficient to justify the exemption sought.
[7]
With
respect to the risks the applicant would face on his return to Libya, the officer
reviewed the IRB’s findings that the applicant’s allegations of persecution
were not plausible. She examined the documentary evidence on Libya, which was
to the same effect: Libya monitors the movements of its citizens, in
particular, dissidents, and the applicant would not have been able to travel as
he did if he really were wanted. The officer also noted that the applicant did
not appear to have a criminal record in Libya in 2004, and
that it was not clear exactly why he would be wanted by the authorities there.
[8]
Despite
the lack of evidence on this point, the officer recognized that the applicant
was a member of the Amazigh minority, which has historically been discriminated
against. However, she also took into account that conditions for this minority
have recently improved, as reported in the 2007 “U.S. Country Report” on Libya. The officer
[translation] “determined . .
.that any risk the applicant would face to his physical or psychological
integrity based on his ethnicity could not be characterized as an extreme hardship
justifying an exemption.”
[9]
The
applicant disputes this finding and contends that the officer applied the wrong
test in reviewing his application.
ANALYSIS
[10]
The
question of the test to be applied to an exemption application based on
humanitarian and compassionate considerations is a question of law, and the
appropriate standard of review is correctness. (See Singh v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1263, at para. 16.)
[11]
The
applicant submits that the officer applied the wrong test in law by finding “that
any risk the applicant would face to his physical or psychological integrity based
on his ethnicity could not be characterized as an extreme hardship
justifying an exemption.” [Emphasis added].
[12]
Indeed,
the test, taken from the “Immigration Manual: Inland Processing”, and set out
in the jurisprudence, is “unusual and undeserved or disproportionate hardship”
not extreme (see, in particular, Legault v. Canada (Minister of Citizenship
and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 at paras. 20 to 28 ;
see also Rafieyan
v. Canada (Minister of Citizenship and Immigration), 2007 FC 727, [2007] F.C.J. No. 974 (QL) at
para. 40).
[13]
The
applicant acknowledges that the officer cited the appropriate test at the
beginning and the very end of her reasons. However, he considers the passage in
which the officer used the word “extreme” to be crucial to the decision since,
unlike the introduction and conclusion, it applied the test to his particular
case. The officer recognized that the applicant could face hardship based on
his ethnicity, and it is in the same passage of her reasons that she set out the
wrong test of “extreme” hardship. He relies on Mr. Justice Pinard’s decision in
Rebaï v. Canada (Minister of Citizenship and Immigration), 2008 FC 24,
which held that a decision in which the officer had twice
referred to an incorrect test was wrong in law and had to be set aside.
[14]
For
his part, the Minister maintains that, in speaking about [translation] “extreme hardship”, the
officer was not trying to articulate the test that she used in analyzing
the applicant’s H&C application. In any event, in the Minister’s view, the
officer found that the applicant [translation]
“does not face any hardship [related to his ethnicity], whether it be unusual,
undeserved, disproportionate or extreme. The choice of the last word is of no
consequence.”
[15]
In
the alternative, the Minister maintains that the use of the term “extreme
hardship” is, at the most, [translation]
“a case of awkward language”. It has no real consequence because it is clear
from the decision as a whole that the officer applied the appropriate test. I
concur.
[16]
The
officer’s use of the word “extreme” is more a case of awkward language than the
imposition of too high a burden. According to the Petit Robert de la langue
française, one of the meanings of “extreme” is [translation] “reaching the highest point . . . or a very high
degree”. “Intense” and “extraordinary” are synonyms. “Disproportionate” means [translation] “of very great importance,
intensity” and its synonyms include “enormous”, “excessive”, “extraordinary”
and even “infinite”. Thus, the meaning of the word used by the officer and of
the word that is part of the test set out in the jurisprudence is very close,
if not completely identical.
[17]
It
is true, of course, that applying a truly incorrect test vitiates the
administrative decision. That is what happened in Rebaï, supra, on
which the applicant relies. The officer in that case found that “[t]he
applicant has not demonstrated a personal risk to his life or safety if
he were to return to Algeria” [emphasis added] (para.
9). Mr. Justice Pinard concluded that “[c]learly, the PRRA Officer
specifically stated and applied a higher standard than appropriate for H&C
decisions.” Since the test of risk causing unusual, undeserved or
disproportionate hardship
is not limited to risks to an applicant’s life or safety, the
officer made a serious error caused by importing the test that applies to a
separate procedure (a pre-removal risk assessment). This is a far cry from
using a synonym, as in this case.
[18]
My
decision in Sha’er v. Canada (Minister of Citizenship and Immigration),
2007 FC 231, where the officer had also applied the test for a PRRA procedure to
an H&C application, and Mr. Justice Sean Harrington’s decision in Sahota v. Canada
(Minister of Citizenship and Immigration), 2007 FC 651, [2007] F.C.J. No. 882 (QL), where the officer had not examined any
factor relevant to the H&C application in question other than risk, are
also of no assistance to the applicant.
[19]
In
my view, the fact that the officer reformulated the test, while remaining close
to its literal meaning, before and after quoting it verbatim, suggests that she
understood it. Accepting the applicant’s argument would force officers to
mechanically recite the established test, which would only result in masking
the degree of real understanding that each agent has of the test to be applied.
A careful reading of the reasons for decision satisfies the Court that the
officer knew and applied the appropriate test.
[20]
According
to the applicant, beyond the words used, the analysis of the officer’s reasons
for decision shows that she imposed too high a burden, thus committing a
determinative error of law. With respect, I am not persuaded of this. It is
clear from the reasons for her decision that the officer reviewed the evidence
and did not find that the applicant would face unusual or disproportionate
hardship should he return to Libya, particularly because he was not a
dissident nor was he wanted by the authorities. Moreover, the officer found
that discrimination against the Amazighs was not such that the applicant would
face “extreme” hardship based on his ethnicity. The applicant did not explain
how, in what way, the officer’s finding would have been different had she
spoken about “disproportionate” hardship rather than “extreme”.
[21]
For these reasons, this application for judicial review is
dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial review is
dismissed.
“Danièle
Tremblay-Lamer”
Certified
true translation
Mary
Jo Egan, LLB
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