Date: 20090127
Docket: IMM-2758-08
Citation: 2009 FC 80
Ottawa, Ontario, January 27,
2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CHUKS NWAWULOR EBONKA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by a Pre-Removal Risk
Assessment (PRRA) Officer, dated April 30, 2008, denying the applicant’s
application for an exemption from permanent resident visa requirements on humanitarian
and compassionate (H&C) grounds.
FACTS
[2]
The
applicant, a 40 year old citizen of Nigeria, arrived in Canada on March 13,
2005 and filed a claim for refugee protection. His refugee claim was rejected
by the Refugee Protection Division (RPD) of the Immigration and Refugee Board
on August 31, 2005. His application for leave to apply for judicial review was
denied.
[3]
The
applicant met his wife, a permanent resident of Canada, in May 2005
and they began a relationship. The applicant was employed as a forklift
operator.
[4]
In
March 2006, the applicant was injured in an accident when he was hit by a
pick-up truck while crossing the street. The applicant sustained significant
injuries and was unable to continue working. The driver’s insurance company
admitted liability, but the applicant has pending civil litigation relating to
this accident and is still receiving income replacement benefits, medical
treatment and rehabilitation for his injuries, and employment retraining. The
applicant states that he would not be entitled to any of these benefits and
programs if he was not in Canada. He currently supports his wife and two
year-old stepson, who was born during the course of their relationship.
[5]
The
applicant filed an H&C application on May 18, 2006. The applicant and his
wife were married on July 18, 2006.
[6]
The
applicant has two children in Nigeria, who live with their
mother, a woman the applicant had a relationship with in his twenties.
[7]
On
June 4, 2008, the applicant received negative H&C and PRRA decisions and
was ordered deported. The applicant filed for leave to appeal the H&C
decision.
[8]
On
July 8, 2008, the applicant was granted leave and a stay of deportation.
Decision under review
[9]
In
denying the applicant’s application, the officer considered the following
factors:
1.
the
country conditions in Nigeria and the risk of harm to
the applicant if returned;
2.
the
applicant’s degree of establishment in Canada;
3.
the
applicant’s relationships and familial ties in Canada; and
4.
the
hardship the applicant would face in re-locating to Nigeria.
[10]
The
applicant submitted that he was unwilling and unable to return to Nigeria because of
his fear of persecution as a member of the opposing political party and the
targeting of his family by the ruling political party. The H&C officer
noted that the applicant’s refugee claim had been denied based on a negative
credibility assessment, and stated that although he was not bound by the RPD’s
finding, he gave considerable weight to it. The officer reviewed the country conditions
in Nigeria, finding
that little had changed since the applicant’s refugee hearing. He concluded:
While the country conditions in Nigeria
may not be ideal, there is no persuasive evidence before me to indicate the
applicant would be subject to any conditions not experienced by the population
in general if returned to Nigeria. Therefore, I find the
applicant has provided insufficient objective evidence that he would face
unusual, undeserved, or disproportionate hardship if required to apply for a
permanent resident visa from outside Canada.
[11]
The
officer found that the applicant had been continuously employed, but from the
time following his accident, the applicant’s replacement income from the
insurance company, along with his wife’s assistance, allows him to manage
without government assistance. The officer was satisfied with the applicant’s
employment history and accepted that the applicant had made ties to the
community through his volunteer work and church membership. However, the
officer found that these ties were not sufficient to show that the applicant
had established himself in Canada to such a degree that removal would cause
him to suffer unusual, undeserved or disproportionate hardship.
[12]
Finally,
the officer considered the applicant’s relationships and familial ties in Canada. The
officer recognized that the applicant was married to a Canadian permanent
resident, and stated that it was “understandable” that they wished to remain
together. The officer stated:
However, I note family separation is a
general result when family members are residents of other countries and the
associated hardships related to emotional and financial support, are not in isolation
to hardships faced by others whose family unites have been separated in the
same manner. I accept that family reunification is a strong factor to
consider, however, I note when the applicant left Nigeria he left his mother and two sons behind.
Although he does not want to be separated from his wife, previous history
demonstrates that separation is not an unusual hardship in that he has been
separated from his mother and two sons for an extended period of time.
[13]
Finally,
the officer considered the applicant’s medical difficulties and the potential
hardships of re-locating to Nigeria. He found that the
applicant had spent his formative years in Nigeria, worked and
was educated there, and had friends and family there to ease his transition.
With regards to the applicant’s medical issues, the officer stated:
I note the applicant is receiving
physical treatment and rehabilitation following his involvement in a motor
vehicle accident. However, the applicant has not provided any evidence to
demonstrate that he would not be able to access the same physical treatment and
rehabilitation upon his return to Nigeria.
Moreover, I find the applicant has provided insufficient objective evidence
that he has any medical issues or other special needs that need to be addressed
in Canada.
[14]
The
officer therefore concluded that the applicant had not established that he
would experience unusual, undeserved or disproportionate hardship if he
returned to Nigeria, and that
his personal circumstances did not warrant an exception from the normal
processing requirements.
ISSUES
[15]
The
applicant raises two issues in this application:
1.
Did the
officer err in law by applying the incorrect test in determining whether an
H&C exception was warranted?
2.
Did the
officer fail to consider relevant evidence about the applicant’s personal
circumstances?
STANDARD
OF REVIEW
[16]
The
applicant submits that while reasonableness is the appropriate standard of
review for H&C decisions, the issue of whether the officer applied the
correct legal test is a question of law and is therefore subject to a standard
of review of correctness. The legal question of whether the officer stated the
appropriate legal test is subject to a standard of correctness. However, in so
far as the applicant’s submissions on the first issue argue that the test was
incorrectly applied to the facts of this case, the appropriate standard of
review is reasonableness.
[17]
With
regard to the second issue of whether the officer failed to consider relevant
evidence, the appropriate standard of review is reasonableness. See: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 62.
ANALYSIS
Issue
No. 1: Did the Officer apply the correct test for an H&C application?
[18]
The
applicant submits that the officer did not distinguish between the threshold
under the PRRA test and the threshold under the H&C test in determining
whether the applicant faced sufficient risk upon return to warrant an
exception. The applicant submits that the officer erred in assessing the
applicant’s “risk” rather than the applicant’s “hardship” upon return, citing
the officer’s references to the applicant’s risk of persecution upon return.
For example, the applicant states at page 135-6 of the Application Record:
It is submitted that the same officer
that decided the Applicant’s PRRA also decided his H&C application, but in
doing [so] imported some of the same conclusions from the PRRA decision
concerning risk into the H&C analysis with respect to hardship…It is
submitted that this is an error of law as the notion of hardship is notably
broader than “risk”…The officer was required to assess “hardship,” not risk.
For example, the financial loss to his family and his inability to work and
provide financial assistance to his family in Canada was ignored.
[19]
With
respect, it appears that the applicant misunderstood the officer’s reasons.
The officer was considering, as one of the factors in determining the hardship
faced by the applicant, whether the applicant was at a risk of persecution such
that returning to Nigeria would pose an unusual, disproportionate or
undue hardship. The officer clearly stated:
In his request for exemption, the
applicant has identified a risk of harm…
Additionally, please refer to the PRRA
decision dated 28 April 2008, in which I was the pre-removal risk assessment
officer who examined the applicant’s allegations of risk against the criteria
set out in section 96 and 97 of the Immigration and Refugee Protection Act.
However, in the context of this H&C application, risk is considered
in the context of the applicant’s degree of hardship.
…While the country conditions in Nigeria may not be ideal, there is no
persuasive evidence before me to indicate the applicant would be subject to any
conditions not experienced by the population in general if returned to Nigeria. Therefore, I find the
applicant has provided insufficient objective evidence that he would face
unusual, underserved, or disproportionate hardship if required to apply for a
permanent resident visa from outside Canada.
[Emphasis added]
[20]
It
is clear that the officer was aware of the appropriate H&C threshold, and
that his reference to the term “risk” was not in relation to the threshold
required but rather as a factor in establishing hardship. The officer applied
the correct test, whether the applicant would face unusual, disproportionate or
undeserved hardship, in considering this factor.
[21]
The
applicant’s submission that the officer ignored evidence about the applicant’s
financial hardship is a separate issue that is relevant in considering whether
the officer’s decision was reasonable. It does not establish that the officer
was unaware that the H&C test includes factors other than risk, as the
officer clearly considered factors such as the applicant’s degree of
establishment and familial ties in Canada. This submission will
be considered under the second issue, i.e. whether the officer ignored relevant
evidence in reaching his decision.
Issue No. 2: Did the
Officer err by ignoring relevant evidence?
[22]
The
applicant submits that the officer ignored relevant evidence relating to the
country conditions of Nigeria, as well as the
applicant’s degree of establishment. I will also consider the earlier
submission relating to the applicant’s financial hardship if returned to Nigeria.
[23]
The
applicant argues that because the officer considered “risk” rather than
“hardship,” he ignored evidence that may not have been sufficient to meet the
higher threshold of risk but may have been sufficient to constitute hardship. At
the hearing before the Court, the applicant’s counsel described the evidence in
the record before the H&C officer about the economic conditions in the
Niger Delta region of Nigeria which constitute hardship,
but not risk. The H&C decision did not deal with this evidence, in
particular the evidence about the severe unemployment and poverty in the region
where the applicant would be returned. This evidence could constitute hardship
for the purposes of an H&C but was never considered by the H&C officer.
[24]
The
applicant also submits that the officer minimized the factors supporting the
applicant’s degree of establishment, including his employment, social,
cultural, familial and economic establishment in Canada. The
applicant submits that the officer failed to examine the evidence in its
totality with regard to the particular circumstances of the applicant.
[25]
In
concluding that the applicant’s separation from his wife would not pose
sufficient hardship to warrant an exception, the officer stated that the
applicant had previously been parted from his mother and two sons in Nigeria and thus,
the separation would not be unusual for him. The applicant has stated in his
affidavit that he never resided with his two sons in Nigeria. They have
resided with their mother and her new partner since their birth. Although the
applicant helps to support his sons financially, he does not have and has never
had a close relationship with them. The officer’s reliance on the applicant’s
separation from these children that he barely knows, and from his mother, a
relationship about which there is no evidence on the record, as the basis for
his finding that the separation from his wife would not pose unusual hardship
was not reasonable, and shows that the officer did not give regard to the
particular circumstances of the applicant.
[26]
The
applicant also submits that the officer ignored evidence of the financial
hardship that returning to Nigeria would pose. The
applicant was advised that if he left Canada, he would no longer
receive his replacement income. He states that he uses this income to support
not only his wife and stepson here in Canada, but also to send money to his
sons in Nigeria. Further,
the applicant had evidence in the form of a letter from his personal injury
lawyer stating that he has a strong claim but that if he leaves Canada, it would be
difficult if not impossible to pursue this claim. The officer did not mention
this evidence in his decision. I find that this evidence is highly relevant
and that its exclusion from consideration was not reasonable.
[27]
In
conclusion, the Court find that the H&C officer unreasonably failed to
consider the applicant’s personal circumstances with respect to the following:
1.
the
loss of the applicant’s replacement income, if returned to Nigeria;
2.
the
loss of the applicant’s rehabilitation and medical treatment, if returned to Nigeria, and the
unlikely prospect that such rehabilitation and medical treatment would be
available to the applicant in Nigeria;
3.
the
loss of the applicant’s employment training, if returned to Nigeria;
4.
the
loss of the applicant’s ability to financially support his wife and stepson, as
well as his two sons in Nigeria with the money which he
received from the replacement income from the insurance company;
5.
the
hardship to the applicant being separated from his wife and stepson in Canada; and
6.
the
hardship for the applicant returning to the Niger Delta region where there are
no jobs, no prospects of employment, and severe poverty; all of which would
affect the applicant.
[28]
Since
the personal circumstances of the applicant with respect to these aforementioned
issues were not dealt with by the H&C officer, the decision is unreasonable
and must be set aside.
[29]
Both
parties advised the Court that there is no question which ought to be certified
for an appeal. The Court agrees and no question will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is allowed and the H&C decision dated April
30, 2008 is set aside.
2.
The
applicant’s H&C application is referred to another H&C officer for
re-consideration after the applicant has updated the relevant evidence and
submissions with respect to this application.
3.
The
Court directs that the applicant update and submit to the respondent within 4
weeks of this judgment his evidence and submissions with respect to this
H&C application.
“Michael
A. Kelen”
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