Date: 20090320
Docket: IMM-3581-08
Citation: 2009 FC 287
Ottawa, Ontario, March 20, 2009
PRESENT: The Honourable Mr. Justice Orville
Frenette
BETWEEN:
Boubacar Sadikh BA
Applicant
and
THE 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 dated July 23, 2008, by a pre-removal risk assessment
officer (PRRA officer), dismissing the applicant’s application for permanent
residence made on humanitarian or compassionate grounds (H&C application).
Facts
[2]
The
applicant, Boubacar Sadikh Ba, is a citizen of Mauritania. He arrived in Canada on October 18, 2004, and
claimed refugee protection on that date.
[3]
The
refugee claim was refused on August 11, 2005. The applicant then submitted an
application for leave and judicial review to the Federal Court, and this
application was dismissed on December 5, 2005.
[4]
On
May 3, 2006, he submitted to Citizenship and Immigration Canada an application
for permanent residence made on humanitarian or compassionate grounds and, on
March 21, 2008, an information update was submitted.
[5]
On
July 23, 2008, the PRRA officer refused the application on the grounds that
[TRANSLATION] “the applicant had not demonstrated his life or safety would be
in danger because he is a Black or because he would live in servitude in Mauritania. The evidence, analyzed
in light of the findings made by the RPD, does not support that he would be personally
subject to a risk for the grounds alleged. Consequently, I cannot confirm that
the risks alleged constitute unusual or disproportionate hardship.”
Issues
[6]
The
applicant is raising the following two issues:
1. Did the PRRA officer
apply the wrong standard when she assessed the risk and the unusual, undeserved
or disproportionate hardship?
2. Did the PRRA officer err
in finding that she was not satisfied that a return to Mauritania would have
disproportionate repercussions, given the applicant’s personal circumstances?
Analysis
The
applicable standards of judicial review
[7]
It
is settled law that where the issue turns on a question of fact or a question
of mixed fact and law, the standard of review is reasonableness (Dunsmuir v.
New Brunswick, [2008] 1 S.C.R. 190). According
to Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12, at paragraphs 59 to 64, deference is owed to the decisions of
administrative tribunals.
[8]
The
standard of review for a question of law is correctness.
[9]
In
the specific case of the application of an incorrect factor in the assessment of
risks included in an H&C application, the standard is correctness, since
this is a question of law (Mooker v. Minister of Citizenship and Immigration,
2008 FC 518; El Doukhi v. Minister of Citizenship and Immigration, 2006
FC 1464, at paragraph 11).
The factor applied by the PRRA officer
[10] The applicant is arguing
that even if the PRRA officer mentioned the factor of [TRANSLATION] “unusual or
disproportionate hardship”, she committed an error of law by not applying the
correct factor. He argues that, in assessing this [TRANSLATION] “unusual or disproportionate
hardship”, the PRRA officer first considered the question of social
discrimination in terms of risk. According to him, this view of risk is
erroneous.
[11] The PRRA officer took
the following approach with respect to the risk assessment:
[TRANSLATION]
[The
applicant] did not establish the presence of a risk likely to create unusual, undeserved
or disproportionate hardship.
[12] Does this
approach apply in the review of an H&C application? We know that there is a
difference between the assessment of risk in an H&C application and in a
PRRA application.
[13] In Pinter
v. Minister of Citizenship and Immigration, 2005 FC 296, Chief Justice Lutfy
wrote the following:
[5] …There may well be
risk considerations which are relevant to an application for permanent
residence from within Canada which fall well below the higher threshold of risk
to life or cruel and unusual punishment.
[14] The
same reasoning can be found in Dharamraj v. Minister of Citizenship and Immigration,
2006 FC 674, at paragraph 24.
The
difference between the assessment of risk in a PRRA application and in an H&C
application
[15]
There is a difference between the assessment of risk in a
PRRA application and in an H&C application.
[16] Both
applications take risk into account. In the context of a PRRA, the consideration
of the “risk” referred to in section 97 of the Act involves assessing whether “the
applicant would be personally subjected to a danger of torture or to a risk to
life or to cruel and unusual treatment or punishment”, while in the context of an
H&C application,
“risk should be addressed as but one of the factors relevant to determining whether
the applicant would face unusual, and undeserved or disproportionate hardship”.
The focus is therefore on hardship, which has a risk component, not on risk as
such (Sahota v. Minister of Citizenship and Immigration,
2007 FC 651, at paragraph 8).
[17] Thus,
the concept of “hardship” in an H&C application and the concept of “risk”
in a PRRA application must be assessed according to different standards (Akinbowale
v. Minister of Citizenship and Immigration, 2007 FC 1221, at paragraph 20; Ramirez
v. Minister of Citizenship and Immigration, 2006 FC 1404, at paragraph 42; Markis
et al. v. Minister of Citizenship and Immigration, 2008 FC 428, at
paragraphs 23 to 26). If the court does not analyze hardship as opposed to risk
in its decision, it makes a reviewable error (Ramirez, above, at
paragraphs 47 to 49).
[18] In Doumbouya v. Minister
of Citizenship and Immigration, 2007 FC 1186, the PRRA officer used a line
of analysis that is similar to the one used in this case. In Doumbouya –
as in this case – the applicant argued that the PRRA officer did not apply the
correct factor. The applicant criticized the inclusion of an element of
personalized “risk” in the assessment of the H&C application. However, this
argument was categorically rejected by Justice Michel M.J. Shore as follows:
[35]
Risk is a factor to be considered in assessing “unusual and
undeserved or disproportionate hardship” within the context of a humanitarian
and compassionate application (Lin, above, paragraph 7).
[36]
Moreover, according to the Immigration Manual of the
Department of Citizenship and Immigration, regarding applications under section
25 of the Act (paragraph 13 of chapter IP-5):
|
Positive (H&C) consideration may be warranted for
persons whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally to a risk to their life or to a risk
to security of the person.
|
On peut justifier une décision (CH)
favorable pour un demandeur qui courrait un risque objectivement personnalisé
s’il était renvoyé du Canada vers un pays dont il a la nationalité ou, s’il
n’a pas la nationalité d’un pays, le pays où il avait sa résidence
habituelle. Il peut s’agir d’un risque pour sa vie ou un risque pour sa
sécurité.
|
[37]
However, as Mr. Justice Sean Harrington wrote in Sahota,
above:
[7] While PRRA and H&C
applications take risk into account, the manner in which they are assessed is
quite different. In the context of a PRRA, “risk” as per section 97 of IRPA
involves assessing whether the applicant would be personally subjected to a
danger of torture or to a risk to life or to cruel and unusual treatment or
punishment.
[8] In an H&C application,
however, risk should be addressed as but one of the factors relevant to
determining whether the applicant would face unusual, and underserved or
disproportionate hardship. Thus the focus is on hardship, which has a risk
component, not on risk as such.
[9] In general terms, it is more
difficult for a PRRA applicant to establish risk than it is for an H&C
applicant to establish hardship (see: Melchor v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1600, 2004 FC 1327; Dharamraj
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J.
No. 853, 2006 FC 674; and Pinter v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 366, 2005 FC 296).
…
[12 ] In the current case, the officer
considered the risk factors set out in the negative refugee claim decision, and
updated them. Although he considered Mr. Singh Sahota's connections with
Canada, as far as India is concerned, although he
used the humanitarian and compassionate form, in reality all he did was assess risk,
not hardship. For instance he said, “in assessing the risk invoked by the
applicant I note that they have, in substance, been previously considered by
the IRB.” It may well be that a risk may not be so sufficient as to support a
refugee claim under sections 96 or 97 of IRPA, but still be of sufficient
severity to constitute a hardship.
[13] The officer applied the wrong test.
. . .
[38]
In this case, after considering Mr. Doumbouya’s entire
file, including his application for visa exemption, the officer determined, in
the part of her reasons concerning [TRANSLATION] “Risks” that, considering Mr.
Doumbouya’s personal profile and the current situation in Guinea described in
public information sources, Mr. Doumbouya failed to establish that the
particular circumstances of his case were such that he would face unusual,
undeserved or disproportionate hardship if required to apply for a visa abroad.
[19] In addition, despite the
fact that the applicant is impugning the decision of the PRRA officer who, in
this case, [TRANSLATION] “considered the question of discrimination in terms of
risk”, Justice
Shore also stressed the
following in Maichibi v. Minister of Citizenship and Immigration, 2008 FC
138 :
[22] Section 13 of
Chapter IP-5 of the Immigration Manual: Inland Processing (IP) “Immigrant
Applications in Canada made on Humanitarian or
Compassionate Grounds” published by Citizenship and Immigration Canada,
requires the risk to be personalized:
|
Personalized risk
Positive consideration may be warranted for persons whose
removal to their country or countries of nationality or, if they do not have
a country of nationality, their country of former habitual residence, would
subject them personally to a risk to their life or to a risk to security of
the person.
|
Risque personnalisé
On peut justifier une décision favorable
pour un demandeur qui courrait un risque objectivement personnalisé s’il
était renvoyé du Canada vers un pays dont il a la nationalité ou, s’il n’a
pas la nationalité d’un pays, le pays où il avait sa résidence habituelle. Il
peut s’agir d’un risque pour sa vie ou un risque pour sa sécurité.
|
[20] Consequently,
I believe that, in this case, the officer did not take an inappropriate view
when assessing the applicant’s H&C application.
Personalized
risk and H&C applications
[21] The applicant is arguing
that the PRRA officer erred when she found that she was not satisfied that a
return to Mauritania would have
disproportionate repercussions, given the applicant’s personal circumstances.
[22] He repeated in his
memorandum that he would be subject to [TRANSLATION] “unusual and undeserved or
disproportionate hardship” as a result of the discrimination against
Afro-Mauritanians should he return to Mauritania. This is a risk recognized as one of the
factors to be taken into account in assessing the “unusual and undeserved or
disproportionate hardship”. This line of analysis is expressly set out in
operational manual IP 5 of Citizenship and Immigration Canada with respect to
H&C applications submitted by immigrants to Canada. The Supreme Court of Canada in Baker v.
Canada (M.C.I.), [1999] 2 S.C.R. 817, stated that these operational manuals
have proved very useful in interpreting section 25 of the Act. The IP 5 manual was
used by Justice Shore in the recent decision Lalane v. Minister of
Citizenship and Immigration, 2009 FC 6.
Discrimination
and personalized risk
[23] The jurisprudence of
this Court has established that the discrimination to which a segment of the
population of a country is subjected is not in itself a personalized risk for
each applicant in that segment (Dreta v. Minister of Citizenship and Immigration,
2005 FC 1239; Prophète v. Minister of Citizenship and Immigration, 2008
FC 331; Maichibi v. Minister of Citizenship and Immigration, 2008 FC
138; Rahman v. Minister of Citizenship and Immigration, 2009 FC 138; Lalane,
above, at paragraphs 42 to 46). In this case, the PRRA officer found that the
risk that the applicant would be subjected to was not sufficiently
personalized. She stressed that the applicant was part of a segment of the
population of Mauritania who are Afro-Mauritanians,
and that he was faced with the same risk as the other members of this segment. This
reasoning is consistent with the jurisprudence of our courts.
[24] However, the respondent
points out that the applicant is now raising new elements that he did not see
fit to submit to the PRRA officer, namely, his claims that [TRANSLATION] “he
will face discrimination in finding a job”. He noted that at the pre-removal risk
assessment – as before the Refugee Protection Division – what the applicant was
truly claiming that he feared in Mauritania was slavery, and it appears that he is now
trying to improve his case before this Court.
[25] Justice Sean Harrington found
the following in Kouka v. Minister of Citizenship and Immigration, 2006
FC 1236:
[26] First, it is
important to emphasize the following. It is well settled that before making a
decision, an immigration officer has a duty to review all the evidence in the
record. Nevertheless, that does not in any way mean that the officer must
reconsider evidence that was the subject of an earlier decision, as was
discussed somewhat earlier in this judgment.
[27] When dealing
with a new H&C application, an immigration officer naturally takes into
account comments made in an earlier decision. On this point, Mr. Justice Nadon
wrote the following in Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751 (QL):
[12] I should note that
before Mr. St. Vincent on their H&C application, the Applicants proceeded
on the basis that Mr. Hussain was a member of the MQM, notwithstanding the
clear findings made by the Refugee Board and by the PDRCC Officer to the
contrary. The Applicants seem to be of the view that if they
continue to add documents to the record, the credibility findings of the
Refugee Board are somehow going to be “reversed” or “forgotten”. In
my view, that is a mistaken view because the officer who hears an H&C
application does not sit in appeal or review of either the Refugee Board or the
PDRCC Officer’s decision. Thus, on the H&C application, Mr. St.
Vincent could not proceed on the basis that Mr. Hussain was an MQM member,
given the Refugee Board’s findings in that respect. In short, the
purpose of the H&C application is not to re-argue the facts which were
originally before the Refugee Board, or to do indirectly what cannot be done
directly – i.e., contest the findings of the Refugee Board.
[26] I also wish to point out
that slavery in Mauritania was made a criminal
offence in August 2006. [TRANSLATION] “Under the new legislation, slavery carries
a maximum sentence of 10 years’ imprisonment and a fine” (panel record, at page
21).
[27] For the reasons cited
above, I am of the opinion that the PRRA officer did not err by taking into
account the negative decision of the Immigration and Refugee Board in her
analysis, thereby adopting the reasoning of Justice Harrington in Kouka,
above.
Conclusion
[28] The PRRA officer
obviously took into account all of the appropriate factors in her analysis and
decision. She did not err in finding that she was not satisfied that a return
to Mauritania would have [TRANSLATION]
“disproportionate repercussions, given the applicant’s personal circumstances”.
JUDGMENT
The
applicant’s application for judicial review of the decision of the pre-removal risk
assessment officer dated July 23, 2008, is dismissed.
No question is
certified.
“Orville
Frenette”
Certified true translation
Susan Deichert, LLB
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