Date: 20070329
Docket: IMM-2816-06
Citation: 2007 FC 338
Vancouver, British Columbia, March 29, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ILDA
LATIFI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of an immigration officer, dated May 17, 2006, which denied the applicant’s
application for permanent residence on humanitarian and compassionate (H&C)
grounds.
[2]
The
applicant seeks an order remitting the matter for redetermination by a
different officer.
Background
[3]
The
applicant, Ilda Latifi, is a citizen of Albania. She and her
three daughters left Albania and went to the United
States
in September 1999. They lived in the United States until February 13, 2001,
when they went to Canada. The applicant’s husband joined the family in Canada and they
claimed refugee status. Their claim was denied in December 2003, and their
pre-removal risk assessment (PRRA) was refused in March 2005.
[4]
The
applicant was physically abused by her husband and often had to call the police
for help. When she told her husband that she intended to leave him, he
threatened her with death and forced her to remain home. After a violent
incident in March 2004, the applicant obtained a restraining order against her
husband and they have lived separately since then. She has also commenced
divorce proceedings.
[5]
While
in Canada, the
applicant took an English as a second language course and upgrade courses at
the City Adult Learning Centre. The applicant was accepted into the Centennial College law clerk
program; however, she was unable to afford the cost of registration. The
applicant did not obtain employment while in Canada, despite
having a work permit, and was on social assistance. As a single mother, she
cared for her children and they were successful in school.
[6]
In
April 2005, the applicant submitted an application for permanent residence on
humanitarian and compassionate (H&C) grounds in order to obtain an
exemption from the application of subsection 11(1) of IRPA, which requires that
foreign nationals apply for permanent residence from outside Canada. The H&C
factors listed in her application were: (1) her children had successfully
integrated themselves into Canadian society and were attending school (they
would therefore suffer emotional and psychological harm if forced to leave);
(2) she had been a victim of domestic violence; (3) she had established herself
in Canada through her educational pursuits, and had letters of references from
teachers and friends; and (4) Albania did not have legislation addressing
violence against women, and there were significant problems with the
trafficking of women and children.
[7]
By
letter dated May 17, 2006, an immigration officer rejected her application for
an exemption from the requirement to apply for status from outside Canada. The officer
also refused to refer the applicant’s case for a risk assessment. The applicant
seeks judicial review of the officer’s decision not to do so.
Officer’s Reasons
[8]
The
officer advised that the applicant’s application for an exemption from the
legislative requirement to apply from outside Canada had been
refused. The officer noted the following considerations in the H&C
narrative form: (1) her three children were in school; (2) counsel stated that
she was a victim of an abusive relationship; (3) counsel stated that the trafficking
of women and children was a problem in Albania; (4) counsel stated that Albania
had no legislation addressing violence against women; and (5) counsel stated
that she was established in Canada.
[9]
The
applicant’s husband was still in Canada and had assault charges
on his record. She had reported his abuse and intended to file for divorce. The
officer concluded that she was no longer in a relationship with him and the
abuse would not reappear. She was unable to show that she faced a personalized
risk if she returned to Albania; therefore, the officer
did not seek a risk opinion.
[10]
The
officer determined that the children would be cared for by their mother when
they returned to Albania. They had been educated in Canada for many
years and the officer acknowledged that returning to Albania would
present educational and integration challenges. The first language spoken in
their home was Albanian, therefore it was reasonable to expect that they could
speak the language or could be taught by their mother. The family showed little
establishment in Canada. The applicant had never worked here despite
having a work permit, and was a long term recipient of social services. She had
completed basic courses, but did not appear motivated to seek employment. The
officer was not satisfied that she could not access the same type of government
assistance in Albania.
[11]
The
officer noted his consideration of the best interests of the children and in
light of the evidence, was not satisfied that the family would face unusual,
underserved of disproportionate hardship should they apply for a visa from
Albania. The request to waive subsection 11(1) of IRPA was refused.
Issue
[12]
The
applicant submitted the following issue for consideration:
Did the officer breach the
rules of procedural fairness by failing to refer the applicant’s application to
a PRRA unit for an assessment of risk?
[13]
I
would rephrase the issue as follows:
Did the officer err in failing
to refer the applicant’s case for a risk assessment?
Applicant’s Submissions
[14]
The
applicant noted that section 13.2 of IP5: Immigrant Applications in Canada made on
Humanitarian and Compassionate Grounds (IP5), states:
[…] If there is a claim of personal risk,
but there does not appear to be sufficient other non-risk H&C grounds for
accepting the application, the application is referred to a PRRA unit.
[15]
The
applicant’s submissions to the officer indicated that there was documentary
evidence supporting her claim that women and children were mistreated
throughout Albania. The
evidence indicated that women and children were especially at risk of violence
and being forced into the sex trade. It was submitted that the applicant and
her children clearly claimed that they would be at personal risk if returned to
Albania. The
applicant noted that section 13.3 of IP5 also stated:
The H&C officer assesses only
non-risk factors when reviewing the application and considering all the
information presented by the applicant.
…
If, after assessment of only non-risk
factors, the H&C officer does not find sufficient grounds to allow the
application, and the applicant has asserted risk factors in respect of the
application, the file is transferred to the PRRA unit for assessment, in
accordance with section titled “Referral to PRRA Unit” below. […]
[16]
The
applicant submitted that the risk factors set out in her H&C application
were not considered by a properly qualified officer, and that this constituted
a denial of procedural fairness (see Beluli v. Canada (Minister of
Citizenship and Immigration) (2005), 140 A.C.W.S. (3d) 541, 2005 FC 898).
Respondent’s Submissions
[17]
The
respondent submitted that guidelines were not legally binding upon the Minister
and did not afford the applicant the right to a particular outcome (see Legault
v. Canada (Minister of
Citizenship and Immigration), [2002] 4 F.C. 358, (2002) 212 D.L.R.
(4th) 139 (C.A.)). In Nacsa
v. Canada (Minister of Citizenship and Immigration) (2004), 245
F.T.R. 70, 2004 FC 91, the Court held that the H&C officer did not err by
failing to send an application for a separate risk assessment.
[18]
The
respondent submitted that the applicant did not adduce any evidence of
personalized risk should she return to Albania. She
provided documents about country conditions affecting women and children, but
such risks were common to all female residents of Albania. It was
submitted that the guidelines did not indicate that risk assessments were
necessary in such cases, and that case law established that such a referral was
not necessary (see Masanganise v. Canada (Minister of Citizenship and
Immigration) (2004), 256 F.T.R. 166, 2004 FC 993). It was submitted that
the applicant had failed to demonstrate that the officer had acted unreasonably
in deciding not to refer her case for a separate risk assessment. The
respondent noted that she had not suggested that the officer had erred in any
other way.
[19]
The
respondent submitted that the applicant had misconstrued the decision in Salibian
v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250,
(1990) 73 D.L.R. (4th) 551 (C.A.)). In Salibian, the Convention
Refugee Determination Division erred in stating that the claimant was not
entitled to protection because he was a victim of generalized violence,
ignoring his claim of persecution on the basis of his religious identity. The
Court held that a claimant seeking protection did not need to show that he had
been persecuted, or would be, but must show that there was a reasonable chance
that he would be persecuted due to his membership in a particular group.
[20]
The
respondent submitted that the applicant had an obligation to demonstrate that
it was likely that she would be persecuted. In Raduly v. Canada
(Minister of Citizenship and Immigration) (2002), 113 A.C.W.S. (3d) 131
(F.C.T.D.), the Court held that it was insufficient to merely point to evidence
of country conditions and state that one required protection. It was submitted
that the applicant did not provide any evidence that she was at risk of being
trafficked in Albania. The
respondent submitted that in the case at hand, the officer did not
misunderstand the nature of the burden she had to meet, but found the
allegation of risk to be weakly connected to the applicant. The respondent
noted that she had been given a risk assessment by the Refugee Protection
Division. Finally, it was submitted that it was within the officer’s
discretion to determine whether to refer such limited risk submissions for an
assessment.
Analysis and Decision
Standard of Review
[21]
The
general standard of review applicable to H&C decisions is that of reasonableness
(see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R.
(4th) 193).
[22]
Issue
1
Did the officer err in
failing to refer the applicant’s case for a risk assessment?
It is well-established that a
risk assessment is not necessary in all H&C cases that involve claims of
personalized risk (see Masanganise above). I would also note that while
guidelines may be of assistance to immigration officers, they are not legally
binding (see Legault above). Section 13.4 of IP5, states the following:
Where, on the basis of the preliminary
screening, or on the basis of the assessment of non-risk factors by the H&C
officer, there are insufficient non-risk grounds for approval by the H&C
Unit, and the applicant has claimed personal risk factors, the
application is referred to the PRRA unit.
(Emphasis
Added)
[23]
In
my view, the officer did not err in refusing to refer the applicant case for a
risk assessment, especially given that he or she found that there was no
evidence of any personalized risk faced by the applicant.
[24]
The
officer stated the following with respect to the applicant’s allegations of
risk:
Counsel mentions about human trafficking
issues in Albania. He also mentions about the
lack of legislation protecting women against violence in Albania. It is reasonable to state
that the applicant is no longer in a relationship with her abuser. Therefore,
the situation of abuse and violence towards Ilda by her ex-husband should not
reappear. Also, the applicant is unable to show that she will face a
personalized risk if she is returned to Albania. I will not seek a risk opinion.
[25]
The
written submissions filed on behalf of the applicant in support of her H&C
application state, in part:
Lastly, with respect to the risk that Ms.
Latifi and her daughters would face if returned to Albania, enclosed are articles pertaining to the
mistreatment of women and children throughout the country. In the U.S. State
Department Report on Human Rights Practices in Albania for 2004 it confirms that there is
currently no legislation addressing violence against women. In addition
trafficking of women and children continue to be a rising problem there, and
that frequently the police, who are hired to protect citizens, are directly
involved in assisting traffickers… This information is corroborated in the
report by Save the Children entitled Child Trafficking in Albania. It is submitted that to
compel Ms. Latifi and her teenage daughters to return to Albania under these conditions
clearly puts them at risk. […]
[26]
I
have reviewed the documentary evidence on file and it appears that the
trafficking of women and children in Albania is a serious problem,
which the government is attempting to rectify. I would note that children were
often sold to traffickers by their families, and in a few cases, were kidnapped
by traffickers.
[27]
In
Masanganise above, Justice Mactavish stated the following regarding the
referral of H&C applicants for risk assessment at paragraph 17:
A PRRA assessment is not required in every
H&C case where personalized risk is claimed…Given the paucity of
information before the immigration officer in relation to Ms. Masanganise’s
claim of risk, it was certainly open to the officer to weigh the evidence and
to determine that there was simply not enough there to warrant the matter being
referred to a PRRA officer for a full risk assessment. However, it is not clear
to me from my review of the immigration officer’s FOSS notes that the officer
ever addressed the risk allegedly arising out of Ms. Masanganise’s membership
in the class of failed refugee claimants. To that extent, I am satisfied that
the immigration officer was in error.
[28]
Having
reviewed the totality of the evidence on file and considered the applicant’s
submissions, I cannot find that the officer came to an unreasonable conclusion
in refusing to refer the applicant for a risk assessment. The officer’s reasons
for refusing the applicant’s H&C application indicate that both the
documentary evidence and counsel’s submissions were taken into account. In my
view, there was insufficient evidence that the applicant or her children faced
a personalized risk of becoming victims of human trafficking in Albania.
[29]
This
is a difficult decision. The applicant clearly presented her dilemma and fears
serious harm should she be removed to Albania. Her situation cries
for help but my role as a judge in the context of an application for judicial
review of an immigration officer’s decision is limited. I cannot set aside the immigration
officer’s decision unless it is unreasonable. In addition, except in
exceptional circumstances, I must make my decision based on the evidence that
was before the immigration officer. I cannot, except in exceptional
circumstances, use new evidence that was presented after the decision was made.
[30]
The
applicant has provided new facts in her presentation to me which could probably
change the outcome of a new application. By way of example, she provided print
outs from the Toronto Police Service outlining her husband's actions against
her. She informed the Court that she is now employed. She also informed the
Court that her husband is to be deported to Albania which
entailed a personal risk for her and her daughters. As she said, she believes
that what happened before would start all over again in Albania. She fears
that her husband will kill her or her daughters. This evidence was not before
the immigration office thus I cannot, in the circumstances of this case,
consider the evidence.
[31]
Although
I have no authority to order that the applicant be given an opportunity to
request a new PPRA application and to make a new H&C application before she
and her daughters are scheduled for removal from Canada, it would appear to me
that this would be a very appropriate approach to take based on the new facts
in this case. The new applications would contain these new facts and any other
relevant new evidence that might exist.
[32]
The
application for judicial review is denied.
[33]
The
applicant proposed a question for my consideration for certification as a
serious question of general importance. I am not prepared to certify a
question.
JUDGMENT
[34]
IT
IS ORDERED AND ADJUDGED that the application for judicial review is
denied.
"John
A. O'Keefe"
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
|
11.(1)
A foreign national must, before entering Canada,
apply to an officer for a visa or for any other document required by the
regulations. The visa or document shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
25.(1)
The Minister shall, upon request of a foreign national who is inadmissible or
who does not meet the requirements of this Act, and may, on the Minister’s
own initiative, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
25.(1)
Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne
se conforme pas à la présente loi, et peut, de sa propre initiative, étudier
le cas de cet étranger et peut lui octroyer le statut de résident permanent
ou lever tout ou partie des critères et obligations applicables, s’il estime
que des circonstances d’ordre humanitaire relatives à l’étranger — compte
tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt
public le justifient.
|
The Immigration
Inland Processing Manual Chapter IP5 Immigrant Applicant in Canada made on
Humanitarian and Compassionate Grounds policy manual:
Section 13.2. Role of H&C Units:
Preliminary Screening without formal H&C Assessment
If there is a claim of personal risk, but
there does not appear to be sufficient other non-risk H&C grounds for
accepting the application, the application is ref erred to a PRRA unit.
Section 13.3. Role of H&C Officer
The H&C officer assesses only
non-risk factors when reviewing the application and considering all the
information presented by the applicant.
…
If, after assessment of only non-risk
factors, the H&C officer does not find sufficient grounds to allow the
application, and the applicant has asserted risk factors in respect of the
application, the file is transferred to the PRRA unit for assessment, in
accordance with section titled “Referral to PRRA Unit” below. (See also
sections “Role of PRRA Coordinator, and “Role of the PRRA Officer,”
below.
Section 13.4. Referral to PRRA Unit
Where, on the basis of the preliminary
screening, or on the basis of the assessment of non-risk factors by the H&C
officer, there are insufficient non-risk grounds for approval by the H&C
Unit, and the applicant has claimed personal risk factors, the application is
referred to the PRRA unit.
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