Date: 20070618
Docket: IMM-5583-06
Citation: 2007
FC 651
Ottawa, Ontario,
June 18, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
GURDIP SINGH SAHOTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Although
the distinction in fact may not always be apparent, there is a clear
distinction in law between a pre-removal risk assessment and an application for
permanent residence from within Canada on humanitarian and compassionate
grounds.
[2]
Mr. Singh
Sahota is a Sikh from the Punjab area of India. He came to Canada in the year 2000 and claimed refugee
status. The Immigration and Refugee Board rejected his claim, and the Federal
Court dismissed his application for leave to apply for judicial review. The IRB
had credibility concerns.
[3]
Section 112
and following of the Immigration and Refugee Protection Act (IRPA) permit a
person subject to a removal order to ask for an updated risk assessment should
he or she be obliged to leave Canada. For reasons not set out in
the record, Mr. Singh Sahota is not subject to a removal order and no PRRA has
taken place.
[4]
However,
in accordance with section 25 of IRPA and the regulations thereunder, he has
applied for permanent residence status from within Canada on humanitarian and compassionate
grounds. Normally, a foreign nation must be a member of a class set out in
subsection 72(2) of the regulations in order to do so.
[5]
The issue
in such H&C applications is whether the hardship of having to obtain a
permanent resident visa from outside Canada
would be unusual, underserved or disproportionate.
[6]
Mr. Singh
Sahota’s H&C application was dismissed. This is a judicial review of that
decision.
[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 FC 1327; Dharamraj v. Canada
(Minister of Citizenship and Immigration), 2006 FC 674; and Pinter v. Canada (Minister of Citizenship and Immigration), 2005 FC 296).
[10]
In recent
years, the PRRA normally precedes the H&C or is decided at the same time.
Thus the present case is a little unusual.
[11]
In Pinter,
above, Chief Justice Lutfy wrote:
[5] In my
view, it was an error in law for the immigration officer to have concluded that
she was not required to deal with risk factors in her assessment of the
humanitarian and compassionate application. She should not have closed her
mind to risk factors even though a valid negative pre-removal risk assessment
may have been made. 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.
[Emphasis added]
[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, and therefore Mr. Singh Sahota was not given a
fair hearing. Although there are rare occasions when it can be said that the
result would have been the same (see: Mobil Oil Canada Ltd. v. Canada
Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202), the general
rule, and the rule which applies here, is that it is not up to the Court to
speculate as to what the result might have been had the proper test been
followed (see: Cardinal v. Kent Institution, [1985] 2 S.C.R. 643).
ORDER
THIS COURT ORDERS that:
1.
The
application for judicial review is allowed.
2.
The
decision of the Minister’s delegate is set aside and the matter is sent back
for redetermination by a different Minister’s delegate.
3.
There is
no question of general importance to certify.
“Sean Harrington”
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