Date: 20080625
Docket: IMM-3276-07
Citation: 2008 FC 804
Ottawa, Ontario, June 25,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
LEMIE
JANE GADDI PACIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Background
[1]
The
applicant seeks judicial review of a decision
of an Immigration Officer, dated June 19, 2007, that there were insufficient
humanitarian and compassionate considerations to allow the applicant to apply
for permanent residence from within Canada.
[2]
Ms.
Pacia is a citizen of the Philippines who
entered Canada on a temporary resident visa in September 2002,
ostensibly to visit a friend. That permit was extended to March 6, 2003. In
September 2003, Ms. Pacia was caught trying to enter the United States illegally
and barred from entering that country for 20 years. She returned to Canada
without a passport, but was released from detention on a cash bond and ordered
to purchase her own tickets to leave Canada by September 23, 2003. She failed to present herself
to immigration officers to confirm her departure, but instead applied for an
extension of her visa. The application was denied.
[3]
A
claim for refugee status was submitted in February 2004 and deemed abandoned on
June 11, 2004. After Ms. Pacia failed to report for a pre-removal interview, a
warrant for her arrest was issued in February 2006.
[4]
Ms. Pacia applied for a waiver on
humanitarian and compassionate (H&C) grounds and a Pre-removal Risk
Assessment (PRRA). Leave was denied in the PRRA on November 14, 2007. An
application for review of a refusal to defer removal was dismissed on May 21,
2008: Pacia v. Canada (Minister of Public Safety and Emergency
Preparedness) 2008 FC 629, [2008]
F.C.J. No. 788. This application is for judicial review of the remaining
decision, that of refusing the H&C waiver.
Impugned
decision
[5]
The Officer assessed Ms. Pacia’s
application on the grounds of risk if returned and hardship based on her
establishment in Canada, and found that neither warranted granting the
exemption. The Officer found that state protection was reasonably available in
the Philippines.
Issues
[6]
The applicant submitted prior to
the hearing that the Officer’s finding of state protection was unreasonable as
the reforms noted in support are shown in the evidence not to be effective. At
the hearing, however, she opted not to pursue that argument in light of the
recent determination by the Federal Court of Appeal that adequacy, rather than effectiveness,
is the test: Carillo v. Canada (Minister of Citizenship and Immigration),
2008 FCA 94, [2008] F.C.J. No. 399.
[7]
The
applicant asserts that the Officer erred by applying the test for risk as set
out in sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), which apply to refugees or persons in need of protection and
pre-removal risk assessments, as opposed to that appropriate for assessment
under the humanitarian and compassionate consideration provision of section 25.
Standard of
review
[8]
The
selection of the appropriate legal test against which to assess the facts of a
specific application is a question of pure law and interpretation of statute
and jurisprudence, separate from specific facts or areas of expertise of the
tribunal. It is, thus, reviewable on the higher correctness standard.
Analysis
[9]
The
applicant submits that the Officer erred in finding that her return to the
Philippines would not constitute undue, disproportionate or undeserved hardship
as she would not be at risk in that country. In coming to this conclusion, she
contends, the Officer applied the higher test appropriate for the application
of sections 96 and 97 rather than the lower threshold of section 25.
[10]
This
application will be allowed and returned to the Officer for reconsideration on
the question of risk alone. The instant case is distinguishable from that of El
Doukhi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1464, 304
F.T.R. 266, cited by the respondent, where it was clear from the decision that
the Officer was aware of and applied the lower threshold to determine whether
the risk claimed amounted to undue, disproportionate or undeserved hardship.
[11]
The
Officer considering Ms. Pacia’s H&C application missed what Justice Johanne
Gauthier referred to as the ‘subtle difference’ between the two assessments of
risk factors: Melchor v. Canada (Minister
of Citizenship and Immigration), 2004
FC 1327, [2004] F.C.J. No. 1600. The conclusion of her analysis is illustrative
of this lapse:
Having
considered the evidence in its entirety, I find that I am not satisfied that if
the applicant returns to the Philippines she will personally be subjected to a risk to her life or to a risk
to the security of the person. Consequently, I find, taking into account the
applicant’s personal circumstances, evidence, current country conditions and
the availability of state protection that the hardships associated with
returning to the Philippines do
not constitute unusual and undeserved or disproportionate hardship.
[12]
A
risk to life or security of the person is the test applicable in the context of
sections 96 and 97. Undue, undeserved or disproportionate hardship, even where
caused by risk, is the focus of the correct test for section 25 analyses. The
Officer’s error lies in having undertaken an analysis under the former test and
found against the applicant, as a direct consequence, under the latter.
[13]
There
will be cases in which this subtle distinction is immaterial, for example where
the Officer finds after conducting an analysis under sections 96 and 97 that
there was no evidence of risk or that the allegations of risk lacked
credibility. In those circumstances, it would not be necessary to consider
whether the alleged risk would cause hardship. But that was not the situation
in this instance. The Officer accepted the applicant’s account of a
long-standing dispute in her community and threats of harm. The finding that
protection was available to the applicant does not address the question whether
she would encounter undue hardship should she be required to avail herself of
the state’s shelter.
[14]
The respondent was provided with
an opportunity following the hearing to submit a question for certification. She
chose not to do so and no questions will be certified.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that this application is
returned to the Immigration Officer for reconsideration of the question of
hardship based on the risk that the applicant may face upon return to the Philippines. No
questions are certified.
“Richard
G. Mosley”
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