review of the H&C decision. An application
for judicial review of the PRRA decision was discontinued.
II. Issues
[2]
The
issues in this application for judicial review are the following:
1.
Did
the H&C officer err in law by failing to apply the correct test for
consideration of an H&C application?
2.
Did
the officer err in assessing the evidence by ignoring evidence before her,
specifically, medical evidence related to the Applicant’s mental state?
III. Analysis
A. What did the Applicant submit to
the officer?
[3]
I
begin with an overview of the Applicant’s H&C application.
[4]
The
Applicant’s H&C application is very brief, consisting of one hand-printed
page. In the application, the Applicant provides four reasons for her request:
·
She
has established herself in Canada and has “integrated into the Canadian society, such that
asking me to leave now would cause me excessive and unusual hardship”;
·
She
has lost “all reasonable connections with Nigeria”;
·
She
has lost her “means of livelihood”; and
·
She
was “persecuted and abused in Nigeria so I still have the fear in me of returning there
especially because the police could not protect me”.
[5]
No
material was submitted with the H&C application. However, documents that
accompanied the PRRA application and that were before the officer included the
following:
·
A
note, of undetermined date, from a doctor at a medical clinic who advises that
the Applicant is on medication for “depression and severe anxiety”. The author
also “highly recommends” that the Applicant be granted refugee status;
·
An
affidavit from the Applicant’s husband, in Nigeria, who describes threats against the
Applicant and her family and an attack in which the Applicant’s daughter was
raped and the husband beaten. These events occurred after the RPD decision in
which the RPD had stated that they were not persuaded of the credibility of the
Applicant’s claim of persecution at the hands of local tribes; and
·
A
medical report from a Nigerian medical director who opined that the daughter
had been raped.
B. Did the Officer err by applying
the wrong risk threshold for an H&C application?
[6]
Of
the four grounds raised by the Applicant and considered by the officer, the
Applicant does not raise any issues with respect to the officer’s analysis of
her degree of establishment in Canada, her connections to Nigeria or her ability to earn
a livelihood in Nigeria. However, in assessing
the risk raised by the Applicant, she alleges, the officer made a reviewable
error. The Applicant submits that, in assessing her concerns about risk, the
officer applied the test for assessment of risk in the PRRA context and did not
consider the existence of unusual, undeserved or disproportionate hardship
posed by the Applicant’s fear of persecution in the H&C analysis.
[7]
The
question of whether the correct test or threshold was used by the officer is
reviewable on a standard of correctness.
[8]
The
jurisprudence clearly shows that it is an error in law for an officer to apply
the threshold for risk as it pertains to PRRA applications, as opposed to the
threshold for hardship under H&C applications when assessing the risk
factors of an H&C application (See Pinter v. Canada (M.C.I.), 2005
FC 296, 44 Imm. L.R. (3d) 118 at paras 3-5; Ramirez v. Canada (M.C.I.),
2006 FC 1404, 304 F.T.R. 136, paras 43-46). In Pinter, supra, Chief
Justice Lutfy set out the distinction between the two tests in paras 3-4:
In
an application for humanitarian and compassionate consideration under section
25 of the Immigration and Refugee Protection Act (IRPA), the applicant's burden
is to satisfy the decision-maker that there would be unusual and undeserved or
disproportionate hardship to obtain a permanent resident visa from outside Canada.
In
a pre-removal risk assessment under sections 97, 112 and 113 of the IRPA,
protection may be afforded to a person who, upon removal from Canada to their country of nationality, would be subject to a risk
to their life or to a risk of cruel and unusual treatment.
[9]
In
this case, the officer refers to the correct threshold or “test” in her
reasons. Specifically, under “Decision and Rationale”, the officer begins by
stating that:
The
applicant is seeking exemption from the in-Canada selection criteria based on
humanitarian and compassionate considerations . . . The applicant bears the
onus of satisfying the decision-maker that her personal circumstances are such
that the hardship of having to obtain a permanent resident visa from outside
Canada would be unusual and undeserved or disproportionate. [Emphasis
added]
[10]
It
is apparent from this statement that the officer was aware of the burden on the
Applicant. The officer then considered the submissions of the Applicant. Each
of the four reasons provided by the Applicant was then reviewed. The reviewable
error, the Applicant alleges, was made with respect to her allegation of risk.
The officer dealt with that area as follows:
With
respect to her statements on persecution and abuse, I note that she claimed in
her PRRA submissions that she was allegedly victimized by members of the Uube
community and not the state. My own review of current country conditions in
Nigeria reveals that, while Nigeria faces problems in the sphere of human
rights as well as other areas, the government does not subject its citizens to
a sustained and systemic denial of their core human rights. While state
protection is never perfect I find that the applicant has not provided
sufficient objective evidence that state protection would not be available to
her in Nigeria.
[11]
The
officer then concluded her analysis:
After
reviewing all of the documentation before me, I am not satisfied that the
applicant would be subjected personally to a risk to her life or to a risk to
the security of the person if returned to Nigeria. I am not of the opinion that granting
the requested exemption is justified on humanitarian and compassionate grounds.
The applicant has not satisfied me that her personal circumstances are such
that the hardship of having to apply for a permanent resident visa from outside
Canada would be unusual and undeserved or
disproportionate.
[Emphasis added]
[12]
Once
again, I observe that the officer restates the correct “test” in her concluding
paragraph. I acknowledge that a mere reference to “hardship” does not
necessarily mean that an officer carried out the proper analysis (see, for
example, Rebaï v. Canada (Minister of Citizenship and Immigration), 2008 FC 24, para. 8).
However, in this case, I am not persuaded that this officer made such an error.
I reach this conclusion based upon a careful review of the entire Decision and
Rationale of the officer in the context of the record before her.
[13]
The only
risk submission made by the Applicant was that she was “persecuted and abused
in Nigeria so I still have the
fear in me of returning there especially because the police could not protect
me”. In other words, the Applicant submits that she would be exposed to
personal risk to her life or her security of person if returned to Nigeria. She has provided no
submissions that referred to any unusual and undeserved or disproportionate
hardship in accessing state protection because of her personal circumstances
(as she now seems to be arguing) or to any other hardships. Thus, in responding
to the Applicant’s claim that she would not be able to obtain police
protection, the officer correctly satisfied herself that state protection would
be available to the Applicant in Nigeria. The officer was not obliged to inquire into
matters that were not raised.
[14]
In
my view, the record does not demonstrate that the officer applied the higher
threshold applicable to a PRRA assessment instead of the lower threshold
applicable to H&C determinations. It is clear from reading the decision as
a whole that the officer’s decision was made in the context of evaluating the
relevant factors and arguments presented by the Applicant and that the officer
used the proper threshold for an H&C determination. There is no error.
C. Did the officer ignore evidence
before her?
[15]
Under
any standard of review and even if conducting the correct analysis, a tribunal
errs by making a decision without regard for the material before it (Federal
Courts Act, R.S.C. 1985, c. F‑7, s. 18.1(4)). The Applicant submits that the
officer committed such an error with respect to the Canadian doctor’s note.
There is no reference in the officer’s reasons to this note or its contents.
The Applicant submits that this letter is demonstrative of the hardship that
the Applicant would suffer if returned to Nigeria. Given its importance, the Applicant argues,
the officer erred by failing to have regard to the document in her analysis (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35
(T.D.)).
[16]
The
problem with the Applicant’s submission on this point is that she did not make
any reference whatsoever, in her H&C Application, as to how her mental
health issues would result in unusual, undeserved or disproportionate hardship.
Thus, the doctor’s note was unrelated to her H&C claim. The Officer did not
err by failing to refer to the note or to the Applicant’s mental health. I also
observe that the note appears to have been written for the Applicant’s refugee claim,
a claim which was denied by the RPD. This undermines the relevance of the
letter to a subsequent H&C claim. Under these circumstances, it was not an
error for the officer to fail to refer to the Canadian doctor’s note.
IV. Conclusion
[17]
For
these reasons, I would dismiss the application for judicial review.
[18]
The
Applicant requests that I certify the following question:
When
considering an H&C application, is the officer required to examine if
hardship will result, if the officer makes a finding that adequate, although
imperfect, state protection exists?
[19]
I
interpret this question as asking whether there is a different threshold for
assessing an H&C application than for a refugee claim or PRRA
determination. As I have noted above, the answer is an obvious “yes”. However,
this does not change the burden on an applicant to show that she would suffer
unusual, undeserved or disproportionate hardship. In the case before me, the
Applicant simply failed to meet her burden. The question posed by the Applicant
for certification is not determinative of this application and, in any event,
has been answered by the existing jurisprudence. It will not be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The application for judicial review is dismissed; and
2.
No question of general importance is certified.
“Judith
A. Snider”
Email this Content