Docket:
IMM-5955-12
Citation: 2013 FC 822
Ottawa, Ontario, July 29, 2013
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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ELVIS PACIFIQUE BIZIMA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This judicial review of a Humanitarian and
Compassionate [H&C] application is related to IMM-5952-12, the judicial
review of a Pre-Removal Risk Assessment [PRRA] decision. The two judicial
reviews were argued together with the H&C file being the central factual
and legal basis. The two decisions were rendered by the same Immigration
Officer [Officer].
II. BACKGROUND
[2]
The Applicant is a male citizen of Burundi in his 30s who arrived in Canada on October 21, 2000 and claimed refugee status. His claim
was denied in September 2002 (leave was denied). However, the Applicant was not
deported because the Canadian government had established a moratorium on
removals to Burundi until July 2009. Burundi suffered from the Hutu Tutsi
conflict as manifested in other countries such as Rwanda.
[3]
The Applicant has been employed at Citi
Financial Canada Inc. since August 5, 2003. He has a good job, sound pay, is
bilingual and resident in Canada for 12 years.
[4]
After arrival in Canada, the Applicant joined the
Mouvement pour la Solidarité et la Démocratie [MSD]. This fact was not a
factor in his refugee claim.
[5]
The Officer found that the level of
establishment was normal but not so high that applying for permanent residence
from outside Canada would not consent to “unusual, undeserved or
disproportionate hardship”.
[6]
The Officer then refers to the PRRA application
and finds that the evidence does not support the Applicant’s fear that upon
return to Burundi, he would be tortured and killed by the government because he
is a member of the opposition party.
[7]
While the Officer recognizes that there have
been human rights violations and that members of the opposition party are in
self-imposed exile, these and other factors are insufficient for an H&C
application – the Officer found these factors are not sufficient to meet the
test of unusual, undeserved or disproportionate hardship.
III. ANALYSIS
[8]
The applicable standard of review is
reasonableness (Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189, [2010] 1 FCR 360).
[9]
The difficulty with the decision under review is
that while the Officer professed to distinguish between the tests for an
H&C and that of a PRRA, he did not carry out the different analytical
framework the two different tests require.
[10]
In the Officer’s analysis of risk, he carried
out his own research which was not put to the Applicant. That matter alone
raises issues of procedural fairness.
[11]
Also, in dealing with risk, the Officer did not
examine the most recent evidence from US DOS reports. The Officer relied on the
suggestion that the 2010 election was reasonably fair, examined the 2010 US Department
of State [DOS] Report which showed violence against political opponents
escalating, but did not refer to the 2011 US DOS Report showing an even greater
risk.
[12]
The Officer erred in focusing so extensively on
risk in the H&C analysis and failing to consider the most pertinent evidence.
[13]
The Officer failed to carry out a fulsome
consideration of the issue of “establishment” and of “separation”. There was
simply no real analysis of the impact of separation on the Applicant, its
economic impact, and the consequences of removal to Burundi outside of risk
(i.e. living under an oppressive regime, limitation on free speech).
[14]
The Officer’s error is perhaps understandable
and due to systemic factors where the same person is required to perform
separate tests on similar facts. Nevertheless this Court has held repeatedly
that each application must be dealt with on their own merits.
[15]
Therefore, the decision under review is
unreasonable.
IV. CONCLUSION
[16]
This judicial review will be granted, the
decision quashed and the matter remitted back for a new determination by a
different official.
[17]
There is no question for certification.
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