Date: 20140227
Docket:
IMM-12377-12
Citation: 2014 FC 188
Ottawa, Ontario, February 27, 2014
PRESENT: The Honourable Mr. Justice O'Keefe
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BETWEEN:
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NIKOLLE VUKTILAJ
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LIZE VUKTILAJ
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LAURA VUKTILAJ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act), the applicants
requested exemptions on humanitarian and compassionate (H&C) grounds from
the requirement that they apply for permanent residence from outside of Canada.
Their requests were refused. They now apply for judicial review of that
decision under subsection 72(1) of the Act.
[2]
The applicants seek an order setting aside the
negative decision and returning the matter to a different officer for
redetermination.
Background
[3]
The applicants are a family from Albania. Nikolle Vuktilaj (the principal applicant) and his wife, Lize Vuktilaj, left Albania with their daughter, Laura Vuktilaj in March 2000. Following an unsuccessful claim
for asylum in the United States, they came to Canada on February 18, 2008.
Here, they also applied for refugee protection, claiming that they fear a blood
feud with the Rexhaj family. That claim was rejected. Following that, they
applied for a pre-removal risk assessment [PRRA], but that too was denied and
their application for judicial review was dismissed (see Vuktilaj v Canada (Minister of Citizenship and Immigration), 2012 FC 1198, 11 Imm LR (4th) 336).
[4]
They made their H&C application near the end
of September 2011.
Decision
[5]
On October 31, 2012, a senior immigration
officer rejected their application. The officer quoted subsection 25(1.3) of
the Act, which says the following:
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25.(1.3) In examining the request of a
foreign national in Canada, the Minister may not consider the factors that
are taken into account in the determination of whether a person is a
Convention refugee under section 96 or a person in need of protection under
subsection 97(1) but must consider elements related to the hardships that
affect the foreign national.
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25.(1.3) Le ministre, dans l’étude de
la demande faite au titre du paragraphe (1) d’un étranger se trouvant au
Canada, ne tient compte d’aucun des facteurs servant à établir la qualité de
réfugié — au sens de la Convention — aux termes de l’article 96 ou de
personne à protéger au titre du paragraphe 97(1); il tient compte, toutefois,
des difficultés auxquelles l’étranger fait face.
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[6]
Because of that, the officer refused to consider
the evidence about the blood feud with the Rexhaj family, saying that such a
risk was squarely within sections 96 and 97 and had been rejected by the
Refugee Protection Division and the PRRA officer because the presumption of protection
had not been rebutted.
[7]
The officer then went on to assess
establishment, assigning positive consideration to the applicants’
self-sufficiency and sound financial management. The officer also approved of
the character letters supporting the whole family and accepted that the
applicants were active members of the community and that Laura Vuktilaj was
pursuing a degree at the University of Toronto. Nevertheless, the officer did
not find that level of establishment to be greater than that which would be
expected and that returning them to Albania would not be unusual, undeserved or
disproportionate hardship. The officer acknowledged that it would be hard to
leave Canada, but not all ties would be severed as Laura Vuktilaj could keep in
touch with her friends by telephone, the internet or mail.
[8]
The officer then considered whether the
applicants would suffer hardship in Albania. The primary concern here was that
the principal applicant’s wife has a stage III multifocal papillary thyroid
carcinoma that requires life-long follow-up including blood tests, periodic
imaging and thyroid hormone treatment. The officer was satisfied that such care
would be vital to her physical well-being. However, the officer rejected
counsel’s submissions that this treatment had to be provided by the same
doctors that cared for her now and that the fear she would experience in Albania would exacerbate her condition, as there was no evidence to support either claim.
[9]
Further, the officer accepted that there was
only one treatment facility for cancer patients in Albania and that there is
corruption in the healthcare sector. However, this alone did not convince the
officer that the required follow-up treatment would probably be unavailable to
the applicants. This was because the applicants could choose where to live and
also because much of the evidence relied on by the applicants was from 2006 and
things had been improving since then.
[10]
The officer then rejected the applicants’ claims
that Laura Vuktilaj would be traumatized by having to return to Albania, a place she left when she was only eight years old. The officer noted that she was
only fifteen when she moved here but nevertheless adapted quickly and there was
little evidence that she would be unable to do the same in Albania or that it would traumatize her. Finally, the officer also rejected the claim that
it would have a disproportionate financial or emotional hardship on the family
since the applicants gave no information regarding these potential
consequences.
[11]
Altogether, the officer concluded that the
applicants would not suffer unusual and undeserved or disproportionate hardship
if they had to apply for permanent residence from abroad.
Issues
[12]
The issues are as follows:
1. What is
the standard of review?
2. Did the
officer misinterpret subsection 25(1.3) of the Act?
3. Was the
decision unreasonable?
Applicants’
Written Submissions
[13]
The applicants say that the standard of review
is reasonableness.
[14]
The applicants say that the officer’s analysis
of the treatment available to the principal applicant’s wife was unreasonable.
In particular, they said it was inconsistent for the officer to accept that
there was only one cancer treatment centre but reject the other evidence, since
both claims were made in the same paragraph of the same document. As well, the
“improvements” the officer alluded to were really only plans for improvement
and nothing had been implemented. Further, there was no evidence that the
inadequacies in treatment have at all changed since the release of that
document and the corruption was confirmed by the Council of Europe in July
2010. In their reply, they add that Mr. Justice Roger Hughes granted the stay
in this matter because he found that Mrs. Vuktilaj would suffer irreparable
harm if returned to Albania and the applicants say that the evidence continues
to show that.
[15]
The applicants also said that they had argued
that the principal applicant would be forced to go into hiding upon his return,
thus depriving his wife and daughter of his presence. As this would be a hardship
for all of them, they say the officer was required to assess this risk through
that lens and erred by refusing to do so.
[16]
Finally, the applicants say that it was not
enough for the officer only to give positive consideration to their
establishment and then say it was no greater than that expected of any
immigrant. They explained in their reply that the decision was neither
transparent nor intelligible because it “measured their establishment against
some unknown and undisclosed standard.”
Respondent’s
Written Submissions
[17]
The respondent agrees that the standard of
review is reasonableness.
[18]
The respondent then goes on to quote subsection
25(1.3) of the Act and says that it excludes consideration of the risk factors
under section 96 and subsection 97(1). Although officers must still consider
hardship, the respondent argues that the onus is on applicants to explicitly
state in their applications why an allegation of persecution amounts to an
unusual and undeserved or disproportionate hardship, which was not done in this
case. All the applicants mention was the possibility of self-confinement, but
the officer was aware of the findings of state protection and in light of that
it was reasonable for the officer to conclude that was not a hardship. Because
of the applicants’ failure in this regard, it was reasonable for the officer to
characterize it as a claim of persecution and dismiss it accordingly.
[19]
As for treatment, the respondent says the
officer reasonably considered the evidence. The applicants’ arguments were based
on baseline data from 2006 and the same document in which that was reported
also noted several improvements since then, including the installation of a new
Equinox Cobalt machine. Further, the onus was on the applicants to provide
current data and the officer was entitled to reject it as dated without
independently producing newer data. The applicants simply did not provide
enough evidence to meet the standard of proof.
[20]
The respondent also argues that establishment is
only one factor and is not determinative of hardship. It was reasonable for the
officer to accept that the applicants were established but nevertheless find
that disturbing that establishment did not amount to undue, undeserved or
disproportionate hardship.
[21]
In its further memorandum, the respondent
largely repeated the same positions, but presented a great deal more argument
about subsection 25(1.3). The respondent explains that subsection 25(1) is an
exceptional remedy intended to give the Minister some flexibility. At paragraph
15 of its further memorandum, the respondent emphasizes that it was “never
intended to be an alternative immigration stream or an appeal mechanism for
failed asylum claimants.”
[22]
Further, a refusal takes nothing away from an
applicant; it only means that the applicants would have to comply with the
requirements of the Act like everyone else.
[23]
Keeping in mind that purpose, the respondent
argues that subsection 25(1.3) was enacted in order to clearly separate these
applications from refugee protection proceedings and avoid duplication within
the system. Therefore, the role of an officer is to consider the credible facts
presented through a lens of hardship and the officer cannot reassess whether
applicants should have received refugee protection. In the respondent’s view,
subsection 25(1.3) codifies that officers are meant to be looking at elements
of hardship, rather than factors relating to risk (citing Caliskan v Canada (Minister of Citizenship and Immigration), 2012 FC 1190 at paragraph 22, 420 FTR
17 [Caliskan]).
[24]
Applying that to the case, the respondent then
repeats its earlier submissions that the applicants had failed to identify how
the risk created hardship. Further, the respondent says that the applicants’
submissions to the officer show that this was a minor ground and that their
submissions focused on establishment and Mrs. Vuktilaj’s medical condition.
Consequently, the officer’s analysis was “commensurate with the extent of the
submissions put forth by the Applicants” (citing Guxholli v Canada (Minister of Citizenship and Immigration), 2013 FC 1267 at paragraph 26, [2013]
FCJ No 1369 (QL) [Guxholli]).
[25]
The respondent closes the further memorandum by
briefly repeating its submissions on establishment and the medical care.
Analysis and
Decision
[26]
Issue 1
What is the standard of review?
Where
previous jurisprudence has determined the standard of review applicable to a
particular issue before the court, the reviewing court may adopt that standard
(see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 SCR
190 [Dunsmuir]).
[27]
For questions of statutory interpretation, the
Federal Court of Appeal has said that the standard of review only matters if
the provision being interpreted is ambiguous (see Qin v Canada (Minister of Citizenship and Immigration), 2013 FCA 263 at paragraphs 32 and 33,
451 NR 336). Here, I think it could be, so I will assess the standard of
review.
[28]
I disagree with the parties that the standard of
review is reasonableness on this issue. In Toussaint v Canada (Minister of Citizenship and Immigration), 2011 FCA 146 at paragraph 29, [2013] 1 FCR 3 [Toussaint],
leave to appeal to SCC refused, 34336 (November 3, 2011), the Federal Court of
Appeal said that the Minister’s delegates in these applications are owed no
deference on questions of statutory interpretation. Other jurisprudence from
this Court confirms that (see Caliskan at paragraph 3; Guxholli
at paragraph 17).
[29]
However, in Diabate v Canada (Minister of
Citizenship and Immigration), 2013 FC 129 at paragraphs 9 to 17, 427 FTR 87
[Diabate], Madam Justice Mary Gleason observed that this sits
uncomfortably with Supreme Court jurisprudence that says that reasonableness
should be presumed where a decision-maker is interpreting its enabling
legislation (see Dunsmuir at paragraph 54; Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12 at paragraph 44, [2009] 1 S.C.R. 339 [Khosa]).
I share Justice Gleason’s unease. The analysis in Toussaint is summary
and does not explain why the presumption of reasonableness was rebutted.
Further, in Agraira v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 SCC 36 at paragraph 50, 360 DLR (4th) 411, the Supreme
Court of Canada said that reasonableness was the standard when the Minister
interpreted a similar discretionary exemption power under what was then subsection
34(2) of the Act.
[30]
However, although Dunsmuir allows courts
to revisit the standard of review when previous analysis was unsatisfactory, it
does not override the hierarchy of courts. Toussaint remains a binding
decision of the Court of Appeal that is directly on point. It was decided after
Dunsmuir and assumedly considered the presumption. I am also not
satisfied that it has been overtaken by later cases. Agraira only
applied the law from Dunsmuir; it did not change it. Arguably, the
Supreme Court did strengthen the presumption of reasonableness by questioning
the true questions of jurisdiction category in Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paragraphs
34 to 43, [2011] 3 S.C.R. 654. However, Toussaint did not rely on
characterizing the question as one of true jurisdiction, but rather generalized
its conclusion to all questions of statutory interpretation. As such, I am
bound by it and will apply the correctness standard.
[31]
The other questions raised in this application
are questions of fact or mixed fact and law. For these, the standard is
reasonableness (see Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA 189 at paragraph 18, [2010] 1 FCR 360; Dunsmuir
at paragraph 53; Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at paragraphs 57 to 62, 174 DLR (4th) 193). This means that I
should not intervene if the decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (see Dunsmuir at paragraph
47; Khosa at paragraph 59). As the Supreme Court held in Khosa at
paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
[32]
Issue 2
Did the officer misinterpret subsection 25(1.3) of the Act?
I
agree with the respondent’s interpretation of subsection 25(1.3). In Rizzo
& Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27 at paragraph 21, 154 DLR (4th)
193, the Supreme Court of Canada adopted the following approach to the
interpretation of legislation:
Today there is only
one principle or approach, namely, the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of Parliament.
[33]
The statement in subsection 25(1.3) that the
Minister “may not consider the factors that are taken into account in the
determination of whether a person is a Convention refugee under section 96 or a
person in need of protection under subsection 97(1)” seems clear, but conflicts
somewhat with the command that the Minister “must consider elements related to
the hardships that affect the foreign national.” After all, claims that a
person would be returned to a serious possibility of persecution or any of the
risks in subsection 97(1) could almost always be relabeled as hardship and thus
it is unclear when subsection 25(1.3) would actually operate to preclude
consideration of factors relevant to refugee protection.
[34]
This problem was considered in Caliskan
and there Justice Hughes reviewed the circumstances surrounding the adoption of
this provision. He observed at paragraph 20 that an application on H&C
grounds was essentially a plea to the executive branch of government for
special consideration not otherwise provided in the legislation. Interpreting
subsection 25(1.3) in light of that, he concluded at paragraph 22 that the
ultimate focus was on hardship and that the use of refugee protection concepts
like personalized or generalized risk must be abandoned when considering H&C
grounds applications.
[35]
I largely agree. Subsection 25(1) exists to
grant relief for situations where the ordinary operation of the Act might cause
hardship and it should not be used for situations that the Act itself
contemplates. As the respondent pointed out, an H&C grounds application is
not an appeal from an unsuccessful refugee protection claim and those factors
need not be re-assessed (Guxholli at paragraph 22). As a corollary,
however, if a refugee claim has failed or would fail for reasons related to the
limitations of the refugee protection provisions, such as where discrimination
does not amount to persecution, then the hardship caused by those conditions
must still be considered. Practically, this means that an officer cannot refuse
to consider evidence that could speak to hardship only because it could also be
relevant to refugee protection. Rather, all the evidence relevant to hardship
should be considered and subsection 25(1.3) mainly operates to emphasize that
hardship, not the factors from section 96 and subsection 97(1), is the focus.
[36]
That said, the provision itself restricts
consideration only to the “elements related to the hardships that affect
the foreign national” (emphasis added). That means that not every hardship that
a person in the country of origin could conceivably suffer needs to be dealt
with. Rather, the applicants must show either that it will probably affect them
or, at the very least, that living in conditions where it could happen to them
is itself an unusual and undeserved or disproportionate hardship. Indeed, in Kanthasamy
v Canada (Minister of Citizenship and Immigration), 2013 FC 802 at
paragraph 33 (available on CanLII) [Kanthasamy], Madam Justice Catherine
Kane said the same, observing that “the considerations, including adverse
country conditions and discrimination, should have a direct and negative impact
on the particular applicant.”
[37]
In this case, the officer said the following in
the decision:
The applicants allege
that they fear persecution and harm from the Rexhaj family if they return to Albania as the Rexhaj family has declared a blood feud against them. As I find this risk
factor to fall under section 96 and 97 of the IRPA, I will not be assessing it,
and the evidence submitted in support thereof, in this application.
[38]
It is problematic that the officer ignored all
the evidence submitted in relation to the alleged risk. Subsection 25(1.3) is
not a license to ignore evidence; it simply requires that any evidence be
assessed for hardship.
[39]
To use an example, it could theoretically be
possible that a state could protect a person targeted for assassination, but
only by separating him or her from his or her family, relocating him or her,
and confining him or her to safe houses. To return to a situation like that may
be a hardship even though the risk to life is adequately managed and subsection
97(1) protection is therefore denied. In such circumstances, an officer must
consider the evidence to decide whether or not that is an unusual and
undeserved or disproportionate hardship and it can be an error not to do so.
[40]
Here too, the principal applicant said that he
was fearful enough that he would immediately enter into self-confinement if
returned to Albania, thus leaving his wife and daughter without support from
him. Indeed, in a letter from the principal applicant’s sister-in-law that the
PRRA officer accepted as true, she told the principal applicant that her own son
had gone into hiding, so there was evidence that the situation was bad enough
that the principal applicant might do the same. Even if that may not be an
objectively well-founded fear because state protection exists, it could be a
hardship if it will happen.
[41]
Of course, applicants bear the onus to raise any
potential hardships in their applications (see Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at paragraph 8, [2004] 2
FCR 635 [Owusu]) and the respondent argued that this was not seriously
advanced before the officer. However, I do not agree. At page five of their
submissions to the officer, the applicants said “if the claimants are forced to
return to Albania, Nikolle will live in hiding or self-confinement, whereas
Lize and Laura will live in fear for their lives.” At page six, they said that
Nikolle “will either get killed from the vendetta of the Rexhaj family or will
immediately enter into self-confinement. Therefore, Lize and Laura will remain
without a husband and a father respectively either way.” It is true that the
submissions focused more on other aspects of the claim, but it was nevertheless
advanced.
[42]
The officer had a duty to assess this evidence
and determine if it supports a finding of an unusual and undeserved or
disproportionate hardship, but instead the officer deliberately ignored the
evidence of this potential hardship entirely. That was due to an incorrect
interpretation of subsection 25(1.3) and I cannot determine from the reasons
whether the result would have been the same had that error not been made. I
would therefore allow this application for judicial review.
[43]
Because of my finding on Issue 2, I need not
deal with the remaining issue.
[44]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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