Ottawa, Ontario, this 16th day of November, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] In this application for judicial review, made pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985 c. F-7, the Applicant, Mehdi Latifi, challenges the decision of the Pre-Removal Risk Assessment Officer (Officer) dated December 8, 2005 (Decision). The Officer refused to grant the Applicant’s application for an exemption from the requirements of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA) so that the Applicant’s application for permanent residence could be made from within Canada on humanitarian and compassionate grounds (H&C Application).
BACKGROUND
[2] The Applicant is a citizen of Iran. He arrived in Canada on March 7, 2001 and made a claim for refugee protection on the basis of his political opinion. The Applicant alleges that he faces persecution in Iran as a result of his political activism in support of the Fedayeen (Minority) faction. In its decision dated January 7, 2002, the then Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board denied the Applicant’s refugee claim.
[3] On January 23, 2002, the Applicant applied for consideration under the Post-Determination Refugees in Canada Class; that application was subsequently converted to a Pre-Removal Risk Assessment (PRRA) when the IRPA came into force on June 28, 2002 (PRRA Application).
[4] In March 2005, the Applicant filed the H&C Application requesting that he be granted an exemption from the requirement under IRPA that he must apply for permanent residence from outside Canada. The Applicant states that there are two factors militating against requiring that he return to Iran to make his application for permanent residence. The first factor is the Applicant’s risk of persecution as described in his claim for refugee protection. The second factor is his employment as a welder and the hardship it would cause his employer to lose his skills.
[5] The H&C Application and the Applicant’s PRRA Application were considered by the same Officer. On December 6, 2005, the Officer rendered a negative decision with respect to the Applicant’s PRRA Application. That decision is subject to a separate application for judicial review (IMM-224-06) which was heard concurrently with this matter. After reviewing the circumstances of the H&C Application, the Officer informed the Applicant on December 8, 2005 that she had decided not to grant the exemption.
[6] On March 7, 2006, Justice Edmond Blanchard issued an order staying the removal of the Applicant pending final disposition of his application for leave and for judicial review in this matter and in IMM-224-06. Leave for judicial review was subsequently granted in respect of the H&C Decision on May 18, 2006 by Justice Robert Barnes.
RELEVANT LAW
[7] Decisions respecting H&C applications are made by the Minister of Citizenship and Immigration, or her or his delegate, pursuant to section 25 of the IRPA. In particular, subsection 25(1) provides the Minister with the discretion to exempt a foreign national from any requirement under the IRPA if humanitarian and compassionate considerations justify an exemption:
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25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient. |
DECISION UNDER REVIEW
[8] In her reasons, the Officer stated that the Applicant had not established that the hardship he would face if required to apply for permanent residence outside Canada would be “unusual and undeserved or disproportionate.” In coming to that conclusion, the Officer set out the considerations which were either supportive or non-supportive of the Applicant’s H&C Application. In support, the Officer noted that the Applicant was employed and self-supporting, that he had a good civil record in Canada, and that he had demonstrated some community involvement. As for the non-supportive considerations, the Officer referred to the Applicant’s negative refugee protection and PRRA decisions, the fact that he has family in Iran, and that his demonstrated establishment in Canada is moderate.
[9] The Officer considered the factors relevant to H&C applications: 1) spousal, family or personal relationships that would create hardship if severed; 2) children of the applicant in Canada; 3) hardship or sanctions upon return to country of origin; 4) degree of establishment in Canada demonstrated; and 5) establishment, ties or residency in any other country. The Officer noted that the first two factors were not relevant in the Applicant’s case. Regarding the fifth factor, the Officer noted that the Applicant’s mother, four sisters and brother reside in Iran, and that he had worked as a welder in Iran. The focus of the Officer’s Decision was on the other two factors: hardship or sanctions upon return to Iran, and demonstrated establishment in Canada.
[10] Regarding hardship or sanctions if returned to Iran, the Officer stated that in her capacity as a PRRA Officer, she had conducted an assessment of the evidence respecting the Applicant’s personalized risk against the criteria of sections 96 and 97 of the IRPA. In her H&C Decision, the Officer specifically referred to the reasons for rejecting the Applicant’s PRRA Application. In particular, the Officer pointed to the absence of any objectively verifiable evidence surrounding the Applicant’s alleged history as a political prisoner. The Officer also reviewed the documentary evidence and concluded that each of the documents was of little probative value. Further, in respect of his political activities in Canada, the Officer noted that the Applicant had supplied no tangible evidence of these activities and, as a result, she gave little weight to his submission that his profile as a political activist in Canada would place him at risk in Iran. Finally, the Officer acknowledged that the documentary evidence related to the country conditions in Iran indicates that basic human rights are seriously compromised in Iran. However, the Officer concluded that the country conditions do not, by themselves, establish a risk to the Applicant’s life or security of the person.
[11] With respect to establishment, the Officer concluded that the Applicant had not demonstrated that he had attained a degree of establishment during his five years in Canada such that an application from outside Canada would constitute an unusual and undeserved or a disproportionate hardship. As evidence supporting the Applicant’s establishment in Canada, the Officer referred to his full-time employment as a welder and his good civil record. However, the Officer also noted that she had little evidence before her of his ability in either English or French, or of any accumulated assets or significant social or community integration. Finally, although the Officer accepted that the Applicant was a highly valued employee, she held that any hardship accruing to his employer from a loss of his skill would be largely of the employer’s own making if he had not acted to hire and train welders for his operation during the period that had passed.
[12] In her final analysis, the Officer concluded that there was not sufficient reliable evidence to support a finding that the Applicant would face a probable risk to his life or the security of his person in Iran. Moreover, the Officer stated that, given the lack of reliable evidence on risk, she was also of the view that there was little compelling evidence of associated hardship. The Officer also concluded that the Applicant had demonstrated only a moderate degree of establishment in Canada and that his vocational skills and family support would assist him in re-establishing himself in Iran.
ISSUES
[13] The Applicant says that the Officer made the following errors in considering his H&C Application:
1. She failed to distinguish between the test for a PRRA and the lower test of “unusual, undeserved or disproportionate hardship” in an H&C application;
2. She failed to disclose extrinsic evidence upon which she relied for her Decision, namely country conditions on Iran;
3. She erred by requiring corroboration in the form of “tangible” evidence.
STANDARD OF REVIEW
[14] Since the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 243 N.R. 22 the Courts have held that the appropriate standard for reviewing H&C decisions is reasonableness. With respect to the application of this standard of review, Justice Danielle Tremblay-Lamer’s reasons at paragraph 7 of her decision in Singh v. Canada (Minister of Citizenship and Immigration) 2005 FC 718, are instructive and, in my view, applicable in this case.
In this respect, it is critical to keep in mind the nature of the Court’s inquiry when applying the standard of reasonableness simpliciter. Although the Court is entitled to engage in a “somewhat probing examination” of the decision (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 56), the Court is not licensed, by virtue of the ruling in Baker, supra, for example, to reweigh the considerations relevant to a humanitarian and compassionate grounds application … Equally, the Court cannot grant judicial review because it would have arrived at a different result […].
ARGUMENTS
The Applicant
[15] The Applicant argues that the Officer failed to turn her mind to the distinction between the tests for a PRRA and an H&C Application. He says the Officer appears to have simply repeated her PRRA Decision in her Decision on his H&C Application. Moreover, the Applicant says that the Officer erred in concluding that, because there is little reliable evidence of risk, there is also little compelling evidence of associated hardship, without considering whether forcing him to return to a country where basic human rights are seriously compromised might be a basis for meeting the test of “unusual, undeserved or disproportionate hardship.” In deciding that there was no hardship simply on the basis of the absence of personal risk, the Officer committed a reviewable error, according to the Applicant. In support of this position, he cites Liyanage v. Canada (Minister of Citizenship and Immigration) 2005 FC 1045; and Melchor v. Canada (Minister of Citizenship and Immigration) (2004), 39 Imm. L.R. (3d) 79 2004 FC 1327.
[16] The Applicant also maintains that, as a matter of law, the Officer had an obligation to disclose to the Applicant the extrinsic evidence he used in coming to the Decision to the Applicant. He submits that “the material used may have had portions upon which the Applicant would have wished to comment.” While acknowledging that the material appears to be supportive, the Applicant states that there may have been some passages which were much stronger and he should have been given the opportunity to distinguish those passages or bring them to the attention of the Officer.
[17] Finally, the Applicant argues that the Officer erred by requiring corroboration in the form of “tangible” evidence. First, he submits that no one knows what tangible evidence is. Second, he says that there was “a plethora of letters and a petition confirming the essentials” of what he said.
The Respondent
[18] The Respondent submits that the Officer carefully considered the H&C Application and that it was reasonable for her to conclude that there were not sufficient humanitarian and compassionate grounds to grant an exemption.
[19] Regarding the first error alleged by the Applicant, the Respondent states that the Applicant himself submitted that the hardship he would face, if required to apply for permanent residence from outside of Canada, was his risk of persecution in Iran. Since the Officer had carefully reviewed the Applicant’s claim and had concluded that he would not be at risk if returned to Iran, the Respondent argues that it was reasonable for the Officer to find that the Applicant would not suffer any hardship associated with that alleged risk.
[20] As to the second error, the Respondent notes that the documents relied on by the Officer were either submitted by the Applicant or were publicly available. As such, the Officer did not breach the principles of procedural fairness by not providing the Applicant with an opportunity to review and respond to documentary materials.
[21] Finally, with respect to the third error, the Respondent submits that it was reasonable for the Officer to consider that the Applicant had not provided any tangible evidence of his political activities in determining whether he would suffer hardship if he had to apply for permanent residence from outside Canada.
ANALYSIS
[22] The burden of adducing proof of any claim on which an H&C application is made rests with the Applicant: see Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635, 2004 FCA 38. In this case, the Applicant had the onus of satisfying the Officer that being required to obtain a permanent resident visa from outside Canada would cause him unusual and undeserved or disproportionate hardship.
[23] The primary argument advanced by the Applicant is that the Officer erred by relying upon her own PRRA Decision and by not applying the lower standard of “unusual and undeserved or disproportionate hardship” in assessing the risk he allegedly faces.
[24] The Applicant relies upon the decision in Melchor in emphasizing the distinction between the assessment of risk in the context of a PRRA decision and the assessment of hardship in the context of an H&C Application. In Melchor, Justice Gauthier made the following distinctions at paragraphs 19 to 21:
The officer does not discuss whether living “closeted” because of the social stigma attached to homosexual couples in Mexico and the discrimination they suffer, qualifies as undue or disproportionate hardship, especially considering the medical opinion on file, which indicates that a return to Mexico in such conditions would result in significant physical and psychological damage to Mr. Ponce Melchor. There was documentary evidence supporting the view that everywhere in Mexico, life was “difficult” for homosexuals.
As indicated in the PRRA decision, the situation In Mexico may not amount to a risk under sections 96 and 97 because there was an internal flight alternative and state protection was available against actual mistreatment. But this does not mean that the difficult situation the applicants would face even in larger cities should not be assessed or neglected at all.
I am not satisfied that the officer applied her mind to this subtle difference between what she had to do in evaluating the H&C application as opposed to what she had done in reviewing the PRRA. As she said it herself, the situation that the applicants will face upon their return was a crucial factor in assessing their H&C application. I, therefore, find that the decision in that respect was not reasonable and that this decision is material and it should be set aside.
[25] The Applicant also relies heavily upon the decision in Liyanage at paragraphs 38 to 45 where Chief Justice Lutfy pointed out crucial distinctions between the standard in H&C applications and PRRA applications:
In her humanitarian and compassionate consideration decision, the same immigration officer relied on her factual analysis in the PRRA decision concerning her acceptance of the alleged harassment by the applicant's former in-laws, her scepticism concerning the warrant of arrest and her view that there was insufficient evidence to connect the violent incidents of 2004 with the family of her first husband.
In the view of the immigration officer, there was no unusual and undeserved or disproportionate hardship that would be suffered by the applicants upon their return to Sri Lanka.
In reviewing the best interests of the applicant’s daughter, Erandi de Silva, the immigration officer did not consider that her natural father’s family would cause her harm. She also noted that the applicant and her current husband have extended families in Sri Lanka who could care for Erandi.
In my view, the immigration officer could adopt the factual conclusions in her PRRA decision to the analysis she was making in the H&C Application. However, it was important that she apply those facts to the test of unusual and undeserved or disproportionate hardship, a lower threshold than the test of risk to life or cruel and unusual punishment which was relevant to the PRRA decision.
The immigration officer was alert to this distinction in her analysis of the impact of returning the applicants to face the harassment and resentment of the de Silva family:
With respect to the issue of the applicant facing unusual, excessive, or undeserved hardship as a result of the previous situation with the former in-laws, I am cognizance [sic] and respectful of the fact that family conflicts can be difficult and emotionally trying, and I can well understand that a dispute occurred over the financial needs of the estate, the losing party may harbour resentment towards the successful party. However, I do not find that the situation [sic] to be unusual, excessive or undeserved to warrant exceptional consideration within the context of the H&C Application.
Here, I cannot conclude that the decision of the immigration officer was unreasonable.
However, the immigration officer does not appear to have demonstrated the same care in analyzing the impact of the violent incidents which occurred in 2004 in the context of the unusual and undeserved or disproportionate hardship test. In the paragraph of her decision considering these events and the warrant of arrest, the immigration officer stated:
After reviewing and assessing the available research and the allegations of risk in a context of risk to life and stroke or security, I find the PRRA conclusions have bearing on the conclusions of risk component of this H&C Application.
…
The PRRA decision concluded, which I find to be applicable within the context of risk on this H&C Application, is that there appears to be state protection available to the applicants in the form of a functioning judicial system and access to counsel. [Emphasis added]
This analysis does not provide the immigration officer’s assessment of the relevant facts against the threshold of unusual and undeserved or disproportionate hardship. She erred, in my respectful view, in linking her PRRA decision to “...the context of risk on this H&C Application.” She was required to assess all the facts in the context of the relevant test for an application for humanitarian and compassionate consideration. She failed to do so. In my view, this constitutes an error of law which requires the Court's intervention.
More specifically, in addition to considering the impact of returning the applicants to Sri Lanka to face the potential ongoing harassment of the de Silva family, the immigration officer was also required to assess the impact of their return to the country where the applicant’s brother and brother-in-law were the victims of violent crimes and, the possibility of facing a warrant of arrest - unless the genuineness of that document was totally discounted. It was the cumulative effect of these factors that was not considered by the immigration officer in the context of undue and undeserved or disproportionate hardship.
[26] On the facts before me, I conclude that the Decision must be examined to see if the Officer relied inappropriately upon her own PRRA Decision to determine risk, and made her determination with due consideration to “the subtle difference between what she had to do in evaluating the H&C Application as opposed to what she had done in reviewing the PRRA,” to use Justice Gauthier’s words in Melchor. Thus, in accordance with Chief Justice Lutfy’s decision in Liyanage, I must determine whether, in relying upon her own PRRA decision in this case, the Officer applied the facts to the test of unusual and undeserved or disproportionate hardship.
[27] The Officer deals with the connection between the PRRA assessment and the H&C assessment in two crucial paragraphs of the Decision:
There is little reliable evidence to support a finding that the applicant is or has been a notable supporter of the Organization of Fedaian (Minority), that he was imprisoned as a political activist, or that he would now be an object of interest to police as a result of political activities engaged in either abroad or in Canada. I do not find sufficient reliable evidence to support a finding that he would face a probable risk to his life or to the security of his person in Iran.
I have similarly considered hardships which may accrue from the risks identified and I find that as there is little reliable evidence of risk, so there can be little compelling evidence of associated hardships.
[28] The critical finding is the Officer’s statement that “as there is little reliable evidence of risk, so there can be little compelling evidence of associated hardships.” Ostensibly, this would appear to fall within the error described by Justice Gauthier and Chief Justice Lutfy. However, Chief Justice Lutfy made it very clear in Liyanage that an officer can adopt the factual conclusions in her PRRA decision for purposes of the analysis under the H&C grounds provided “she apply those facts to the test of unusual and undeserved or disproportionate hardship, a lower threshold than the test of risk to life or cruel and unusual punishment which was relevant to the PRRA decision.”
[29] In the case before me, the Officer says in the Decision that “I have similarly considered hardships which may accrue from the risks identified …”
[30] The Applicant submits that this is not sufficient consideration because the Officer did not look at all the evidence and apply the H&C test. Instead she merely concluded that because there was no evidence of risk, so there could be “little compelling evidence of associated hardships.”
[31] I have read the Decision as a whole. In relation to risk, the Officer indicates that she has considered all of the evidence before her, and not just arguments put forward by counsel for the Applicant. It is clear that when the Officer refers to “risks identified” she is referring to the risks identified in the evidence as a whole. It is also clear that when she says “I find that as there is little reliable evidence of risk, so there can be little compelling evidence of associative hardships,” she is not saying that she equates risk with hardship or that she is applying the same test as she did in the PRRA Decision. She is merely saying that, of the hardships that might accrue from the risks identified in the evidence, there is little compelling evidence of associated hardships. In other words, it seems to me that she relies upon the facts in her PRRA Decision but she applies the correct H&C test to those facts.
[32] So the issue becomes whether there were any possible unusual or undeserved or disproportionate hardships identified in the evidence that were separate and apart from the evidence of risk.
[33] In Melchor, Justice Gauthier points out in paragraph 17 of her decision that “[o]ften, the risks raised by an applicant in a PRRA are exactly the same raised in his or her H&C Application. But it is not always so.”
[34] Justice Gauthier allowed the application in Melchor because there was evidence of hardship that was not coterminous with evidence of risk. I have reproduced the relevant passage again for clarity:
The officer does not discuss whether living “closeted” because of the social stigma attached to homosexual couples in Mexico and the discrimination they suffer, qualifies as undue or disproportionate hardship […] (para. 19).
[35] Similarly, in Liyanage, Chief Justice Lutfy expressed his concern at paragraph 43 that “the immigration officer does not appear to have demonstrated the same care in analyzing the impact of the violent incidents which occurred in 2004 in the context of the unusual and undeserved or disproportionate hardship test.”
[36] In the present case before me, there is neither evidence of hardship that was unaccounted for in the Decision, or any indication that the Officer failed to apply the hardship test to any particular portion of the evidence.
[37] On these facts, the evidence of risk under the PRRA Application was the same evidence for the determination of hardship under the H&C Application. As Chief Justice Lutfy said in Liyamage, the factual conclusions from the PRRA can be adopted to the H&C analysis, provided the correct test is applied. I see nothing before me in this application to suggest that the Officer did anything other than follow the process that the jurisprudence of this Court states is permissible, at least as regards applying the correct test or standard for an H&C application.
[38] The Applicant further seeks to avoid this conclusion by arguing that the evidence on country conditions in the H&C Application is never considered by the Officer in relation to disproportionate hardship because the Officer did not regard the Applicant as a reliable witness as a result of the CRDD negative credibility findings. The Applicant says that the country conditions in themselves were a disproportionate hardship and should have been considered as such.
[39] I cannot agree with this argument. The Officer certainly makes it clear that the country conditions are considered from the perspective of risk:
I have also considered a wealth of documentary evidence submissions relative to country conditions in Iran. Those submissions ably demonstrate that basic human rights are seriously compromised in Iran, and that serious abuses are known to occur. While these circumstances are justifiably the target of international censure, they do not, by themselves, establish a risk to the applicant’s life or to the security of his person.
[40] The real area of concern with the H&C Decision, as far as I can see, is the extent to which it relies upon the same Officer’s decision dealing with the Applicant’s PRRA application. I have dealt with that decision in IMM-224-06 and my conclusion is that it cannot stand because the Officer did not deal appropriately with credibility issues in accordance with subsection 113(b) of IRPA and section 167 of the Immigratino and Refugee Protection Regulations, SOR/2002-227 (Regulations). Since the Officer’s assessment of risk under the H&C Decision was based upon her own PRRA Decision, it seems to me that she might easily have reached an entirely different conclusion on her H&C assessment if her PRRA assessment had not contained a reviewable error. Consequently, I do not see how this Decision can stand, given my conclusions that the PRRA Decision must be sent back for reconsideration. This is the factor which, in my view, renders the H&C Decision unreasonable.
[41] With respect to the other issues raised by the Applicant, I am of the view that they have no merit. The Applicant argues that the Officer was required to disclose “extrinsic evidence” that she relied on in making her Decision, namely evidence of country conditions in Iran. On this issue, I agree with the Respondent that such evidence is not extrinsic. Although the Applicant does not point to any specific document as “extrinsic,” all of the country condition documents in the record appear to be from public sources. In supporting his H&C Application, it was open to the Applicant to refer to any country condition documents that would support his claim. Moreover, I note that the Officer’s determinations on hardship are based upon an insufficiency of evidence and the lack of any connection between country conditions in Iran and the personalized hardship faced by the Applicant. The situation on country conditions put forward by the Applicant appears to have been accepted by the Officer. The problem was that, as far as the Officer was concerned, the Applicant could not show how this would result in a disproportionate hardship to him.
[42] Finally, I cannot accept the Applicant’s contention that the Officer erred in noting there was no “tangible” evidence in support of his submission that he is at risk or will suffer a disproportionate hardship because of his high-profile as a political activist in Vancouver against the Iranian government. In my view, it was entirely reasonable for the Officer to note that there was no evidence of the Applicant’s political involvement aside from some generalized statements in letters of support and a petition. Once again, however, this issue may well have been considered differently if the risk assessment conducted under the PRRA application had not contained a reviewable error.
JUDGMENT
1. This application for judicial review is allowed and the matter is returned for reconsideration by a different officer.
2. There is no question for certification.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-225-06
STYLE OF CAUSE: MEHDI LATIFI v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: September 05, 2006
REASONS FOR
JUDGMENT & JUDGMENT: RUSSELL J.
DATED: NOVEMBER 16, 2006
APPEARANCES:
Ms. Fiona Begg for Applicant
Ms. Helen Park for Respondent
SOLICITORS OF RECORD:
Barrister/Solicitor for Applicant
Vancouver, British Columbia
John H. Sims, Q.C. for Respondent
Deputy Attorney General of Canada