Montreal, Quebec, December 7, 2006
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, ch. 27 (IRPA) of a decision by a delegate of the Minister of Citizenship and Immigration (Officer) finding that there were insufficient grounds to warrant exempting Mr. Fadi El Doukhi’s (Applicant) from the requirement that he obtain a permanent resident visa from outside of Canada for humanitarian and compassionate considerations pursuant to subsection 25(1) of the IRPA.
I. Facts
[2] The Applicant is a stateless Palestinian. He was born in 1976 in Saudi Arabia, the country in which he lived until 1996. Between 1996 and 1998 he studied in Jordan. In 1998, he attempted to return to Saudi Arabia, where his parents still resided, but was denied entry as under Saudi Arabian law all persons who have attained the age of majority require a work permit to be allowed to enter the country. Having been refused entry to Saudi Arabia, the Applicant travelled to Lebanon to the Ein el-Hilweh refugee camp where he stayed with his paternal grand-parents.
[3] In 2000, the Applicant moved to the United Arab Emirates. In June 2001, the Applicant returned to the Ein el-Hilweh refugee camp in Lebanon. On July 31, 2001, the Applicant left Lebanon and moved to Texas to study English. In December 2001, the Applicant was made aware that his father could no longer pay for his studies in the United States due to illness. Moreover, around the same time the Applicant learnt that he could not continue to study in the United States due to policy changes affecting foreign students in the wake of the September 11, 2001 attacks.
[4] Even though his student status was revoked, the Applicant stayed in the United States until December 19, 2002. During his stay of about 16 months in the United States the Applicant took no steps to obtain asylum nor did he take any steps to obtain any type of status during the period of about one year when he was illegally in the United States. On December 19, 2002, the Applicant entered Canada via the Philipsburg, Quebec land border and claimed refugee protection.
[5] On December 24, 2003 the Immigration and Refugee Board (IRB) rejected the Applicant’s refugee protection claim.
[6] On April 22, 2004 this Court rejected his application for leave to commence a judicial review of the IRB’s decision. On April 20, 2006, the Applicant’s humanitarian and compassionate (H&C) application was rejected by the Officer and on April 21, 2006 the same Officer rejected the Applicant’s application for a pre-removal risk assessment (PRRA).
[7] The H&C application is the decision under judicial review.
[8] It is also important to note that the Applicant claims that after learning of the rejection of his refugee protection claim in December 2003, he lapsed into a bout of severe depression which prevented him from functioning normally and at its worse led to him living on the streets of Montreal and attempting to take his own life. He also claims to still be affected by this illness.
II. Issues
(1) What are the appropriate standards of review applicable to the issues raised in this judicial review?
(2) Did the Officer err by failing to take into account the Applicant’s statelessness in his assessment of the Applicant’s H&C application?
(3) Did the Officer violate procedural fairness by making findings relating to events that occurred after the H&C application was submitted without having provided the Applicant the opportunity to submit relevant evidence?
(4) Did the Officer err in law by applying the threshold test to be used in the PRRA context instead of the threshold test applicable in the H&C context?
(5) Did the Officer err by finding that being returned to Lebanon would not cause the Applicant unusual and undeserved or disproportionate hardship?
III. Analysis
(1) What are the appropriate standards of review applicable to the issues raised in this judicial review?
[9] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 857-858, the Supreme Court of Canada determined that the standard of review applicable to a decision of a delegate of the Minister to reject an H&C application is that of reasonableness simpliciter. Although Baker was decided under the previous Immigration Act, R.S.C. 1985, c. I.2, the jurisprudence of this Court indicates that the standard of review of reasonableness simpliciter is equally applicable to decisions to reject H&C applications under IRPA (See Kaur v. Canada (Minister of Citizenship and Immigration), 2005 FC 1192 at para. 13; Liang v. Canada (Minister of Citizenship and Immigration), 2006 FC 967 at para. 7; Dharamraj v. Canada (Minister of Citizenship and Immigration), 2006 CF 674). Thus, issue 5 will be reviewed on the standard of reasonableness simpliciter.
[10] Issues 2 and 3 both raise procedural fairness arguments. They will consequently be reviewed on the standard of correctness as the Federal Court of Appeal has determined that all allegations concerning procedural fairness are to be reviewed on the correctness standard (Sketchley v. Canada (Attorney General), 2005 FCA 404 at para.46).
[11] Finally, issue 4 will be reviewed on the correctness standard as it has been determined by this Court that questions of law in the H&C context are reviewable on such a standard (Yun v. Canada (Minister of Citizenship and Immigration), 2004 FC 1062 at para. 8; Masanganise v. Canada (Minister of Citizenship and Immigration), 2004 FC 993 at para. 4).
(2) Did the Officer err by failing to take into account the Applicant’s statelessness in his assessment of the Applicant’s H&C application?
[12] The Applicant submits that the government created a legitimate expectation that his statelessness would be taken into account during the Officer’s consideration of his H&C application. This argument is premised on what was written by Mr. Vito Vassallo, Region Director, Operations, Citizenship and Immigration Canada (CIC), and Mr. Albert Deschamps, Acting Director General, CIC (Quebec Region), to the Coalition Against the Deportation of Palestinian Refugees (Coalition), in response to the Coalition’s request that statelessness be considered a sufficient condition for finding that removal from Canada would constitute an unusual and undeserved or disproportionate hardship. In his letter, Mr. Vassallo stated that (Applicant’s Record, Affidavit of Jordan Topp, Exhibit C, p.73):
…although statelessness is a factor to consider in an H&C application, the officer must take into consideration all of the circumstances of the case in order to arrive at a decision, on a case by case basis.
Whereas Mr. Deschamps in his letter stated (Applicant’s Record, Affidavit of Jordan Topp, Exhibit D, p.74):
Our Immigration Officers are trained and required to take into account unusual, underserved and disproportionate hardship, and although statelessness is a factor to consider in an H&C application, our officers must also take into consideration all of the circumstances of the case in order to arrive at a decision, on a case by case basis.
[13] The Applicant submits that the letters written by Mr. Vassallo and Mr. Deschamps respectively, which state that statelessness is a factor to consider in an H&C application, are representations by the government that statelessness is to be considered while assessing H&C applications. Thus, in the Applicant’s view, an officer’s failure to consider statelessness while assessing an H&C application would amount to a violation of procedural fairness under the doctrine of legitimate expectation.
[14] The doctrine of legitimate expectation is based on the principle that the regular practices of decision makers must be followed since it would be unfair for decision makers to act in contravention of representations as to procedure. Moreover, it has been accepted by the Supreme Court of Canada that where a legitimate expectation is found to exist it would amount to a violation of procedural fairness if the representations as to procedure were not followed (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 26).
[15] This being said, Mr. Vassallo’s and Mr. Deschamps’ statements cannot be considered the equivalent of a government representation as to how H&C applications will be decided. The main reason being that the letters were sent for the sole reason of rejecting the Coalition’s request that CIC consider statelessness, on its own, a sufficient condition for finding that an applicant would face unusual and underserved or disproportionate hardship if made to apply for a permanent resident visa from outside Canada, the threshold required to succeed in an H&C application (Inland Processing Manual 5, Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds, section 5.1). Thus, the letters cannot be said to be “clear, unambiguous and unqualified” representations as to the procedure to be followed by agents of the Minister when they are accessing H&C applications, as is required by the Supreme Court of Canada case law (see C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at para. 131).
[16] Even if the letters were meant to be representations as to the procedure to be followed when accessing H&C applications, it is questionable that Mr. Vassallo and Mr. Deschamps have the authority to procedurally tie all delegates who assess H&C applications. This is especially true given that the Minister issues Inland Processing Manuals for the precise purpose of detailing the procedure that should be followed by Minister delegates when dealing with immigration and refugee applications. Thus, accepting that letters written by CIC employees can dictate the procedure that delegates must follow when assessing applications would void the Inland Processing Manuals of all purpose. Moreover, accepting that Mr. Vassallo’s and Mr. Deschamps’ letters dictated the procedure that must be followed in assessing H&C applications would be to allow the letters to fetter the discretion of all officers who determine H&C applications.
[17] Contrary to the Applicant’s assertions, it is clear that the Officer did consider the fact that the Applicant was stateless. The Officer notes the Applicant’s citizenship as “stateless” (Tribunal Record, H&C Applications - Notes to File, p.14), he then states (Tribunal Record, H&C Application Notes to File, p.15): “The applicant is a 30 year-old stateless man, who is registered as a Palestinian Refugee with the United Nations Relief and Works Agency (UNWRA) in Lebanon.” Moreover, the Officer conducts a very thorough analysis of the situation the Applicant will face upon returning to Lebanon as a Palestinian refugee living in a refugee camp, an analysis that in my opinion could only have been conducted had the Officer been aware that by definition Palestinian refugees are stateless.
[18] Given the reasons above, the doctrine of legitimate expectation has not been triggered.
(3) Did the Officer violate procedural fairness by making findings relating to events that occurred after the H&C application was submitted without having provided the Applicant the opportunity to submit relevant evidence?
[19] The Applicant argues that his right to be heard was violated because he was never invited to submit an update to his file even though the Officer made significant negative findings relating to events that are said to have occurred between the time of the Applicant’s initial H&C application and the Officer’s decision.
[20] It is to be noted that, the “significant negative findings” relate to the Applicant’s bout of severe depression and his treatment of this condition. As the bout of depression began three months prior to the initial filing of the H&C application, the Applicant has only himself to blame for failing to submit any information relating to this condition. It is well established in the H&C context, that the burden is on the Applicant to submit all the pertinent information to support his position. In the case at hand, the Applicant failed to do so. Thus, the Applicant’s failure to present relevant information cannot be blamed on the Officer.
[21] To this effect, in Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, the Federal Court of Appeal determined that an officer reviewing an H&C application has no duty to elicit evidence or to warn the applicant of the weaknesses of his or her case. In the words of the Federal Court of Appeal (Owusu, above, at para. 8):
…since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril.
[Emphasis added]
Moreover, more recently, Justice Shore wrote in Hamzai v. Canada (Minister of Citizenship and Immigration), 2006 FC 1108 at paragraphs 19-20:
19 A decision made on H&C grounds is an exceptional measure and, moreover, a discretionary one. The existence of an H&C review offers an individual special and additional consideration for an exemption from Canadian immigration laws that are otherwise universally applied. (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), at paragraph 15.)
20 The onus is thus on an Applicant to satisfy the officer that there are sufficient humanitarian and compassionate grounds to warrant a favourable decision. The decision of an immigration official not to recommend an exemption under s. 25 (1) of IRPA takes no right away from an individual, and does not impede that person’s ability to apply for permanent residence in Canada from abroad.
[Emphasis added]
[22] Consequently, as is clear from the case law, the fact that the Officer did not invite the Applicant to submit further evidence relating to his H&C application does not constitute a violation of procedural fairness.
(4) Did the Officer err in law by applying the threshold test to be used in the PRRA context instead of the threshold test applicable in the H&C context?
[23] The Applicant submits that the Officer erred in applying the threshold test applicable in the PRRA context instead of the one applicable to H&C determinations. In the context of H&C applications, to be successful an applicant must demonstrate that they would suffer ‘unusual and underserved or disproportionate hardship’ if forced to apply for a permanent resident visa from abroad (Inland Processing Manual 5, Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds, section 5.1). In contrast, in the context of a PRRA, an applicant must demonstrate that they face a risk to life or cruel and unusual punishment if returned to their country of origin, for their PRRA to be granted. The case law clearly establishes that where a H&C decision maker applies the higher threshold used in PRRAs in the context of an H&C application, the decision maker erred in law and the Court must intervene (see Uddin v. Canada (Minister of Citizenship and Immigration), 2003 FCT 316; Melchor v. Canada (Minister of Citizenship and Immigration), 2004 FC 1327; Liyanage v. Canada (Minister of Citizenship and Immigration), 2005 FC 1045).
[24] As evidence that the Officer applied the higher threshold applicable in PRRAs instead of the lower threshold applicable in the H&C context, the Applicant points to page 3 of the H&C Applications - Notes to File where the Officer writes (Tribunal Record, H&C Applications - Notes to File, p.16):
… the objective documentary evidence does not support the applicant’s conclusions that the nature and severity of the situation amounts to persecution, or that Lebanese State policies or practices amount to persecution against the Palestinians.
The Applicant also points to page 5 of the H&C Applications - Notes to File where the Officer states (Tribunal Record, H&C Applications - Notes to File, p.18):
Although, the conditions in the refugee camps are unfavourable, and although the Lebanese government levies certain legal discriminations against Palestinians refuges, in light of the their lack of Lebanese citizenship, these conditions are not of such an intensity or nature as to constitute persecution.
[25] Before addressing whether this evidence is proof that the Officer applied the higher threshold applicable in PRRAs instead of the one applicable in the H&C context, it is essential to note that the Applicant raised the issue of persecution in his submissions in support of it’s H&C Application as indicators that he would face ‘unusual and underserved or disproportionate hardship’. This is demonstrated in the following portions of the Applicant’s letter in support of his application for permanent residence from within Canada based on Humanitarian and Compassionate Grounds, dated March 21, 2005 (Applicant’s Record, pp. 19-45) :
During this time, he was also exposed to grievous hardship. Conditions in Ein el Hilweh refugee camp were such that his security and his life were in danger. There, Mr. El Doukhi, as a Palestinian refugee in Lebanon was subject to persecution by the Lebanese state….
[Emphasis Added]
(Applicant’s Record, page 20 at para. 5)
The cumulative discrimination against Palestinian refugees by the Lebanese state amounts to persecution…
(Applicant’s Record, page 23 at para. 20)
The IRB, in reaching this conclusion, failed to consider the persecution and grievous conditions faced by Mr. El Doukhi, which are well supported by various reports on Ein El Hilweh refugee camp and for Lebanon.
(Applicant’s Record, page 24 at para. 23)
…The IRB erred in law in failing to consider the Lebanese government’s treatment of Palestinian refugees as acts of persecution imposed on Mr. El Doukhi.
(Applicant’s Record, page 25 at para. 28)
[26] Taking into account the Applicant’s own submissions as to his risk of persecution, in my view it is logical that the Officer would undertake an analysis as to whether the Applicant would face persecution if returned to Lebanon. Furthermore, the Officer was justified in using the term “persecution” in his decision, even though he was dealing with an H&C application. Having read the Officer’s decision, I can note that the Officer does not use the term “persecution” or conduct an analysis as to whether persecution exists other than to respond to the Applicant’s suggestion that he would face persecution as a Palestinian refugee living in a refugee camp in Lebanon. Consequently, it is acceptable, even though in the context of an H&C decision, that the Officer arrived at the following conclusion (Tribunal Record, H&C Applications - Notes to File, p.17):
… the applicant has not satisfied me that conditions in the camp would amount to unusual and underserved or disproportionate hardship. Although the conditions in refugee camps are unfavourable, and although the Lebanese government levies certain legal discrimination against Palestinian refugees, in light of their lack of Lebanese citizenship, these conditions are not of such an intensity or nature as to constitute persecution.
This being said, reading the Officer’s decision as a whole it is clear that the proper threshold was applied. The Officer on many occasions repeats the threshold applicable in the H&C context and applies this standard to his review of the factual evidence.
Having familiarised myself with the documents submitted by the applicant and with the objective documentary evidence, I grant greater weight to the latter, as it tends to make objective findings of fact based on first-hand observation and expertise. Finally, I note that the applicant did not seek to obtain asylum during the sixteen months he spent in the United States; this appears incompatible with a subjective fear of persecution which the applicant declares. In light of the information available to me, I conclude that the applicant is not exposed to a level of risk that would constitute unusual and underserved or disproportionate hardship.
And again on the same page, the Officer writes (Tribunal Record, H&C Applications - Notes to File, p.18):
Although the applicant has limited family in Lebanon, he has no family in Canada, and he has not submitted evidence to support the claim that he has developed “strong emotional, economic and familial bonds with his community here in Canada”. While I am sensate to the fact that the applicant would prefer to remain in Canada to submit his application and that a return to Lebanon represents a certain degree of inconvenience inherent in resettlement, in light of the information submitted by the applicant, he has not demonstrated that he has developed a significant degree of integration, or that he has developed links of such a nature that his return to Lebanon would expose him to unusual, underserved or disproportionate hardship.
[27] Thus, the so-called evidence pointed to by the Applicant does not demonstrate that the Officer applied the higher threshold applicable in PRRAs 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 raised by the Applicant and evaluating these factors using the proper threshold applicable in the H&C context, namely that an “unusual and undeserved or disproportionate hardship” must be demonstrated.
(5) Did the Officer err by finding that being returned to Lebanon would not cause the Applicant unusual and undeserved or disproportionate hardship?
[28] The Applicant submits that since the Officer found that the “Lebanese government levies certain legal discriminations against Palestinians” (Tribunal Record, H&C Application Notes to File, p.17), the “overall conditions for Palestinian refugees in Lebanon are indeed unfavourable and difficult for a majority of Palestinians” (Tribunal Record, H&C Application Notes to File, p.17), and that “Lebanese authorities harass and detain Palestinians” (Tribunal Record, H&C Application Notes to File, p.17) it was unreasonable for the Officer to determine that the Applicant would not be subject to unusual, underserved or disproportionate hardship if returned to the Ein el-Hilweh refugee camp in Lebanon.
[29] It must be noted that case law emanating from this Court has established that a decision maker in the immigration process is not required to refer to each piece of evidence that is before them and that only where evidence exists that contradicts a delegate’s finding must such evidence be acknowledged (Thavachelvam v. Canada (Solicitor General), 2004 FC 1604 at para. 13;
Figurado v. Canada (Solicitor General), 2005 FC 347 at para. 56). In the case at hand, the Officer acknowledged the documentary evidence that contradicted his findings. For instance, the Officer states (Tribunal Record, H&C Application Notes to File, p.17):
The objective documentary evidence partly corroborates the applicant’s documents, insofar as it indicates that overall conditions for Palestinian refugees in Lebanon are indeed unfavourable and difficult for a majority of Palestinians. It also indicates that, in its efforts to control armed Palestinian militant groups operating from with the refugee camps, Lebanese authorities harass and detain Palestinians….
[30] Moreover, the lack of reference to the Amnesty International Public Statement of April 2004 (Applicant’s Record, Amnesty International Public Statement dated April 13, 2004, “UN Committee’s recommendations to Lebanon: Need for effective measures to protect the human rights of Palestinian refugees, page 57) is not fatal. The Amnesty International Public Statement of April 2004 reflects the CERD 2003 Report to which the Officer made explicit reference in his decision (Tribunal’s Record, H&C Application Notes to File, p. 18). As stated in my analysis of issue 1, the standard of review applicable to H&C decisions is that of reasonableness simpliciter. In other words, the Court on judicial review can only overturn a negative H&C decision where “the reasons, taken as a whole, are tenable as support for the decision” (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 56). In the case at hand, it appears to me that the Officer considered a variety of factors and the evidence before him to conclude that the Applicant would not suffer unusual and underserved or disproportionate hardship if he were to file his application for permanent residence from abroad.
[31] The parties were invited to suggest questions for the purpose of certification, and they have declined.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is dismissed.
- No questions will be certified.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM‑2577-06
STYLE OF CAUSE: FADI EL DOUKHI
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: NOVEMBER 28th, 2006
REASONS FOR JUDGMENT: The Honourable Mr. Justice Simon Noël
DATED: December 7, 2006
APPEARANCES:
ME. JARED WILL FOR THE APPLICANT
ME. EVAN LIOSIS FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
ME JARED WILL FOR THE APPLICANT
MONTREAL, QUEBEC
MR. JOHN H. SIMS FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA