Montréal, Quebec, February 28, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of an officer dated June 15, 2006, which rejected the applicant’s application for a visa exemption based on humanitarian and compassionate considerations (H&C application), and forms the basis for the present review.
[2] The applicant had also made a pre-removal risk assessment application (PRRA) on the same grounds as the H&C application. It was denied by the officer, on the same date the H&C application was denied, on the basis of an absence of new evidence within the meaning of paragraph 113(a) of the Act, and a lack of evidence supporting the applicant’s allegations. No application for leave was made for this PRRA decision.
[3] The most relevant facts relating to the present proceeding are as follows:
[4] Ernestine Sha’er (the applicant) is a Christian Arab citizen of Israel. She made a refugee claim in Canada in April 2004, on the grounds of threats from her fiancé’s family in Israel. The Immigration and Refugee Board (IRB) refused this claim, finding that her allegations were not credible. This Court denied her application for leave for judicial review of that decision (IMM‑758-05).
[5] In April 2005, the applicant made an H& C application (amended in April 2006), submitting that she would face undue hardship if removed to Israel due to her degree of integration in Canada, alleged threats from her fiancé’s family and because of discrimination against Arabs in Israel. This H&C application was denied by the officer on June 15, 2006.
[6] In considering the discrimination alleged by the applicant in her H&C application, the officer essentially inquired as to whether this discrimination satisfied the requirements of section 97 of the Act, thereby applying the test for a PRRA application.
[7] It is well established, and the parties agree, that the proper test for H&C decisions is: considering all of the relevant circumstances, would the general obligation put on all foreign nationals to apply for permanent residence from abroad cause the applicant unusual, undeserved or disproportionate hardship (Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 at para. 17; Legault v. Canada (M.C.I.), [2002] 4 F.C. 358, 2002 FCA 125 at para. 23). Unusual, undeserved or disproportionate hardship encompasses the risk the applicant allegedly faces in her country of nationality, her level of integration in Canadian society and the consequences of her removal from Canada.
[8] There are significant analytical differences between H&C and PRRAs, as clearly stated by Chief Justice Allan Lutfy in Pinter v. Canada (M.C.I.), [2005] F.C.J. No. 366 (QL), 2005 FC 296 at paragraphs 3-4:
3 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.
4 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] I note that though the tests for H&C and PRRA matters are distinct, they are related, as held by Chief Justice Lutfy in Liyanage v. Canada (M.C.I.), [2005] F.C.J. No. 1293(QL), 2005 FC 1045 at paragraph 41:
[…] 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.
[10] Thus, the issue in the present matter is whether the officer’s analysis reveals an assessment of the relevant facts against the threshold of unusual, undeserved or disproportionate hardship as required in the context of an H&C application (Liyanage, above, at para. 44).
[11] On one hand, the respondent submits that whether the officer applied the wrong legal test is only theoretical in this matter, as there were no accepted grounds upon which the H&C application could have been granted. The H&C application depended on the same allegations the applicant made to the IRB, deemed not to be credible. These allegations were also raised in relation to her PRRA application, which the officer did not accept on the basis that she had not sufficiently substantiated her alleged fears. Therefore, the respondent submits, there was no accepted evidence upon which the H&C application could have been accepted, and therefore its result was not affected.
[12] On the other hand, the applicant submits the officer accepted that the discrimination against Arabs in Israel alleged by the applicant was a “fact of life” in Israel. Given this acceptance, he erred in law by not considering this discrimination in the framework of unusual and undeserved or disproportionate hardship, instead dismissing its significance through a PRRA “persecution” analysis. I agree with the applicant.
[13] While the officer clearly addressed the evidence relating to the alleged discrimination suffered by the applicant and gave it little weight, the reasons for rejecting its applicability were made through a purely PRRA analysis, not mentioning unusual and undeserved or disproportionate hardship for the applicant. This is clear in the relevant extract of the decision:
… I ascribe limited weight to the applicant’s documents concerning discrimination against Arabs in Israel, which largely discusses issues of civic life (land ownership, employment opportunities, etc.) unrelated to the risks invoked by the applicant or her alleged inability to obtain police protection. I also note that in her PIF, the applicant…does not mention that she has been exposed to discrimination in Israel on the basis of her Arab or Christian origin, other than from her fiancé family.
[Emphasis added]
[14] Furthermore, the officer’s decision shows that he accepted the applicant’s allegations of discrimination, and then discounted their significance through the wrong legal analysis:
[w]hile it is true that discrimination is a fact of life for ethnic and religious minorities in Israel, this does not in itself constitute persecution, nor demonstrate that the Israeli government is unwilling an unable to protect the applicant. The documentary evidence indicates that Israeli citizens can expect the protection of the police and the courts, and that official recourses exist for individuals who feel they have been the object of discrimination by police officers.
[Emphasis added]
[15] The officer essentially accepted the fact of discrimination, but failed to properly consider whether it constituted unusual and undeserved or disproportionate hardship for the applicant in the circumstances, as required in the context of an H&C application. Instead, his analysis reveals that he applied a PRRA analysis in rejecting the discrimination as a valid ground for granting the H&C application. This is an error in law, and warrants the intervention of this Court (Pinter, above, at para. 6; Liyanage, above, at para. 44).
[16] In light of the above there is no need to address the issue of reasonable apprehension of bias as the matter will be sent back to a different officer for redetermination.
[17] For these reasons, the application for judicial review of the H&C decision will be granted and referred back for redetermination by a different immigration officer.
JUDGMENT
The application for judicial review of the H&C decision is granted and the matter is referred back for redetermination by a different immigration officer.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3812-06
STYLE OF CAUSE: Ernestine Sha’er v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 27, 2007
AND JUDGMENT: TREMBLAY-LAMER J.
APPEARANCES:
|
Mr. Jared Will
|
|
|
Mr. Evan Liosis
|
SOLICITORS OF RECORD:
|
Mr. Jared Will Montréal, Quebec
|
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|