Ottawa, Ontario, June 18, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
Applicant
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Although the distinction in fact may not always be apparent, there is a clear distinction in law between a pre-removal risk assessment and an application for permanent residence from within Canada on humanitarian and compassionate grounds.
[2] Mr. Singh Sahota is a Sikh from the Punjab area of India. He came to Canada in the year 2000 and claimed refugee status. The Immigration and Refugee Board rejected his claim, and the Federal Court dismissed his application for leave to apply for judicial review. The IRB had credibility concerns.
[3] Section 112 and following of the Immigration and Refugee Protection Act (IRPA) permit a person subject to a removal order to ask for an updated risk assessment should he or she be obliged to leave Canada. For reasons not set out in the record, Mr. Singh Sahota is not subject to a removal order and no PRRA has taken place.
[4] However, in accordance with section 25 of IRPA and the regulations thereunder, he has applied for permanent residence status from within Canada on humanitarian and compassionate grounds. Normally, a foreign nation must be a member of a class set out in subsection 72(2) of the regulations in order to do so.
[5] The issue in such H&C applications is whether the hardship of having to obtain a permanent resident visa from outside Canada would be unusual, underserved or disproportionate.
[6] Mr. Singh Sahota’s H&C application was dismissed. This is a judicial review of that decision.
[7] While PRRA and H&C applications take risk into account, the manner in which they are assessed is quite different. In the context of a PRRA, “risk” as per section 97 of IRPA involves assessing whether the applicant would be personally subjected to a danger of torture or to a risk to life or to cruel and unusual treatment or punishment.
[8] In an H&C application, however, risk should be addressed as but one of the factors relevant to determining whether the applicant would face unusual, and underserved or disproportionate hardship. Thus the focus is on hardship, which has a risk component, not on risk as such.
[9] In general terms, it is more difficult for a PRRA applicant to establish risk than it is for an H&C applicant to establish hardship (see: Melchor v. Canada (Minister of Citizenship and Immigration), 2004 FC 1327; Dharamraj v. Canada (Minister of Citizenship and Immigration), 2006 FC 674; and Pinter v. Canada (Minister of Citizenship and Immigration), 2005 FC 296).
[10] In recent years, the PRRA normally precedes the H&C or is decided at the same time. Thus the present case is a little unusual.
[11] In Pinter, above, Chief Justice Lutfy wrote:
[5] In my view, it was an error in law for the immigration officer to have concluded that she was not required to deal with risk factors in her assessment of the humanitarian and compassionate application. She should not have closed her mind to risk factors even though a valid negative pre-removal risk assessment may have been made. There may well be risk considerations which are relevant to an application for permanent residence from within Canada which fall well below the higher threshold of risk to life or cruel and unusual punishment.
[Emphasis added]
[12] In the current case, the officer considered the risk factors set out in the negative refugee claim decision, and updated them. Although he considered Mr. Singh Sahota’s connections with Canada, as far as India is concerned, although he used the humanitarian and compassionate form, in reality all he did was assess risk, not hardship. For instance he said, “in assessing the risk invoked by the applicant I note that they have, in substance, been previously considered by the IRB.” It may well be that a risk may not be so sufficient as to support a refugee claim under sections 96 or 97 of IRPA, but still be of sufficient severity to constitute a hardship.
[13] The officer applied the wrong test, and therefore Mr. Singh Sahota was not given a fair hearing. Although there are rare occasions when it can be said that the result would have been the same (see: Mobil Oil Canada Ltd. v. Canada Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202), the general rule, and the rule which applies here, is that it is not up to the Court to speculate as to what the result might have been had the proper test been followed (see: Cardinal v. Kent Institution, [1985] 2 S.C.R. 643).
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. The decision of the Minister’s delegate is set aside and the matter is sent back for redetermination by a different Minister’s delegate.
3. There is no question of general importance to certify.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5583-06
STYLE OF CAUSE: GURDIP SING SAHOTA v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
APPEARANCES:
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Mr. Stewart Istvanffy
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Ms. Sherry Rafai Far
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SOLICITORS OF RECORD:
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Stewart Istvanffy Montreal, Quebec
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John H. Sims, Q.C. Deputy Attorney General of Canada
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