HABIB RASHAD ABOUBACAR Applicant v. THE MINISTER OF CITIZENSHIP, 2014 FC 714

Date: 20140718 Docket: IMM-3028-13 Citation: 2014 FC 714 Ottawa, Ontario, July 18, 2014 PRESENT: The Honourable Mr. Justice Rennie BETWEEN: HABIB RASHAD ABOUBACARApplicantand THE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] On March 26, 2013, an Immigration Officer denied the applicant’s request for permanent resident status on humanitarian andcompassionate grounds under

section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). In reaching thisconclusion, the Officer noted that although the applicant had achieved a reasonable level of establishment in Canada throughemployment, friendship and community involvement, his degree of establishment was “not exceptional” for someone who had beenliving in Canada for 14 years. The officer noted that his spousal sponsorship application had received approval in principle, or phase oneapproval some 6 years earlier, but that was not a guarantee of final approval and permanent resident status.

Neither the fact of the phaseone approval, the delay in processing the application, nor the circumstances under which his sponsorship by his wife was withdrawn,gave rise to exceptional circumstances, undue hardship or burden. The officer reasoned that the applicant made a conscious decision toenter and remain in Canada without the benefit of a valid status, and had to anticipate that he might someday be required to leave. Theofficer also dismissed the concern that returning the applicant to Niger, with its low indicies of human development, did not meet thecriteria of hardship required under

section 25. [2] For the three reasons that follow, this decision must be set aside. [3] First, the officer imported the test under

section 97 of the IRPA into the test for humanitarian and compassionate relief undersection 25 of the IRPA. I will not engage, for the purposes of this application, in an analysis as to whether the selection and definition ofthe legal test is measured by the correctness standard or by that of reasonableness. This question has been canvassed with precision in thedecision of Justice Mary Gleason in Diabate v. Canada (Citizenship and Immigration), 2013 FC 129. I agree with Justice Gleason’sanalysis, although the law has evolved somewhat since her decision was released. While I consider the error here to arise from a readingof the legislation as a whole, and not arising from the

interpretation of a specialized term of art in a home statute, and thus a matter ofcorrectness, it is of no moment. Whether assessed against a standard of correctness or reasonableness, the articulation of the test undersection 25 and hence the decision, cannot be saved. [4] In considering the question of the hardship the applicant might face on return to Niger, the officer concluded that “…Although the conditions in Niger are not favourable, they are a common harm that affects the general population, [and that] the applicanthas failed to demonstrate that he would be personally and directly seriously affected from these conditions.” This formulation of the testunder

section 25 is neither correct, nor reasonable. The officer has imported into

section 25 a requirement of

section 97, namely, to beeligible for protection, an individual must face a risk “not faced generally by other individuals in or from that country.” The consequenceof the reasoning adopted by the officer in this case is to eviscerate

section 25 of its purpose. The proper question is whether it would beundue or disproportionate hardship to return this applicant to this country in these particular circumstances. [5] My conclusion in this regard is supported by a long line of cases. In Shah v. MCI, 2011 FC 1269 Justice Leonard Mandaminconsidered an application to review a refusal of an H&C request regarding an applicant from Trinidad.

In that case, the officer found thatthe applicant “had provided insufficient objective evidence that she would be personally targeted by criminal elements upon her return toTrinidad” and that H&C consideration was unwarranted because the situation and hardship facing the applicant “is faced generally byother individuals in the country.” In setting aside the decision, Justice Mandamin wrote: [73] I find the Officer applied a higher standard than appropriate for H&C decisions by incorrectly requiring the Applicant to establish apersonal risk beyond that faced by other individuals in Trinidad.

The test of risk causing unusual, undeserved or disproportionatehardship is not limited to personal risks to an Applicant’s life or safety, and the Officer failed to properly consider whether the overallproblem of criminality constituted unusual and undeserved, or disproportionate hardship in the circumstances. This constitutes areviewable error: Aboudaia v Canada (Minister of Citizenship and Immigration), 2009 FC 1169 , 2009 FC 1169 at para 17,Rebaï, supra; Sahota, supra; [6] Reaching back to 2008, in Rebai v.

Canada (MCI), 2008 FC 24 Justice Pinard considered a case where the PRRA analysisseeped into the consideration of a

section 25 application. Justice Pinard wrote: [7] With respect to the second question, while it is permissible for the same officer to make a decision on an applicant’s PRRA and H&Capplications, the issues to be determined on the two applications are separate (Monemi v. Canada (Solicitor General) 2004 FC 1648, (2004), 266 F.T.R. 31). When performing a PRRA analysis, the question to be answered is whether the applicant wouldpersonally be subjected to a danger of torture or to a risk to life or to cruel and unusual treatment or punishment (Sahota v. Canada

(Minister of Citizenship and Immigration), 2007 FC 651 , 2007 FC 651, [2007] F.C.J. No. 882 (T.D.) (QL)). On an H&Capplication, the underlying question is whether the requirement that the applicant apply for permanent residence from outside of Canadawould cause the applicant unusual and undeserved or disproportionate hardship. [7] The most recent articulation of the principle is found in Diabate v.

Canada (MCI), where Justice Gleason accuratelyobserved: [36] …The officer’s role in an H&C analysis is to assess whether an individual would face “unusual and undeserved or disproportionatehardship” if required to apply for permanent residence outside of Canada.

It is both incorrect and unreasonable to require, as part of thatanalysis, that an applicant establish that the circumstances he or she will face are not generally faced by others in their country of origin.Rather, the frame of analysis for H&C consideration has to be that of the individual him or herself, which involves consideration ofwhether the hardship of leaving Canada and returning to the country of origin would be undue, undeserved or disproportionate. [8] To conclude, the officer applied the wrong test.

While this is sufficient to grant the application, it is important to addressevidentiary issues in embedded in the analysis of the establishment factors. In this regard, there are two errors. [9] The applicant contends that the officer erred in failing to consider whether returning a 45 year old to Niger, after an absenceof 14 years, would constitute undue, undeserved or disproportionate hardship.

In response, the Minister asserts that the onus is on theapplicant to bring forth evidence that linked the applicant specifically to those adverse conditions; Kanthasamy v Canada, 2014 FCA113 at paras 48 and 50: [48] The Federal Court’s cases underscore that unusual and undeserved, or disproportionate hardship must affect the applicant personallyand directly. Applicants under subsection 25(1) must show a link between the evidence of hardship and their individual situations. It isnot enough just to point to hardship without establishing that link: see, e.g., Lalane v.

Canada (Minister of Citizenship and Immigration),2009 FC 6 , 2009 FC 6 at paragraph 1. [50] Before leaving the

interpretation of subsection 25(1) of the Act, it is necessary to say a few words about the meaning of “unusualand undeserved, or disproportionate hardship.” In my view, the decided cases show that the factors set out in

section 5.11 of theprocessing manual, above, are a reasonable enumeration of the types of matters that an Officer must consider when assessing anapplication for humanitarian and compassionate relief under subsection 25(1) of the Act. They encompass the sorts of consequences that,depending on the particular facts of particular cases, might meet the high standard of hardship associated with leaving Canada, associatedwith arriving and staying in the foreign country, or both. [10] This decision is of no assistance to the Minister. Indeed, it supports the applicant.

The Court of Appeal emphasizes thatsection 25 requires an examination of the elements related to the hardship that affects a particular foreign national. Here, the officernoted that Niger was the poorest country on earth, had the second highest global infant mortality rate, that 8% of its population isenslaved, and that internal war had displaced 200,000 people. The officer noted that Niger was in the grip of a longstanding drought thatwas endangering the livelihood of the 80% of the population that was entirely dependent on agriculture.

After reciting these facts, theofficer concluded: “I find there is insufficient evidence before me that the applicant would be personally affected by these countryconditions. Although I recognize that the conditions in Niger are not favourable, they are a common harm that affects the generalpopulation.” [11] As noted earlier, the wrong test was applied. Further, the conclusion reached is also unsustainable in light of the facts. Thereis no rationale link between the evidence and the conclusion that the applicant would not be personally affected.

The decision fails tomeet the tri-partite criteria of justification, transparency and intelligibility. [12] While claims for humanitarian and compassionate relief under

section 25 must be supported by evidence, there arecircumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges aparticular applicant would face on return to Niger. This is not speculation, rather it is a reasoned inference, of a non – speculative nature,as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis asrequired by Kathasamy. [13] Before leaving this point, in Vuktilaj v.

Canada (Citizenship and Immigration), 2104 FC 188, Justice O’Keefe, after notingthat section 25 (1.3) restricts consideration only to “the elements related to the hardships that affect the foreign national” continued: [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 dealtwith.

Rather, the applicants must show either that it will probably affect them or, at the very least, that living in conditions where it couldhappen to them is itself an unusual and undeserved or disproportionate hardship.

Indeed, in Kanthasamy v Canada (Minister ofCitizenship and Immigration), 2013 FC 802 at paragraph 33 (available on CanLII) [Kanthasamy], Madam Justice Catherine Kane saidthe same, observing that “the considerations, including adverse country conditions and discrimination, should have a direct and negativeimpact on the particular applicant.” Justice O’Keefe concludes by noting that section 25(1.3) is not licence to ignore evidence in relation to risk, rather it mandates “that anyevidence be assessed for hardship.” I agree. [14] There is a further error embedded in the establishment analysis.

The officer dismissed, peremptorily and unreasonably, thecircumstances under which the applicant came to make an application under

section 25. The applicant married his Canadian wife in 2002who sponsored him for permanent residence status. The sponsorship received first stage approval in February 2006. Thereafter, theapplication languished. In May, 2012, the applicant and his wife separated and she withdrew her sponsorship. [15] Since February 2006, upon first stage approval, the applicant received a work permit and health care benefits. Under theMinister’s policy directive, IP 8 Spouse or Common-law partner in Canada Class, there was an administrative deferral of any removalproceedings pending final determination. In the ordinary course, upon completion of medical, security and police checks, both in Canada

and in the country of origin, status could, but not necessarily would, follow. The officer gave no consideration to the fact that under the Minister’s own policy the applicant had no expectation that he would be required to leave during that period of time. True, he had no right to stay, but that is not, in the context of a humanitarian and compassionate application, the determinative question. He expected, in the ordinary course, that he would remain, and that expectation was rooted in the minister’s policy.

The officer needed to integrate this consideration into the analysis. [ 16 ] The Minister states, correctly, that IP 8 is but an administrative policy which confers no rights, can be revoked at any time and that status does not follow as a matter of course. All of this is correct, but it misses two key points. The first is that the H&C analysis does not turn on the strict application of the IRPA , and the second is that IP8, by its very terms, meant that any decision to leave Canada pending disposition of his sponsorship had potential adverse consequences for the applicant. [ 17 ] Turning to the latter point,

section 5.28 of IP 8 provides: 5.28. Applicants who leave Canada before a final decision is taken on their application for permanent residence An applicant’s departure from Canada after the application is stamped as received or after assessment of eligibility for membership in the spouse or common-law partner in Canada class may affect their ability to become a permanent resident. … Foreign nationals are not provided with any guarantees that they will be allowed to return to or re-enter Canada. If they are unable to do so, their application for permanent residence may be refused because they are not cohabiting with their spouse or common-law partner at the time the case is finalized [R72(1)(

d) and R124(a)]. [ 18 ] The officer dispensed with the argument that the applicant remained in Canada for reasons beyond his control. He noted the unfettered freedom of the applicant to make choices as to whether he would remain in Canada or leave pending approval of his spousal sponsorship. No mention is made of

section 5.28, which, on its face, indicates that the analysis of choice is more nuanced than that offered by the officer. While it is appropriate for an officer to consider the extent to which portions of a stay were by choice, the consequences of those choices must be integrated into the equation in order to conduct an H&C application with substance. Lengthy periods of establishment in these circumstances cannot, in light of 5.28, be discounted to a minimum residual consideration by a simple statement that the applicant was always free to leave. [ 19 ] I turn to the second error in the establishment analysis.

The officer attempted to rationalize the lengthy six year delay in processing the sponsorship application by noting that because the applicant was entitled to an open work permit under IP 8, his continued successful employment during that period of time was not exceptional. His right to work was authorized under the directive and therefore the fact that he had been gainfully employed and became a productive member of his community was neither unique nor exceptional.

This reasoning does not withstand scrutiny, as it leads to the conclusion that if an applicant had worked illegally, without the benefit of a work permit, it would be worthy of consideration as exceptional. [ 20 ] In so far as whether the passage of 14 years; and the 6 year delay in processing his sponsorship application constituted factors to be considered, the officer accepted that “this was a lengthy period.” But concluded that “there were no guarantees that the applicant would have granted permanent resident status.” That is, legally correct. There are no guarantees.

However, resorting to the scheme of the IRPA as an answer to requests for humanitarian and compassionate relief does not reflect an exercise of discretion by the officer.

Section 25 is directed to whether an exception should be made to the unusual application of the IRPA laws and regulations. If the usual laws and regulations are considered to be dispositive of the outcome of a

section 25 application,

section 25 becomes a hollow exercise. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review of the decision of the officer dated March 26, 2013 refusing the applicant’s application for humanitarian and compassionate relief under

section 25 of the IRP A is granted. The decision is set aside and the matter is remitted to a different officer for consideration. There is no question for certification. “Donald J. Rennie” Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-3028-13 STYLE OF CAUSE: HABIB RASHAD ABOUBACAR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Calgary, Alberta DATE OF HEARING: July 8, 2014 JUDGMENT AND REASONS: RENNIE J. DATED: July 18, 2014 APPEARANCES : Raj Sharma For The Applicant Ian Wiebe For The Respondent SOLICITORS OF RECORD : Stewart Sharma Harsanyi Barristers and Solicitors Calgary, Alberta For The Applicant William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta For The Respondent