Date: 20020614
Docket: IMM-5204-01
Neutral Citation: 2002 FCT 672
BETWEEN:
THECHKOHIE ADOURIAN, KHATCHIR TOROSIAN
and NERSES TOROSIAN
by Litigation Guardian THECHKOHIE ADOURIAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] Thechkohie Adourian, her husband Khatchir Torosian, and their son Nerses Torosian seek judicial review of the October 25, 2001 decision of an immigration officer refusing their application to be allowed to apply for permanent residence from within Canada on humanitarian and compassionate ("H & C") grounds.
[2] Although the application for judicial review raises a number of issues, the determinative issue concerns the risk Nerses would face if removed from Canada.
[3] At the time of the H & C application, Nerses was 27 years old. His physician states he "was born deaf, mute and with mild retardation". Prior to coming to Canada, he lived with his parents in Lebanon. He has a Syrian passport.
[4] At the H & C interview and in the subsequent submissions of counsel, Nerses' parents maintained that he would be at risk if returned to Lebanon. They state that every male Syrian citizen must serve in the military upon reaching the age of 18. Since Nerses has not served in the military, he is liable to be arrested by the Syrian forces in Lebanon and imprisoned in Syria. As well, the documentary evidence discloses human rights abuses in Syrian prisons.
[5] In reaching her decision, the immigration officer observed:
- No documentation was submitted to support her statement that a Syrian must serve in the army at the age of 18 or be jailed. According to the documentation submitted by counsel, a Syrian aged 18 to 50 must serve 30 months military service, the age limit to serve in the army was 50, there was no indication that one must serve the army at age 18. Subject stated that a person with a disability is not exempted from serving the army and that Nerses may be asked to work in the army kitchen. Counsel's submission indicated that Syrian abroad can buy out military service in some situations. Nerses did not applied for the exemption as they think that he would not qualified. Description of poor prison conditions is not, in my opinion considered to be an identifiable risk for Nerses - he has not been incarcerated in the past, there is no evidence that he will be jailed.
[6] The applicants submit that the documents included in the post-interview submissions support their allegations of risk. In these circumstances, they argue the application should have been forwarded to a PCDO for a risk assessment.
[7] The applicants rely on the guidelines provided to immigration officers in the Inland Processing (IP) Manual, Chapter IP 5, entitled Immigration Applications in Canada on Humanitarian or Compassionate (H & C) Grounds. They state, in part:
- Positive consideration may be warranted for persons who would face an objectively identifiable personalized risk if removed from Canada. The risk may be to the applicant's life or it may involve severe sanctions such as unwarranted imprisonment or inhumane treatment such as torture. There are varying degrees of risk. Generally, the risk should be greater than a mere possibility and yet may be less than a "balance of probabilities".
First of all:
Review the application and consider all the information presented by the applicant.
If non-risk H & C factors are present and they are sufficient to warrant approval of the application, there is no need to examine risk; approve the H & C request and continue processing in the usual manner.
If non-risk H & C factors are present and they are not sufficient, on their own, to warrant approval of the application, send the application to a Post-Claims Determination Officer (PCDO) for review.
When an applicant does not detail the nature of the risk, (e.g. simply states ‘‘ I fear personalized risk if removed from Canada''), obtain further details from the applicant before sending the file to the PCDO. Use the Annex 3 letter in Chapter IP-5; it includes information about the consequences of not providing information within the time specified. If the applicant does not respond, continue processing of the file based on the information before you (referral to a PCDO may not be required in the absence of specific risk concerns).
[8] The respondent submits that in accordance with the guidelines and the jurisprudence, an immigration officer is only required to refer a matter to a PCDO where the application is largely based on risk, and where the risk is personalized, identifiable, grave and likely to occur. In particular, the respondent relies on the reasons of Reed J. in Singh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1160. In Singh, supra, the issue was whether an immigration officer is required to refer every application where risk is alleged to a PCDO for determination. Reed J. observed that the "guidelines must be read as allowing the officer discretion to determine when the risk alleged is serious enough to require review. The guidelines themselves instruct referral to the PCDO only when the application is ‘based largely on risk factors'."
[9] It should be noted that Reed J.'s observation was in relation to the guidelines prior to their amendment in October 2001. The pre-October 2001 guidelines contained a specific direction that "[w]hen the application is based largely on risk factors, send the application for review by a PCDO, who will provide an opinion about the risks faced by the applicant". This direction does not appear in the amended guidelines. Instead, the current guidelines direct the officer, where non-risk H & C factors are insufficient on their own to warrant approval, to send the application to a PCDO for review. The guidelines further direct that a PCDO review may not be necessary in the absence of specific risk concerns.
[10] At the hearing of this judicial review, the issue of whether the amended guidelines were in place at the time the decision under review was made was not specifically addressed by either party. In my view, even if the pre-October 2001 guidelines were still in place at the time of the decision, it would not alter the outcome in this proceeding. Although the H & C application in relation to Nerses was, in part, based on the lack of schools in Lebanon for persons having similar disabilities, such as would be available in Canada, a significant aspect of the application was based on the potential to risk due to the fact he had not fulfilled his military service.
[11] Counsel provided submissions to the immigration officer in which the specific risks to Nerses were identified given his particular vulnerability due to his disabilities. In my view, it was unreasonable for the officer to conclude that there was no objectively identifiable risk in the absence of an assessment by a PCDO.
[12] For these reasons, the application for judicial review is allowed and the matter is remitted for reconsideration by a different immigration officer.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
June 14, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5204-01
STYLE OF CAUSE: Thechkohie Adourian and others v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 11, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE HANSEN
DATED: June 14, 2002
APPEARANCES:
Mr. W. Lloyd MacIlquhamFOR THE APPLICANTS
Ms. Rhonda MarquisFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. W. Lloyd MacIlquhamFOR THE APPLICANTS
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada