Date: 20050624
Docket: IMM-5217-04
Citation: 2005 FC 898
BETWEEN:
MELIHA BELULI
Applicant
and
(CANADA) MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Introduction
[1] These reasons follow the hearing of an application for judicial review of a decision of an Officer in the Canada Border Services Agency (the "Officer") wherein she determined that there existed insufficient humanitarian and compassionate factors to justify allowing the Applicant to apply for permanent residence from within Canada. The decision under review is dated the 5th of April, 2004.
Background
[2] The Applicant is a citizen of Albania, who was active in the political life of that country, on behalf of the Democratic Party. By reason of her political activity, she alleges that she was subjected to threats that extended to members of her family, including her son and daughter. She alleges that she lived in fear. The Applicant sent her son to Italy. On the 20th of June, 1997, together with her daughter, she fled to Greece.
[3] On the 29th of June, 1997 the Socialists were elected to power in Albania. Despite this, the Applicant returned to Albania from Greece on three occasions.
[4] On the 25th of October, 2000, the Applicant arrived in Canada via Italy and the United States. She claimed Convention refugee protection.
[5] The Applicant's claim to Convention refugee protection was denied on the 13th of March, 2002. The Applicant's testimony before the Convention Refugee Determination Division of the Immigration and Refugee Board was determined not to be credible. Judicial Review was sought of the CRDD's decision. Leave to proceed with the Applicant's application for Judicial Review was denied.
[6] In late April, 2002, the Applicant applied for relief as a Post-Determination Refugee Claimant in Canada. That application was converted to an application for a Pre-Removal Risk Assessment on the coming into force of the Immigration and Refugee Protection Act.
[7] On the 21st of May, 2002, the Applicant applied for leave to seek landing from within Canada on humanitarian and compassionate grounds. It is this last application that led to the decision here under review.
[8] In notes supporting the decision under review, the Officer wrote:
Much of counsel's H and C submission on behalf of the applicant is to outline the applicant's fears in returning to Albania. The same fears were considered in the refugee claim and the PRRA application. The supporting documentation was also very much the same. It is my finding that the applicant's risks have been assessed. She has had her claim for refugee protection heard by the CRDD. She applied to [sic, should be "for"] leave and judicial review of that decision to the Federal Court, leave was denied. The same risks were assessed in the PRRA application, and it was determined that the applicant would not be at risk if she returned to Albania. I find that no further assessment of risk is required in the assessment of the H and C application. Risk is not an H and C consideration.
The bulk of the H and C request was based on risk, as that is not a consideration, there is very little left to consider.
[emphasis added]
Anaylsis
[9] In the Ministry of Citizenship and Immigration's Immigration Manual, under the heading "IP5 Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds", and the sub-heading "Departmental policy", the following appears:
5.1 Humanitarian and Compassionate Grounds
Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain a permanent resident visa from outside of Canada would be:
(i) unusual and undeserved or
(ii) disproportionate.
Applicants may present whatever facts they believe are relevent.
In the same portion of the Immigration Manual, it is noted that:
A positive H & C decision is an exceptional response to a particular set of circumstances. An H & C decision is more complex and more subjective than most other immigration decisions because officers use their descretion to assess the applicant's personal circumstances.
...
Unusual and undeserved hardship is:
· the hardship (of having to apply for a permanent resident visa from outside of Canada) that the applicant would face should be, in most cases, unusual, in other words, a hardship not anticipated by the Act or Regulations; and
· the hardship (of having to apply for a permanent resident visa from outside Canada) that the applicant would fact should be, in most cases, the result of circumstances beyond the person's control.
...
Humanitarian and compassionate grounds may exist in cases that would not meet the "unusual and undeserved" criteria but where the hardship (of having to apply for a permanent resident visa from outside of Canada) would have a disproportionate impact on the applicant due to their personal circumstances.
[10] I am satisfied that "hardship", as referred to in the foregoing passages from the Immigration Manual, can flow from "risk", even where the risk is insufficient to justify refugee protection. Thus, I am satisfied that it is simply incorrect to say, as the Officer did here, that: "Risk is not an H and C consideration." It is a consideration in the evaluation of "hardship" that might be "unusual and undeserved" or "disproportionate". In the result, I am satisfied that the Officer erred in a reviewable manner in failing to consider "risk" that the Applicant would face in being required to return to Albania in order to apply for landing in Canada.
[11] The foregoing is not to say that the result on the Applicant's application for permission to apply for landing from within Canada would ultimately be different. It is simply to say that the risk that the Applicant alleges she would face if she were required to return to Albania to make her application for landing must be taken into account in the evaluation of her application for permission to apply for landing from within Canada.
Conclusion
[12] Based on the foregoing brief analysis, this application for judicial review will be allowed and the Applicant's application for permission to apply for landing from within Canada will be referred back to the Respondent for reconsideration and redetermination by a different Officer.
Certification of a question
[13] These reasons for decision will be circulated to counsel who will have ten (10) days from the date of issuance of the reasons to make written submissions on whether or not this matter raises a serious question of general importance that should be certified. Counsel are invited to consult in advance of providing their submissions.
[14] Following receipt of written submissions, an Order will issue.
J.F.C.
Ottawa, Ontario
June 24, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5217-04
STYLE OF CAUSE: MELIHA BELULI v. MCI
DATE OF HEARING: June 21, 2005
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Gibson, J.
DATED: June 24, 2005
APPEARANCES BY: Mr. Yehuda Levinson
For the Applicant
Ms. Matina Karvellas
For the Respondent
SOLICITORS OF RECORD:
Yehuda Levinson
Levinson & Associates
Barristers & Solicitors
Suite 610
480 University Ave.
Toronto, ON
M5G 1V2
For the Applicant
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent