Date: 20040720
Docket: IMM-273-03
Citation: 2004 FC 993
Ottawa, Ontario, July 20th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
SHARAI MASANGANISE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
[1] Sharai Masanganise is a citizen of Zimbabwe, who came to Canada in August of 1998. Her claim for refugee protection was rejected by the Immigration and Refugee Board the following year. Ms. Masanganise then applied for a Humanitarian and Compassionate (H & C) exemption from the requirement to apply for permanent residence status from outside Canada. This application was refused, as an immigration officer concluded that Ms. Masanganise would not face excessive hardship if she were required to apply for landing from abroad.
[2] Ms. Masanganise now challenges this decision, contending that the immigration officer erred in failing to consider the obvious risk that she would face if she were to return to Zimbabwe, and in failing to request a risk assessment. She further submits that the immigration officer applied too high a standard of proof in connection with her application. Finally, Ms. Masanganise submits that the immigration officer erred considering her employment experience in relation to her employability abroad, rather than as evidence of her establishment in Canada.
Standard of Review
[3] The general standard of review governing decisions of immigration officers in relation to H & C applications is reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. That is, the decision must be able to withstand a "somewhat probing examination": Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
[4] However, the question of the appropriate standard of proof to be applied in relation to the assessment of risk is a question of law. In my view, the standard of review to be applied to questions of law in the H & C context is correctness. However, my conclusion in this case would be the same, whether I applied the standard of correctness or that of reasonableness.
Issue 1: Did the Immigration Officer Properly Deal with the Issue of Risk?
[5] Ms. Masanganise's initial H & C application was filed on September 20, 2001. She noted in her application that the situation in Zimbabwe had deteriorated since her refugee claim was determined, and that she still feared persecution in her home country.
[6] Ms. Masanganise's application was accompanied by a letter from her then solicitor, who stated that since Ms. Masanganise's refugee claim was refused:
[T]he government of Zimbabwe has become more repressive, a fact that is now universally acknowledged. There is also ample evidence now that western countries are flooded with Zimbabwean refugee claimants. There is also a high success rate of claimants from Zimbabwe. Were Ms. Masanganise's claim to be heard now, she is more likely to succeed. She still fears persecution in Zimbabwe, particularly now that the government is aware that she has claimed refugee status.
[7] Ms. Masanganise heard nothing with respect toher application for some fourteen months. In December of 2002, she received a letter from the immigration officer. Amongst other things, Ms. Masanganise was asked to provide the immigration officer with details as to why she was unable to apply for permanent residence from outside Canada, and the hardship that she would incur by doing so.
[8] Ms. Masanganise responded to this request, providing additional information in support of her application. With respect tothe issue of risk, Ms. Masanganise provided a second letter from her solicitor, this one dated December 14, 2002. This letter states, in part:
After her claim was turned down, the whole world realised that Zimbabwe is a very repressive country and refugee claims in Canada received close to a 100% acceptance rate. For the past two years, all my clients from Zimbabwe have been accepted. Britain stopped returning failed refugee claimants from Zimbabwe in January 2002. Returned refugee claimants have been known to get arrested and detained upon arrival in Zimbabwe. Some were known to have been tortured, held in indefinite detention or simply vanished. If Ms. Masanganise's claim was heard now, it would be successful.
There are credible reports of human rights violations in all major and reputable publications emanating from all sources in respect of Zimbabwe. I refer you particularly to the US Department of State Country Reports on Human Rights (2002 for 2001). Ms. Masanganise's fears are well founded and the refugee system in Canada currently has recognized this, as have all western countries. [emphasis added]
[9] A few days later, Ms. Masanganise was sent a letter by the immigration officer, advising that her application for an exemption would not be granted. The relevant portion of the'FOSS' notes of the immigration officer state:
SUBJECT IN CDA SINCE 08/1998. FAILED HER REF CLAIM. LAWYER STATED THAT IF SHE WERE MAKING HER REF CLAIM NOW, SHE WOULD ALMOST POSITIVELY BE ACCEPTED AND THAT CLAIMANTS FROM ZIMBABWE HAVE AN ALMOST 100% SUCCESS RATE. ALSO HE STATES THAT SOME ZIMABAWEANS [SIC] HAVE BEEN KNOWN TO BE TORTURED AND HELD INDEFINITELY WHEN RETURNED THERE. THERE WAS INSUFFICIENT EVIDENCE WHICH CAN UPHOLD THE NOTION THAT SUBJECT WILL SUFFER DIRECT OR PERSONALIZED RISK IF SHE IS TO RETURN TO HER COUNTRY OF ORIGIN.
[10] The respondent submits that Ms. Masanganise did not claim to face a personalized risk if she were returned to Zimbabwe. According to the respondent, Ms. Masanganise made general observations as to the poor human rights record of the current government in Zimbabwe, but failed to tie those comments to her own situation. As a consequence, a risk assessment was not required in this case.
[11] In support of this argument, the respondentrelies on the decision of Justice Gibson in Khan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1778. In Khan, the sum total of the applicant's evidence with respect tohis alleged fear of persecution was the following statement "I have fear of persecution in the country of Pakistan. Cannot go back to Pakistan and now am married. Do not want to stay away from my wife."
[12] The immigration officer denied Mr. Khan's request for an H & C exemption, noting that the officer "... did not feel that he [the applicant] would suffer any unusual, undeserved or disproportionate hardship, by being required to submit an application at a visa office outside Canada ...".
[13] Justice Gibson found that the very limited evidence provided by Mr. Khan with respect to his alleged fear of returning to Pakistan, when coupled with previous, negative decisions of the Immigration and Refugee Board, meant that the brief comment of the immigration officer was sufficient, and that no further analysis was required.
[14] While I have considered the respondent's submissions carefully, I am satisfied that the decision in Khan is distinguishable from this case on its facts. First of all, Ms. Masanganise alleged that there had been a significant deterioration in the situation in Zimbabwe since her refugee claim was decided. As a result, the negative decision of the Immigration and Refugee Board would be of limited relevance some three years later, in the context of her H & C application.
[15] I do agree with the respondent that Ms. Masanganise's initial submissions consisted of little more that the type of generalized statement that we see in the Khan case, and that if there had been nothing more before the immigration officer, no further analysis on his part would have been required. It is simply not enough to rely on the poor human rights record in an applicant's country of origin as proof that the applicant herself would suffer persecution if she were returned to that country.
[16] In this case, however, we have more. Counsel's December 14, 2002 letter clearly identifies a specific, personalized risk that Ms. Masanganise claims she would face if she were returned to Zimbabwe as a failed refugee claimant.
[17] A PRRA assessment is not required in every H & C case where personalized risk is claimed: Singh v. Canada (Minister of Citizenship and Immigration), (2000), 186 F.T.R. 155, and Nacsa v. Canada (Minister of Citizenship and Immigration), 2004 FC 91. Given the paucity of information before the immigration officer in relation to Ms. Masanganise's claim of risk, it was certainly open to the officer to weigh the evidence and to determine that there was simply not enough there to warrant the matter being referred to a PRRA officer for a full risk assessment. However, it is not clear to me from my review of the immigration officer's FOSS notes that the officer ever addressed the risk allegedly arising out of Ms. Masanganise's membership in the class of failed refugee claimants. To that extent, I am satisfied that the immigration officer was in error.
[18] I do not need to determine whether this error, on its own, would be sufficient to warrant the decision of the immigration officer being set aside. As will be seen below, the error was compounded by the imposition of an unduly high standard of proof on Ms. Masanganise.
Issue 2: Did the Immigration Officer Apply the Wrong Standard of Proof?
[19] The Immigration Officer found that there was "insufficient evidence that the applicant will suffer direct and personalized risk if returned to Zimbabwe" (emphasis added). Ms. Masanganise submits that this shows that the immigration officer failed to give proper consideration to the probability of risk as opposed to its certainty, and thereby committed an error of law. According to the decision of the Federal Court of Appeal in Adjei v. Canada [1989] 2 F.C. 680, 57 D.L.R. (4th) 153, the test to be used is whether there is a 'reasonable chance' that persecution would take place. An applicant does not have to show that she had previously suffered persecution, or will suffer persecution in the future, only that she has good grounds for fearing persecution. Ms. Masanganise submits that she has met this test.
[20] The respondent contends that Ms. Masanganise's argument presumes that an assessment of risk was conducted against the Convention Refugee definition. It also presumes that the words "that subject will suffer" connotes a standard of certainty. The respondent submits that, on the contrary, the immigration officer's observations merely indicate that Ms. Masanganise failed to meet the evidentiary threshold required to trigger a risk assessment.
[21] I do not agree.
[22] The immigration officer's reasons state that officer was not satisfied that Ms. Masanganise "will suffer direct and personalized risk if returned to Zimbabwe". In my view, this clearly indicates that the immigration officer applied an unduly high standard in evaluating Ms. Masanganise's claim.
[23] In the context of refugee claims, the current state of the law is that a claim based on section 96 of the Immigration and Refugee Protection Act is assessed in accordance with the Adjei standard. Where a claimant asserts that they are a person in need of protection under section 97 of the Act, the claim is assessed on the balance of probabilities standard: Li v. Canada (Minister of Citizenship and Immigration), 2003 FC 1514. There is nothing in the Immigration and Refugee Protection Act to indicate that the risk component of an H & C analysis should be evaluated in accordance with a different standard.
[24] As a result, I am satisfied that the immigration officer applied an incorrect standard in his evaluation of the risk aspect of Ms. Masanganise's H & C application.
Conclusion
[25] In light of the two errors that I have identified in the immigration officer's analysis, I am of the view that the H & C decision must be set aside, and the matter remitted to a different immigration officer for redetermination. It is not necessary to address the other issues raised by Ms. Masanganise.
Certification
[26] The respondent proposes the following question for certification:
If an allegation of risk is made before an H & C officer and that risk is not explained or supported by the evidence, does that allegation have to be referred to risk assessment officer for consideration?
[27] Counsel for Ms. Masanganise submitted that the proposed question does not raise a serious issue of general importance, and as such should not be certified.
[28] In the context of the decision under review in this case, I am not persuaded that the proposed question is of general importance. The answer to this question will undoubtedly be restricted to the facts that would be before the Court of Appeal, and would not be of general application. As a result, I decline to certify the question.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed.
2. No serious question of general importance is certified.
Judge
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-273-03
STYLE OF CAUSE: SHARAI MASANGANISE
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: JULY 13, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: JULY 20, 2004
APPEARANCES BY:
Mr. Kingsley Jesuorobo
FOR THE APPLICANT
Mr. Martin Anderson
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Barrister & Solicitor
North York, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
FEDERAL COURT
Date: 20040720
Docket: IMM-273-03
BETWEEN:
SHARAI MASANGANISE
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER