Date: 20030320
Docket: IMM-2272-02
Ottawa, Ontario, the 20th day of March 2003
Present: the Honourable Mr. Justice Pinard
Between:
JASHIM UDDIN
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision dated May 3, 2002, by immigration officer Maurice Groulx is allowed. The matter is therefore returned to a different immigration officer for reconsideration.
YVON PINARD
JUDGE
Certified true translation
Mary Jo Egan, LLB
Date: 20030320
Docket: IMM-2272-02
Neutral Citation: 2003 FCT 316
Between:
JASHIM UDDIN
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application under section 82.1 of the Immigration Act, R.S.C., 1985, c. I-2, (the Act) for judicial review of a decision dated May 3, 2002, by immigration officer Maurice Groulx (officer) determining that there was no reason under subsection 114(2) of the Act that could warrant granting the applicant a ministerial exemption under subsection 9(1) of the Act.
The applicant, Jashim Uddin, is a citizen of Bangladesh. He claimed refugee status upon his arrival in Canada in June 1998. He had alleged a well-founded fear of persecution in Bangladesh by reason of his religion. The Immigration and Refugee Board dismissed his claim in March 1999 because of numerous contradictions and improbabilities in his testimony, which seriously undermined his credibility.
On September 21, 1999, the applicant married Shabnam Khan, a Canadian citizen, widow and mother of three children by her first spouse. The applicant, his spouse and the children have been living together since that date.
On April 23, 2002, the officer met with the applicant and his wife to consider the applicant's application for a visa exemption.
The applicant submits, inter alia, that the officer confused the burden of proof in cases of humanitarian and compassionate grounds with the burden of proof in cases of post-determination refugee claimants (PDRCC). The officer concluded that the applicant would not face any personal risk on removal, as appears from the following excerpt from the reasons for his decision:
[TRANSLATION] The applicant has not satisfied me that his life or his safety would be in jeopardy in his country or that he would be the victim of ill treatment. His family is still living in Bangladesh and is settled there. He will be able to count on their assistance.
This consideration, which is completely appropriate on a PDRCC determination under subsection 2(1) of theImmigration Regulations, 1978, SOR/78-172, is, however, not appropriate in the case of exemption on humanitarian and compassionate grounds, where an applicant need only satisfy the officer that he would face unusual, undeserved or disproportionate hardship if removed. On that point, the following passage from Irimie v. Canada (Minister of Citizenship and Immigration) (November 22, 2000), IMM-427-00, is very enlightening:
[10] . . . The Manual which the Minister of Immigration prepares for the use of departmental staff in processing these applications says that humanitarian and compassionate considerations refers to unusual, undeserved or disproportionate hardship:
Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. . . .
The hardship (of having to apply for an immigrant 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 an immigrant visa from outside of Canada) that the applicant would face 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 an immigrant visa from outside of Canada) would have a disproportionate impact on the applicant due to his or her personal circumstances.
Citizenship and Immigration Canada, Inland Processing Manual, Chapter IP5, Immigrant applications made in Canada on H & C grounds. Section 6. The H & C decision.
[11] In Baker v. Canada, [1999] 2 S.C.R. 817, (1999), 243 N.R. 22, Madam Justice L'Heureux-Dubé pointed out that the Manual is a good indicator of how the discretion given to the Minister and exercised in her name by the H & C officer is to be exercised: . . .
Therefore, the officer erred in requiring that the applicant's application for visa exemption on humanitarian and compassionate grounds satisfy him that the applicant's life or safety would be in jeopardy if he returned to his country.
Since this error in itself is sufficient to warrant the intervention of the Court, it will not be necessary to discuss the other arguments raised by the applicant.
Accordingly, the application for judicial review is allowed and the matter will be returned to a different immigration officer for reconsideration.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 20, 2003
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2272-02
STYLE OF CAUSE: JASHIM UDDIN v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 4, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: March 20, 2003
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario