Federal Court Decisions

Date: 20040915

Docket: IMM-1129-04

Citation: 2004 FC 1255

Calgary, Alberta, September 15, 2004.

Present:           The Honourable Mr. Justice von Finckenstein                                

BETWEEN:

                                                            VALERI KOUZMIN

                                                                                                                                              Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                          Respondent

                                            REASONS FOR ORDER AND ORDER

(Delivered orally from the bench and subsequently written for precision and clarification)

[1]                The Applicant is a citizen of Ukraine.    In 1996, he came to Canada where he claimed refugee status due to fear from senior government and police officials. His Refugee claim was denied on May 26^th, 1998 on the basis that the Applicant had an internal flight alternative within Ukraine.

[2]                In June 1998, the Applicant submitted a PRDCC application and in June 2001, he also submitted an H & C application.

[3]                His PRDCC was converted into a PRRA application. The Applicant was informed by CIC officials on June 4, 2002 "Your application for Permanent Residence will not be reviewed until after the Pre Removal Risk Assessment."

[4]                He clearly misunderstood the letter, and assumed that the PRRA application was an obstacle to his H & C application. Accordingly, he withdrew the PRRA application December 16^th, 2003, in a lengthy letter set out in considerable detail the reasons for his PRAA application.

[5]                The letter of December 16^th was before the officer who denied the H & C application on January 21, 2004. It is listed as one of the items given consideration. Yet nowhere in the 'Decision and Reasons' portion of the decision is there a reference to risk.    An H & C Officer is obliged to consider all relevant factors, including those related to risk (Burai v. Canada (M.C.I.), [2003]_F.C.J. No. 1390).

[6]                The standard of review for humanitarian and compassionate decisions is reasonableness simpliciter (Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 217). An applicant must demonstrate that "the decision-maker erred in law, acted in bad faith or proceeded on an incorrect principle" (Tartchinska v. Canada (M.C.I.), [2000]_F.C.J. No. 373 at para. 18).

[7]                Evidence of risk is clearly pertinent to any H & C application. The officer when failing to mention or evaluate the pertinent and relevant evidence regarding risk before her committed a reviewable error. Consequently this application must succeed.

                                                                       ORDER

THIS COURT ORDERS that the decision of Officer Hartshorn dated January 21, 2004 is set aside and the matter is referred back to Citizenship and Immigration Canada for reconsideration by another officer.

                                                                                                                           "K. von Finckenstein"              

                                                                                                                                                 J. F. C.                        

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-1129-04

STYLE OF CAUSE:                          Valeri Kouzmin v. The Minister of

Citizenship and Immigration

                                                                             

PLACE OF HEARING:                    Calgary, Alberta

DATE OF HEARING:                      September 15, 2004

REASONS FOR ORDER AND ORDER : von Finckenstein J.

DATED:                                             September 15, 2004

APPEARANCES:

Ms. Alicia Backman-Beharry                                                     FOR APPLICANT

Ms. Laura Dunham                                                                    FOR RESPONDENT

SOLICITORS OF RECORD:

Caron & Partners LLP

Calgary, Alberta                                                                        FOR APPLICANT

Morris A. Rosenberg

Deputy Attorney General of Canada     FOR RESPONDENT