Kouzmin v. Canada (Minister of Citizenship and Immigration)

Kouzmin v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-09-15
Neutral citation
2004 FC 1255
File numbers
IMM-1129-04
Decision Content
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 26th, 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 16th, 2003, in a lengthy letter set out in considerable detail the reasons for his PRAA application.
[5] The letter of December 16th 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