I am attending at the Federal Court on two matters tomorrow morning before Justice Campbell.
The first hearing deals with an applicant that came to Canada in the fall of 2005. He made a refugee claim which was denied a year later. His first application for humanitarian and compassionate grounds was filed within a month and was rejected 6 years later. We were retained and we filed an application for leave and judicial review to the Federal Court. Leave was granted; the Department of Justice consented to have the matter remitted to a different officer for reconsideration which resulted, nonetheless, in another refusal. We filed another application for judicial review; once again leave has been granted and the matter is set down for oral argument.
An application under s.25 a "Humanitarian and Compassionate Application" is about seeking an exemption from the criteria set out in the Immigration and Refugee Protection Act and Regulations. The applicant seeking the exemption (obviously) bears the onus of proving his or her case. This means that the applicant needs to establish that 'unusual or undeserved' or disproportionate hardship would result if the application were not granted.
In this case, the officer makes a fairly obvious error in the decision. The officer states that the Refugee Protection Division found "that the applicant did not suffer discrimination..." This is directly contradicted by the Refugee decision which was before the officer which clearly stated "The panel accepts the claimant's testimony that he was discriminated..."
As an aside, this statement of the impugned decision is also contradicted by the officer's colleague who wrote the first decision (and refusal) who found that "I acknowledge that the applicant has suffered acts of discrimination ..."
Moreover, the officer seems to have disregarded, in their entirety, the evidence provided as to the personal hardship upon return.
The officer's error which goes to the heart of the decision and the wholly deficient analysis will constitute my oral argument.
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