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Aboubacar v. Canada (Citizenship and Immigration), 2014 FC 714 : H&C Refusal Overturned Because Officer Applied the Wrong Hardship Test and Failed to Consider the Circumstances of Long-Term Establishment

The Federal Court reviewed the refusal of an H&C application by an applicant who had lived in Canada for approximately 14 years and whose spousal sponsorship application had remained in process for several years before being withdrawn.

The Court overturned the decision because the officer improperly imported the refugee protection test into the H&C analysis and failed to properly consider the circumstances surrounding the applicant’s lengthy establishment in Canada.

Key Principle

An H&C officer must assess whether requiring an applicant to leave Canada and apply for permanent residence from abroad would cause unusual and undeserved or disproportionate hardship.

The officer cannot require the applicant to demonstrate a risk or hardship that is different from that faced generally by others in the country of return. That is a standard associated with refugee protection, not section 25 H&C relief.

The circumstances that led to an applicant’s establishment in Canada, including periods during which the applicant reasonably expected to remain while a spousal sponsorship was being processed, must also be meaningfully considered.

Background

The applicant was a citizen of Niger who had lived in Canada for approximately 14 years.

He married a Canadian citizen in 2002, and his wife sponsored him for permanent residence. The sponsorship received first-stage approval in 2006, after which he received a work permit and health coverage while the application remained in process.

The sponsorship application was delayed for approximately six years before his wife withdrew the sponsorship following their separation in 2012.

The applicant then applied for permanent residence on H&C grounds. He relied on his long-term establishment in Canada, including employment, friendships and community involvement, as well as the hardship he would face returning to Niger.

The officer acknowledged his establishment but found that it was not exceptional and concluded that the conditions in Niger affected the general population and that the applicant had not demonstrated that he would be personally and directly seriously affected.

Court Findings

The Federal Court found that the officer had applied the wrong test.

The requirement that an applicant demonstrate hardship or risk that is not generally faced by others in the country of return comes from the refugee protection framework. It is not the test under section 25.

The proper question was whether returning this particular applicant to Niger after approximately 14 years in Canada would cause unusual and undeserved or disproportionate hardship.

The Court also found that the officer failed to properly consider the applicant’s establishment and the circumstances in which it developed.

The applicant had remained in Canada for years while his spousal sponsorship was being processed. Although he did not have a legal guarantee of permanent residence, the applicable administrative policy provided for a deferral of removal and permitted him to work while the sponsorship application was being processed.

The officer could not simply characterize the applicant’s continued presence in Canada as a voluntary choice and disregard the consequences of the lengthy processing delay.

The Court also found that the officer’s assessment of conditions in Niger was not properly connected to the applicant’s circumstances. The officer acknowledged severe conditions in Niger but then concluded that they were common to the general population. This failed to address the actual H&C question.

Outcome

The Federal Court allowed the application for judicial review, set aside the H&C refusal and returned the application to a different officer for redetermination.

 

Case Citation:

Aboubacar v. Canada (Citizenship and Immigration), 2014 FC 714 CanLII

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