Thursday, February 10, 2011

The Court set aside an H & C application noting that the officer had applied the wrong test:

[17] However, at the same time, I am not satisfied that the Officer took the correct approach to assessing the potential hardship the Applicants will face if returned to Albania. The Officer reasons that because there is state protection available in Albania, the Applicants face no risk to life, and therefore, that there will be no undue, undeserved or disproportionate hardship.

[18] In Pacia v. Canada (Minister of Citizenship and Immigration) (2008), 73 Imm. L.R. (3d) 274, Justice Mosley held that equating state protection to a lack of undue, undeserved or disproportionate hardship is an error of law, as it indicates that the officer applied the wrong legal test. At para. 13, Justice Mosley said: …The Officer accepted the applicant’s account of a long-standing dispute in her community and threats of harm. The finding that protection was available to the applicant does not address the question whether she would encounter undue hardship should she be required to avail herself of the state’s shelter.

2011 FC 161
Key Issues: 
H & C hardship