Thursday, November 10, 2011

The Court set aside a negative H & C. The Court found that the officer erred in her assessment of the establishment and also in the test for undue hardship.

44 It is clear the Officer required the Applicants to demonstrate personal risk and found that the Applicants were unable to do so. However, this was the wrong legal test for an H&C application. The Officer does not express any appreciation that the test for hardship in an H&C context is differ-ent from the test for personalized risk in a PRRA assessment.

45 The Officer's statement that the Applicants would not face unusual and undeserved or dispro-portionate hardship follows the Officer's analysis with respect to personalized risk. The analysis is unreasonable as the wrong test was employed and it is not saved by reverting to a recitation of the proper H&C test in conclusion....

55 The Officer was correct in relying on Uddin as the appropriate legal framework in which to ground her analysis. The problem is that the Officer listed the Applicants' positive establishment evidence, failed to conduct any analysis, and simply concluded that the hardship the Applicants would face would not be unusual, undeserved or disproportionate.

56 I agree with the Applicants that the Officer simply provided her conclusion without providing reasons as to why she made the conclusion she did. This is also a reviewable error.

2011 FC 1296
Key Issues: 
H & C establishment; undue hardship