Thursday, December 16, 2010

Gurshomov–failure to consider relevant circumstances on deferral

Gurshomov v. Canada (MPSEP), 2010 FC 1212

Issued: December 1, 2010

Presiding: Justice Phelan

For the Applicant: Aviva Basman and Jennifer Egsgard, Refugee Law Office

For the Minister: Laden Shahrooz

The Applicant entered Canada with her husband and children in 2003. Their refugee claim was denied, and an H&C application was filed in May 2004 by the husband (para. 2). In 2008, the Applicant separated from her husband and filed and H&C in her own case. This H&C was denied in February 2009, concurrently with a PRRA denial. The Applicant understood that she had received a negative PRRA, but did not understand that the H&C was also denied (paras. 3-4).

Counsel and the Applicant checked the CIC case status website in April 2009 and it stated that there was an H&C pending. Since the husband’s H&C had been denied earlier that year, they took the status to mean that the Applicant’s H&C was still pending. Furthermore, they contacted CIC, and were told that the H&C was still pending and that progress required the payment of fees. As instructed, the fees were paid and further submissions were made on May 8, 2009, followed by additional submissions on May 28 and July 22, 2009 (paras. 5-6).

On July 24, 2009, the Applicant requested a deferral of removal on the basis of the “pending” H&C, which deferral was requested August 14, 2009 (para. 7).

Only on March 25, 2010 was the Applicant made aware of that the H&C had, in fact, been denied in February 2009—she was informed in the context of a removal itinerary (para. 8). She filed a third H&C and shortly thereafter requested another deferral, which was denied. The request was made in part on the risk to the Applicant and her children if returned to Israel where her abusive husband now lived. The Officer focussed on the ability of the children to adjust to the move, and did not address a custody order in favour of the Applicant nor the evidence that it would not be respected in Israel (paras. 9-12).

The Court noted the timeliness of filing and status of an H&C were relevant factors (para. 15). The Court stated that the Officer should have considered the circumstances of the late filing of the third H&C, as well as the fact that because of the miscommunication from CIC, the evidence on the personal risk to the Applicant, addressed only in the submissions which in fact post-dated the refusal, had not been considered (paras. 13-17). The Court held that this was an instance where the Officer failed to address relevant considerations (referring to Simoes) and where “special considerations” were also present (referring to Baron).


No comments: