Date:
20061127
Docket: IMM-3010-06
Citation: 2006 FC
1426
Ottawa,
Ontario, the 27th day of November 2006
Present:
The Honourable Mr. Justice Blais
BETWEEN:
JORGE ALBERTO MEDINA OROZCO
ROSAURA SANABRIA NOGUEZ
TANI XIMENA MEDINA SANABRIA
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review under section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated
May 19, 2006, by a pre-removal risk assessment officer, refusing the
application based on humanitarian and compassionate grounds for exemption from
the requirement to obtain a permanent resident visa before coming to Canada.
RELEVANT
FACTS
[3]
On
May 19, 2006, both the application for visa exemption on humanitarian and
compassionate grounds and the PRRA application were refused by Mr. Gilles
Crête, a pre-removal risk assessment officer (the PRRA officer).
[4]
In
fact, this was the applicants’ second application for visa exemption on
humanitarian and compassionate grounds and the second PRRA application; the
previous applications were refused on July 4, 2005, and December 7, 2004,
respectively.
[5]
The
applicants had also submitted a refugee claim in 2000 and an application for
immigration to Canada from Mexico in 2002; both were denied.
IMPUGNED DECISION
[6]
The
applicants in this proceeding challenge the decision dated May 19, 2006, by the
PRRA officer that there were insufficient humanitarian and compassionate
grounds to establish that the applicants would encounter unusual and undeserved
or disproportionate hardship should they be required to leave Canada and apply
for permanent residence from Mexico.
ISSUE
[7]
This
case raises the following issue: did the PRRA officer err in not considering
all the evidence that was presented?
RELEVANT STATUTORY
EXCERPT
[8]
The
application for visa exemption on humanitarian and compassionate grounds falls
within the ambit of subsection 25(1) of the Act. This provision reads as
follows:
|
25. (1) The Minister shall, upon request of
a foreign national who is inadmissible or who does not meet the requirements
of this Act, and may, on the Minister’s own initiative, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
|
25. (1) Le ministre doit, sur demande d’un étranger
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer
le statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des circonstances d’ordre
humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de
l’enfant directement touché — ou l’intérêt public le justifient.
|
STANDARD OF REVIEW
[9]
In
Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme
Court determined that the appropriate standard of review applicable to
decisions by immigration officers regarding applications based on humanitarian
and compassionate grounds is reasonableness simpliciter.
ANALYSIS
[10]
The
applicants submit that the PRRA officer erred in law by failing to conduct a
new independent review of their file instead of accepting the findings that he
himself had made on the first application and limiting his analysis to the new
facts presented by the applicants.
[11]
The
respondent notes that the first PRRA decision regarding humanitarian and
compassionate grounds was not challenged in this Court and therefore remains
valid. Moreover, the second application is based on new facts, not the mere
passage of time. Accordingly, it was reasonable for the officer to focus his
analysis on this fresh evidence.
[12]
I
would add that it would be unrealistic to expect that an individual could make
multiple applications on humanitarian and compassionate grounds, based on the
same facts, and expect that each application would be assessed independently,
without regard to the previous decisions. In my view, adopting such an approach
would permit an applicant to circumvent the Act, which already contains
numerous mechanisms for challenging the decision-maker’s initial refusal (for
example, judicial review of the decision or the PRRA application).
[13]
On
this point, I concur with Mr. Justice Sean J. Harrington’s reasons in Kouka
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No.
1561, at paragraphs 14 and 15:
Although foreign nationals are
entitled to submit more than one HC application and more than one PRRA
application in Canada, the most recent application must be based on new facts;
otherwise, what would be the point of submitting it? In short, how would a new
application be relevant? Such a procedure would undermine the Canadian justice
system, thereby breaching the spirit of the res judicata rule, which
prevails in judicial matters. In this case, the immigration officer did not
contravene any rule or principle when he restated findings already made in an
earlier decision or limited his assessment of the evidence to new material
before him. In that respect, the decision was correct, and the Court should not
intervene. It should be noted that in matters of natural justice and procedural
fairness, review of a disputed decision must be in accordance with the
correctness standard, as the Supreme Court held in C.U.P.E. v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539.
There is also nothing wrong
with the fact that it was the same immigration officer who adjudicated at each
stage of the applicants’ claim for legal status in this country. In this
regard, Mr. Justice Blais wrote the following at paragraph 16 of Nazaire v.
Canada (Minister of Citizenship and Immigration), 2006 FC 416, [2006]
F.C.J. No. 596 (QL): “In principle, the officer responsible for the first PRRA
application could be responsible for the second, but there are rules to follow
so that the officer does not fail to observe the principles of natural justice
and impartiality.” There is nothing in the record to indicate that the
immigration officer failed to comply with these rules. It should be noted that
the applicants did not establish that an informed person, viewing the matter
realistically and practically, and having thought the matter through, would
conclude that it was more likely than not that the decision-maker would not
decide fairly (Committee for Justice and Liberty et al. v. National Energy
Board et al., [1978] 1 S.C.R. 369).
[14]
In
this case, since the officer had already made a decision on the applicants’
file less than a year earlier, it was perfectly reasonable that he focused his
analysis on the new facts set out in the second application to determine
whether those facts could offset the negative finding on the facts presented in
the first application. Moreover, no evidence was adduced to show that the PRRA
officer’s decision was not made fairly.
[15]
The
applicants also contend that the PRRA officer erred in finding that the
positive decision by the Refugee Protection Division (RPD) concerning the
principal applicant’s daughter-in-law did not constitute corroborating evidence
of the applicants’ version of the facts.
[16]
On
the contrary, the respondent maintains that the reasons reflect the officer’s
meticulous review of the evidence, and that his decision is reasonable.
[17]
It is clear from the decision that the PRRA officer
considered the fresh evidence submitted by the applicant, in particular the
fact that his daughter-in-law had obtained refugee status. On that particular
point, the officer found that he was not bound by the RPD decision; every
situation is different, and every decision-maker is independent. The PRRA
officer commented on a number of gaps in the evidence that led him to reject
the RPD decision as corroborating the applicants’ allegations. The officer also
considered a number of other pieces of evidence submitted by the applicants, inter
alia, the principal applicant’s medical condition; in the end, he concluded
that there were insufficient humanitarian and compassionate grounds to
establish that the applicants would encounter unusual and undeserved or
disproportionate hardship should they be required to leave Canada to apply for
a visa from outside the country (Irimie v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No. 1906).
[18]
Where
the applicable standard of review is reasonableness, it is not the role of the
Court to substitute its assessment of the facts for that of the decision-maker.
Instead, the Court must determine “whether the reasons, taken as a whole, are
tenable as support for the decision” (Law
Society of New Brunswick v. Ryan, [2003] 1
S.C.R. 247, at paragraph 56).
[19]
In this case, the officer’s findings, taken as a whole, are
tenable as support for the decision.
[20]
Accordingly, for these reasons, the application for
judicial review is dismissed.
[21]
I should emphasize the excellent work of both counsel in
this matter. Having said that, I note that this is the seventh decision denying
the applicants’ application. Although the applicants’ repeated applications
could be viewed as reflecting great persistence, this persistence approaches an
abuse of process when the parties appear unable to accept the impact of the
decisions and continue to submit fresh applications that are clearly without
foundation.
[22]
Counsel did not submit any question for certification.
Email this Content