De Roldan v. Canada (Minister of Citizenship and Immigration), 2005 FC 40

Date: 20050117

Docket: IMM-1858-04

Citation: 2005 FC 40

OTTAWA, Ontario, January 17^th, 2005

Present:           THE HONOURABLE MR. JUSTICE KELEN

BETWEEN:

                                              YOLANDA ROMANO DE ROLDAN

                                                                                                                                            Applicant

                                                                           and

                                                            THE MINISTER OF

                                             CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of the decision of an immigration officer dated February 10, 2004 in which the applicant's request for permanent resident status on humanitarian and compassionate ("H & C application") grounds was denied.

FACTS

[2]                The applicant is a 65 year-old citizen of Argentina who arrived in Canada as a visitor in June 1997. She was granted extensions of her visitor status until November 1999, when her request for a further renewal was denied. In February 2000, the applicant submitted a request for permanent resident status on humanitarian and compassionate grounds. The application was sponsored by her son who is a permanent resident in Canada.

[3]                In support of her H & C application, the applicant submitted that she had been living in Canada with her adult children and their families for seven years, that there was nothing for her to return to in Argentina and that she would be unable to support herself there. She also claimed that she feared returning to Argentina because she could be harmed by the people who murdered her husband in 1995. The applicant indicated that she believed her husband's murder was orchestrated by her daughter's former husband and that her daughter had been granted refugee status in Canada because of the persecution she faced from her former husband.

THE DECISION

[4]                On February 10, 2004, an immigration officer denied the applicant's H & C application. In her reasons, the officer stated that the applicant had not become so established in Canada that it would cause her unusual and undeserved hardship to return to Argentina and apply for a visa through the normal legislative process. The officer noted that while the applicant may have some difficulties leaving Canada and re-establishing herself in Argentina, she still owns a home and has numerous siblings in that country. Further, the officer concluded that the negative Pre-Removal Risk Assessment ("PRRA") was reasonable and that there was insufficient evidence to suggest that the applicant would be at risk of harm if returned to Argentina.

[5]                The applicant challenges the decision on the basis that the officer did not provide logical reasons for her conclusions and that she failed to take into account the unusually long delay (approximately four years) in processing the H & C application. The applicant also submits that the officer fettered her discretion by relying too heavily on the PRRA Officer's risk assessment rather than conducting an independent analysis of the risk faced by the applicant upon return to Argentina.

[6]                The respondent submits that the applicant is merely asking the Court to re-weigh the evidence before the immigration officer, which it is not permitted to do.

ANALYSIS

[7]                The standard of review applicable to the discretionary decision of an immigration officer in the context of a H & C application is reasonableness simpliciter. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Accordingly, the decision should only be interfered with by the Court if it is not supported by any reasons that can stand up to "a somewhat probing examination". Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.

[8]                The decision states:

"...I am not satisfied that she (the Applicant) has become so established that at the point where it would cause her unusual and undeserved hardship if she were to return to Argentina and seek an immigrant visa in the normal legislative manner."

I have concluded that the reasons for the H & C decision dated February 10, 2004 in this matter does not withstand "a somewhat probing examination" for the following reasons:

(i)          the applicant, born in June 1939, is almost 66 years old, i.e. she is elderly;

(ii)         she has been living in Canada for the past seven years with, and supported by, her two Canadian children;        

(iii)        her children were accepted as refugees by the Refugee Board;

(iv)        the applicant has no means of supporting herself in Argentina if forced to return pending the processing of her sponsored application for permanent residence. She has no children or no husband in Argentina. (Her husband was murdered in Argentina);

(v)         the Respondent has taken four years to consider this H & C Application. If the H & C application had been decided in a timely manner, i.e. within one year, the applicant might very well have been granted an H & C exemption while contemporaneously having her application for permanent residence approved, subject to medicals and a security check. The applicant is entitled to be sponsored by her son, if her son meets certain criteria. There is no information on the record that her son does or does not meet that criteria;

(vi)        the psychological stress caused to an elderly woman in the circumstances of the applicant are "unusual and disproportionate" compared to a non-elderly person with family back in their home country.

[9]                The applicant's final argument focuses on the officer's use of the negative PRRA decision. She submits that the officer erred by over-relying on the PRRA decision, which was itself unreasonable. The jurisprudence is clear that immigration officers are entitled to place reliance on the findings of a PRRA officer or findings of the Refugee Division provided they do not indicate that they are bound by those findings. Rahbari v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1441. In the present case, there is nothing to suggest that the officer felt bound by the PRRA decision. By contrast, the language used in the decision suggests that the officer considered the evidence referred to in the PRRA and reached the same conclusion as the risk-assessment officer.

[10]            While I am satisfied that the officer did not fetter her discretion with respect to the PRRA decision, it is evident that she placed a significant amount of weight on that risk analysis. In that regard, the risk assessment could be seen as forming part of the immigration officer's decision. Khatoon v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1408 per Mosley J. Accordingly, I am willing to consider the reasonableness of the underlying PRRA decision.

[11]            The PRRA officer considered the submissions of the applicant and noted that she had provided very few details regarding the risk she feared in Argentina, instead relying almost entirely on the narrative contained in her daughter's personal information form. The officer also noted that the applicant had voluntarily returned to Argentina from Canada in 1992 (a month after a family member was allegedly kidnapped), that she had remained in Argentina without incident for two years following the murder of her husband and that she failed to claim refugee status upon arrival in Canada. The officer concluded that these actions were inconsistent with a subjective fear of harm. In these circumstances, I am unable to conclude that the decision reached by the PRRA officer on the issue of risk was unreasonable.

[12]            Both parties and the Court agree that this case does not raise a serious question of general importance.

                                               ORDER

THIS COURT ORDERS THAT:

This application for judicial review is allowed, the decision of the immigration officer is set aside, and the matter remitted to another immigration officer for redetermination with a direction that the outstanding application for sponsorship be determined at the same time.

                                                    "Michael A. Kelen"                                                       _______________________________

             JUDGE

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                               IMM-1858-04

STYLE OF CAUSE: YOLANDA ROMANO DE ROLDAN

-and-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:         TORONTO, ONTARIO

DATE OF HEARING:           WEDNESDAY, JANUARY 12, 2005

REASONS FOR ORDER

AND ORDER BY:                  THE HONOURABLE MR. JUSTICE KELEN

DATED:                                  MONDAY, JANUARY 17, 2005

APPEARANCES:                  

Ms. Patricia Wells

FOR APPLICANT

Mr. Ian Hicks

FOR RESPONDENT

SOLICITORS OF RECORD:

Ms. Patricia Wells

Barrister and Solicitor

Toronto, Ontario

FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT

             FEDERAL COURT

Date: 20050117

Docket: IMM-1858-04

BETWEEN:

YOLANDO ROMANO DE ROLDAN

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER