Date: 20050120
Docket: IMM-1880-04
Citation: 2005 FC 91
Ottawa, Ontario, this
20th day of January, 2005
Present:
The
Honourable Justice James Russell
BETWEEN:
GERARDO GARCIA VASQUEZ
NANCY IRENE LIBREROS OCHOA
SERGIO GERARDO GARCIA LIBREROS
SOFIA ALEJANDRA GARCIA LIBREROS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER
[1]
This is an application for a judicial review of a decision by a
Pre-Removal Risk Assessment Officer ("Officer") dated February 3,
2004 ("Decision") that denied the Applicants' exemption application
on humanitarian and compassionate grounds for permanent residence within
Canada.
BACKGROUND
[2]
Gerardo Garcia Vasquez is a citizen of Mexico and Honduras. He was born
on June 20, 1961. His wife, Nancy Irene Libreros Ochoa, and their children are
citizens of Mexico.
[3]
The Applicants arrived in Canada on August 27, 2000 and made a claim for
Convention refugee status on August 30, 2000. The basis of their claim was Mr.
Vasquez's alleged fear of persecution in Mexico and Honduras on perceived
political grounds and membership in a particular social group as a former bank
employee involved in a bank fraud investigation.
[4]
On May 14, 2002, the Convention Refugee Determination Division
("CRDD") determined that the Applicants were not Convention Refugees and
that there was no basis for their claim. The CRDD concluded that Mr. Vasquez's
evidence about his fear of persecution in Mexico and Honduras was not credible,
and that any evidence which could be found reliable showed that he may have
been involved in unlawful dealings at his bank, and that the bank may have had
a legitimate interest in prosecuting him or in compelling him to give evidence
about matters within his sphere of responsibility. His decision to leave Mexico
for Honduras arose from fear of prosecution, rather than from a fear of
persecution, for his activities at the bank or his failing to aid in the
investigation in which he could have been a material witness. With respect to
his claim against Honduras, the CRDD found that Mr. Vasquez's evidence
concerning his situation in Honduras appeared to be "wholly
contrived" and inconsistent with his established character and behaviour
patterns as revealed in his own testimony.
[5]
The Applicants filed an application for leave and for judicial review of
the CRDD decision, which this Court dismissed on September 19, 2002.
[6]
On October 11, 2002, Mr. Vasquez and Ms. Ochoa made their H & C
Application.
[7]
On December 19, 2003, Mr. Vasquez was notified that he and his family
were ready to be removed from Canada and that he had an opportunity to make a
PRRA application prior to removal.
[8]
Mr. Vasquez and Ms. Ochoa submitted PRRA applications on January 2,
2004, with further written submissions and documentation filed on January 16,
2004. In his PRRA submissions, Mr. Vasquez reiterated the same basis of his
refugee claim as he had before the CRDD.
[9]
On February 3, 2004, a PRRA officer ("Officer") determined
that the Applicants would not be subject to risk of persecution, torture, risk
to life or risk or cruel and unusual treatment or punishment if returned to
their country of nationality pursuant to ss. 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
Based upon the same meeting, the same Officer also refused the H & C
Application that day.
[10]
The
Applicants sought leave from the Court to commence an application for judicial
review of the Officer's decision with respect to their PRRA Application
(Federal Court File IMM-1879-04). On June 21, 2004, Mr. Justice Gibson
dismissed that application.
[11]
On August
12, 2004, Mr. Justice Campbell granted leave to the Applicants regarding their
application for judicial review of the Officer's decision with respect to their
H & C Application.
ISSUES
[12]
The
Applicants say that the issue that forms the basis of this application for
judicial review is whether the Officer erred in reaching her conclusion that
there were not sufficient humanitarian and compassionate grounds to warrant the
processing of the applications for permanent residence ("H & C
applications") of the Applicants from within Canada. More particularly,
did the Officer err by:
a) failing,
in her determination made February 3, 2004 concerning the Pre-Removal Risk
Assessment applications of the Applicants ("PRRA decision"), which
she later adopted in the Decision and reasons relating to the H & C
applications, to identify a specific geographic location when considering
whether an internal flight alternative was available to the Applicants?
b) failing
in the PRRA decision to consider the emotional and psychological state of the
Applicant Nancy Irene Libreros Ochoa when she assessed the reasonableness of
the purported, yet unidentified, internal flight alternative?
c) considering,
in the PRRA decision, the large population of Mexico as an "insulating
factor" in her assessment of the existence of an internal flight
alternative?
d)
ignoring, in the PRRA decision, risks particular to the minor Applicants?
e) ignoring
and/or misconstruing other evidence provided in support of the PRRA
applications of the Applicants?
f)
not providing the Applicants an opportunity to comment on the conclusions
reached in her PRRA decision prior to relying on the same in her Decision with
respect to the H & C applications?
g) failing,
in the H & C Decision, to properly consider the best interests of the minor
Applicants?
h)
characterizing, in the H & C Decision, the establishment of the Applicants
in Canada as "minimal"?
ANALYSIS
Scope of Review
[13]
Most of the
issues raised by the Applicants are to do with perceived inadequacies in the
PRRA decision of February 3, 2004. However, Mr. Justice Gibson refused leave
for judicial review of that decision on June 21, 2004. Only the Officer's
Decision with respect to the H & C application was granted leave for
judicial review by Mr. Justice Campbell on August 12, 2004.
[14]
In my view,
issues with respect to the PRRA decision are not properly before the Court on
this application. Hence, my analysis is confined to those issues raised by the
Applicants with respect to the H & C Decision only.
The H & C Grounds
[15]
As regards
the H & C Decision, the Applicants have raised three issues that require
review:
1. did the
Officer breach procedural fairness by not giving the Applicants the opportunity
to review the PRRA determination and to provide comments before she rendered
the H & C Decision?
2. did the
Officer adequately address the best interests of the minor Applicants?
3. did the
Officer overlook and fail to appreciate the full extent of the Applicants'
establishment in Canada?
Procedural Fairness
[16]
The
Applicants say that the Officer should have disclosed the PRRA decision to them
for review and should have given them the opportunity to comment on that
decision before she rendered her Decision with respect to the H & C
application.
[17]
The
rationale offered by the Applicants for this position is that where an H &
C decision maker relies upon extrinsic information in reaching a conclusion, he
or she has a duty to disclose the information in question so that the applicant
has an opportunity to respond to any issues raised by the information. The
Applicants also point to ss. 6.4, 13.5 and 13.6 of IP5 of Citizenship and
Immigration Canada's Inland Processing Manual to support and highlight
this obligation.
[18]
In support
of their position, the Applicants cite the Federal Court of Appeal decision in Haghighi
v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (QL)
at paras. 37-38:
37. In my opinion, the duty of fairness
requires that inland applicants for H & C landing under subsection 114(2)
be fully informed of the content of the PCDO's risk assessment report, and
permitted to comment on it, even when the report is based on information that
was submitted by or was reasonably available to the applicant. Given the often
voluminous, nuanced and inconsistent information available from different
sources on country conditions, affording an applicant an opportunity to comment
on alleged errors, omissions or other deficiencies in the PCDO's analysis may
well avoid erroneous H & C decisions by immigration officers, particularly
since these reports are apt to play a crucial role in the final decision. I
would only add that an opportunity to draw attention to alleged errors or
omissions in the PCDO's report is not an invitation to applicants to reargue
their case to the immigration officer.
38. In view of the potentially grave consequences for an
individual who is returned to a country where, contrary to the PCDO's report,
there is a serious risk of torture, the increased accuracy in the decision
likely to result from affording the respondent the procedural right sought here
justifies whatever administrative [page424] delays might thereby be occasioned.
In order to minimize delay, it would be appropriate for immigration officers to
give to applicants a relatively short time within which to submit written
comments on the report.
[19]
Haghighi
has been followed in Soto v. Canada (Minister of Citizenship and Immigration,
[2001] F.C.J. No. 1207 (QL) and Singh v. Canada (Minister of Citizenship and
Immigration, [2004] F.C.J. No. 216.
[20]
In these
cases, however, the PRRA risk assessment was completed by another officer who
did not make the final H & C decision. In the case at bar, the same Officer
made both decisions.
[21]
The
Applicants say this should not matter because, although the same Officer made
both decisions, she was fulfilling two very distinct roles and was applying
very different criteria to each decision. Hence, if the Officer relied upon her
own PRRA decision, it should have been shared with the Applicants. In fact, the
Applicants argue that disclosure is even more important where an officer relies
upon her own decision because she is hardly likely to question or assess her
own conclusions.
[22]
As for the
extrinsic aspect, the Applicants say that the PRRA decision relies upon and
makes use of country reports that were not advanced by the Applicants
themselves, and the PRRA decision is itself extrinsic because it contains
conclusions and assumptions of which they had no knowledge.
[23]
In reply,
the Respondents point to a line of cases from this Court that has held there is
no duty to disclose a PRRA decision when the same officer also decides the H
& C application. See Zolotareva v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1596 (QL), 2003 FC 1274 (T.D.); Akpataku
v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 862,
2004 FC 698 (T.D.); and Chowdhury v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 503 (QL), 2002 FC 389 (T.D.).
[24]
In Chowdhury,
Mr. Justice Blanchard had the following to say on the issue:
19. I am of the view that, on the facts of this matter, the
principles enunciated in Haghighi, supra, do not extend to recognize an
obligation on an officer to disclose to an applicant notes that include; the
risk(s) identified by the applicant(s), the officer's analysis of his decision
and the publicly available references relied upon. I am of the view, again, on
the facts of this matter, that the principles regarding the duty of fairness
that were enunciated by the Supreme Court of Canada, in Baker, supra, do
not extend that far.
[25]
The issue
before me in this case was faced squarely by Mr. Justice Martineau in Zolotareva
where the applicant argued that an officer violated the duty of fairness and
breached the principles of natural justice by failing to provide her with an
opportunity to respond to the decision on the risk of her return to Israel. The
applicant in Zolotareva also relied upon Haghigi.
[26]
Referring
to the decision of Mr. Justice Blais in Majerbi v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1145 (T.D.) (QL), Mr.
Justice Martineau came to the following conclusions on this issue at para. 24
of his decision:
I am of the opinion that in this case the PRRA Officer had
no duty to disclose the analysis of the risk of return and to give the
applicant an opportunity to make comments before reaching a final decision on
her application. Specifically, there was no obligation for the PRRA Officer to
do so where there was no third party involved in the decision making.
[27]
In the case
at bar, "there was no third party involved in the decision making." In
addition, I cannot distinguish this case in any meaningful way from Zolotareva
or from recent decision of this Court in Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FC 872, [2004] F.C.J. No. 1134, and Monemi
v. Canada (Solicitor General) 2004 FC 1648.
[28]
The
Decision is not reviewable on this ground.
The Best Interests of the Children
[29]
The
Applicants say that s. 25(1) of IRPA adds to the principles in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39
(QL) by imposing a mandatory duty on the Minister in an H & C application
to take into account the best interests of any child affected by the decision,
and that s. 3(3)(f) of IRPA, in effect, makes the best interests
of any such child a primary consideration because it requires that IRPA
be applied in a manner that complies with international instruments to which
Canada is a signatory including Article 3 of the Convention on the Rights of
the Child.
[30]
Section
3(3)(f) of IRPA says that "This Act is to be construed and
applied in a manner that ... complies with international human rights
instruments to which Canada is signatory."
[31]
Relying
upon Baker, the Respondents say that for the exercise of the discretion
to fall within the standard of reasonableness, the Officer was obliged to
consider the children's best interests as an important factor, to give them
substantial weight, and to be alert, alive and sensitive to them. However,
while the children's interest should not be minimized, there may well be other
considerations for denying an H & C application. In short, the Respondents
say that the Officer was not bound to consider only the interests of the children
in this case. She was bound to determine the application on all of the evidence
before her.
[32]
But the
Applicants say that, even by the standards set in Baker, the Officer did
not consider the children's interests correctly in this case. This is because
the only risks addressed for the children are derived from those faced by the
parents. The Officer, say the Applicants, never asked what would happen to the
children themselves if they are required to leave Canada. The Applicants insist
that the Officer was obliged to weigh the benefits of their remaining in Canada
against the hardships of their going back to Mexico or Honduras.
[33]
In the
Decision itself, the Officer does make the point that the "Allegations of
risk are those that are cited in their PRRA application," and that the
"spouse's and children's allegations of risk are derivative ones on the
basis of being family members of the PA."
[34]
The Officer
also goes on to consider the children in the context of the family's
establishment in Canada:
The applicants have adduced evidence to indicate a measure
of establishment and integration into the community, including gainful
employment, courses taken to upgrade their linguistic and employment skills as
well as support from friends. I also recognize that their children have adapted
to the Canadian school system and community - doing well in school,
participating in extra-curricular activities and have also made friends.
However, in consideration of the evidence before me, I do not find the
applicants have reached a considerable level of integration and establishment
in Canada that would warrant a positive visa exemption.
[35]
In view of
the submissions made on behalf of the children by the Applicants in their
counsel's letter of October 12, 2002, it cannot be said that the Officer was
not alert, alive and sensitive to the interests of the children in terms of the
test set in Baker.
[36]
So the
issue before me is whether ss. 25(1) and 3(3)(f) of IRPA placed a
much higher burden upon the Officer to consider the interests of the children
and render those interests "primary" or "paramount."
[37]
To support
their position on this point, the Applicants place considerable store by the
judgment of Madam Justice Simpson in Martinez v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1695 (T.D.) and, in
particular the following paragraphs:
...
9. In this context, I have been asked to consider the
relevance of the United Nation's Convention on the Rights of the Child, GA Res.
44/25, UN GAOR, 20 November 1989 (the "Convention"). I note that the
Convention deals with the human rights of children and, to paraphrase, it
recognizes in its preamble that, inter alia, childhood is entitled to special
care and assistance, the family should be protected as it is the natural
environment for the growth and well-being of children and children should grow
up in a family environment.
10. In my view, the following articles are relevant:
Article 3(1): In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.
Article 7(1): The child shall be registered immediately
after birth and shall have the right from birth to a name, the right to acquire
a nationality and, as far as possible, the right to know and be cared for by
his or her parents.
Article 9(4): Where such separation results from any action
initiated by a State Party, such as the detention, imprisonment, exile,
deportation or death (including death arising from any cause while the person
is in the custody of the State) of one or both parents or of the child, that
State Party shall, upon request, provide the parents, the child or, if
appropriate, another member of the family with the essential information
concerning the whereabouts of the absent member(s) of the family unless the
provision of the information would be detrimental to the well-being of the
child. States Parties shall further ensure that the submission of such a
request shall of itself entail no adverse consequences for the person(s)
concerned.
11. Article 9(4) of the Convention recognizes that there
will be situations in which children are separated from their parents by state
actions including deportations and I have found nothing in the Convention which
prohibits a parent's removal. In other words, in spite of the Convention,
Canada is entitled to separate children from their parents in situations in
which the parents have no legal status in Canada.
12. I now turn to Article 1 of the Convention and note that,
although judges have differed about the scope of a removals officer's
discretion to defer a removal, they have generally agreed (I) that a removals
officer is not required to conduct a full scale humanitarian and compassionate
review and (ii) that, in most circumstances, a pending H & C application
will not justify the deferral of a removal. That said, the question in this
case is whether, when the father is being removed and the children are
remaining in Canada, should the removals officer defer the removal pending the
outcome of the H & C Application in order to give effect to Canada's
obligations under Article 1 of the Convention? In my view, the answer is
"yes" for the reasons which follow.
13. Section 3(3)(f) of the IRPA has incorporated the
Convention into our domestic law to the extent that the IRPA must be construed
and applied in a manner that is consistent with the Convention. In my view, it
is contrary to Article 1 of the Convention to use the provisions of the IRPA to
separate the Applicant and his children before a decision is made on the H
& C Application. This is so because it is only during the assessment of
that application that the best interests of the children can be fully addressed
and treated as a primary consideration. I have therefore concluded that there
is a serious issue in this case. It is whether the existence of the undecided H
& C Application is a bar to the removal of the Applicant because the
completion of the H & C assessment is required to fulfill Canada's
Convention obligations.
...
[38]
First of
all, it has to be recognized that Madam Justice Simpson reached these
conclusions in the context of a stay application where a removal order would
have had the effect of separating Mr. Martinez from his wife and two children. Madam
Justice Simpson was deciding whether there was a "serious issue" for
purposes of satisfying the stay criteria, and she decided that there was
"because it is only during the assessment of that [H & C] application
that the best interests of the children can be fully addressed and treated as a
primary consideration."
[39]
This is
different from the case before me where I am reviewing an H & C Decision
that does address the interests of the children involved. In effect, the
Applicants seek to convert Madam Justice Simpson's reference to a "primary
consideration" in Martinez into a general rule that in H & C
decisions the interests of the children must be the "paramount"
consideration because of ss. 25(1) and 3(3)(f) of IRPA.
[40]
The answer
to this is that, on the evidence before me, the interests of the children in
this case were considered as primary, if primary is given its usual dictionary
meaning as something of the first rank or importance. The Officer fully
considered the PRRA risks to the children as well as those factors identified
by the Applicants as being of relevance when considering the relative benefits
and hardships of removing the children from Canada.
[41]
What the
Applicants are really saying in this case is that the children would obviously
be better off in Canada than in Mexico or Honduras and, because they would be
better off, Canada's international Convention obligations dictate that factor
be given paramountcy in an H & C Decision that involves both parents and
children.
[42]
I do not
think that law, logic or established authority dictates the result urged upon
the Court by the Applicants.
[43]
On the
facts of this case, there is nothing to suggest that the children would be at
risk or could not successfully re-establish themselves in Mexico or Honduras.
The fact that the children might be better off in Canada in terms of general
comfort and future opportunities cannot, in my view, be conclusive in an H
& C Decision that is intended to assess undue hardship.
[44]
I am of the
view that the guidance of the Federal Court of Appeal in Legault v. Canada
(Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (QL), 2002 FCA
125, at para. 12 remains applicable to this case:
In short, the immigration officer must be "alert, alive
and sensitive" (Baker, supra, at paragraph 75) to the interests of the
children, but once she has well identified and defined this factor, it is up to
her to determine what weight, in her view, it must be given in the
circumstances. The presence of children ... does not call for a certain result.
[45]
The
Decision in the case at bar was well within the legal parameters recognized for
considering the best interest of the children. There was no reviewable error in
this regard.
Establishment
[46]
I have
carefully reviewed each ground of complaint put forward by the Applicants, but
the only further issue that I feel requires some discussion is the Applicants'
contention that the Officer made a reviewable error when she described the
Applicants establishment in Canada as "minimal."
[47]
The
Applicants point out that they offered undisputed evidence of stable
employment, involvement with community organizations, English and other
studies, and remarkable community support. The Applicants also say that they
satisfied every criterion for assessing establishment found in the Inland
Processing Manual.
[48]
In short,
the Applicants say that the Officer's "characterization of their
establishment and integration into Canadian society as minimal was not made in
accordance with the evidence before her, nor even with the Respondents' own
guidelines."
[49]
In effect,
of course, this amounts to a request that I re-weigh the evidence presented in
this regard and conclude that the Officer's Decision was unreasonable. I am
fully aware that it is not the role of this Court to merely re-weigh evidence
and substitute its own opinion for that of the Officer in question.
[50]
The
Applicants are asking the Court to isolate the word "minimal" as it
is used in that section of their H & C application dealing with
"Supportive and Non-supportive Considerations." This section calls
for a truncated listing of the factors supporting a positive decision and those
against a positive decision. I agree with the Applicants that the comment on
the non-supportive side of the leger "Establishment and integration into
Canadian society is minimal" hardly accords with the evidence before the
Officer.
[51]
However,
the essence of an H & C determination involves an appropriate weighing and
balancing of a wide range of factors as they manifest themselves in the
particular case. The heart of the Decision occurs in the "Decision and
Reasons" section where that weighing and balancing takes place. If I
review the Decision as a whole, I am satisfied that all of the circumstances of
the case were taken into account and that the appropriate weighing of relevant
factors was done in this case, and occurs under the final section of the
Decision, notwithstanding the unfortunate use of the word "minimal"
in another section of the application. In other words, the Decision and
Reasons" section of the form reveals that due regard was paid by the
Officer to establishment factors and they were not, in fact, treated as
minimal. There was no reviewable error in this regard.
Conclusions
[52]
In view of
the foregoing, it is my view that this application must fail.
[53]
Counsel are requested to serve and file any submissions with respect
to certification of a question of general importance within seven days of
receipt of these reasons. Each party will have a further period of three days
to serve and file any reply to the submission of the opposite party. Following
that, an order will be issued.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF
RECORD
DOCKET:
IMM-1880-04
STYLE OF CAUSE: Gerardo Garcia Vasquez, and others v.
The Minister of Citizenship and Immigration,and others
PLACE OF HEARING:
Vancouver, BC
DATE OF HEARING:
November 10th, 2004
REASONS FOR ORDER :
The Honourable Mr. Justice Russell
DATED:
January 20, 2005
APPEARANCES:
Warren Puddicombe
FOR APPLICANT
Benton Mischuk
FOR RESPONDENT
SOLICITORS OF RECORD:
Embarkation Law Group
FOR APPLICANT
Vancouver BC
John H. Sims, Q.C.
FOR RESPONDENT
Deputy Attorney General of Canada
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