Date: 20100409
Docket: IMM-1194-09
Citation: 2010 FC 362
Ottawa, Ontario, April 9, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
JOSE CESAR FIDEL BAEZA AND
CARMEN PILAR RODRIGUEZ VELASQUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
The applicants fled to Canada from Peru in November 1998. They claimed
refugee protection on the ground that they had been threatened by the Peruvian
military and a communist guerrilla group called the Shining Path. The
applicants’ claim for refugee status was dismissed in 2000, and their
application for leave and judicial review was rejected in 2001.
[2]
In 2002, the applicants were sent a call-in notice for an interview, but
they failed to attend. A warrant was issued for their arrest. The applicants
claim that they did not know about the interview or arrest warrant until they
were arrested in 2007. They had never hidden from authorities and had always
provided accurate coordinates to immigration officials. They suspect that the
call-in notice was sent to their immigration consultant, who was later charged
with fraud and sexual assault.
[3]
The applicants also applied for permanent residence in Canada on
humanitarian and compassionate grounds (H&C) in March 2003. Over the years,
they updated their application as requested. An immigration officer refused
their H&C application in 2009. The applicants argue that the officer made
numerous errors and ask me to order another officer to reconsider their
application. I agree that the officer erred and will grant this application for
judicial review.
[4]
While the applicants presented numerous grounds for judicial
review, I will confine my analysis to the one I found most persuasive - whether
the officer’s treatment of the evidence supporting the applicants’
establishment in Canada was reasonable.
II. Analysis
(a) The
officer’s analysis of establishment
[5]
The officer noted that the applicants have been in Canada for more than
10 years. However, he also observed that for half of that time the applicants
had been the subject of an arrest warrant. This led the officer to conclude
that the applicants “would not hesitate to disregard Canadian laws to stay in Canada”.
[6]
The officer then considered Mr. Fidel Baeza’s work history, which
included steady employment as a meat packer and painter over the years. The
officer noted, however, that there were minor discrepencies between the time
frames when Mr. Fidel Baeza said he worked for certain employers as indicated
on the H&C application and two letters of reference dating back to 2001 and
2002. There were no discrepencies in the more recent documentation.
[7]
Mr. Fidel Baeza also provided tax returns as evidence of employment, but
the officer noted that he had not filed T4 slips as further corroborating
evidence. In addition, Mr. Fidel Baeza had provided work permits for various
periods of time, but not covering the entire time the applicants had been in Canada.
[8]
On the basis of the evidence before him, the officer posited two
possibilities: (1) that Mr. Fidel Baeza had not been employed during the
relevant time frame, meaning that he had failed to show financial independence,
or (2) that he had been working illegally, further proof of his disregard for
Canadian laws.
[9]
In conclusion, the officer found that the applicants had not shown that
they are willing to abide by Canadian laws and, therefore, they had not
demonstrated that they have established themselves in Canada. Accordingly,
leaving Canada would not cause them unusual, undeserved or disproportionate
hardship.
(b) Was the officer’s treatment of the evidence reasonable?
[10]
I have concerns about two aspects of the officer’s analysis:
(i) The applicants’ unwillingness to comply with Canadian laws;
(ii) Mr. Fidel Baeza’s employment history.
[11]
As the two areas overlap, I will deal with them together.
[12]
In my view, the officer jumped to a conclusion about the applicants’
unwillingness to be law-abiding members of Canadian society based on the fact
that they had failed to attend an interview in 2002. While this may be a valid
consideration in terms of the exercise of discretion in an H&C application,
there was ample evidence before the officer that the applicants had been in
regular contact with immigration authorities over the years. Clearly, they were
not evading detection. They were trying to regularize their immigration status.
In my view, the officer’s conclusion that the missed interview represented an
overall attitude of contempt for Canadian law on the applicant’s part is not
supported by the evidence.
[13]
The officer’s characterization of the applicants was seemingly bolstered
by his review of Mr. Fidel Baeza’s employment record. The officer suggested
that Mr. Baeza was either lying about his work experience or, once again, had
failed to respect Canadian law by working sometimes without a permit.
[14]
The officer was concerned that the information provided about periods of
time spent working for particular employers in 2001 and 2002 was inconsistent.
In fact, the time periods in the record are consistent, except in an update
provided by the applicants in 2008. A clerical error seems to have been made.
This minor discrepancy did not justify the officer’s speculation that Mr. Baeza
might be lying about his employment history.
[15]
With respect to the officer’s concern about the absence of corroborating
T4 slips, I believe it was incumbent on the officer to convey his concern to
the applicants and provide them an opportunity to submit further evidence
before concluding that they might be lying: Ahmed v. Canada (Solicitor
General), 2005 FC 1111.
[16]
The officer also felt that, if Mr. Fidel Baeza had worked during periods
of time when he did not have a work permit, this was further evidence of
disrespect for Canadian law. Again, I do not believe this was a reasonable
inference. To prove that they had established themselves in Canada, the
applicants had to show financial independence. It would not be fair to use
evidence of steady employment against them simply because work permits did not
cover the entire period of their time in Canada: Lau v. Minister of
Employment and Immigration, [1984] 1 F.C. 434 (C.A).
[17]
I note that the guidelines relating to the issue of establishment (Operations
Manual, 1P5) indicate that officers should consider the following questions:
• Does the applicant have a history of stable employment?
• Is there a pattern of sound financial management?
• Has the applicant integrated into the community through
involvement in community organizations, voluntary services or other activities?
• Has the applicant undertaken any professional, linguistic or
other study that shows integration into Canadian society?
• Do the applicant and family members have a good civil record
in Canada (e.g., no interventions by police or other authorities, child
or spouse abuse, criminal charges).
[18]
The guidelines do not refer to relatively minor transgressions, such as
missing an interview or working without a permit.
[19]
In my view, therefore, the officer’s conclusion that the applicants had
not established themselves in Canada was unreasonable in light of the evidence
before him, and out of keeping the guidelines.
III.
Conclusion
and Disposition
[20]
I find that the officer’s conclusion on the issue of establishment was
unreasonable. In turn, this rendered his conclusion that the applicants were
not entitled to humanitarian and compassionate relief unreasonable.
Accordingly, I must grant this application for judicial review and order
another officer to reconsider the applicants’ application. No question of
general importance arises.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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