Date: 20100610
Docket: IMM-5291-09
Citation: 2010 FC 629
Toronto, Ontario, June 10, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
MAXIMIN
DONELLY HERMAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant is a citizen of St. Lucia. In August 2006, she
applied under section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (IRPA) for
an exemption, on humanitarian and compassionate (H&C) grounds, from the
general requirement to apply for permanent residence in Canada from outside
Canada.
[2]
In
a decision dated September 1, 2009, a Pre-Removal Risk Assessment (PRRA)
Officer, rejected her application.
[3]
The
Applicant seeks to have the PRRA Officer’s decision set aside on the basis that
she erred by:
i.
rejecting
the H&C application without granting the Applicant an interview to address alleged
credibility concerns;
ii.
failing
to apply and follow section 13.10 of Guideline IP 5, issued by the Department
of Citizenship and Immigration Canada, entitled Immigration Applications in
Canada made on Humanitarian and Compassionate Grounds;
iii.
failing
to reasonably apply those guidelines, to reasonably assess the best interests
of the Applicant’s child, and to reasonably assess the nature of the hardship
that she claims she will face if required to return to St. Lucia; and
iv.
applying
an incorrect test in the assessment of her application.
[4]
For
the reasons that follow, this application is dismissed.
I. Background
[5]
The
Applicant arrived in Canada in 1999 and married a permanent resident of Canada, Mr. Servulus
Dennehy, in 2002.
[6]
In
April 2003, Mr. Dennehy submitted a sponsorship application for the Applicant.
However, the application was returned because there was a missing signature.
The Applicant then briefly returned to St. Lucia in June 2003
to renew her visitor’s visa. While she was away, she was apparently informed by
Mr. Dennehy that he had completed and resubmitted the application and that he
had attended an interview in support of the application. The Applicant
subsequently learned that her application had not in fact been resubmitted.
[7]
Later
that same year the Applicant and Mr. Dennehy separated, after he was convicted
of assaulting her and sentenced to one day in jail, having regard to the time
he spent in custody prior to his trial.
[8]
Subsequent
to his arrest, Mr. Dennehy telephoned the Applicant and promised her that he
would complete her application if she agreed to drop the charges against him.
She refused and submitted her first H&C application. That application was
rejected in early January 2006. Her application for leave to seek judicial
review of that decision was subsequently denied.
[9]
Later
in January 2006 the Applicant applied for refugee protection based on a fear
that Mr. Dennehy, who is from St. Lucia, would return to that
country to harm her should she return there. That application was rejected in
June 2006 on the basis of the availability of adequate state protection in that
country.
[10]
In
August 2006, the Applicant submitted a second H&C application.
II. The decision under review
[11]
The
Applicant’s second H&C application was rejected after the PRRA Officer
concluded that the Applicant had not adduced sufficient evidence to demonstrate
that:
i.
Mr.
Dennehy had a continued interest in harming her, let alone pursuing her to St. Lucia;
ii.
she
would face a risk of unusual and undeserved, or disproportionate, hardship in
St. Lucia, particularly given the availability of adequate state protection and
a network of family in that country who are in a position to assist with her
reintegration there;
iii.
she
would face a risk of such hardship as a result of having to sever her various
relationships with friends and her boyfriend in Canada;
iv.
she
would face a risk of such hardship as a result of having to sever her ties to Canada; and
v.
it
would not be in the best interests of her daughter, who attends a private
school in St.
Lucia,
for the Applicant to give up her job in Canada and return to St. Lucia.
III. The standard of review
[12]
The issues raised by the Applicant with respect
to procedural fairness and whether the PRRA Officer applied the correct test in
assessing her application are reviewable on a standard of correctness (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 55 and 90; and Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 44).
[13]
The remaining two issues that have been raised
by the Applicant are reviewable on a standard of reasonableness (Dunsmuir,
above, at paras. 53 and 54; and Khosa, above, at para. 46).
[14]
In Khosa, at para. 59, reasonableness was articulated by Justice Ian Binnie as
follows:
Where the reasonableness standard applies, it
requires deference. Reviewing courts cannot substitute their own appreciation
of the appropriate solution, but must rather determine if the outcome falls within "a range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
(Dunsmuir, at para. 47). There might be more than one reasonable
outcome. However, as long as the process and the outcome fit comfortably with
the principles of justification, transparency and intelligibility, it is not
open to a reviewing court to substitute its own view of a preferable outcome.
IV. Analysis
A.
Did the
Officer err by failing to grant an interview?
[15]
The
Applicant submitted that the PRRA Officer made a number of credibility findings
that were simply couched in the language of “insufficiency of evidence”. She further
submitted that the failure to give her an opportunity to respond to the
Officer’s credibility concerns was contrary to the principles of procedural
fairness.
[16]
In
support of her submission on this issue, the Applicant cited a number of cases in
which this Court found that the PRRA Officer’s findings of “insufficient
evidence” were actually negative credibility findings (Liban v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1252 at para. 14; Haji
v. Canada (Minister of Citizenship and Immigration), 2009 FC 889, at paras.
14 to 16; Begashaw v. Canada (Minister of Citizenship and Immigration),
2009 FC 1167, at paras. 20 and 21; and Agbor v. Canada (Minister of
Citizenship and Immigration), IMM-2924-09).
[17]
In
my view, those cases do not stand for the proposition that a PRRA Officer in
essence makes an adverse credibility finding every time he or she concludes
that the evidence adduced by an Applicant is not sufficient to meet the Applicant’s
evidentiary burden of proof. In each of those cases, it was clear to the Court
that the PRRA Officer either had made a negative credibility finding, or simply
disbelieved the evidence presented by the Applicant. This is very different
from not being persuaded that an Applicant has met his or her burden of proof
on the balance of probabilities, without ever having considered whether the
evidence is credible. As this Court held in Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, at para. 26:
It is open to the trier of fact, in considering
the evidence, to move immediately to an assessment of weight or probative value
without considering whether it is credible. Invariably this occurs when the
trier of fact is of the view that the answer to … [the question as to whether
the evidence is credible] is irrelevant because the evidence is to be given
little or no weight, even if it is found to be reliable evidence.
[18]
I
am satisfied that in the case at bar, the PRRA Officer was not cloaking adverse
credibility findings in conclusions that the evidence adduced by the Applicant
was not sufficient. In each instance, it was reasonably open to the PRRA Officer
to conclude, without making an adverse credibility finding, that the evidence
adduced was not sufficient to establish, on a balance of probabilities, the
claims advanced by the Applicant.
[19]
Specifically,
while the Applicant may sincerely believe that Mr. Dennehy is likely to follow
her to St.
Lucia and
harm her there, there was objective evidence that he had not attempted to
contact her since 2004. On this evidentiary record, it was reasonably open for
the Officer to conclude that there was insufficient evidence that Mr. Dennehy
had a continued interest in the Applicant.
[20]
With
respect to the Applicant’s other alleged risks of hardship, the Officer in each
case reasonably considered the Applicant’s evidence and concluded that she had
not provided sufficient information to establish her claims. Relying on this
Court’s decision in Davoudifar v. Canada (Minister of
Citizenship and Immigration), 2006 FC 316, the Officer correctly
noted that it was not sufficient for the Applicant to simply demonstrate that
she has developed personal and community ties and that she and her supporters
or loved ones would be far happier and better off if she remained in Canada.
That should not be particularly difficult to demonstrate for anyone who has
lived in Canada for a significant period of time and developed strong personal
relationships and other ties to Canada. The test is whether an Applicant has adduced
sufficient evidence of likely unusual and undeserved, or disproportionate,
hardship to warrant the exceptional grant of Ministerial discretion that
is contemplated by section 25 of the IRPA.
[21]
Unfortunately,
in contrast to the Applicants in Raudales v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 385, [2003] F.C.J. No.
532, at para. 18; and Jamrich v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 804, [2003] F.C.J. No. 1076 at
para. 24, the Applicant
in the case at bar did not meet her burden in that regard.
[22]
As
to the best interests of her daughter, the Applicant’s submissions were focused
on her ability to continue to support her daughter’s attendance at a
prestigious school. However, the Applicant adduced no evidence regarding the costs
of her daughter’s schooling and the extent to which the Applicant’s return to St. Lucia might impact upon her
daughter’s ability to stay in that school. On the basis of this evidentiary
record, and considering that the Applicant will be reunited with her daughter
when she returns to St.
Lucia, I
am unable to conclude that the Officer erred in her consideration of the
interests of the Applicant’s daughter.
[23]
In
summary, I am unable to agree with the Applicant that the Officer breached the
rules of procedural fairness by cloaking adverse credibility findings in
findings of insufficient evidence, and then not according the Applicant an
opportunity to respond to the Officer’s concerns. The opportunity for the
Applicant to “put her best foot forward” by providing full written
representations in relation to all aspects of her application was accorded.
This satisfied the participatory rights required by the duty of fairness in
this case (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, at para. 34). The Officer was not required to accord the Applicant
an interview merely because she did not find the Applicant’s representations to
be persuasive.
B. Did the Officer err by
failing to follow and apply section 13.10 of Guideline IP 5?
[24]
At
the time the decision under review was made, the provisions of Guideline IP 5
dealing with persons in abusive relationships were set forth in section 13.10.
Those provisions were subsequently moved to section 12.7. The language of the
current section 12.7 is essentially the same as the language of the former
section 13.10, although some of the factors that were listed in section 13.10
have been deleted. I will assess the Applicant’s submission in terms of the
guidelines as they stood at the time of the decision (the “Guidelines”).
[25]
The
Guidelines stated the following:
Immigration
Manual, IP 5, Section 13.10
Family
members in Canada, particularly spouses, who are in
abusive relationships and are not permanent residents or Canadian citizens, may
feel compelled to stay in the relationship or abusive situation in order to
remain in Canada; this could put them at risk.
Officers
should be sensitive to situations where the spouse (or other family member) of
a Canadian citizen or permanent resident leaves an abusive situation and, as a
result, does not have an approved sponsorship.
Officers
should consider the following factors:
-
Information
indicating there was abuse such as police incident reports, charges or
convictions, reports from shelters for abused women, medical reports, etc.;
-
Whether there is a
significant degree of establishment in Canada (see Section 11.2, Assessing the
applicant’s degree of establishment in Canada);
-
The hardship that
would result if the applicant had to leave Canada;
-
The customs and
culture in the applicant’s country of origin;
-
Support of relatives
and friends in the applicant’s home country;
-
Whether the applicant
is pregnant;
-
Whether the applicant
has a child in Canada;
-
The length of time in
Canada;
-
Whether the marriage
or relationship was genuine; and
-
Any other factors
relevant to the H&C decision.
[26]
The
Applicant claims that the Officer erred by failing to explicitly state that she
had considered the Guidelines and by failing to consider the various factors
set forth therein. I do not agree.
[27]
As
noted in Baker, above, at para. 72, in respect of a different section of
the Guidelines: “The guidelines are a useful indicator of what constitutes a
reasonable interpretation of the power conferred by” section 25 of the IRPA,
and the fact that a decision may be “contrary to their directives is of great
help in assessing whether the decision was an unreasonable exercise of the
H&C power.” Thus, even where a decision is contrary to the Guidelines, it
is not necessarily unreasonable. This is at least in part because the power
conferred by section 25 is “highly discretionary and fact-based” (Baker,
at para. 61).
[28]
More
generally, administrative guidelines are not binding and cannot be applied in a
manner that unduly fetters a decision maker’s discretion (Canada (Minister
of Citizenship and Immigration) v. Thamotharem, 2007 FCA 198 at paras.
62-72). A decision maker must always be free to reach a decision that
appropriately reflects the particular facts of the matter before him or her.
However, if the decision is contrary, in a substantively important way, to the
decision-maker’s own guidelines a reasonable explanation should be provided.
[29]
It
follows that merely omitting to specifically mention the Guidelines and to
explicitly address each factor in the Guidelines also does not, per se,
constitute an error of law. The issue is whether the decision as a whole is
unreasonable. As briefly discussed in section IV.C. below, I am unable to
conclude that the decision as a whole is unreasonable.
[30]
However,
for the record, I will note that the Officer in this case did in fact give
reasonable consideration to the Guidelines, as she addressed many of the
factors that were set forth in the Guidelines, even though she did not
explicitly state that she was doing so.
[31]
In
particular, she explicitly noted the fact that the Applicant left an abusive
relationship with Mr. Dennehy, lost his sponsorship, and therefore submitted an
H&C application. Then, after noting that the Applicant feared revenge or retribution
from Mr. Dennehy, the Officer addressed the issue of the adequacy of state
protection in St.
Lucia,
should it be required.
[32]
With
respect to the list of factors that were set out in the Guidelines, the Officer
explicitly addressed most of the ones that were relevant, namely, the fact that
Mr. Dennehy had been convicted and sentenced for assaulting the Applicant; her
degree of establishment and length of time in Canada; the hardship that would
result if she had to leave Canada; and her family network in St. Lucia who
could assist with her reintegration there. There was no need to address the
issue of pregnancy or the interests of a Canadian child, although the Officer
did address the interests of the Applicant’s daughter in St. Lucia. As to the genuineness
of the Applicant’s marriage, this was never questioned by the Officer. Finally,
as to the customs and culture factor, the Officer noted that the Applicant
claimed that she would be ostracized by family and friends in St. Lucia due to the fact that
she pursued charges against Mr. Dennehy. It was at this point that the Officer
then turned to the issue of state protection.
[33]
The
Applicant submitted that where an applicant loses the sponsorship of an abusive
partner by leaving the relationship, there should be a rebuttable presumption
that the Applicant’s H&C application will be granted. She claims that, in
the absence of such a presumption, the Guidelines will have little practical
value for Applicants in abusive situations.
[34]
I am
unable to agree. The Guidelines effectively provide a special opportunity to Applicants
to draw to the attention of the person reviewing their H&C application any
considerations relating to their abusive relationship and the listed factors
that may be relevant to their application. In addition, they require a PRRA
Officer to be particularly sensitive to the Applicant’s situation and to the
fact that she may have lost the sponsorship of her former partner by leaving
the abusive situation.
[35]
In
essence, the Guidelines ensure that appropriate consideration is given to
factors that might not otherwise be given the weight they merit in the overall
assessment of an Applicant’s H&C application. However, it is still
necessary to demonstrate that the application as a whole warrants the exceptional
grant of discretion contemplated by section 25 of the IRPA, due to a likely
risk of unusual and undeserved, or disproportionate, hardship, if the
application is not granted.
[36]
To
elevate the special opportunity contemplated by the Guidelines to a rebuttable
presumption would place Applicants from abusive relationships in a better
position than all other H&C Applicants, and would be inconsistent with the
highly discretionary nature of the power conferred by section 25. I am unable
to agree that this result was intended when section 13.10 was inserted into the
Guidelines.
C. Was the Officer’s decision
unreasonable?
[37]
The
Applicant submits that the Officer’s alleged “failure” to assess her situation
in light of the Guidelines rendered the Officer’s decision unreasonable. As
discussed in section IV.B. above, the Officer did in fact assess the various
factors set forth in the Guidelines that were relevant to the Applicant’s
situation. The fact that she did not explicitly state that she was doing so does
not render her decision unreasonable. Given the evidence before the Officer, I
am satisfied that the conclusions reached by the Officer in respect of those
factors, particularly regarding the insufficiency of the Applicant’s evidence,
were reasonably available to the Officer. The Officer did not ignore any
evidence that might reasonably have led her to reach a different conclusion.
[38]
The
Applicant also submits that the Officer did not reasonably assess the best
interest of her daughter or the nature of the hardship that the Applicant
claimed she will face upon her return to St. Lucia. However, for
the reasons discussed in part IV.A. above, I am satisfied that both of these
matters were reasonably assessed in the course of the Officer’s assessment.
[39]
Accordingly,
I am unable to agree with the contention that the Officer’s decision was unreasonable. In my view, the
Officer’s decision was certainly well within "a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law" (Dunsmuir, at para. 47). The decision was
transparent, intelligible and appropriately justified.
D. Did the Officer apply an incorrect
test in assessing the H&C application?
[40]
Finally,
the Applicant submits that because certain paragraphs in the Officer’s decision
were virtually identical to corresponding paragraphs in the Officer’s PRRA
decision, the Officer applied the test applicable to PRRA applications, rather
than the test applicable to H&C applications.
[41]
I
do not agree. The paragraphs in question were in the section of the Officer’s
decision that addressed the hardship that the Applicant claimed she would face
upon her return to St. Lucia. At the outset of that section, the Officer
specifically stated: “I recognize that the threshold is one of hardship for an
H&C application and not section 96 or 97 of the [IRPA]. This H&C
application has been assessed on the basis of unusual and undeserved, or
disproportionate hardship.”
[42]
The
Officer also explicitly articulated the applicable hardship test at the outset
of her analysis, in the prior section of her decision, as well as in all but
one of the subsequent sections of her decision. Those sections addressed the
various factors that typically are addressed in H&C decisions and that were
not considered in the Officer’s PRRA decision.
[43]
Based
on the foregoing and my reading of the Officer’s decision, I am satisfied that
she did not apply an incorrect test in assessing the Applicant’s application.
[44]
There
is nothing wrong with a PRRA Officer, who makes the decision on an Applicant’s
PRRA and H&C applications, using material from one application in her
analysis of the other application, so long as she in fact applies the correct
test in each application.
V. Conclusion
[45]
This
application for judicial review is dismissed.
[46]
The
Applicant suggested that consideration be given to certifying a question as to
whether it is necessary for a PRRA Officer to apply the Guidelines in a manner
that will encourage sponsored immigrants who are experiencing abuse in their
relationship to separate from their sponsor, by recognizing the situation of
abuse as grounds for granting the Applicant permanent resident status on
H&C grounds. As an alternative to this question, the Applicant suggested
that I certify the following question:
Whether in assessing a humanitarian and
compassionate application under section 25(1) of the IRPA, the failure to apply
the guidelines on “Family Violence” in IP 5 in a manner that would encourage a
sponsored applicant to separate from an abuser, rather than continue to endure
abuse in order to continue the sponsorship arrangement, is contrary to the
policy objective of the “Family Violence” guidelines, and is therefore an
unreasonable exercise of discretion under section 25(1) of the IRPA.
[47]
Each
of these variations of the proposed question is problematic for at least two
reasons.
[48]
First,
assessments of domestic abuse by a sponsor, as well as the broader H&C
assessments in which claims of spousal abuse would be made under section 25 of
the IRPA, invariably are highly dependent on the specific facts and context of
each particular case.
[49]
Second,
as noted by counsel the Respondent, both variations of the Applicant’s
suggested questions are unduly vague. In short, it would be difficult to
describe the precise manner in which the Guidelines should be applied to
encourage sponsored immigrants to separate from an abusive sponsor, without
decreeing outright that all Applicants in such situations should be granted
permanent resident status on H&C grounds. Indeed, the latter approach
appears to be precisely what the first variation of the Applicant’s question
suggests. With the greatest respect to the Applicant, as discussed in the
reasons above, such an approach to the Guidelines would be entirely
inconsistent with “the highly discretionary and fact-based nature of” H&C
assessments under section 25 of the IRPA (Baker, above, at para. 61).
[50]
Given
the foregoing, I do not believe that the proposed questions raise “a serious
question of general importance”, as contemplated by paragraph 74(d) of the Immigration
and Refugee Protection Act.
[51]
Accordingly,
there is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial
review is dismissed.
"Paul S. Crampton"
Email this Content