Date: 20100622
Docket: IMM-5266-09
Citation: 2010 FC 677
Toronto, Ontario, June 22,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
FELIX
ANTONIO OSEGUEDA GARCIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the decision of
a Pre-Removal Risk Assessment Officer (the Officer) where Felix Antonio
Osegueda Garcia’s application for permanent residence from within Canada on
humanitarian and compassionate grounds was refused.
[2]
The
application for judicial review shall be granted for the following reasons.
[3]
The
Applicant, Felix Antonio Osegueda Garcia, is a citizen of El Salvador who
arrived in Canada, as a permanent resident, in 1989 at the age of 16. He
attended high school but dropped out after three years.
[4]
The
Applicant was married in 1995 and divorced a year later. He has one daughter
born of that marriage; he has full custody of his daughter and has been her
primary caregiver since infancy. In 1999, the Applicant was convicted of
assault against his ex-spouse and was convicted of armed robbery in 2001. The
Applicant remarried in 2008 and currently lives with his wife, her son and his
daughter.
[5]
As
a result of his criminal convictions, on November 28, 2002, the Applicant was
issued a deportation order based on a finding of serious criminality under
paragraph 36(1)(a) of the Act. The removal was stayed for three years and a
review was to take place in October 2006. The Applicant was sent two notices
regarding the reconsideration but he claims that he did not receive them and
this is why he did not appear. His application was deemed abandoned in July
2007 and an application to reopen was refused in March 2009.
[6]
As
part of his recourse under the Act, the Applicant applied for an exemption
allowing him to apply for permanent resident status from within Canada on the
basis of humanitarian and compassionate (H&C) grounds pursuant to section
25 of the Act. That application was refused on September 10, 2009 and is the
subject of this judicial review.
Standard of review
[7]
An
H&C application, including the assessment of the best interests of the
child, is to be held to a standard of reasonableness as many of the findings
are questions of mixed fact and law and the determination is highly
discretionary (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190; Markis v. Canada (Minister of Citizenship and Immigration), 2008 FC
428, 71 Imm. L.R. (3d) 237 at paragraphs 20 and 21; Laban v. Canada
(Minister of Citizenship and Immigration), 2008 FC 661, [2008] F.C.J. No.
819 paragraphs 13 and 14). The question of whether or not the Officer applied
the correct legal test has been found to be a question of law and held to a
standard of correctness (Markis at paragraph 19).
[8]
In
applying the standard of reasonableness, the Court will consider "the
existence of justification, transparency and intelligibility within the
decision-making process" and "whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law" (Dunsmuir at paragraph 47).
Conclusion with regard
to establishment
[9]
The
Applicant argues that the Officer misapprehended his level of establishment and
that there was an overwhelming amount of evidence that showed his establishment
in Canada and that this factor should have weighed in his favour. This Court
has held that the findings with regard to establishment will be reasonable if
it is in accordance with the evidence before the decision maker (Jamrich v.
Canada (Minister of Citizenship and Immigration), 2003 FCT 804, 29 Imm.
L.R. (3d) 253 at paragraph 28).
[10]
In
the case at bar, the Officer notes that the Applicant was employed for the
better part of this time in Canada but that he has been unemployed since 2007
and in receipt of social assistance. She also notes counsel’s submissions that
the Applicant has been financially responsible for his daughter. She considers
that he took some high school classes but dropped out and did not finish other
courses. She also finds that the Applicant does not belong to any organizations
but does help a woman with her chores and this woman has stated in a letter
that she would miss him greatly. Elsewhere in the decision, the Officer finds
that the Applicant does not have strong ties to El Salvador.
[11]
Also
contained in the record, and not mentioned by the Officer, were other letters
from friends of the Applicant testifying to their good relationships with him
and their dismay should he have to leave Canada (Certified Tribunal Record at
pages 90 to 100). Nor does the Officer mentions the Applicant’s family ties in
Canada.
[12]
At
section 11.3 of IP 5 (Citizenship and Immigration Canada, IP 5 Immigrant
Applications in Canada made on Humanitarian or Compassionate Grounds (6
November 2009, I P 5), the following questions are suggested to assess the
level of establishment:
• 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 studies that show integration into
Canadian society?
• does the applicant and their family
members have a good civil record in Canada?
(e.g. no criminal charges or
interventions by law enforcement officers or other authorities for domestic
violence or child abuse)
[13]
The
Applicant arrived in Canada at the age of 16 after having fled El Salvador over 20
years ago. For the most part he has been gainfully employed and has managed to
raise his daughter. There was clear evidence that the Applicant has many
friends with whom he has strong ties and has a family in Canada. He is married
and has been living with the same person for the last five years. In my view,
the Officer made an unreasonable finding, in view of the evidence that was
before her, when she concluded that there was insufficient evidence that the
Applicant has established himself in Canada.
Conclusion with regard
to risk
[14]
It
is well accepted by this Court that it is perfectly legitimate for an officer
to rely on the same factual findings in assessing an H&C application and a
PRRA application. However, this is only provided that the appropriate test is
applied in each context - in the case of an H&C application, the test of
unusual and undeserved or disproportionate hardship which is a lower threshold
than the test for a PRRA application (Liyange v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1045, [2005] F.C.J. No. 1293 par.
41). Accordingly, the question here is whether, with respect to the alleged
risk, the Officer approached the issue as though it was subject to the same
considerations as the PRRA application.
[15]
To
begin, I note that the Officer explicitly states that she recognizes the two
different tests to be applied and correctly stated the test for the H&C
application. She also mention that in his H&C application, the Applicant
identifies a risk stemming from the government of El Salvador who would suspect
him of being a gang member due to his tattoos and from gangs in El Salvador who
would suspect him of being a member of a different gang. This being the same
risk identified in his PRRA application. She then goes on to analyse the risks
claimed by the Applicant in view of the documentary evidence. This analysis is
identical to that in the PRRA decision, with the exception of a few minor
changes and additions (PRRA decision, Certified Tribunal Record at pages 119 to
126).
[16]
The
Officer concludes her analysis by making the following finding with regard to
the alleged risk:
After completing my own research on the
country conditions in El Salvador, I find the applicant has not established
that there are probable grounds to believe, should he return to El Salvador, he would face a risk to his
life that would subject him personally to hardship that is unusual and
underserved or disproportionate.
[17]
Once
again, I recognize that it is acceptable to rely on the same factors in both a
PRRA and an H&C application and that this can be the best way to arrive at
more consistent and efficient decision making. However, it is still crucial
that the appropriate test be applied. As my colleague, Justice de Montigny said
in Ramirez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1404, 304 F.T.R. 136 par. 47:
Officers who rule on both the PRRA and
the H&C applications of the same applicants will obviously be at greater
risk of confusing the two separate and distinct analyses required by these
procedures. Even if well aware of the different rationales underlying these two
kinds of applications, they may be drawn to the same conclusions, perhaps
inadvertently, if only because it is often difficult, if not conceptually at
least in practice, to disregard a previous determination made on the basis of
the same facts. This is not to say that the practice of having the same officer
reviewing both applications should be discouraged. Consistency is also a
virtue, and there is no better way to achieve coherence than by having the same
officer assessing the same person's PRRA and H&C applications. But extra
care should be taken to ensure the two processes are kept separate.
[18]
In
the case at bar, a full reading of the analysis on the alleged risk in the
H&C decision and a comparison to the PRRA decision shows that the decisions
are essentially the same on the risk elements except for a few minor changes
and the conclusion reproduced in the paragraph above and I cannot find that
they are in fact separate. Other than the statement made at the beginning of
the decision and general conclusion, there is no discussion or analysis as to
the evaluation of the risk in terms of hardship. Hardship being defined as
follows:
Unusual and undeserved hardship is
described as a hardship "not anticipated by the Act or Regulations"
or resulting of "circumstances beyond the person's control," while
disproportionate hardship is described as a hardship that "would have a
disproportionate impact on the applicant due to their personal
circumstances." (Ramirez at paragraph 46)
[19]
There
is no indication that the Officer assesses the alleged risk using this
framework. I find that the decision is unreasonable as the Officer did not
consider the risk factors in the context of the H&C application. Although
it was the same risk that was alleged, the fact that the analysis in the
H&C decision is essentially an identical copy of the PRRA decision, other
than blanket statements, leads me to conclude that the Officer merely adopted
the assessment of risk that she made under the PRRA application and failed to
apply the different considerations required by the H&C test.
Best interests of the
children
[20]
I
am satisfied that the Officer was alert, alive and sensitive to the best
interests of the children. The Officer found this to be a positive factor but
the best interest of the child is not a determinative factor in an application
(Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 par.12).
Although this Court may have given this factor more weight, in view of the
particular circumstances in this case, it is not the role of the courts to
re-examine the weight given to the different factors.
[21]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed. The matter is remitted back for
redetermination by a different Officer. No question is certified.
“Michel Beaudry”
Email this Content