Date:
20121031
Docket:
IMM-2593-12
Citation:
2012 FC 1274
Ottawa, Ontario,
October 31, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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JOSE MARIA SERRANO
LEMUS,
ENMA ALVARADO DE
SERRANO,
JOSE MARIA SERRANO ALVARADO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicants seek judicial review of the February 7, 2012, decision of a
Citizenship and Immigration Canada (CIC) Officer (“the Officer”) refusing the
Applicants’ application for an exemption on humanitarian and compassionate
(H&C) grounds pursuant to section 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA) that would allow them to apply for
permanent residence from within Canada.
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicants – Jose Maria Serrano Lemus, his wife, and their son – are citizens
of El Salvador who entered Canada as visitors on February 1, 2008.
[4]
The
Applicants applied for refugee protection on February 23, 2008, under sections
96 and 97 of IRPA on the basis of their experience with the Mara
Salvatrucha (MS) gang in El Salvador. The Applicants were extorted for
money by the gang, and the female Applicant was robbed and raped by five
individuals connected with it.
[5]
The
application for refugee protection was rejected on October 26, 2010. Mr.
Serrano Lemus was excluded from refugee protection on the basis of Article
1(F)(b) of the 1951 Refugee Convention for his commission of a serious
non-political crime in the 1980s. The remainder of the Applicants were denied
refugee status because, while they were victims of crime, there was neither a
nexus to Convention grounds in their application, as required under section 96,
nor a personalized risk, as required under section 97. Leave for judicial
review of these two decisions was granted, but judicial review was ultimately denied
in both cases (Lemus v Canada (Minister of Citizenship and Immigration),
2011 FC 702, [2011] FCJ No 868; E.A.DS. v Canada (Minister of Citizenship
and Immigration), 2011 FC 785, [2011] FCJ No 1110).
[6]
The
Applicants applied for a Pre-Removal Risk Assessment (PRRA) in July 2011, which
was refused on February 6, 2012. The officer considering the PRRA application
found that the Applicants would not be subjected personally to a risk to their
lives or to a risk of cruel and unusual treatment or punishment if returned to El Salvador. The Applicants’ application for leave for judicial review was dismissed on
July 9, 2012.
[7]
The
Applicants’ H&C application was received by CIC on October 25, 2011. In
their application, the Applicants relied on the information submitted in their
two previous applications to demonstrate the severe hardship they would face
should they return to El Salvador, as well as on submissions with respect to
the best interests of their minor child, and their establishment in Canada.
II. Decision
under Review
[8]
The
Officer refused the Applicants an H&C exemption on February 7, 2012,
finding that the grounds of establishment, the best interests of the child, and
the hardship they would face in returning to El Salvador did not amount to
unusual and undeserved or disproportionate hardship.
[9]
The
Officer first noted that she did not have jurisdiction to reassess claims due
to a fear of risk, as set out in sections 96 and 97 of IRPA. Consequently, she
did not consider the evidence pertaining to the Applicants’ fear of returning
to El Salvador, including whether the minor Applicant would be particularly at
risk for recruitment by MS, given the gang’s primary and aggressive recruitment
and targeting of youth. The Officer did, however, consider the “non-risk
factors” submitted by the Applicants.
[10]
On
the question of establishment, the Officer found that, while the Applicants
took positive steps to establish themselves in Canada, their level of
integration was “as expected and not exceptional.”
[11]
The
Officer considered the best interests of the Applicants’ son, who was seventeen
at the time of application. While recognizing that the minor Applicant may
enjoy better social and economic opportunities in Canada, the Officer was not
convinced that his basic amenities would not be met in El Salvador. The Officer further noted that, beyond his sister who is being sponsored for
Canadian permanent residence by her Canadian spouse, the minor Applicant’s
family is all in El Salvador, and that he would thus have a network of
support.
[12]
Finally,
the Officer found that the hardship stemming from the general country
conditions in El Salvador were also faced generally by the entire population. The
Officer specifically considered the situation of the female Applicant,
particularly the Post-Traumatic Stress Disorder and depression that were the
result of the sexual assault she suffered, and found that there was no evidence
to suggest that she could not receive the treatment she needed in El Salvador, as she had done before coming to Canada.
III. Issues
[13]
The
sole issue raised in this application can be framed as follows: Was the
Officer’s decision reasonable?
IV. Standard
of Review
[14]
Contrary
to the Applicants’ assertions, the appropriate standard of review for the
questions of mixed fact and law relating to H&C decisions is that of
reasonableness (see Bichari v Canada (Minister of Citizenship and
Immigration), 2010 FC 127, [2010] FCJ No 154 at para 25; Inneh v Canada
(Minister of Citizenship and Immigration), 2009 FC 108, [2009] FCJ No 111
at para 13). Reasonableness is concerned with the justification, transparency
and intelligibility of the decision-making process, but also with whether the
decision falls within a range of possible, acceptable outcomes defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 47).
V. Analysis
[15]
The
Applicants raise two arguments with respect to the Officer’s decision. They
submit that the Officer failed to consider “all the facts that could lead the
Applicants to face undue, undeserved or disproportionate hardship” and that she
failed to consider evidence central to the matter that was properly before her.
The Applicants identify “the problems they face at the hands of the Mara
Salvatruchia [sic]” as the missing facts, and point to pages 145 to 188
of the Application Record as the evidence not considered by the Officer.
[16]
In
assessing their application, the Applicants argue that the Officer should have
used the test enunciated by the Immigration Appeal Board in Chirwa v Canada
(Minister of Citizenship and Immigration), [1970] IABD No 1, rather than
the test of unusual and undeserved or disproportionate hardship set out in
CIC’s Operation Manual for Inland Processing, IP 5 -- Immigration
Applications in Canada made on Humanitarian or Compassionate Grounds. This
Court has firmly rejected that view (Rizvi v Canada (Minister of Citizenship
and Immigration), 2009 FC 463, [2009] FCJ No 582 at para 14), recognizing
that the language of the Manual provides useful guidance to officers
considering H&C applications under subsection 25(1) of IRPA.
[17]
When
reviewing the decisions of officers on H&C applications, it is important to
remember the role of the provision within the broader legislative scheme. Section
25 of IRPA carves out an exemption to the general rule in section 11 of IRPA
that foreign nationals must apply for visas from outside of Canada. While section 25(1) provides that humanitarian and compassionate grounds are the basis for
this exemption, section 25(1.3) now excludes certain factors from an officer’s
consideration of such applications:
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Non-application
of certain factors
(1.3) In examining the request
of a foreign national in Canada, the Minister may not consider the factors
that are taken into account in the determination of whether a person is a
Convention refugee under section 96 or a person in need of protection under
subsection 97(1) but must consider elements related to the hardships that
affect the foreign national.
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Non-application
de certains facteurs
(1.3) Le ministre, dans l’étude
de la demande faite au titre du paragraphe (1) d’un étranger se trouvant au
Canada, ne tient compte d’aucun des facteurs servant à établir la qualité de
réfugié — au sens de la Convention — aux termes de l’article 96 ou de
personne à protéger au titre du paragraphe 97(1); il tient compte, toutefois,
des difficultés auxquelles l’étranger fait face.
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[18]
I
am satisfied in this case that the Officer considered all of the evidence
before her and came to a reasonable conclusion. Her cognizance of the
“problems [the Applicants] face at the hands of the Mara Salvatruchia [sic]”
is clear from her identification of the decisions pertaining to their refugee
and PRRA applications. Given subsection 25(1.3) of IRPA, it was reasonable for
the Officer to determine that the Applicants’ fears had already been addressed
in those other applications, and to focus on the hardship that might be
suffered by the Applicants if returned to El Salvador to apply for
permanent residence.
[19]
As
the Respondent rightly points out, the documents referred to in pages 145 to
188 of the Application Record consist primarily of identification documents and
police record checks. The only document that relates to the particular
problems the Applicants might face with respect to MS is a single affidavit
sworn by Mrs. Rosa Elbira Alvarado de Carranza, which alleges that she received
threatening phone calls asking for the Applicants’ whereabouts. There was no
specific mention of this document in the Applicants’ submissions, and there is
no other corroborating evidence. The Officer is entitled to weigh the evidence
before her, and need not mention every piece of evidence she considers. It is
clear from the decision that the Officer considered the hardship that might
specifically be faced by the minor Applicant and by the female Applicant. Her
conclusion that this hardship did not amount to unusual and undeserved or
disproportionate hardship was reasonable.
VI. Conclusion
[20]
The
Officer considered the evidence before her and properly exercised her
jurisdiction to come to a reasonable conclusion that is defensible in respect
of the facts and law.
[21]
Additionally,
the Court recognizes that this application raises an issue of general
importance. After due consideration of the material filed by the Applicants
and the Respondent with respect to a certified question, the Court will certify
the following two questions:
(i) What is the nature
of the risk, if any, to be assessed with respect to the humanitarian and
compassionate considerations under section 25 of IRPA, as amended by the
Balanced Refugee Reform Act?
(ii) Does the exclusion
from consideration on humanitarian and compassionate grounds of the
"factors" taken into account in the determination of whether a person
needs protection under section 96 or 97 of IRPA mean that the facts presented
to the decision-maker in the application for protection may not be used in a
determination of the "elements related to the hardships" faced by a
foreign national under subsection 25(1.3) of IRPA?
[22]
I
note that Justice Roger Hughes also recently certified question (i) in the case
Caliskan v Canada (Minister of Citizenship and Immigration), 2012 FC
1190.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
The
following two questions are certified:
(i)
What
is the nature of the risk, if any, to be assessed with respect to the
humanitarian and compassionate considerations under section 25 of IRPA, as
amended by the Balanced Refugee Reform Act?
(ii)
Does
the exclusion from consideration on humanitarian and compassionate grounds of
the "factors" taken into account in the determination of whether a
person needs protection under section 96 or 97 of IRPA mean that the facts
presented to the decision-maker in the application for protection may not be
used in a determination of the "elements related to the hardships"
faced by a foreign national under subsection 25(1.3) of IRPA?
“ D. G. Near ”
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