Date: 20120606
Docket: IMM-7228-11
Citation: 2012 FC 696
Ottawa, Ontario, June 6,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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BERZUNZA LOPEZ, RICARDO
RAMIREZ RODAS, RAQUEL OLIVIA
BERZUNZA RAMIREZ, LUIS IGNACIO
BERZUNZA RAMIREZ, GABRIEL
BERZUNZA RAMIREZ, ALEXIA
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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]
This
is an application for judicial review of a refusal by an Immigration Officer
(the Officer), dated September 7, 2011, to grant an exemption for
permanent residence on humanitarian and compassionate (H&C) grounds under
section 25(1) of the Immigration and Refugee Protection Act, SC 2001, c
27.
[2]
Having
considered the Applicant’s submissions, I am not prepared to grant the
application and quash the Officer’s decision.
I. Background
[3]
Ricardo
Berzunza Lopez and his common-law spouse Raquel Olivia Ramirez Rodas along with
their three children, Alexia Berzunza Ramirez, Gabriel Berzunza Ramirez and
Luis Ignacio Berzunza Ramirez (collectively the Applicants) came to Canada from Mexico in 2007. The
Principal Applicant had previously entered the country as a visitor in 1999 but
was removed for overstaying in 2003.
[4]
The
Applicants’ claim for refugee protection was denied by the Immigration and
Refugee Board. This Court also dismissed their application for leave to
judicial review that decision on December 29, 2010.
[5]
Subsequent
applications for a Pre-Removal Risk Assessment (PRRA) and consideration on
H&C grounds were also denied. On November 7, 2011, however, a stay of
removal was granted to the Applicants under IMM-7227-11 (by Justice Douglas Campbell),
but for the purposes of pursuing this application for judicial review of the Officer’s
H&C determination.
II. Decision
Under Review
[6]
The
Officer found that the Applicants had not provided evidence to support the
conclusion that a return to Mexico would amount to an unusual and undeserved
or disproportionate hardship.
[7]
The
risks identified were based on the same assertions made by the Applicants in
their refugee claims, namely that they were in danger of being targeted by a
violent man. Documents submitted related to conditions faced by the general
population and there was no objective evidence “to support that their profile
in Mexico is similar to those persons who would suffer hardship upon returning
to Mexico.”
[8]
Considering
the best interests of the children and the difficulties associated with them
leaving Canada, the Officer noted that there was no evidence they would be
unable to continue their education and extra-curricular activities in Mexico or
that their eldest son would not receive medical treatment for his
Attention-Deficit/Hyperactivity Disorder (ADHD) in Mexico.
[9]
As
for the Applicant’s establishment in Canada, the Officer considered
factors such as the presence of close family members, letters from friends and
co-workers, employment, and letters from organizations where they had
volunteered in the past. The Officer stated:
The applicants have found employment in Canada. While commendable, I find
that this function in and of itself does not support that the applicants have
integrated into Canadian society to such an extent that their departure from
Canada would cause an unusual and undeserved or disproportionate hardship or
that the resulting hardship was not anticipated by the Act.
[…]
They have also submitted letters from the
organizations for which they have done volunteer work. As indicated above they
have also submitted numerous letters of support from co-workers, friends, and
relatives. These letters all state that the applicants are a welcome addition
to the Canadian community and that they wish and hope that the family is
allowed to remain in Canada and not forced to return to Mexico.
The question in this assessment is not
whether the applicants would make a welcome addition to Canadian society but
whether their removal to Mexico would amount to an unusual
and undeserved or disproportionate hardship. The evidence before me does not
indicate that severing the applicants’ relationships that they have established
in Canada would constitute an unusual
and undeserved or disproportionate hardship.
[10]
Finally,
the Officer noted that the documentation did not support the Applicants having
difficulty readjusting to Mexican society as “[t]hey have been independent and
self-sufficient in the past and they are familiar with the Mexican culture such
that their reintegration in Mexico would be minimal.”
III. Issues
[11]
The
Applicants raise the following issues:
(a) Did
the Officer err in assessing the Applicants’ establishment in Canada?
(b) Did the Officer provide
boilerplate reasons for refusing the application?
IV. Standard
of Review
[12]
Discretionary
determinations on H&C grounds are to be reviewed based on the standard of
reasonableness taking into consideration justification, transparency and
intelligibility as well as whether the decision falls within the range of
acceptable outcomes (Zambrano v Canada (Minister of Citizenship and
Immigration), 2008 FC 481, [2008] FCJ no 601 at para 31; Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[13]
By
contrast, matters of procedural fairness demand the correctness standard (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 43).
V. Analysis
A. Did
the Officer Err in Assessing the Applicants’ Establishment in Canada?
[14]
The
Applicants assert that the Officer failed to properly analyze the evidence of
their establishment in this country. They claim the Officer was dismissive of
the particular circumstances; including their good civil record, the Principal
Applicant’s employment and efforts to establish a business, the bond with
family members in Canada and letters in support of the family’s
integration into Canadian society. When these factors are given due
consideration, the Applicants insist that they have demonstrated an unusual
level of establishment (see Raudales v Canada (Minister of Citizenship and
Immigration), 2003 FCT 385, [2003] FCJ no 532; Laban v Canada (Minister of
Citizenship and Immigration), 2008 FC 661, [2008] FCJ no 819). The
Officer simply set too high a standard (see Kim v Canada (Minister of
Citizenship and Immigration), 2004 FC 1461, [2004] FCJ no 1768 at
para 28).
[15]
I
cannot agree with the Applicants’ position. Raudales and Laban,
above, are readily distinguishable on their facts. In this instance, all of
the particular circumstances referenced by the Applicants were addressed in a
relatively detailed manner in the course of the Officer’s establishment
analysis. The Officer’s decision regarding establishment more closely
resembles that recently upheld by Justice Richard Mosley in Ramaischrand v
Canada (Minister of Citizenship and Immigration), 2011 FC 441, [2011] FCJ
no 551 at para 10 for clearly examining the applicant’s personal circumstances.
[16]
For
example, the Officer considered the evidence of the Principal Applicant’s
employment and business activities but found that “this function in and of
itself does not support that the applicants have integrated into Canadian
society to such an extent that their departure from Canada would cause an
unusual and undeserved or disproportionate hardship.” The Officer specifically
acknowledged the letter from the Principal Applicant’s employer substantiating
that “he is a valued employee and extremely important part of the company” but
nonetheless concluded that it did not suggest that the “company will be unable
to operate or suffer financially should the applicants return to Mexico.” This
is not the only conclusion that could be reached, but it is one within the
range of possible outcomes.
[17]
Similarly,
referring to the letters from co-workers, friends and relatives, the Officer
noted that “this assessment is not whether the applicants would make a welcome
addition to Canadian society but whether their removal to Mexico would amount
to an unusual and undeserved or disproportionate hardship.”
[18]
While
the Applicants would have preferred these circumstances be given greater
weight, it does not follow that the Officer, having specifically addressed the
evidence as presented, adopted an unreasonable approach. In Mirza v Canada
(Minister of Citizenship and Immigration), 2011 FC 50, [2011] FCJ no 259 at
para 18, Justice Michel Shore stressed that “[a]s long as the immigration
officer considers the relevant, appropriate factors from a H&C perspective,
the Court cannot interfere with the weight the immigration officer gives to the
different factors, even if it would have weighed the factors differently.”
[19]
The
threshold is understandably high in the context of an H&C assessment. The
Officer appropriately focused attention on the degree of hardship that would be
caused by the Applicants being returned to Mexico and whether
that would amount to what would be considered unusual and undeserved or
disproportionate.
[20]
For
a finding in the Applicants’ favour there would have to be “something other
than that which is inherent in being asked to leave after one has been in place
for a period of time” and the “fact that one would be leaving behind friends,
perhaps family, employment or a residence would not necessarily be enough to justify
the exercise of discretion” (Irimie v Canada (Minister of Citizenship and
Immigration), [2000] FCJ no 1906, 10 Imm LR (3d) 1206 at para 12).
[21]
In
addition, I note that the Applicants’ submissions focus exclusively on the
Officer’s establishment analysis when this is just one of the many factors to
be weighed in the context of an H&C determination (see for example Irmie,
above at para 20).
B. Did
the Officer Provide Boilerplate Reasons for Refusing the Application?
[22]
I
also decline to accept the Applicants’ claims that the Officer merely provided
boilerplate reasons for the refusal and therefore ignored the particular
circumstances of their case. The similar passages identified in another
H&C determination relate to broader legal principles and reasoning. I must
agree with the Respondent that it is clear from the entirety of this decision
that the Officer turned his attention to the Applicants’ evidence before him,
considered relevant factors and reached reasonable conclusions.
VI. Conclusion
[23]
In
accordance with these reasons, the application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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