Date: 20101109
Docket: IMM-448-10
Citation: 2010 FC 1120
Ottawa,
Ontario, November
9, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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ALEMAYEHU WORKIE GELAW,
ELFINESH ADEM MEHAMED and
YEROME ALEMAYEHU WORKIE
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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]
For
the reasons that follow, the Court grants the applicants’ application to set
aside the decision of an Immigration Officer in Calgary, Alberta, dated January
28, 2009, refusing their request for an exemption from the permanent resident visa
requirement on humanitarian and compassionate grounds (the “H&C Application”),
in order to permit them to apply for permanent resident status from within
Canada.
Background
[2]
The
applicants have been in Canada for a period of 13 years and 2 months as of
the date of hearing.
[3]
Alemayehu Workie Gelaw
was born January 5, 1964, in Ethiopia. He is of Amhara ethnicity. His wife, Elfinesh Adem
Mehamed, was born January 17,
1973. In 1987, Mr. Workie Gelaw began his career as a diplomat.
[4]
In May 1993, Mr. Workie
Gelaw was posted to the Ethiopian embassy in Rome.
On February 4, 1996, while still in Italy, his wife gave
birth to their daughter, Yerome Alemayehu Workie.
[5]
The applicants fled to Canada, arriving on August 27, 1997. Their refugee claim
was denied on April 15, 1999. Leave to judicially review that decision was
denied by this Court. Mr. Workie Gelaw and his wife had a second daughter, Addis
Alemayehu Workie, on March 17, 2000. Addis is a Canadian citizen.
[6]
On March 20, 2000, a
Post Claim Determination Officer decided that the applicants would not be
subjected to a serious risk to life, extreme sanctions, or inhumane treatment
if required to leave Canada. Therefore, they did not qualify for the
Post-Determination Refugee Claimants in Canada Class. Leave to judicially
review that decision was denied by this Court.
[7]
The applicants filed an
H&C Application in April 2000; it was refused on June 25, 2002. Leave to
judicially review that decision was denied by this Court.
[8]
The applicants filed a
second H&C Application on May 1, 2003. It is the decision rendered on that
application which is challenged.
[9]
Adam Alemayehu Workie,
the third child of Mr. Workie Gelaw and his wife, was born October 31, 2003,
and is a Canadian citizen.
[10]
The applicants
submitted an application for a Pre-Removal Risk Assessment (PRRA) on June 5,
2006. It was refused on June 7, 2006. Judicial review of that decision was denied
by this Court.
[11]
On January 28, 2009,
the officer denied the applicants’ second H&C Application. They did not
become aware of that decision until March 2009 when they checked the status of
their application online. They made two requests to obtain a copy of the
decision but were not provided with one until January 13, 2010, during a
meeting with Canada Border Services Agency regarding their removal from Canada.
Issues
[12]
In
my assessment, considering the written and oral submissions of the parties, the
following are the issues requiring the Court’s attention:
1.
What
are the standards of review for the issues in dispute?
2.
Did
the officer violate the duty of procedural fairness by failing to provide the applicants
with a timely decision?
3.
Did
the officer breach the duty of procedural fairness by failing to provide an
opportunity for the applicants to address any doubts the officer had?
4.
Did
the officer apply the wrong legal test?
5.
Did
the officer err by failing to consider the IP 5 Manual?
6.
Is
the officer’s decision regarding the best interests of the children reasonable?
[13]
At
the hearing counsel for the applicants focused his submissions on the last
issue, the best interests of the children, without, he stated, abandoning the
others he had raised. In my view, that is the only issue deserving of serious
attention; I shall only briefly address the other issues.
1. Standards
of Review
[14]
The applicants submit,
and I agree, that Issues 2 and 3 are matters of procedural fairness reviewable
on the standard of correctness: Canada (Minister
of Citizenship and Immigration) v. Khosa, 2009 SCC 12. They say, and again I agree, that the
remaining issues are to be reviewed on the standard of reasonableness: Yoo
v. Canada (Minister of Citizenship and Immigration), 2009 FC 343. I also agree with the respondent’s
submission that when assessing reasonableness considerable deference should be
afforded to the officer’s decision and that the evidence weighed by the officer
should not be re-weighed by this Court.
2. A
Timely Decision
[15]
The
applicants submit that in the
absence of special circumstances, a long delay in rendering a decision is
unacceptable: Singh v. Canada (Minister
of Citizenship and Immigration), [1995] F.C.J. No. 1742 (T.D.). In this case, they submitted their application
in 2003 but a decision was not rendered until 2009, and they were not provided
with that decision until nearly a year later on January 13, 2010. They submit
that this is prejudicial due to Ethiopia’s state of
constant turmoil and the fact that the dangers and hardships that they may face
change daily. They further point out that in the period between the date of
the decision and the date they received the decision a new IP 5 Manual was
released that provides more detailed instructions on what should be considered when
examining the best interests of children. They submit that the officer ought
to have reassessed the application after the new IP 5 Manual was released.
[16]
I
agree with the respondent that the applicants must show a real prejudice arising
from the time gap, in addition to showing that the delay is unreasonable: Qazi
v. Canada (Minster of
Citizenship and Immigration), 2005 FC 1667. Here the record shows that
the applicants have benefited from the delay, not been prejudiced by it. After
their PRRA was determined in 2008, the applicants updated their H&C
submissions more than once. They chose to stay in Canada
notwithstanding the previous determinations that returning to Ethiopia posed no
risk; that was a decision of their making, not a circumstance forced upon
them. The exercise of all avenues of legal recourse is not a circumstance
beyond the control of judicial review applicants: Serda v. Canada (Minister of
Citizenship and Immigration), 2006 FC 356.
[17]
There
is insufficient evidence before the Court to find that the conditions in Ethiopia have
materially changed in the period between when the decision was made and when it
was given to the applicants. Similarly, the applicants have not pointed to any
changes in the new IP 5 Manual
that might reasonably be said to warrant a different result. The fact remains
that in spite of the Manual in force, the officer’s decision was ultimately
governed by the same legislation and case law.
3. An
Opportunity to Address Doubts
[18]
The applicants submit
that it is clear from the decision that the officer had many concerns based on an
alleged lack of information provided. Most importantly, they say that the officer
dismissed the applicants’ argument that the children would be required to
surrender their Canadian citizenships to return to Ethiopia. They complain that in spite of this the officer did not request an
interview with the applicants, or ask them to provide more information, and
they say that the officer should have done so. They allege that the officer
did not provide them with an opportunity to disabuse the officer of these concerns
and they rely on this Court’s decision in Del Cid v. Canada (Minister of Citizenship and Immigration), 2006 FC 326.
[19]
I
am unable to agree with the applicants’ submission that the officer in this
case and on these facts had any duty to ask the applicants for further
information.
[20]
At para. 30 of Del
Cid, relied on by the applicants, this Court stated that officers have a “duty
to obtain further information concerning the best interests of the Canadian
born children if the officer believed the information presented by the applicant
to be insufficient to assess the best interests of the children.”
[21]
The question is whether
this officer found insufficient evidence to assess the children’s best
interests. The answer is that the officer did not.
[22]
The officer was mindful
that he or she was to consider new evidence, and not make an entirely new
assessment. Throughout the decision, the officer does refer to the applicants’
lack of evidence. However, this is done to demonstrate that the evidence
presented was insufficient to prove particular facts on a balance of
probabilities. This is different than saying that there is insufficient
evidence to make an assessment. For example, the officer notes that the applicants
provided evidence that they had little contact with what family they had in Ethiopia. Therefore, the officer found that there was
insufficient evidence to prove that the female children would face significant
pressure from their extended family to undergo female genital mutilation. With
regards to citizenship, the officer finds that, given contrary information,
there was insufficient evidence to demonstrate that Addis and Adam would have
to renounce their Canadian citizenship or be unable to obtain visas to enter
and reside with their parents in Ethiopia. The officer
had sufficient information to make an assessment, as required by Del Cid,
and noted that there was insufficient information to support the applicants’
position. Therefore, I find that there was no reason for the officer to raise
these matters with the applicants.
4. The Legal Test Applied
[23]
The applicants submit
that the officer failed to consider the evidence as a whole. They say that
although each submission individually may have failed to amount to unusual and
undeserved or disproportionate hardship, the submissions considered together
warranted a favourable decision. They submit that the officer relied on
previous decisions involving these applicants when the officer should have
conducted a fresh inquiry, and they point out that the threshold for establishing
risk to life or cruel and unusual punishment under a PRRA application is much
greater than the threshold for finding risk of undue hardship in the H&C
context: Thalang v. Canada (Minister of Citizenship and Immigration),
2008 FC 340.
[24]
The
officer’s conclusion provides a summary and overall assessment of the many
submissions made by the applicants and I am satisfied that the officer
considered the evidence as a whole. Furthermore, the officer clearly
considered unusual and underserved or disproportionate hardship, not risk, in
accordance with Thalang.
[25]
Lastly,
the officer’s quotation and application of Wilson v. Canada (Minister of Citizenship and
Immigration), 2007 FC 488,
as holding that each H&C application is not a new start, but that the officer
is entitled to give weight to previous findings and should only consider new
evidence in regard to the allegations in the application, was a correct
interpretation of the officer’s role in deciding a second H&C Application.
Therefore, the officer did not err in giving weight to prior decisions and
refusing to undertake a fresh inquiry.
5. The IP 5 Manual
[26]
The
applicants submit that the officer’s
finding that the hardship they may face in severing their ties to Canada was within their control is at odds with the IP 5
Manual. They say that the examples of circumstances within an applicant’s
control in the IP 5 Manual do not include the situation where an applicant
remains in Canada to pursue legal remedies. They state that
the officer failed to account for the considerations in the IP 5 Manual, and
therefore committed a reviewable error: Ismeal v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1366.
[27]
The list of factors
within an applicant’s control, as provided in the IP 5 Manual, is not intended
to be exhaustive. Furthermore, the only factor outside of an applicant’s
control that is discussed in the IP 5 Manual is where the Minister of Public
Safety has instituted a temporary suspension of removals to a specific country,
and the applicant establishes connections to Canada while it is in place. The officer’s conclusion that the applicants’
stay in Canada was within their control was reasonable
and consistent with the jurisprudence of this Court.
6. Best
Interests of the Children
[28]
The applicants submit
that the officer failed to be alert, alive, and sensitive in determining the
best interests of the children, as described in Kolosovs v. Canada (Minister
of Citizenship and Immigration), 2008 FC 165. They note that the officer
failed to consider what will happen if the two younger Canadian-born children
are left in Canada when the applicants return to Ethiopia. They say that the officer’s conclusion that the
best interest of the children was to remain in Canada ought to have ended the analysis. Thereafter, they say, the officer
could have considered factors that may outweigh it, but when considering the
best interests of the children, it was not appropriate to mitigate their
interests by considering their ability to cope in Ethiopia.
[29]
The
respondent submits that this
is not a case where the officer found that the children were subject to risk
but failed to afford them protection. It is submitted that the officer found
no evidence of risk, the same conclusion reached by other decision-makers and upheld
on judicial review.
[30]
I find that the officer’s
analysis of the interests of the children and, in particular, of the two younger
Canadian children, was superficial and marginalized their interests, and that when
the decision is read as a whole, it cannot be said that the officer was alert,
alive and sensitive to their interests or properly analyzed them.
[31]
The
officer identified the children’s best interests as “(1) remaining as a family
unit and (2) having access to education and healthcare.”
[32]
With
respect to education, the officer concludes that he or she is “not satisfied
based on the totality of the evidence … that the children will be restricted
and/or disadvantaged in their education” in Ethiopia. With
respect to healthcare, the officer concludes “there is insufficient evidence
before me to establish on the balance of probabilities, that their health needs
would not be met in Ethiopia.”
[33]
The
officer concludes that the children will successfully adjust to life in
Ethiopia and that any difficulties they face “fall in the unfortunate but
common consequences of leaving Canada as the result of deportation.” That
conclusion, in my view, is unreasonable based on the mountain of information
before the officer as to the conditions in Ethiopia and the
risks faced there by children.
[34]
The
documents placed before the officer identified conditions in Ethiopia which cannot
be described by any reasonable person as “difficulties” nor can they be properly
described as being the “common consequences of leaving Canada.” A report
from Carol A. Daw, filed with the initial application, summarizes some of that
evidence as follows:
Ethiopia is poor and wracked by cycles
of drought and political instability. They are [sic] currently referred
to as a “fragile democracy". The country's Gross National Product (GNP)
is $100 and their health infrastructure is only available to 50% of the
population. Only 14-17% of women are considered literate, and their life
expectancy is low, between age 41 and 45. One in seven women die from the
complications of pregnancy and childbirth. An estimated 3 million people in Ethiopia are HIV-positive, and there
are predictions that 1/3 of Ethiopian teens will die from AIDS.
…
Some CBC reports described the
current situation in Ethiopia as worse than the great
famine of 1984. The UN Secretary-General has expressed some hope for children
in Ethiopia, saying that those who are
receiving supplemental feeding programs are being saved from starvation.
Medicare is scarce.
The UN 2000 Human Development Report
gives a Human Development Index (HDI) in which Canada comes first in terms of life expectancy,
education and income. Ethiopia is 171st of 174, (which is Sierra Leone). The UN Human Poverty Index
concentrates on measuring deprivations in 4 dimensions of human life, including
longevity, knowledge, standard of living and social inclusion. Ethiopia is 83rd out of 85 “developing”
countries. In the Gender related development Index, measuring the same factors
as the HDI, but adjusting average achievement in accordance with the disparity
of achievement between men and women finds Canada as #1 on the GDI, while Ethiopia is 141st out of 143
countries.
According to the World Health
Organization, Ethiopian girls are exposed to violence and sexual abuse,
including rape and abduction. This affects girls’ physical development as well
as their mental and social well-being. Women in Ethiopia are 200x more likely to die of
complications due to pregnancy. Their low status in society puts them at
increased risk.
[35]
In
my view, to conclude that removing these children (two of whom are Canadian-born)
to a country where they face serious risks that include early death, rape,
starvation, abduction, forced marriage, and violent discrimination as being no
more than the usual and ordinary consequences of deportation is perverse.
[36]
The
Federal Court of Appeal in Hawthorne v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, held that a consideration
of best interests of the child may be satisfied by “considering the degree of
hardship to which the removal of the parent exposes the child.” The officer in
this case assumed that the two younger children would be travelling with their
parents and older sibling to Ethiopia. Therefore it was
incumbent on the officer to consider the degree of hardship the children would
face in Ethiopia. In my
view, that required the officer to consider the risks children face in Ethiopia. In the
face of evidence of the serious and significant risks to children in Ethiopia,
the officer’s conclusion that the hardship they faced “in this situation is one
faced by those having to leave Canada after a lengthy period of establishment”
shows that the officer failed to appreciate the task he or she was required to
undertake.
[37]
While
the interests of the children is not a determinative factor in H&C
applications, the Supreme Court has indicated that the interests of the
children is to be an “important factor” and is to be given “substantial weight.”
In this case, the only factors identified as weighing against allowing the
H&C Application were that the applicants had no right to be in Canada, that they
had been ordered removed, and that they had the benefit of many of the
processes available under the immigration legislation. These negative factors are
common to most if not all H&C applications. There was no evidence that the
applicants had been anything other than law abiding, independent and productive
members of Canadian society. While the weighing of the positive and negative factors
is for the officer assigned to the H&C application and not this Court, one
must ask how much weight was given to the children’s interests, including the
fact that none of them had ever been to Ethiopia, when the
negative side of the balance sheet is so slight.
[38]
The
officer’s decision is set aside.
[39]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1.
This
application is allowed and the applicants’ H&C application is referred back
to a different officer for re-determination; and
2.
No
question is certified.
“Russel W. Zinn”
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