Date: 20091118
Docket: IMM-1390-09
Citation: 2009 FC 1175
Ottawa, Ontario, November 18, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CESAR VICENTE BUSTAMANTE RUIZ,
ANGELICA GALVAN GUZMAN, and
CESAR JESUS BUSTAMANTE GULVAN
by his litigation guardian
CESAR VICENTE BUSTAMANTE RUIZ
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
an immigration officer dated February 18, 2009, denying the applicants’ application for
permanent residence on humanitarian and compassionate grounds (H&C)
pursuant to section 25 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA). The Court concludes that the H&C decision in this
case was reasonably open to the H&C officer with respect to both the best
interests of the children and the applicants’ establishment in Canada.
FACTS
Background
[2]
The
applicants are citizens of Mexico. They are a husband, wife and their minor
son. Thirty-two (32) year old Vicente Bustamante Ruiz is the husband applicant,
thirty (30) year old Angelica Galvan Guzman is the wife applicant, and eight
(8) year old Cesar Jesus Bustamante Gulvan is the minor applicant. Diego Miguel
Bustamante Galvan is the applicant parents’ second son, born in Canada July 17,
2005, and therefore not a party to these proceedings.
[3]
The
applicant husband entered Canada on September 5, 2003. He made a claim for
refugee protection on October 8, 2003. The rest of the applicant family entered
Canada on November
15, 2003 and claimed refugee protection at the port of entry.
[4]
On
March 29, 2006 a panel of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board rejected the applicants’ claim for refugee
protection on the basis that the claim itself was untrustworthy and without
credibility. The written decision and reasons were issued by the RPD on April
11, 2006.
[5]
The applicants filed an H&C application on August 2,
2006 and a Pre-Removal Risk Assessment (PRRA) on November 20, 2006. They updated their
submissions on October 16, 2008.
[6]
The H&C and PRRA applications were heard by the same
PRRA officer and were both denied in February 2009.
Decision under review
[7]
The
applicants sought an exemption from the in-Canada selection criteria based on
H&C considerations.
[8]
In denying the applicants’ application, the officer
considered the following factors:
1. the country
conditions in Mexico and the risk of harm to the applicants if returned;
2. the applicants’ degree of establishment in Canada;
3. the applicants’ relationships and familial ties
in Canada; and
4. the best interests of the children.
[9]
The
applicants submitted that none of their family members in Mexico could
provide them with support or accommodation.
[10]
On
the other hand, the applicants significantly established themselves in Canada
since they arrived in 2003 by becoming self sufficient, purchasing a vehicle
and other personal property, maintaining a savings account in Canada, volunteering
in the community, and attending church. The applicants indicated that the
applicant wife was in a first trimester pregnancy in October 2008.
[11]
In
consideration of the best interests of the children, the applicants stated that
their children would suffer from being deprived of their father’s steady
employment income he currently generates in Canada if the
family was removed to Mexico. If removed, the children will no longer
be safe from Mexico’s high crime
rate. The applicants’ older son is now more comfortable speaking English than
Spanish, does well at school, maintains involvement in extracurricular
activities, and is well adjusted to Canada. Removal to Mexico
would deprive both minor children of the opportunities Canada has to offer
since it was reasonable to assume that the youngest child would accompany his
parents to Mexico. Lastly, the
Canadian born son has a speech and language delay that is treatable with speech
therapy. He has been placed on a waitlist for this treatment in Canada.
[12]
The H&C officer assigned considerable weight to RPD’s
denial of the applicants’ refugee claim on the basis of a negative credibility
assessment.
[13]
The officer noted the pending criminal charges against the
husband applicant, but declined to assign any weight to them.
[14]
The
officer reviewed the applicants’ submissions on the nature of the risk that
they fear in Mexico and
contrasted them with the objective country condition documentation. The officer
found that it would not be “unusual and underserved or disproportionate
hardship” for the applicants to seek state protection in Mexico.
[15]
On
the issue of establishment in Canada, the officer concluded that the
applicants’ degree of establishment was expected of persons who seek refugee
protection in Canada:
I note that upon their arrival to Canada, the applicants’ status was
temporary. During this time, they have all made efforts to become established
in Canada; however, I am not satisfied
that the applicants had a reasonable expectation that they would be allowed to
remain in Canada permanently. There is
insufficient evidence before me that they remained in Canada due to circumstances beyond their
control. In addition, individuals making refugee claims in Canada are permitted to work and
study, therefore a measure of establishment is expected to take place. It is
commendable that a certain level of establishment has taken place; however, I
do not give significant weight to the applicants’ length of time or
establishment in Canada. I find that the applicants
have not established that severing these ties would have such a significant
negative impact that would constitute unusual and undeserved or
disproportionate hardship.
[16]
On
the issue of family ties, the officer found that the applicants had no close
relatives living in Canada. The applicants have several relatives living
in Mexico.
[17]
The
officer considered the minor applicant’s circumstances.
[18]
The
officer reviewed the significant language delay that is afflicting the Canadian
born child. While the child is wait-listed for speech therapy in Toronto, the
officer found that the applicants failed to provide sufficient evidence to show
that similar treatments would be unavailable to the child in Mexico. The officer
concluded that insufficient evidence was advanced to show that removal to Mexico would cause
an unusual and undeserved or a disproportionate hardship for the two minor
children.
[19]
The H&C officer therefore concluded that the applicants
had not established that they would experience unusual,
undeserved or disproportionate hardship if returned to Mexico, and
that their personal circumstances did not warrant an H&C exception.
LEGISLATION AND OTHER
PROVISIONS
[20] Section 25 (1)
of IRPA allows the Minister to exempt an applicant from any of the requirements
of the Act:
|
25. (1) The Minister shall, upon request of a foreign
national in Canada who is inadmissible or who does not meet the requirements of this
Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, examine the circumstances concerning the
foreign national and may grant the foreign national permanent
resident status or an exemption
from any applicable criteria or obligation of this Act if
the Minister is of the opinion that
it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente
loi, et peut, de sa
propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le
cas de cet étranger et peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables,
s’il estime que des
circonstances
d’ordre humanitaire
relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant
directement touché —
ou l’intérêt public le justifient.
|
ISSUES
[21]
The
applicant raises two issues in this application:
a.
Whether
the officer failed to be alive and attentive to the best interests of the
children, by applying the “unusual and undeserved or disproportionate hardship”
test, and rendering an unreasonable decision not in accordance with the
evidence?
b.
Whether
the officer rendered an unreasonable assessment of the applicants’
establishment, by finding it of a level which is “expected”, and dismissing it
as illegitimate?
STANDARD OF REVIEW
[22] In Dunsmuir
v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of Canada held
at paragraph 62 that the first step in conducting a standard of review analysis
is to “ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of [deference] to be accorded with regard to a
particular category of question (see Khosa v. Canada (MCI), 2009 SCC 12,
per Justice Binnie at paragraph 53).”
[23]
The
Federal Court of Appeal recently held in Kisana v. Canada (MCI), 2009
FCA 189, per Justice Nadon at paragraph 18 that the standard of review of an
immigration officer’s H&C decision is reasonableness (see also my decisions
in Ramotar v. Canada (MCI), 2009 FC 362, at paragraphs 9-11; Ebonka
v. Canada (MCI), 2009 FC 80, at paragraphs 16-17).
[24]
In
reviewing the officer’s decision using a 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, supra at paragraph 47, Khosa, supra,
at paragraph 59).
ANALYSIS
Issue No. 1: Whether the officer failed to
be alive and attentive to the best interests of the children, by applying the
“unusual and undeserved or disproportionate hardship” test, and rendering an
unreasonable decision not in accordance with the evidence?
Did the officer apply
the correct best interests of the children test?
[25]
The
applicants submit that the H&C officer erred in equating “best interests of
the children” with the “unusual and undeserved and disproportionate hardship”
standard. In doing so the officer applied a too restrictive analysis.
[26]
The
applicants rely on this Court’s decision in Arulraj v. Canada (MCI),
2006 FC 529 where Justice Barnes held at paragraph 14 that the threshold of
unusual, undeserved, or disproportionate hardship has no place in the best
interests of the child analysis. The applicants submit that the following
excerpt from page 7 of the officer’s reasons reveals that the best interests of
the children test is improperly equated with the “unusual and undeserved and
disproportionate hardship” test:
I have considered the best interests of
the two minor children of the principal applicant and his spouse. I have not
been presented with sufficient evidence to establish that a removal of the
three applicants to Mexico would cause an unusual and
undeserved or disproportionate hardship for the two minor children of the
principal applicant and his spouse.
[27]
This
Court has held in Segura v. Canada (MCI), 2009 FC 894, per Justice Zinn
at paragraph 29 that the mere use of words “unusual and undeserved and
disproportionate hardship” in the context of a best interests of the child
analysis does not automatically render an H&C decision unreasonable as long
as on a reading of a decision as a whole it is apparent that the officer
applied the correct test and conducted a proper analysis.
[28]
I
agree with this jurisprudence. The fact that the officer included the “unusual
and undeserved and disproportionate hardship” does not necessarily mean that
the officer in fact applied that threshold test inappropriately to the best
interests of the children analysis.
Unreasonableness of the
officer’s best interests of the children analysis
[29]
The
applicants submit that officer failed to consider the benefits that would
accrue to the children from living in Canada and the hardships they
would suffer from being removed to Mexico.
[30]
The
Federal Court of Appeal recently held in Kisana, supra, that the
approach in Hawthorne v. Canada (MCI), 2002 FCA 475, 297 N.R. 187, is
the correct approach to analyzing the best interests of the children (Kisana,
supra, at paragraph 37).
[31]
In
Hawthorne v. Canada (MCI), 2002 FCA 475, 297 N.R. 187, Justice Décary of the Federal
Court of Appeal held at paragraph 5 that an immigration officer is presumed to
know that living in Canada can afford many opportunities to a child. The task
of the officer is therefore to assess the degree of hardship that
is likely to result from the removal and then to balance that hardship against
other factors that might mitigate the consequences of removal (Kisana, supra,
at paragraph 31).
[32]
Counsel’s
submissions at the time of the application indicated that the applicant
children were well adjusted to Canada, progressed well in school, had scores of
friends, and enjoy extracurricular activities. The H&C officer is presumed
to be aware of those factors.
[33]
The
officer explicitly stated at page 7 of the decision that he “considered the
environment and conditions for the youngest child in Canada, and in Mexico”. This
statement is sufficient to discharge the officer’s duty to analyze the benefits
to the children in Canada in light of the applicants’ failure to provide
specific illustrations of disadvantages or hardships that would face the children
if removed Mexico.
[34]
The
applicants submit that the officer erred in not soliciting further evidence
regarding the medical concerns of the applicant parent’s Canadian son. They state
that the officer was under a duty to make inquiries into matters arising from
the evidence, where the evidence was insufficient to establish a concern. The
applicants rely on this Court’s decision in Del Cid v. Canada (MCI), 2006
FC 326, per Justice O’Keefe at paragraphs 30-31.
[35]
In Kisana, supra, at paragraphs 47-49 the Federal
Court of Appeal confined the application of Del Cid to its own facts.
The Court found that in Del Cid specific evidence was presented to the
officer regarding the effect of separation upon the kids, such as the inability
to eat and extended bouts of crying along with additional factors of
establishment in Canada. Failure to balance those factors rendered the decision
unreasonable. The Court held that if the applicants are unable to meet their
burden to demonstrate sufficient H&C factors, there is no duty upon the
officer to make further inquiries (Kisana, supra, at paragraph
61).
[36]
In the case at hand, “the vacuum, if any, was created by the
appellants' failure to assume their burden of proof” and explain to the officer
if the speech therapy was available to the applicants’ youngest child in Mexico (Kisana,
supra, at paragraph 56). The officer was therefore under no duty to make
further inquiries.
[37]
The
applicants submit that the officer erred in failing to consider the best
interests of the children, particularly the Canadian born child, in light of
the country condition document which warns of a high rate of kidnappings.
[38]
It
is trite law that an H&C officer is not required to refer to every piece of
evidence as long they state in making their findings, they considered all
the evidence
(Cepeda-Gutierrez
v. Canada (MCI) (1998), 157 F.T.R. 35, 83 A.C.W.S.
(3d) 264 (F.C.T.D.), per Justice Evans (as he the was) at paragraph
16).
In this case the officer made exactly such a statement and the applicants have
not been able to point out an important omission that would justify this
Court’s intervention.
[39]
In my view the officer provided sufficient
analysis to base his conclusion that the best interests of the children in this
case warranted an H&C exemption from IRPA. This
ground of review is therefore dismissed.
Issue No. 2: Whether the officer rendered
an unreasonable assessment of the applicants’ establishment, by finding it of a
level which is “expected”, and dismissing it as illegitimate?
[40]
The
applicants submit that the family’s degree of establishment in Canada since 2003
is such that removal would give rise to “unusual and underserved or
disproportionate hardship”.
[41]
The
decision of this Court in Ahmad v. Canada (MCI), 2008 FC 646, per Justice
Dawson at paragraph 49 held that hardship in the context of an H&C
application “should be something other than that which is inherent in being
asked to leave after one has been in place for a period of time”. The
respondent cites this Court’s decision in Ramotar v. Canada (MCI), 2009
FC 362, where I held at paragraph 33 that maintaining employment and
integrating into the community over a period of 6 years does not constitute an
unusually high degree of establishment.
[42]
In
my view, the officer’s characterization of the applicant’s stay as illegitimate
is irrelevant to the present inquiry and at any rate it does not render the
decision unreasonable.
[43]
It
was reasonably open to the PRRA officer to find that the applicants merely
demonstrated a normal level of establishment that did not warrant an H&C
exemption. This ground of review therefore fails.
CERTIFIED QUESTION
[44]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
The application for judicial review is
dismissed.
“Michael
A. Kelen”
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