Date: 20090108
Docket: IMM-2414-08
Citation: 2009 FC 13
Montréal, Quebec, January 8, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ROSALBA ARZETA AVILA
GABRIEL GARCIA PACHECO
LIZBETH PACHECO AVILA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review pursuant to section 72 of
the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA),
of a decision of a pre-removal risk assessment officer (the Officer), dated April
9, 2008, refusing the applicant’s application for permanent residence from
within Canada on humanitarian and compassionate (H & C) grounds.
II. The facts
[2]
The
applicants arrived in Canada as visitors in January 2003. Shortly
thereafter, they made refugee claims, which were refused in June 2004 on the
basis of a lack of credibility and trustworthy evidence, as was their application
for leave and judicial review. They filed their H & C application
in August 2006. Their pre-removal risk assessment application was initiated in
January 2007 and decided at the same time as the H & C application
under review. That decision is not challenged.
III. Issues
[3]
The
issues can be summarised as follows:
a. Did the
Officer err or breach natural justice in her treatment of the
outstanding charges against the male applicant?
b. Did the
Officer err in her analysis of the best interests of the child?
c. Is the
Officer’s decision unreasonable?
IV. Analysis
Standard of
Review
[4]
The
appropriate standard of review of a decision on an H & C application
is reasonableness with respect to matters of fact or mixed fact and law. Consequently,
the decision must be justifiable, transparent and intelligible within the
decision-making process (Dunsmuir v. New Brunswick, 2008 SCC 9).
It should
be vacated only if it is perverse, capricious, not based on the evidence or
based on an important mischaracterization of material facts. But, on the other
hand, a breach of procedural fairness is cause to set the resultant decision
aside, unless there is no possible way that another outcome could have been
reached.
[5]
Given
the discretionary nature of H & C decisions,
considerable deference must be accorded to such decisions. Intervention is
therefore only warranted if the decision cannot withstand a somewhat probing
examination (Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817).
Mr. Garcia’s
Outstanding Criminal Charges
[6]
At
the outset of her decision, the Officer has this to say:
The applicants present themselves as good
members of society
and point to numerous letters of reference and their participation in volunteer
activities to demonstrate this. However, I note that the male
applicant is presently before the courts, facing criminal charges, namely,
criminal negligence/bodily harm; dangerous operation of a vehicle/bodily harm;
assault with a weapon; assault causing bodily harm; fail to stop at an
accident/bodily harm. The male applicant is next before the court in mid‑April 2008.
[Emphasis added.]
[7]
The
applicants contend that the Officer’s discussion of this issue right at the
outset indicates by its tone the high priority she gives it and that she uses Mr.
Garcia’s charges to dispute the applicants’ submissions that they are “good
members of society”.
[8]
The
Court does not know precisely what effect the criminal charges in question had
on the analysis made by the Officer on the qualification of the applicant’s
social integration, however the Court can presume that it did not help the
applicants with their H & C request, far
from it. If the criminal charges had no effect on the result of the application,
why mention it? What was the necessity to make such a statement and why suggest
that as a result of these criminal charges the applicants would not be “good
members of the society”?
[9]
True,
the applicants had the obligation to provide all information in order to
demonstrate that their personal circumstances warrant exemption from the
permanent resident visa requirement and to report any changes to the Officer
that the male applicant was facing criminal charges and were given the
opportunity to update their H & C submissions.
It is also true that the applicants omitted to update their H & C submissions
in order to disclose these charges. But we do not know why these charges were
not disclosed to the Officer, and we know nothing about these charges except
for the fact that they do exist and that as a consequence “[t]he male applicant
is next before the [criminal] court in mid-April 2008”. The Officer rendered
her decision on April 9, 2008; why not wait for the outcome of the criminal
charges if she knew that the male applicant was next before the criminal court
in mid-April?
[10]
But
one fact remains, the above quoted statement of the Officer with regard to pending
criminal charges and the applicants’ flagrant omission in this regard does cast
a negative light on the process of their entire application, especially considering
the prior refusal of their refugee claim on the basis of a lack of credibility.
Did the Officer Err or Breach Natural
Justice in her Treatment of the Outstanding Charges against the Male Applicant?
[11]
It
is well established that the Immigration Manual constitutes relevant policy
guidance to immigration officers and may be relied upon by the Court in
determining the reasonableness of an exercise of discretion under the Act. As the Supreme Court of Canada found
in Baker, above, at paras. 16 and 17:
16 Immigration
officers who make H & C decisions are provided with a set of
guidelines, contained in chapter 9 of the Immigration Manual: Examination
and Enforcement. The guidelines constitute instructions to immigration
officers about how to exercise the discretion delegated to them. These
guidelines are also available to the public. […]
17 The guidelines also set
out the bases upon which the discretion conferred by s. 114(2) and the
Regulations should be exercised. […]
[12]
Baker, above, determined
that these guidelines are “a useful indicator of what constitutes a reasonable
interpretation of the power” conferred by the applicable section of the IRPA.
The “fact that [the impugned] decision was contrary to [the Officer’s] directives
is of great help in assessing whether the decision was an unreasonable
exercise” of the discretion conferred by the IRPA. The Court is therefore
justified to rely on the instructions in the manual when reviewing the
decisions of immigration officers (Baker, at para. 72; Suresh v.
Canada (Minister of Citizenship and Immigration), [2002]
1 S.C.R. 3, at para. 36; Ahmad v. Canada
(Minister of Citizenship and Immigration), [2008] F.C.J.
No. 814 (QL), at paras. 44-49).
[13]
The
Immigration Manual sets out a two-step process for decision-making under s. 25(1)
of the IRPA. Step 1 is an assessment of humanitarian and compassionate factors
supporting the request for an exemption from the normal rule that visa
applicant must apply from abroad. If accepted, the officer proceeds to
step 2, an assessment of the applicant to determine whether he meets the
requirements of the IRPA, including that the applicant and their family members
are not inadmissible (Immigration Manual, Chapter IP5, ss. 5.5, 5.6; Espino
v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J.
No. 102 (QL), at paras. 14‑22). This two‑step process has
itself been the subject of judicial review, and was found to be lawful and
consistent with the IRPA.
[14]
In the section of the manual entitled “Procedure: Step one: H & C
assessment procedure common to all applicants”, the manual includes a section
setting out the approach to be taken where an H & C
applicant is facing outstanding criminal charges in Canada.
Noting that “[d]ecision-making can become complicated when, prior to or during
the consideration of H & C factors, a
known or suspected inadmissibility is identified”, the manual instructs
officers assessing cases where there are, inter alia, outstanding
criminal charges, to examine “the facts related to the known or suspected
inadmissibility”, which it says may be relevant to the H & C
decision of step one. Specifically, officers are instructed as follows:
When considering the H & C decisions,
officers must not be concerned with whether or not the conviction makes the
applicant inadmissible. However, they may consider factors such as the
applicant’s actions, including those that led to and followed the conviction.
Officers should consider:
·
the type
of criminal conviction;
·
whether
the conviction is an isolated incident or part of a pattern of recidivist
criminality;
·
length of
time since the conviction;
·
what
sentence was received; and
·
any
information about circumstances of the crime.
(Immigration Manual, Chapter IP5, s.11.3;
Process for known or suspected inadmissibility of applicant (or family
members))
[15]
In
the present case, not only were there no convictions, but the Officer
made no attempt to ascertain the underlying facts and circumstances of the
charges, and denied the applicants an opportunity to respond. She simply relied
on the existence of outstanding charges, which she discovered on FOSS, to
impugn the applicants’ good character. And she did so knowing that the
charges were to come before the criminal court within days of her decision, but
nevertheless pressed ahead despite the possibility of acquittal on the charges.
[16]
Considering
the extraordinary power given to officers and the circumstances of this case, and
despite the guidelines having been defined in Baker, above, only as “a
useful indicator of what constitutes a reasonable interpretation of the power”
given to officers and recognizing that the guidelines have no legal force (Legault
v. Canada (Minister of
Citizenship and Immigration), [2002] FCA 125 at para. 20),
the Court finds nevertheless that the circumstances are such here that the
Officer breached the duty of procedural fairness.
[17]
Having stated at the outset of her decision that “[t]he
applicants present themselves as good members of society […]. However, I
note that the male applicant is presently before the courts, facing criminal
charges, namely, criminal negligence/bodily harm; dangerous operation of a
vehicle/bodily harm; assault with a weapon; assault causing bodily harm; fail
to stop at an accident/bodily harm” (emphasis added), it appears clear to the
reader that the analysis of the applicants’ qualifications that follows is
tainted. In brief, Justice here does not appear to have been done, as a result
of this statement combined to the failure of the Officer to wait for the
outcome of the criminal proceedings or at the very least to attempt to
ascertain the underlying facts and circumstances of the charges and/or to give
the applicants an opportunity to respond. It appears therefore from the
Officer’s decision and her failure to ascertain or wait for the result of the
criminal charges that the Officer was influenced negatively and acted under the
prism of pending criminal charges through which she viewed the entire file.
[18]
Such
an error is sufficiently important to render the impugned decision unreasonable
without the necessity to address the other two issues. For these reasons, this
Court concludes that the Officer committed a reviewable error, of such
importance that it rendered her decision unreasonable. Therefore, the judicial
review will be allowed and the decision will be set aside.
[19]
The
Court
agrees with the parties that there is no serious question of general importance to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is allowed, the decision dated April 9, 2008, is set
aside, and the matter is referred to another immigration officer for rehearing.
“Maurice E. Lagacé”
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