Date: 20090127
Docket: IMM-3678-08
Citation: 2009 FC 81
Ottawa, Ontario, January 27, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
HECTOR PENA GONZALEZ, ELIDA
ALICIA NUNEZ SOTO,
DAIANA GISSEL PENA NUNEZ
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 of a Pre-Removal Risk
Assessment Officer (PRRA Officer) dated June 24, 2008, denying the applicants’
application for an exemption on humanitarian and compassionate grounds
(H&C) to the requirement that persons seeking admission to Canada must make
their application before entering the country.
FACTS
[2]
The
principal applicant, the female applicant and their daughter are citizens of Uruguay. They
arrived in Canada on June 25,
2002, and made a claim for refugee protection. In March 2005, the Refugee
Protection Division of the Immigration and Refugee Bard rejected their claims.
The applicants’ application for leave for judicial review of the negative Board
decision was dismissed by the Federal Court in July 2005. The applicants’ PRRA
application was denied on June 20, 2008, and their H&C application was denied
on June 24, 2008. The applicants now seek judicial review of the decision to
deny their H&C decision.
Decision under review
[3]
The
PRRA officer reviewing the applicants’ H&C application had previously
reviewed and rejected the applicants’ PRRA application. The PRRA officer
considered the following factors:
a. hardship or
sanctions upon return to Uruguay;
b. spousal,
family or personal relationships that would create hardship if severed;
c. degree of
establishment in Canada;
d. best
interests of the child;
e. establishment,
ties or residency in any other country; and
f.
feasibility
of return to country of nationality.
[4]
The
PRRA officer noted at page 3 of her decision that the RPD panel rejected the
applicants’ refugee claims on the basis that state protection was available in Uruguay, and canvassed
the evidence on state protection in Uruguay. She found at page 9
of her decision:
With some notable shortcomings, adequate
state protection exists in Uruguay, and is available for the
applicants’ recourse. Further, it would not be a hardship for the applicants
to access state protection should it be necessary. I am not of the opinion
that the hardships relating to risk constitute unusual and undeserved or
disproportionate hardship.
[5]
On
the issue of family or personal ties that would create hardship if severed, the
PRRA officer found that while the applicants had formed meaningful
relationships in their local community in Canada, severing
these ties would not constitute undue hardship for the applicants.
[6]
The
PRRA officer held that the applicants had established a “measure of
establishment” in Canada, noting the letters of support from the adult
applicants’ employers as well as their volunteer work and English studies, but
found at page 5 of her decision:
While the positive aspects of the
applicants’ establishment in Canada have been noted, there is insufficient
evidence before me to support that the applicants integrated into Canadian
society to the extent that their departure would cause unusual and undeserved,
or disproportionate hardship, or not anticipated by the Act.
[7]
The
PRRA officer then considered the best interests of the minor applicant, who at
the time of the H&C application was completing her final year of high
school and had been accepted into the Hotel Management Programs at George Brown College, Humber College and Seneca College in Toronto. The PRRA
officer stated at page 6 of her decision:
Although the MA has been in Canada for several years, learning
the English language and adapting to North American culture, it is reasonable
to expect that she has been exposed to the Spanish language and Uruguayan
culture by her parents. The MA has demonstrated her ability to adjust to new
environments. It is noted that the MA has spent some important developmental
years in Canada; however, given her age and
experiences in Canada related to employment and education, it is reasonable to
expect that adjustments in Uruguay would be minimal. Further,
there is a network of extended family including her grandparents and aunts and
uncles, who may facilitate and asset with the MA’s adjustments in Uruguayan
society.
[8]
Regarding
the establishment of ties or residency in another country, the PRAA officer
found that the applicants had resided in Uruguay prior to coming to Canada;
they had also resided in Spain for a period of time with their son, who lives
there currently; the adult applicants were employed and educated in Uruguay;
and they have immediate family members, including parents and siblings, living
in Uruguay. Finally, the PRRA officer found that there was no evidence that
return to Uruguay was not a
feasible option for the applicants. The PRRA officer stated that at page 11:
The fact that Canada is a more desirable place to live than
the country of return is not determinative on an H&C assessment.
[9]
The
PRAA officer therefore concluded that the applicants had not established that
their personal circumstances were such that the hardships of not being granted
the exemption would be “unusual and undeserved or disproportionate”.
ISSUE
[10]
The
applicant submits that the PRAA officer erred in denying their application
because she failed to properly consider:
a. the
best interests of the child;
b. the
degree of the applicants’ establishment in Canada; and
c. the
hardship to the applicants upon return.
STANDARD OF REVIEW
[11]
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.”
[12]
In Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada established
that reasonableness is the appropriate standard of review for H&C
application decisions. The Court stated at paragraph 62:
¶ 62 … I conclude that
considerable deference should be accorded to immigration officers exercising
the powers conferred by the legislation, given the fact-specific nature of the
inquiry, its role within the statutory scheme as an exception, the fact that
the decision-maker is the Minister, and the considerable discretion evidenced
by the statutory language. Yet the absence of a privative clause, the explicit
contemplation of judicial review by the Federal Court – Trial Division and the
Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should
not be as deferential as “patent unreasonableness”. I conclude, weighing all
these factors, that the appropriate standard of review is reasonableness simpliciter.
[Emphasis added]
[13]
In
reviewing the Board’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 at paragraph 47).
ANALYSIS
Issue No. 1: Did the officer fail to properly consider
the best interests of the child?
[14]
The applicants submit that the PRRA officer ignored extensive
submissions relating to the economic situation and the status and treatment of
women in Uruguay, and that both these issues adversely affect the best interests
of the minor applicant. They state that the PRRA officer’s conclusion that
there was insufficient evidence that similar opportunities would be available
to the minor applicant in Uruguay is therefore unreasonable.
[15]
The PRRA officer noted at page 11 of her decision that the adult
applicants were educated and employed in Uruguay:
The PA completed eight years of
schooling. While in Uruguay, the PA worked as a Tailor with Textile Sadil and
was self-employed as a painter. The FA completed six years of schooling and
was employed as a Machine Operator in Uruguay. The applicants appeared to be
established during their residency in Uruguay. They also have immediate family
members living in Uruguay including parents and siblings.
[16]
Thus, the PRRA officer concluded that the applicants would not face
significant hardship upon return. Despite the generalized evidence regarding
the poor economic situation in Uruguay, and particularly the 30% unemployment
rate there, the applicants did not provide any evidence to establish that they
would face any particular hardship in gaining employment or re-establishing
themselves in Uruguay as a result of their circumstances. The evidence before
the PRRA officer was that they had no particular difficulties finding and maintaining
employment while residing in Uruguay and that they had family connections there
as well. It was reasonable for the officer to conclude that there was
insufficient evidence that the applicants would face particularized hardship in
finding employment or re-establishing themselves in Uruguay.
[17]
While the applicants included information on the status and treatment of
women in their submissions, including the rates of domestic violence against
women in Uruguay, they again did not make any submissions regarding the
difficulties the minor applicant might face as a female in Uruguay. The fact
that there are more favourable social and economic conditions in Canada cannot
suffice to establish that an H&C exception is warranted. The PRAA officer
stated on page 10:
Although the MA residing in Canada
may enjoy better social and economic opportunities than she would in Uruguay,
there is insufficient evidence before me to indicate that her basic amenities
would not be provided for in her home country.
[18]
This conclusion was reasonable based on the evidence before the PRRA
officer.
[19]
The applicants’ submissions in relation to the best interests of the
child primarily focused on the minor applicant’s admission into several
community colleges and her strong academic achievements as a high school
student. The PRRA officer made note of these achievements and stated at
page10:
The MA’s establishments,
relationships with friends, and positive contributions have been noted. The
applicants have provided insufficient documentation to support that the
applicant would not be afforded similar opportunities in Uruguay.
[20]
The PRRA officer then cited the 2006 US Department of State Country
Report on Human Rights Practices for Uruguay, which states:
The government was committed to
protecting children’s rights and welfare, and it regarded the education and
health of children as a top priority. The National Institute for Adolescents
and Children (INAU) oversees implementation of the government’s programs for
children. The government provided free compulsory kindergarten, primary, and
secondary education, and 95 percent of children completed their primary
education. Girls and boys were treated equally. Free education was available
through the undergraduate level at the national university.
[21]
The respondent notes that the minor applicant has completed her high
school education in Canada and is now moving to the next chapter in her
educational career. The evidence cited by the PRRA officer indicates that
education at this level is very much available in the applicants’ home
country. The applicants provided no evidence that the minor applicant could
not study at this level in Uruguay. The PRRA officer’s finding that similar
opportunities would be available to the minor applicant in Uruguay is,
therefore, a fully reasonable conclusion.
[22]
The applicant states that Justice Zinn’s recent ruling in Ranji v.
MCI, 2008 FC 521, 167 A.C.W.S. (3d) 163, wherein the applicants needed an
H&C to facilitate their children’s education, is applicable here. In that
case, the applicants provided evidence that, if returned to India, as farmers,
they would have to return to a rural area where access to educational
institutions would be very limited. In Ranji, the children were not even
in Canada. They were in India at a private school. If the applicants were
returned to India, the adult applicant would lose his Canadian income which
allowed him to afford a private school in India for his children. Ironically,
the alleged “best interests” of the children were to be in India by allowing
the adult applicant to remain in Canada with an H&C. I might have thought
these “best interests” of the children too indirect for an H&C on behalf of
their father.
[23]
If there is similar evidence in this case, it was incumbent on the
applicants to provide it. There is no evidence showing that the minor
applicant would be subject to any circumstances preventing her from availing
herself of the cost-free undergraduate education available at Uruguay’s
national university, or attending any other institution providing
post-secondary education.
[24]
Finally, the applicants submit that the minor applicant would face
“severe hardship” in reintegrating into the Uruguayan system, as she has
studied in Canada in English for six years, and that it will be very difficult
for her to adjust socially to living in Uruguay. They state that the PRRA
officer’s finding that the minor applicant adjusted well to her relocation to Canada
and that she would therefore be able to adjust to returning to Uruguay is
unreasonable. However, the PRRA officer’s conclusion was based not only on the
minor applicant’s previous experience with relocating to a different country
but also her familiarity with the language and culture in Uruguay. The PRAA
officer stated:
Although the MA has been in Canada
for several years, learning the English language and adapting to North American
culture, it is reasonable to expect that she has been exposed to the Spanish
language and Uruguayan culture by her parents. The MA has demonstrated her
ability to adjust to new environments. It is noted that the MA has spent some
important development years in Canada; however, given her age and experiences
in Canada related to employment and education, it is reasonable to expect that
adjustments in Uruguay would be minimal.
[25]
The minor applicant has immediate family in Uruguay; she resided there
until she was twelve years old and speaks the language. It was reasonable for
the PRRA officer to conclude that she could re-adjust to life in Uruguay without
undue hardship and that her successful adjustment to life in Canada
demonstrates that she does not have any special difficulties that would pose
undue hardships above those normally accompanying any relocation.
Issue No. 2: Did the PRRA officer fail to properly
consider the applicants’ degree of establishment in Canada?
[26]
The applicants submit that the PRRA officer erred by failing to consider
their special circumstances in evaluating their degree of establishment. The
PRRA officer stated on page 9:
The applicants have presented
evidence to indicate a measure of establishment in Canada since June 2002.
During their time in Canada, the applicants received due process in the refugee
protection program, and therefore a measure of establishment is expected to
occur. The applicants have maintained a good civil record in Canada…
[27]
The applicants submit that the finding that they had achieved a “measure
of establishment” is unreasonable, and that under their special circumstances,
they had achieved a very high degree of establishment. The applicants have
provided letters of support from their employers, and a Labour Market Opinion
stating that the male applicant’s job as a painter is in high demand. They
have taken courses to upgrade their qualifications and have a social network.
They submit that the PRRA officer failed to take into account the “particular
circumstances” of their application in finding that their degree of
establishment was not so high as to render returning to Uruguay an undue hardship.
[28]
With respect, the applicants have not established that the PRRA officer
ignored any evidence pertaining to their degree of establishment. The PRRA
officer acknowledged all the above facts, but also noted that the applicants
had immediate family in Uruguay, and had resided and been employed in Uruguay
until six years ago. The PRRA officer found that the applicants had remained
in Canada voluntarily after their refugee claim had been denied in 2005 and had
chosen to make their PRRA and H&C applications after that date. It was
open to the PRRA officer to find that the applicants had not shown that their
establishment and integration into Canadian society was such that being
required to apply for permanent resident status from outside the country would
constitute undeserved or disproportionate hardship.
[29]
While persons may be allowed to remain in Canada pending their refugee
claim, PRRA, H&C, and Federal Court appeals, the elapsed time (from 2002 to
2008 in this case) cannot be a basis for them to remain in Canada as permanent
residents. That would condone “backdoor” immigration. In granting H&C
applications, immigration officers and the Courts must consider and weigh in
the balance the public policy of respecting the immigration laws.
Issue No. 3: Did the PRRA officer fail to properly
consider the hardship to the applicants upon return using the criteria
appropriate in evaluating an H&C application?
[30]
The applicants submit that the PRRA officer erred by failing to apply
the appropriate criteria for an H&C application in considering the
hardship, instead applying the same criteria and reasoning that she used in
evaluating the applicants’ PRRA application. The PRRA officer stated on page
7:
I have considered the applicants’
H&C and PRRA applications and submissions in this decision as risk has been
cited. However, I recognize that the threshold is one of hardship for an
H&C application and not section 96 or 97 of the Immigration and Refugee
Protection Act (IRPA). This H&C application has been assessed on the basis
of unusual and undeserved, or disproportionate hardship.
[31]
Thus, the PRRA officer was clearly
aware of the distinction between the PRRA and H&C applications and the
appropriate standard for evaluating risk in an H&C application. The
applicants submit that the PRRA officer discounted the applicants concerns
based on a “refugee-like analysis” and that the decision contained “verbatim
excerpts from [the PRRA officer’s] PRRA decision.” (Applicant’s Record, p,
460). The applicants cite Justice de Montigny’s ruling in Ramirez,
which stated:
While it may be that violence,
harassment and the poor health and sanitary conditions may not amount to a
personalized risk for the purposes of a PRRA application, these factors may
well be sufficient to establish unusual, undeserved, or disproportionate
hardship.
[32]
However, in this case, the
applicants did not provide evidence that they would personally face economic
and social hardship upon returning to Uruguay. The PRRA officer did not make any finding that poor
economic and social conditions would not suffice to establish the level of
hardship required for an H&C application. However, the applicants had been
employed in Uruguay prior to their arrival in Canada, and had provided no
evidence that they would personally be living in an area where they would face
severe economic or social conditions. The evidence does not indicate that such
conditions are present in most of the country. It was reasonable for the PRRA
officer to conclude that the better social and economic conditions in Canada did not
form the basis for an H&C application, and it was reasonably open to the
PRRA officer to conclude that it would not pose an unusual or undeserved
hardship for the applicants to return to Uruguay.
CONCLUSION
[33]
The evidence about the economic
and social conditions in Uruguay was not presented as particular to the
applicants’ likely future if returned to Uruguay. These conditions were presented as the general
economic and social conditions. While these conditions are widespread, they do
not apply to everyone and the evidence failed to link these conditions to the
personal experience which the applicants would suffer if returned. Accordingly,
the Court does not find that the PRRA officer failed to consider important and
significant evidence relevant to the applicants as Justice Zinn found in Ranji,
supra. For these reasons the Court must dismiss this application for judicial
review.
[34]
Neither party proposed a question
for certification. The Court agrees that this application does not raise a
serious important issue which ought to be certified on appeal.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This application for judicial review is dismissed.
“Michael
A. Kelen”
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