Date: 20110623
Docket: IMM-3918-10
Citation: 2011 FC 757
Ottawa, Ontario, June 23,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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CESAR PEREZ ARIAS
MARIA ANGELICA RODRIGUEZ
JEMIO
and KAREN VALERIA PEREZ RODRIGUEZ
and ERLAN AUGUSTO PEREZ RODRIGUEZ
(by their litigation guardians
CESAR PEREZ ARIAS and
MARIA ANGELICA RODRIGUEZ JEMIO)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATON
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[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 the decision made
on May 17, 2010 by an officer of Citizenship and Immigration Canada in Niagara
Falls, Ontario, refusing the applicants’ permanent residence application on
humanitarian and compassionate (“H&C”) grounds.
[2]
The
background facts concerning the applicants are set out in a related judgment
respecting a negative pre-removal risk assessment made by the same officer: Perez
Arias v. Canada (Minister of Citizenship and Immigration),
2011
FC 756.
[3]
This
judgment refers to the applicants’ second application for permanent residence
on H&C grounds. Their first was submitted on May 17, 2004 and refused on
July 28, 2006. In the interim, the applicants were removed from Canada. They
returned on September 29, 2008 and were found to be ineligible to make a second
refugee claim. They made a second H&C application in April 2009. The
refusal which is the subject of this application for judicial review was issued
on May 17, 2010.
[4]
The
officer found that the applicants had not presented sufficient evidence that
their personal circumstances are such that the hardship of not being granted
the H&C exemption would be unusual and undeserved or disproportionate.
[5]
The
issues are whether the officer erred in assessing the applicants’ hardship,
establishment and the best interests of the children? The appropriate standard
of review is reasonableness: Ahmad v. Minister of Citizenship and
Immigration, 2008 FC 646 at para. 11.
[6]
In
considering establishment, the officer noted the fact that the applicants have
had a good civil record while here, have family members in Canada with whom
they have developed a close relationship and are involved in Canadian society
through their employment, volunteer work and enrolment in further education. The
officer placed favourable consideration on these efforts but found that because
their removal orders have been effective since September 2008, any hardship
arising out of their decision to remain here was foreseeable and within their
control.
[7]
This
is a reasonable conclusion in light of the established principle that
applicants should not be rewarded for accumulating time in Canada when they have
no legal right to remain in the country but have nonetheless chosen to do so: Tartchinska
v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 373 (QL), 185
F.T.R. 161 at paras. 20 and 22; Chau v. Minister of Citizenship and
Immigration, 2002 FCT 107, 26 Imm. L.R. (3d) 100 at paras. 15-17 and Kawatharani
v. Minister of Citizenship and Immigration, 2006 FC 162 at para. 18.
[8]
The
applicants argue that the officer failed to appreciate the entirety of the time
period the applicants have lived here, claiming that he has only assessed
establishment from 2008 onwards. This argument stems from a misreading of the
officer’s decision.
[9]
In
paragraph two of his analysis under establishment, the officer points out that
the applicants resided in Canada from April 2000 until February 2005 and
then again from September 2008 until the present day. In the paragraphs that
follow this statement the officer assesses the applicants’ relationships,
community involvement and work experience which point to their establishment. The
record also indicates that the officer properly took into account the whole
period of time that the applicants were here, including letters from their
employers dated in September 2003. Thus, it cannot be said that the officer
only considered the past two years in assessing establishment. In my view, the
officer reasonably concluded that the applicants would not face any unusual and
undeserved or disproportionate hardship if returned to Bolivia due to their
establishment.
[10]
The
officer noted the fact that the children are doing well in school, recognized an
assessment which stated that their settlement here was long enough to imprint
itself as “home” to the two children, particularly the youngest, and that
Spanish is the son’s second language. Although these factors favour remaining
in Canada, the officer
also reasoned that the principal applicant and female applicant’s mother tongue
is Spanish and so it would be reasonable to expect that the children, having
been exposed to the language and culture, would adjust to Bolivian society. This
is especially so given the fact that they have family in Bolivia who would
assist them in reintegrating.
[11]
The
officer’s hardship analysis took into account the documentary evidence on Bolivia as well as
the notarized declarations, letters and photographs submitted by the
applicants. He also referred to a report from Clinical Assessment Canada, and a
letter from the Toronto Rape Crisis Centre. In examining all of the evidence,
the officer noted that Bolivia provided assistance to
women through non-governmental organizations, and that the government is
dealing with sexual crimes. As such, it was properly inferred that state
protection and a certain level of social resources would exist if the
applicants were to be returned.
[12]
Having
conducted a family history and after interviewing the applicants, Laurie Bell,
M.A. concluded that the female applicant presents with post-traumatic stress
disorder and the principal applicant reports his condition according to
criteria specified for Major Depressive Disorder, Chronic. Ms. Bell found that
Mr. Perez “presented as a man who is withering away” and “lives in psychological
torment”. She held that “The psychological well being of this family depends
upon individual and marital recovery for both Mr. Perez and Ms. Rodriguez”. Ms.
Bell went on to say that, “based on their history of returning to Bolivia, they have
no basis to believe they will ever be secure in their country of citizenship
and therefore they are uncertain if they will have the opportunity to recover”.
[13]
Ms.
Bell’s qualifications for making such assessments were not in evidence and counsel
was unable to assist me in that regard. The officer appears to have assumed
that she is a clinical psychologist but, based on her letterhead and the
description in her report of the services she provides, that is unclear. Her
reports are described as “refugee and immigration psychosocial assessments”.
[14]
Given
the discretionary and exceptional nature of H&C decisions (Legault v.
Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4
F.C. 358 at para. 15; Barrak v. Canada (Minister of Citizenship and
Immigration), 2008 FC 962 at para. 27), it would have been open to the
officer to discount this evidence had he properly assessed it and then
determined that it deserved little weight. There is, for example, no evidence
of a continued course of psychological treatment for either of the principal
applicants.
[15]
The
officer erred in this case by referring to the assessments without substantively
analyzing them. I appreciate that there was an enormous amount of material
submitted to the officer that required his attention but given this family’s long
and tumultuous history, which included rape, flight and general insecurity, the
officer should have examined the evidence of psychological hardship in greater
detail. The question overlooked was not the availability of services in Bolivia, which the
applicants concede, but whether return would affect their psychological
stability.
[16]
In
addition, the first number of pages of the hardship analysis is identical to
that of the first pages of the pre-removal risk assessment made by the same
officer. This suggests that the officer was concerned more with risk for the
purposes of the hardship analysis. This was too limited. The officer needed to
look beyond the question of risk, which, in the related application for
judicial review I have found he properly analysed, to determine whether the
family would suffer hardship.
[17]
Accordingly,
I find that the decision falls outside the range of possible outcomes
acceptable on the facts and the law. This application will be granted and the
matter remitted for a fresh consideration of the H&C factors by a different
officer in keeping with these reasons. No questions are certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is granted and the matter remitted
for reconsideration by a different officer. No questions are certified.
“Richard
G. Mosley”
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