Date: 20070504
Docket: IMM-5261-06
Citation: 2007 FC 488
Ottawa, Ontario,
May 4, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
JACK
WILLSON
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a
decision by a
Pre-Removal Risk Assessment (PRRA) officer, dated August 31, 2006, to dismiss
an application for permanent residence from within Canada on humanitarian and
compassionate (H&C) grounds.
BACKGROUND
[2]
Jack
Willson (the applicant) is a citizen of Liberia who entered Canada illegally at
a date unknown, and sought asylum on January 22, 1996.
[3]
On January 18, 1999, the Refugee Protection Division (RPD)
of the Immigration and Refugee Board rejected his application and determined
that he was not a Convention refugee. Following this determination, he filed an
H&C application, with the support of his spouse who wished to sponsor him.
On August 11, 2000, the sponsorship application was withdrawn, as the parties
were no longer living together. On September 12, 2000, the H&C application
was rejected.
[4]
On January 29, 2002, the removal order, which became
enforceable following the rejection of the H&C application, became a
deportation order.
[5]
On August 5, 2005, the applicant submitted a second H&C
application.
DECISION
UNDER REVIEW
[6]
A decision was rendered on August 31, 2006, by a PRRA
officer, refusing to grant an exemption under section 25 of the Act, and
informing the applicant that the removal order made against him was now
enforceable and that he must depart Canada immediately. The PRRA officer denied the application, on the ground that
the applicant had failed to demonstrate that he would suffer unusual, undeserved or
disproportionate hardship if he were required to apply
for permanent residence from outside Canada.
ISSUE FOR CONSIDERATION
[7]
The central issue in this application is whether the PRRA officer
made a reviewable error by denying the H&C application, in particular as it
relates to the assessment of the applicant’s medical condition, the situation
in Liberia, the applicant’s degree of establishment in Canada, and the best interests of the child.
PERTINENT LEGISLATION
[8]
The
humanitarian and compassionate exemption is found at subsection 25(1) of the
Act, and reads as follows:
|
25. (1) The Minister shall, upon request of a
foreign national who is inadmissible or who does not meet the requirements of
this Act, and may, on the Minister’s own initiative, 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 interdit de territoire ou qui ne
se conforme pas à la présente loi, et peut, de sa propre initiative, 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.
|
STANDARD OF REVIEW
[9]
The decision of the Supreme Court of Canada in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, remains the
leading case for the standard of review of decisions made on H&C grounds. In Baker,
above, Justice Claire L’Heureux-Dubé engaged in a detailed pragmatic and functional
analysis before deciding on reasonableness simpliciter as the proper
standard. As stated by Justice Frank Iaccobucci in Canada (Director of Investigation and Research)
v. Southam, [1997] 1 S.C.R. 748, at
paragraph 56, “an unreasonable decision is one that, in the main, is not
supported by any reasons that can stand up to a somewhat probing examination”.
[10]
More
recently, Madam Justice Caroline Layden-Stevensen in Agot
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 436, [2003] F.C.J. No. 607
(QL), provided a useful summary of the principles established in H&C applications,
at paragraph 8 of her decision, where she wrote:
[…]
The decision of the ministerial delegate with respect to an H&C application
is a discretionary one: Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker).
The standard of review applicable to such decisions is that of reasonableness simpliciter:
Baker. The onus, on an application for an H&C exemption, is on
the applicant: Owusu v. Canada (Minister of Citizenship and Immigration),
2003 FCT 94, [2003] F.C.J. No. 139
per Gibson J. citing Prasad v. Canada (Minister of Citizenship and
Immigration) (1996), 34 Imm.L.R. (2d) 91
(F.C.T.D.) and Patel v. Canada (Minister of Citizenship and
Immigration) (1997), 36 Imm.L.R. (2d) 175
(F.C.T.D.). The weighing of relevant factors is not the function of a
court reviewing the exercise of ministerial discretion: Suresh v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh);
Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358
(C.A.) (Legault). The ministerial guidelines are not law and the
Minister and her agents are not bound by them, but they are accessible to the public
and the Supreme Court has qualified them as being of great assistance to the
court: Legault. An H&C decision must be supported by reasons: Baker. It
is inappropriate to require administrative officers to give as detailed reasons
for their decisions as may be expected of an administrative tribunal that
renders its decisions after an adjudicative hearing: Ozdemir v. Canada
(Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.).
ANALYSIS
[11]
The test for determining whether an exemption should be
granted on humanitarian and compassionate grounds was articulated in Irimie
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906
(QL), at paragraph 26, where Justice Denis Pelletier wrote that the
humanitarian and compassionate exemption process “is not designed to eliminate hardship;
it is designed to provide relief from unusual, undeserved or disproportionate
hardship”. This is why, he also wrote at paragraph 12:
[…] It would seem to follow that the hardship which would
trigger the exercise of discretion on humanitarian and compassionate grounds
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. Thus, the fact
that one would be leaving behind friends, perhaps family, employment or a
residence would not necessarily be enough to justify the exercise of
discretion.
[12]
It
should be noted before proceeding with the analysis in this case that the
applicant is a failed refugee claimant. This is also the applicant’s second
H&C application, the first one having been rejected in 2000. As these
decisions were never judicially reviewed, they remain valid. In addition, it
has been recognized by this Court that a second H&C application should be
based on new evidence, and not simply on a re-assessment of the same evidence (Kouka
c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2006 CF 1236,
[2006] A.C.F. no 1561 (QL)). As I stated recently in Orozco c. Canada (Ministre
de la Citoyenneté et de l’Immigration), 2006 CF 1426, [2006] A.C.F. no 1792
(QL), it would be unrealistic to expect that an applicant could submit multiple
H&C applications based on the same evidence, and expect this evidence to be
evaluated independently on each occasion without regard to the previous
decisions. Such an approach would allow the applicant to circumvent the
legislative scheme set out by Parliament, which already contains numerous
mechanisms to challenge the rejection by the initial decision-maker (such as
judicial review and pre-removal risk assessments).
The Applicant’s Medical Condition
[13]
The applicant claimed in his H&C application to be
suffering from post-traumatic stress disorder (PTSD) due to the violence he
suffered and witnessed in Liberia. The officer followed the determination of the RPD on this issue,
accepting the diagnostic of PTSD but questioning the claim that this condition
is linked to any event that he experienced or witnessed in Liberia, as the RPD found the applicant generally not credible and
his story implausible. Rather, the officer believed that the applicant’s mental
condition was most likely linked to the problems he experienced in Canada, mainly the difficulties in adapting to his new
environment. For instance, his first suicide attempt followed the break-up of
his relationship with his spouse and, while it is not mentioned in the
officer’s analysis, his second suicide attempt, in 2003, followed his troubles
with the law and the issuance of a deportation order in 2002. As for the
conclusion of his doctor, a general practitioner, and his social worker, that
his problems are the result of his experience in Liberia, the officer noted that
they are based on the story the applicant told them, a story which has already
been found not to be credible by the RPD.
[14]
On this point, I find the officer’s conclusion to be
reasonable, as it was up to the officer to weigh these two reports against all
the other evidence before him. As stated by Madam Justice Barbara Reed in Danailov
v. Canada (Minister of Citizenship and
Immigration), [1993] F.C.J. No. 1019
(QL) at paragraph 2:
With respect to the assessment of the doctor's evidence, to
find that opinion evidence is only as valid as the truth of the facts on which
it is based, is always a valid way of evaluating opinion evidence. If the panel
does not believe the underlying facts it is entirely open to it to assess the
opinion evidence as it did.
[15]
The officer also assessed the issue of the availability of
medical care in Liberia. He
recognized that medical services were mediocre and access to medication was
limited. Nonetheless, he noted that the applicant’s use of medication was intermittent
and that progress had been made in Liberia since the cessation of hostilities in 2003 and the election in 2005. The
officer finally concluded that, in any case, the applicant would not be
departing for Liberia immediately, so that there
was no imminent risk.
[16]
As the applicant sought judicial review of the officer’s
decision, and will likely seek a pre-removal risk assessment if this application
is denied, the officer’s conclusion with regards to the non-imminent departure
of the applicant appears quite reasonable. Given that the end of the civil war
is still fairly recent, it was also reasonable to conclude that medical services
should continue to improve in Liberia.
The Situation in Liberia
[17]
Turning
to the general situation in Liberia, the applicant submits
that the officer did not consider the documentary evidence submitted, which
corroborates the applicant’s testimony.
[18]
The
respondent for his part notes that it is trite law that a decision-maker is
presumed to have considered all of the evidence and that the assessment of
weight to be given to the evidence is a matter within the decision-maker’s discretion
and expertise (Woolaston v. Canada (Minister of Employment and Immigration),
[1973] R.C.S. 102, Hassan v. Canada (Minister of Employment and Immigration)
(1992), 147 N.R. 317, [1992] F.C.J. No. 946
(QL)).
[19]
As stated in his reasons, the officer first considered the
objective situation in Liberia, recognizing that it remains a dangerous country. However, the officer
noted that the Department of Foreign Affairs and International Trade (DFAIT)
does not advise Canadians in Liberia to leave the country, but only to avoid certain border regions where the
presence of large numbers of refugees and rebels contributes to the
instability. The officer did not mention any personalized risk to the applicant,
which was to be expected given the negative credibility finding that was made
with regards to the applicant’s story.
[20]
While the presumption that the officer considered all of
the evidence is rebuttable, I do not believe that it has been rebutted in this
case. In his written representations, the applicant lists some documents that
he claims the officer failed to consider, specifically: an Amnesty
International report from 2000 and a US State Department report from 1998.
Considering that the situation in Liberia has been altered significantly as a
result of the end of the civil war in 2003 and the return of democracy in 2005,
these particular reports would be irrelevant to the risk faced by the applicant
upon his eventual return to Liberia, and it was not unreasonable for the
officer to rely on the more up-to-date information provided by DFAIT.
The Applicant’s Establishment in Canada
[21]
In assessing an applicant’s degree of establishment, the Inland
Processing Manual for Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds (the Guidelines),
at section 11.2, list five questions that may be relevant to such a
determination:
1. Does the applicant
have a history of stable employment?
2. Is there a pattern of
sound financial management?
3. Has the applicant
integrated into the community through involvement in community organizations,
voluntary services or other activities?
4. Has the applicant
undertaken any professional, linguistic or other studies that show integration
into Canadian society?
5. Do the applicant and
family members have a good civil record in Canada (e.g., no interventions by police or
other authorities for child or spouse abuse, criminal charges)?
[22]
First, the applicant’s representative submitted to the
officer that the applicant had been in Canada for
a significant period of time due to circumstances beyond his control. While I
agree that the civil war in Liberia would have made it
difficult for him to return, one must be careful when considering this particular
argument. As
I noted in Lee v. Canada (Minister of Citizenship and Immigration), 2005
FC 413, [2005] F.C.J. No. 507
(QL), H&C applications should not be interpreted in such a way as to
encourage applicants to gamble on the fact that if they can stay in Canada long
enough to demonstrate that they are the kind of persons Canada wants, they will
be allowed to stay.
[23]
In this case, the officer did acknowledge the length of
stay in Canada, as well as the fact that the applicant
has a history of stable employment. However, with regards to sound financial
management, the officer noted that the applicant accepted social assistance
while working in 1996 and 1997, and was ordered to repay a total of 10,576$ to
the government as a result of this. While it is true that this occurred at the
beginning of his stay in Canada, welfare fraud was not the only time the
applicant contravened the law.
[24]
In 1996, the applicant was arrested for assault and uttering
death threats against his former spouse, in violation of paragraphs 266(b),
264.1(1)(a) and 264.1(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46. In
2002, he was arrested again, this time for breaking and entering and assault
with a weapon against his spouse, in violation of paragraphs 348(1)(b) and (d),
and paragraph 267(a) of the Criminal Code. Both cases were resolved with
the applicant appearing before a justice of the peace and entering into a
recognizance to keep the peace and be of good behaviour for one year, as per
section 810 of the Criminal Code. In 2004, the applicant was
found guilty of impaired driving, fleeing the scene of an accident and giving
false information to police officers, in violation of sections 252(1.1), 249(1)
(a), 249 (2), 140(1)(c) and 140(2) of the Criminal Code, and sentenced
to a 50$ fine and two years of probation.
[25]
The officer recognized that the medication taken by the
applicant might have played a role in his 2004 accident, but not in his decision
to flee the scene and give false information to the police. The officer also
acknowledged that the other incidents did not result in a criminal record.
However, the officer concluded that the clemency shown by the court did not erase
the seriousness of the acts committed by the applicant.
[26]
The applicant’s main submission on this point is that the
officer gave too much weight to the “small welfare fraud” and the other “minor
incidents”, at the expense of the length of his stay in Canada and the fact
that he has had “almost … no problems with anybody since he arrived”, making the
decision arbitrary.
[27]
Not only do I disagree with the applicant’s interpretation
of the seriousness of the incidents in question, but the respondent is correct
in submitting that it is not my duty to re-weigh the evidence before the
officer. As long as there is a line of analysis in the officer’s decision that
could reasonably lead to his conclusion, which I am convinced there is, then
the Court should not intervene.
The Best Interests of the Child
[28]
In Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), at paragraphs 11 and 12, Justice Robert Décary
provided the following summary on the issue of the best interests of the child:
In
Suresh, the Supreme Court clearly indicates that Baker did not
depart from the traditional view that the weighing of relevant factors is the
responsibility of the Minister or his delegate. It is certain, with Baker,
that the interests of the children are one factor that an immigration officer
must examine with a great deal of attention. It is equally certain,
with Suresh, that it is up to the immigration officer to determine the
appropriate weight to be accorded to this factor in the circumstances of the
case. It is not the role of the courts to reexamine the weight given
to the different factors by the officers.
In
short, the immigration officer must be "alert, alive and sensitive" (Baker,
para. 75) to the interests of the children, but once she has well identified
and defined this factor, it is up to her to determine what weight, in her view,
it must be given in the circumstances. The presence of children,
contrary to the conclusion of Justice Nadon, does not call for a certain
result. It is not because the interests of the children favour the
fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally
be the case), that the Minister must exercise his discretion in favour of said
parent. […]
[29]
In this case, the officer clearly considered the best
interests of the child. The applicant submitted a 1999 birth certificate, where
the identity of the father was not declared, and the result of a 2005 DNA test
proving that he was the father of the child in question, both of which were acknowledged
by the officer. In addition, the officer noted that, when this child was born,
the applicant was married to another woman. Moreover, the officer emphasized
that there was no mention of this child anywhere in the applicant’s 18-page
written representations. While the officer accepted the proof that the
applicant has a child in Canada, he could find no evidence as to the existence of a relationship between
them, and thus gave little weight to this factor, as he was entitled to do.
[30]
The applicant now makes submissions with respect to the right
to family life, citing international law to support his argument. Given the
fact that the officer was “alert, alive and sensitive” to the best interests of
the child, these submissions are irrelevant. The basis for the officer’s
conclusion was the lack of evidence regarding the relationship between the
applicant and the child to support a finding that the best interests of the
child militated in favour of granting the application. The applicant now claims
to have a very close relationship with his son, but since this information was
not before the officer, it is also irrelevant now and does not affect the
reasonableness of the officer’s decision.
CONCLUSION
[31]
The officer concluded in his reasons that the applicant had
failed to demonstrate that he would suffer unusual, undeserved or disproportionate
hardship if he were required to apply for permanent residence from
outside Canada, and thus refused to grant
an exemption under section 25 of the Act.
[32]
In
light of the evidence before the officer and the detailed reasons prepared by
him, I find this conclusion to be entirely reasonable and see no reason to
interfere with it.
[33]
For
the above reasons, this judicial review is denied.
[34]
The
applicant suggests two questions for certification:
1. Is it mandatory
for the immigration agent who is deciding on an application for humanitarian reasons
to take into account the impact on a victim of organized violence or torture of
being returned to the country where the abuse was suffered?
Regarding the first
question, I am not satisfied that in this case, we could even contemplate the
parameters of this question considering the conclusion of the RPD, which
remains valid, that the applicant was not credible. I believe that this
question is fact-specific and that it does not raise a question of general
importance and, therefore, it will not be certified.
2. Are there
generally sufficient humanitarian grounds to grant a humanitarian application
in Canada when the person has resided in Canada for over
five years and is without serious criminality or other negative indication?
Concerning the second
question proposed by the applicant, it is sufficient to note that the officer
has discretion in the analysis of the facts supporting an application on
humanitarian grounds and the relative weight to be assigned to them. The
analysis is made on a case by case basis, and therefore, this is not a question
of general importance and will not be certified.
JUDGMENT
1.
The
application is denied;
2.
No
question for certification.
“Pierre Blais”
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