Date: 20070507
Docket: IMM-2210-06
Citation: 2007 FC 495
Ottawa, Ontario, May 7, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
JOSE JULIAN RODRIGUEZ QUIROA
MIRIAM DEL ROSARIO PORTILLO FAJARDO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
In respect of the Applicants’
permanent residence application based on humanitarian and compassionate
(H&C) grounds, there is no evidence, despite what is asserted by the
Applicants, that the Immigration Officer (Officer) failed to consider the
Applicants’ feelings of alienation towards Guatemala and their countervailing
feelings of peace and security in Canada. It is not a requirement that the Officer
specifically reference that the emotional hardship of the Applicants were
considered. If the reasons, when taken as a whole, indicate that the Officer
was alive to the issue, they will survive a somewhat probing examination and
will not be found to be unreasonable. Moreover, a disagreement with the weight
given by the Officer to the factors raised by the Applicants is not a basis on
which a judicial review can be allowed. (Agot v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 436, [2003] F.C.J. No. 607 (QL), at paragraph 8.)
JUDICIAL PROCEDURE
[2]
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 an Officer dated
April 7, 2006, which refused the Applicants’ application for permanent
residence in Canada based on Humanitarian and Compassionate (H&C)
considerations.
BACKGROUND
[3]
On September 26, 2000, the
Applicants, Mr. Jose Julian Rodriguez Quiroa and his spouse, Mrs. Miriam del
Rosario Portillo Fajardo, entered Canada and made a refugee claim.
[4]
On March 9, 2004, the Immigration
and Refugee Board (Board) denied their claim. Leave to appeal was also denied
on February 21, 2005.
[5]
On April 20, 2005, the
Applicants filed a Pre-Removal Risk Assessment (PRRA) application which was
refused on January 12, 2006.
[6]
The Applicants also
made an H&C application which was refused by way of letter dated April 7,
2006.
DECISION
UNDER REVIEW:
[7]
The Officer considered all of the
evidence submitted by Mr. Quiroa and his wife, made a proper analysis of the
H&C considerations, and concluded that the Applicants were not exempt from
applying for permanent resident from outside of Canada pursuant to subsection 11(1)
of the IRPA.
[8]
With respect to the issue of
establishment, the Officer noted that the principle Applicant, Mr. Quiroa, after
15 months of upgrading his language skills, became steadily employed effective
January 2002 at Domino’s Pizza and has since moved up the ranks from delivery
man to manager.
[9]
The Officer also noted that the
Applicant’s spouse, Mrs. Fajardo, had not become established as quickly but
managed to find employment as a sales associate in December 2004.
[10]
The Officer recognized that the
Applicants’ work ethic was commendable as evidenced by the many letters of
support; however, she went on to note that “a measure of establishment and
integration is expected to take place” given that the couple had arrived in
October 2000.
[11]
The Officer further acknowledged
that a certain level of financial independence had been achieved but was “not
satisfied that it is to a degree that would indicate sufficient hardship were
the applicants returned to their home country”.
[12]
With respect to the connections
the couple had to Guatemala, the Officer noted that Mr. Quiroa, had two
children residing in Guatemala, as well as his parents and siblings.
[13]
She also noted that Mr. Quiroa was
a partner in the family business, which he managed from 1993 until he came to Canada in
October 2000. The Officer held in this regard that a letter provided by the
accountant of the company, dated September 12, 2002, did not indicate that he
was no longer involved since his arrival in Canada.
[14]
The Officer also noted that the
company was still operating at the same address “as found in the Guatemalan
business directory” and that there were two additional subsidiaries in Guatemala.
[15]
Finally, the Officer concluded
that she was not satisfied that the couple would face unusual and undeserved or
disproportionate hardship should they return to Guatemala.
ISSUES
[16]
(1) Can the letter provided
by further affidavit by Mr. Quiroa be considered in light of the fact it was
not before the Officer?
(2) Did the
Officer err in finding that the Applicants would not experience undeserved
hardship if they returned to Guatemala on the basis of the following considerations:
a) Relying on
extrinsic evidence and/or misinterpreting the evidence regarding Mr. Quiroa’s
family’s company in Guatemala?
b) Ignoring
evidence of “emotional hardship”?
c) In not
considering or placing more weight on evidence of the Applicants’ establishment
in Canada since their arrival as refugee claimants?
d) By failing
to consider the impact that Mr. Quiroa’s removal would have on his employer,
Domino’s Pizza?
STATUTORY FRAMEWORK
[17]
According to subsection
11(1) of the IRPA, a person must apply for permanent residence from outside Canada.
|
11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document shall be issued if,
following an examination, the officer is satisfied that the foreign national
is not inadmissible and meets the requirements of this Act.
|
11.
(1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent
les visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et
se conforme à la présente loi.
|
[18]
Pursuant to section 25
of the IRPA, the Minister is given the discretion to facilitate an individual’s
admission to Canada or exempt that person from any applicable
criteria or obligation under the IRPA where the Minister is satisfied that such
exemption or facilitation should occur because of the existence of H&C
considerations.
|
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.
|
[19]
The H&C
decision-making process is a highly discretionary one that considers whether a
special grant of an exemption is warranted. Consequently, a refusal of an H&C
application takes no right away from the individual. (Jasim v. Canada (Minister of Citizenship and Immigration), 2003 FC 1017, [2003] F.C.J. No. 1290
(QL).)
[20]
It is up to the
Applicants to demonstrate that the hardship they would suffer, if required to
apply for permanent residence in the normal manner, would be unusual,
undeserved or disproportionate. Hardship that is inherent in having to leave Canada is not enough.
(Irimie
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906
(QL).)
[21]
There are many factors
that an immigration officer can take into account when making an H&C
decision. This Court has said that the immigration officer is entitled to
consider, among other factors, the manner in which the individual entered and
remained in Canada and whether the individual has employment
or relatives in their country of origin. No one factor can be determinative of
the result in a specific application. (Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), at
paragraphs 62-63; Pasteanu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 608, [2001] F.C.J. No. 955 (QL),
at paragraph 16.)
[22]
Where an individual has
no legal right to remain in Canada and has done so, absent from circumstances
beyond his or her control, the Court has held that he or she should not be
rewarded for accumulating time in Canada. (Chau
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 107, [2002] F.C.J. No. 119 (QL),
at paragraphs 15-16.)
STANDARD
OF REVIEW:
[23]
The
appropriate standard of review for a decision of an immigration officer on an
H&C application is reasonableness. (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39
(QL); Jeon v. Canada (Minister of Citizenship and Immigration), 2006 FC 87, [2006] F.C.J. No. 105 (QL), at
paragraph 22.)
[24]
Where the issue raised
is one of procedural fairness, such as the adequacy of reasons, the standard of
review is correctness, and the pragmatic and functional approach need not be
applied. (Canadian Union of Public Employees
(C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003]
S.C.J. No. 28 (QL).)
ANALYSIS:
Preliminary Issue
(1) Can the letter provided by further affidavit by Mr. Quiroa
be considered in light of the fact it was not before the Officer?
[25]
The Applicant submitted a letter
by way of further affidavit which confirms that he has not had any “labor
relationship” with his family’s company since March of 2000. The affidavit
recognizes that the document was not before the Officer.
[26]
An application for judicial review is
normally conducted on the basis of the material before the administrative
decision-maker; however, affidavit evidence can be admitted on issues of
procedural fairness and jurisdiction. (Lemiecha
(Litigation guardian of) v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 1333 (QL), at paragraph 4; Ontario Assn. of Architects v. Assn.
of Architectural Technologists of Ontario, 2002 FCA 218, [2002] F.C.J. No.
813 (QL), at paragraph 30, leave to appeal to S.C.C. refused (2003), 23 C.P.R.
(4th) vii.)
[27]
In such cases, the material will
only be accepted if it is necessary. (Ecology Action Centre Society v. Canada
(Attorney General), 2002 FCT 1309,
[2002] F.C.J. No. 1778 (QL), at paragraph 19.)
[28]
The evidence presented in the
affidavit goes to a finding of fact. It is not information that was before the
Officer at the time of her decision, and it is not information necessary to
complete the judicial review. As noted in Smith v. Canada, 2001 FCA 86,
[2001] F.C.J. No. 450 (QL), at paragraphs 5-8, where an applicant includes in
its record material that was not before the tribunal, the respondent should
object in a timely manner. The issue in the present case has been highlighted
in the Respondent’s further memorandum of argument. Should no further objection
be made in the present case, the Court should note that it intends to give no
weight to the document.
(2) Did
the Officer err in finding that the Applicants would not experience undeserved
hardship if they returned to Guatemala?
a)
Evidence regarding the family
business
[29]
The Applicants argue that in using
a current telephone book to verify the address of the family business, the
Officer relied on extrinsic evidence. As such, the Officer breached the duty to
act fairly because she considered extrinsic evidence without giving the Applicants
an opportunity to respond. (Muliadi v. Canada (Minister of Employment and
Immigration), [1986] 2 FC 205; Chen v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. 582 (QL); Yang v. Canada (Minister of Employment and
Immigration), [1992] F.C.J. 632 (QL); Shah v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No.1299 (QL) (F.C.A.).)
[30]
Moreover, the Applicants submit
the Officer erred by relying on a letter from the business account as evidence
that the Applicant was currently still working at the family business.
[31]
The Applicants additionally note
that the Officer found that the Applicant had engaged in language training for
15 months, when really it had only been for a period of 6 months. As such, where
there is a misunderstanding of the evidence such that the decision is based on
incorrect evidence, there is a breach of the duty to act fairly. (Shah, above.)
[32]
When dealing with matters of procedural fairness, the
overriding concern with respect to the disclosure of evidence is whether the
document, opinion, or report is one of which the individual is aware or deemed
to be aware. (Asmelash v. Canada (Minister of
Citizenship and Immigration), 2005 FC
1732, [2005] F.C.J. No. 2145 (QL), at paragraph 15; Chen v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 266, [2002] F.C.J. No. 341 (QL), at paragraphs 33-36.)
[33]
Further, as specifically noted in Mancia v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J.
No. 120 (QL), at paragraph 13, there is no obligation on the part of the
Officer to disclose information that is available from a public source prior to
the date of any submission by the Applicant.
[34]
The Officer relied on a
publicly available source to determine the address of the Mr. Quiroa’s
family’s business in Guatemala. Furthermore, the address of the company was
not an issue on which the case turned.
[35]
With respect to the argument that
the Officer misinterpreted the evidence, it is clear that Mr. Quiroa was, at
the very least, one of the original people who founded the company (Applicants’
record, at page 111). The letter from the company’s accountant also did not
indicate the end date of Mr. Quiroa’s last position. It was therefore not
unreasonable of the Officer to have found that the Mr. Quiroa “is a partner in
the family business, Tornillos Santander, which he managed from 1993 until he
came to Canada in October 2000”, as there was no evidence that Mr. Quiroa
had ceased to be involved or to be part of the company.
b)
Ignoring evidence of
emotional hardship
[36]
Mr. Quiroa and his wife argue that
the Officer breached the duty of fairness owed to them by failing to consider
the evidence of emotional hardship that the Applicants would face should they
return to Guatemala in order to apply for permanent residence. They argue
that their feelings of alienation towards Guatemala and countervailing feelings
of peace towards Canada support their argument that their removal would cause
them disproportionate hardship in the circumstances.
[37]
The Applicants have the onus to
present the factors they believe warrant consideration in an H&C
application. The Officer must consider the information presented, and there is
a presumption that the Officer has done so (Sidhu v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 741 (QL), at paragraph 15.)
[38]
There is no evidence, despite what
is asserted by the Applicants, that the Officer failed to consider the
Applicants’ feelings of alienation towards Guatemala and their countervailing
feelings of peace and security in Canada. It is not a requirement that the Officer
specifically reference that the emotional hardship of the Applicants were
considered. If the reasons, when taken as a whole, indicate that the Officer
was alive to the issue, they will survive a somewhat probing examination and
will not be found to be unreasonable. Moreover, a disagreement with the weight
given by the Officer to the factors raised by the Applicants is not a basis on
which a judicial review can be allowed. (Agot, above, at
paragraph 8.)
[39]
The Officer notes that she
considered all of the statements and submissions made by the Applicants, the
letters of support, and the fact that there had been a certain level of
establishment and integration. Nothing further was required in the
circumstances. The Officer clearly recognized that part of establishing oneself
is becoming accustomed to the Canadian way of life. The Officer also considered
factors relating to the Applicants’ return to Guatemala, including the fact that
Mr. Quiroa still had two children there, in addition to other family. Inherent
in the assessment of these factors is an emotional component, namely the
Applicants’ acquired attachment to Canada and their remaining attachment to Guatemala.
[40]
As stated in Irimie, above,
at paragraph 12, the assessment of whether usual and undeserved hardship has
been demonstrated is an assessment made “in relation to others who are being
asked to leave Canada… 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.”
[41]
The question
of emotional attachment, just like the question of financial attachment, is one
to be considered in the assessment of the overall establishment and the
hardship faced on return. These issues do not have to be specifically labeled
in any certain way so long as there is evidence that they were weighed and
considered. They clearly have been in the present case; therefore the
conclusions reached are not unreasonable in the circumstances.
c)
Evidence of establishment
in Canada
[42]
Mr. Quiroa and his wife argue that
the Officer did not consider the Applicants’ establishment in Canada. The
Applicants refer to the specific ground set out in the Immigration manual on
Humanitarian and Compassionate Grounds (Inland Processing Manual, Chapter 5
“IP5”) of a long term stay in Canada due to circumstances beyond the Applicants’ control.
The Applicants assert that their stay in Canada was long-term, because it had
continued since September 2000, and was “due to circumstances beyond the
applicant’s control as they were waiting for their various immigration
procedures and their refugee claim, judicial review, PRRA application to
include, and therefore were never and still are not removable”. Referring to
the example given in IP5 of what constitutes something within an applicant’s
control, namely the refusal to sign a passport, the Applicants assert that the
operation of Canadian law is not within their control and the ground therefore
applies.
[43]
Contrary to the assertion of the
Applicants, evidence of their establishment in Canada was clearly considered by
the Officer. Further, as noted by the Respondent, the Applicants’ argument
really amounts to a disagreement pertaining to the weight assigned to the
evidence by the Officer. Hence, it is not the role of the Court to reexamine the weight given to
the different factors by the officers. (Legault, above, at paragraph 12.)
[44]
Moreover, the Officer
considered the submissions of the Applicants and all of the letters of support
offered on their behalf. The Officer recognized that the Applicants’ work
ethics were commendable and that considering the Applicants’ arrival date, a
certain level of establishment and integration should be expected. The Officer
further considered their level of financial establishment and the position of
employment that the Applicants had held and their educational and work
backgrounds. This was balanced against the fact that Mr. Quiroa had family in Guatemala and an existing family business. The Applicants’
level of establishment was therefore clearly considered and balanced against
other existing factors. The Officer’s decision in this regard was therefore not
unreasonable in the circumstances.
[45]
Furthermore, with respect
to the exception noted in IP5, it does not apply to the Applicants’ case. If this were the case, the exception would apply to
almost every Applicant who has taken advantage of the multiple mechanisms
available to them in the Canadian immigration system.
[46]
Finally, this case is
distinguishable from Raudales v. Canada (Minister of Citizenship and
Immigration),2003 FCT 385, [2003] F.C.J. No. 532 (QL), wherein the
Court set aside an Officer’s decision on the basis that the Officer’s findings
were unreasonable with respect to his assessment of the Applicants’ level of
establishment. The Court indicated that in:
[18] … circumstances where the community is donating funds and
directly providing the wherewithal to cover Mr. Figueroa Raudales' living and
education expenses, where the city council wrote to the Minister of Immigration
to support the application, and where the principal and superintendent of
schools wrote to support the H&C application, it cannot be said that Mr.
Figueroa Raudales' establishment in the community is not significant and is no
different than that of any other student. The finding is contrary to the
overwhelming weight of the evidence [Emphasis added].
[47]
In the present
case, when the evidence is taken as a whole, it cannot be said that the conclusion
that the Applicants have failed to demonstrate unusual, undeserved or
disproportionate hardship was unreasonable in the circumstances. As noted by
the Court in Raudales, above, at paragraph 19, “Absent
a proper assessment of establishment…a proper determination could not be made
in this case as to whether requiring Mr. Figueroa Raudales to apply for
permanent residence from abroad would constitute hardship that is unusual and
undeserved or disproportionate”. That does not mean that the Court should
substitute its own assessment of the evidence in any given circumstance. In the
present case, the reasons withstand a somewhat probing examination and are
therefore reasonable.
d)
Impact of removal on the
male applicant’s employer
[48]
The Applicants argue that the
Officer erred in not giving any weight to the hardship that would be caused to
the Canadian company, Domino’s Pizza. (Pramauntanyath v. Canada (Minister of Citizenship and Immigration), 2005 FC 604, [2005] F.C.J. 760 (QL).)
[49]
In the context of Pramauntanyath, above, the
Officer found that:
[3] …
Although
his establishment in Canada is well documented and given significant
consideration, I am not satisfied that his business venture and integration is
compelling, whereby having to apply from outside Canada through the normal
procedure would constitute as [sic] excessive, undue and undeserved hardship.
[50]
Mr. Pramauntanyath was a one-third partner of a restaurant he had helped
open, and he was the chef. Central to his application was his importance to the
ongoing success of the restaurant and the fact that his removal from Canada, even
temporarily would adversely affect him, his business, his partners, and the
employees (Board’s decision, at paragraph 9).
[51]
In that case, the Court
found that although the Officer appeared to have been given favorable
consideration to the establishment of the restaurant, the Court was of the
opinion that it could not find the “evidentiary foundation or the logical process which supports
the Officer's conclusion” and that the decision did not stand up to a
"probing examination”. The Court went on to highlight that “[a]s a matter
of fairness the Applicant is entitled to "real" reasons which address
his principal argument and evidence” and that:
[19] It
may well be that the Officer did not accept the central thesis of the
Applicant's case but it is impossible for the Court to discern if it was
considered or, if considered, the Officer's reasons for rejecting it. There may
be good reasons -- it is just impossible to understand what they are,
particularly where the facts are so in favour of the Applicant.
[52]
The Pramauntanyath case
really turned on the question of procedural fairness, as the Court found that
the reasons were simply not adequate. The factor presented had to be
considered, and if rejected, the reasons for this had to be outlined.
[53]
In the present case, it is clear that the degree of the
Applicants’ establishment was considered. The letters of his fellow employees
and employers were specifically noted, as was his work history and work ethic.
[54]
When the reasons are taken as a whole, it is clear that the major
points raised by the Applicants have been addressed and that the principal
findings of fact are clear. The Officer did not breach her duty of procedural
fairness by failing to specifically reference the hardship the business would
suffer should the Applicant be removed.
CONCLUSION
[55]
On the basis of the above
reasoning, the judicial review should be dismissed.
JUDGMENT
THIS
COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
Email this Content