Date: 20070529
Docket: IMM-5182-06
Citation: 2007 FC 554
OTTAWA, Ontario, May 29, 2007
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
CELIAFLOR
GALLARDO
Applicant
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 S. Neufeld, an
immigration officer, (the Officer), dated August 16, 2006, wherein it was
determined that there were no humanitarian and compassionate factors justifying
an exemption for the applicant from the requirement that an application for
permanent residence be made from outside Canada.
[2]
Celiaflor
Gallardo, the applicant, entered Canada as a visitor in 2001 to
visit her parents and siblings. The notes accompanying the Officer’s decision
note that the applicant’s parents and four brothers are living in Canada, that her
husband and three children remain in the Philippines, and that
she quit her position in a factory in 2003 in order to care for her mother. The
Officer concluded that while the applicant had substantial ties to Canada the
applicant had not established that severing these ties would have such a
significant negative impact that it would constitute undeserved or
disproportionate hardship.
[3]
The
Officer also assessed the risk the applicant would face if she returned to the Philippines. The
applicant claimed she would be at risk in the Philippines because she
had witnessed a bishop having sex with an altar boy. The Officer held that the
applicant had provided no information to indicate if any threats were made
against her as a result of her witnessing this act and concluded that there was
very little possibility that the applicant would be exposed to any risk on her
return to the Philippines.
[4]
The
standard of review for humanitarian and compassionate decisions is
reasonableness simpliciter (Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817). It is not
the role of the Court to re-examine the weight given to the different factors
in a decision and, consequently, the Court cannot set aside a decision even if
it would have weighed the factors differently (Legault v.
Minister of Citizenship and Immigration, 2002 FCA 125, Williams v.
Minister of Citizenship and Immigration, 2006 FC 1474).
[5]
The
applicant challenges the decision on the ground that the Officer overlooked
relevant information, specifically a letter from the applicant’s father
indicating that the applicant’s mother was very ill. The applicant submits that
the fact that the Officer’s decision refers only to her mother being ill in
2003 suggests that the Officer failed to consider this letter and by extension
the fact that it would be unusual hardship for the applicant to leave Canada when her
mother is in poor health.
[6]
Moreover,
in the H & C submissions, dated August 17, 2005, the applicant’s counsel
did not present the mother’s illness as a significant factor to be considered
and simply stated that “In the past, she has had to look after her mother who
was sick. Her parents who are advanced in age do need her in Canada to
occasionally render such services.” (Applicant’s Record, p. 74). Based on this
submission, I do not believe the letter from the applicant’s father is of such
importance that the Officer’s failure to mention it specifically in her notes
constitutes an error.
[7]
It
is well-established that an immigration officer need not summarize all the
evidence or refer to every piece of evidence (Hassan v. Minister of Employment and
Immigration
(1992), 147 N.R. 317, (F.C.A.);
Florea v. Minister of
Employment and Immigration, [1993] F.C.J. No. 598 (QL) (F.C.A.)); however,
the more important the evidence that is not mentioned specifically the more
willing a court may be to infer from the silence that the decision-maker made
an erroneous finding of fact (Cepeda-Gutierrez v. Minister of Citizenship
and Immigration, [1998] F.C.J. No. 1425 (QL)).
[8]
I am
not persuaded that the Officer made an erroneous finding of fact in this case.
The Officer’s notes indicate that the applicant quit her employment as a
factory worker to care for her mother. The Officer was clearly aware of the
fact that the applicant’s mother was in poor health.
[9]
The
applicant also submits that the Officer failed to consider that the applicant
has five members of her immediate family in Ottawa because the Officer stated
the “the applicant’s parents and brother are actually residing in Ottawa”. The
applicant submits that had the Officer taken into account the fact that five
members of the applicant’s immediate family lived in Ottawa she would
have found that severing those ties in Canada would
constitute unusual and undeserved hardship.
[10]
I
cannot agree with this submission. The Officer’s decision clearly indicates
that the applicant has four brothers in Canada. Whether her
brothers live in Ottawa or elsewhere in Canada is not
sufficient to change the Officer’s analysis with respect to whether severing
ties with her family members in Canada would constitute
unusual and undeserved hardship. Moreover, as noted by the respondent there was
conflicting evidence in the record as to the number of the applicant’s siblings
living in Ottawa (the Supplementary Information H&C form states that the
applicant has two brothers in Markham and does not indicate any brothers as
living in Ottawa, Applicant’s record at page 78).
[11]
The
applicant also challenged the Officer’s decision on the ground that the Officer
erred in the risk assessment portion of the decision. The applicant submits
that the Board applied the wrong standard in this portion of the assessment.
[12]
A risk assessment in an
H&C must be assessed according to the standard of whether the risk factors
amount to unusual, undeserved or disproportionate hardship and not according to
the higher standard in a Pre-Removal Risk Assessment (Ramirez v. Minister of
Citizenship and Immigration, 2006 FC 1404, Pinter v. Minister of
Citizenship and Immigration, 2005 FC 296).
[13]
It
is clear from the Officer’s statement that “I therefore conclude that the
applicant has failed to establish that she would personally face a risk to
her life or a risk to the security of her person if she were to return to
the Philippines” that she applied the wrong standard. This error is not, in my
view, determinative since the Officer had found that the applicant had not
established that she faced any risk. This is evidenced from the Officer’s
statement that “The applicant has provided no information to indicate if there
any (sic) threats made against her as a result of her bearing witness to this
act, or even if there were criminal charges pending against the bishop…”
[14]
The
applicant submits that the Refugee Board decision includes several references
to threats received by the applicant. In an H&C application, the burden is
on the applicant to satisfy
the decision-maker that there would be unusual and undeserved or
disproportionate hardship to obtain a permanent resident visa from outside Canada. The applicant did not
provide any evidence in her H&C application to show she faced a risk in the
Philippines. Therefore, it was not
unreasonable for the Officer to find that the applicant faced no risk.
JUDGMENT
This application for judicial
review is dismissed. No question for certification was submitted.
“Max
M. Teitelbaum
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5182-06
STYLE OF CAUSE: Celiaflor
GALLARDO v. M.C.I.
PLACE OF HEARING: OTTAWA, Ontario
DATE OF HEARING: May 23, 2007
REASONS FOR JUDGMENT: TEITELBAUM
D.J.
DATED: May 29, 2007
APPEARANCES:
|
Mr. Russell Kaplan
|
FOR THE APPLICANT
|
|
Ms. Jennifer Francis
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Russel Kaplan
Barrister and Solicitor
240 Catherine Street, Suite 300
OTTAWA K2P 2G8
|
FOR THE APPLICANT
|
|
John H. Sims, Q.C.,
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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