Date: 20080507
Docket: IMM-3536-07
Citation: 2008
FC 582
Ottawa, Ontario, May 7, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
EDDY LOPEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Lopez
finds himself in a deplorable situation. Canada doesn’t want him. Six times it has tried
to throw him out; but Cuba won’t take him back. This is
the judicial review of a PRRA (Pre-removal risk assessment) officer’s dismissal
of Mr. Lopez’s application for permanent residence made from within Canada.
BACKGROUND
[2]
Mr. Lopez
arrived in Canada in 1982 and sought refugee
status. Due to criminal activities while here, his application was not fast
tracked and was only heard, and dismissed, in 1993. His application to this
Court for leave to apply for judicial review was also dismissed.
[3]
In time he
was pardoned of the crimes for which he was convicted, and other charges
against him were dismissed because of his diminished mental state. The Court
ordered him to seek psychiatric help, and he lives in a special residence.
[4]
After his
pardon, he applied for permanent resident status. Rule 11 of the Immigration
and Refugee Protection Regulations would require that he make that
application from outside Canada, more specifically from Cuba. However, section 25 of the Immigration
and Refugee Protection Act (IRPA) provides that the Minister may grant a
foreign national permanent resident status or an exemption from any applicable
criteria or obligation of the Act if justified, in his opinion, by humanitarian
and compassionate or by public policy considerations.
[5]
Citizenship
and Immigration Canada has issued guideline IP5 “Immigrant Applications in Canada made on Humanitarian or Compassionate
Grounds”. Although not the law, these guidelines are very useful. The overall
policy as set out in section 5.1 is that the applicant’s personal circumstances
be such that the “hardship” of having to obtain a permanent residence visa from
outside Canada would be unusual, undeserved
or disproportionate. Section 6.6 goes on to announce that section 25 of IRPA
“provides the flexibility to approve deserving cases for processing within Canada, the circumstances of which
were not anticipated in the legislation”.
[6]
The PRRA
Officer went about his task in the usual way. He considered Mr. Lopez’s degree
of establishment in Canada and the risk to him upon return to Cuba.
[7]
He noted
that Cubans who have been outside the country more than eleven months without
permission must obtain a re-entry permit. Without same they are considered
inadmissible and subject to removal. The Canada Border Services Agency
attempted unsuccessfully on six occasions to obtain travel documents from the Cuban
authorities. The officer found, quite rightly in my opinion, that it was
reasonable to conclude that Mr. Lopez had remained in Canada for a period, at
that point, of 24 years due to reasons beyond his control. Nevertheless the
officer went on to hold that in order to be granted dispensation “the applicant
must still demonstrate a significant degree of establishment in Canada.”
[8]
The
officer found Mr. Lopez lacking in that regard and therefore denied the
application.
ANALYSIS
[9]
Decisions
made on humanitarian and compassionate considerations are reviewed on a
reasonableness simplicitor basis (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817).
[10]
On the
Canadian side of the equation, the officer noted Mr. Lopez’s lack of steady
employment, and was not satisfied with the information that was provided him
with respect to his mental issues. He did acknowledge that Mr. Lopez speaks
both French and English and has developed a network of friends in Montreal. To the extent he did not
consider his undertaking at his last criminal proceedings to live at the
Institut Louis –Philippe Pinel or afterwards at another place agreed by the
Institut, to be sufficient evidence of his inability to hold down a steady job,
he should have asked for further information. One cannot anticipate how much
evidence is required in order to please a particular officer (Khwaja v. Canada (Minister of Citizenship and
Immigration),
2006 F.C. 522, [2006] F.C.J. 703; Guo v. Canada (Minister of Citizenship and Immigration), 2006 FC 626, [2006] F.C.J.
795).
[11]
On the
Cuban side, it may well be that there are facilities available to care for the
mentally challenged. However, these facilities are not available to Mr.
Lopez! In a Response to Information Request issued last year, the Research
Directorate of the Immigration and Refugee Board noted that a Cuban who stays
abroad for over eleven months requires a special permit in order to return:
“Persons who have been outside Cuba for over eleven months and do not have a
re-entry permit, or an open permit to reside abroad, should never attempt to
travel back to Cuba. They will not be allowed to
enter, and will be subject to swift removal.”
[12]
If they
somehow manage to enter Cuba without completing the legal
formalities or immigration requirements they risk one to three years of imprisonment.
[13]
The PRRA officer
concluded, in essence, that Mr. Lopez would not face an unusual, underserved or
disproportionate hardship if he had to apply for a permanent resident visa from
Cuba. The fact of the matter is
that he cannot apply from Cuba at all. It is not a question
of hardship: it is a question of impossibility.
[14]
Departmental
policy provides that positive consideration may be warranted when the applicant
has been in Canada for a significant period due
to circumstances beyond his control. These include general country conditions
which are considered so unsafe due to war or civil unrest that Citizenship and
Immigration Canada has suspended removals to that country. It bears noting
that in such circumstances the applicant could nevertheless return to his
country of nationality, but it would be foolhardy to do so. In this case, Mr.
Lopez simply cannot return to Cuba. The circumstances
enumerated in the guidelines do not cover the situation where a country refuses
to accept one of its own citizens. If for no other reason, the case of Mpula
v. Canada (Minister of Citizenship and
Immigration,
2007 FC 456, 2007 F.C.J. No. 618, is distinguishable.
[15]
The
officer failed to take into account that section 25 of IRPA is driven either on
Humanitarian and Compassionate Considerations or Public Policy Considerations.
Put another way, is it Canada’s public policy that a person who is not
inadmissible in terms of the United Nations Convention relating to the Status
of Refugees and whose record of criminality in Canada cannot be considered
because of the pardon granted to him (s. 36 (3) IRPA) should nevertheless have
to busker in the Montreal Metro for the rest of his life without legal status?
Although Madam Justice L’Heureux-Dubé was speaking of the former Immigration
Act in Baker above, her remarks at paragraphs 15 to 17 are very à
propos. The decision of the PRRA officer was an important one which
affects Mr. Lopez’s life in a fundamental way. In this case, the officer failed
to assure himself that there was a public policy consideration present. The
question is not whether there would be an unusual, underserved or
disproportionate hardship if Mr. Lopez had to leave Canada. The truth of the matter is that he
cannot leave Canada, and the authorities know
it. Why has Mr. Lopez not applied for permanent residence status from abroad?
The answer is because he cannot.
[16]
For these
reasons the application for judicial review shall be granted and the matter
referred back to another officer for redetermination. That redetermination is de
novo. Mr. Lopez is on notice that he may have to bring forth more
information relating to his mental state.
CERTIFIED QUESTION
[17]
A draft of
these reasons was circulated to the parties in order to give them the
opportunity of certifying a serious question of general importance which could
support an appeal to the Federal Court of Appeal. However, the Minister poses
no question, and none shall be certified.
ORDER
THIS COURT ORDERS that:
1.
The
judicial review is granted.
2.
The matter
is referred back to another officer for redetermination.
3.
There is
no serious question of general importance to certify.
“Sean Harrington”
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