Date: 20080415
Docket: IMM-2781-07
Citation: 2008 FC 481
Toronto, Ontario, April 15, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
LUIS FERNANDO RODRIGUEZ
ZAMBRANO
CAROLINA GOMEZ
KATHERINE ABIGAIL RODRIGUEZ
JOSHUA ALEXANDER RODRIGUEZ
CAROLINA GOMEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants ask
that the decision of a pre-removal risk assessment officer (officer), which
refused their application for landing in Canada on humanitarian and compassionate
grounds, be set aside. This application for judicial review of the officer's
decision is dismissed because the applicants have failed to establish any
breach of fairness, bias or error of law, or that the decision was unreasonable.
Background
Facts
[2]
The applicants attack
the officer's decision on a number of grounds. It is therefore necessary to
set out the following chronology of events.
[3]
Luis Fernando
Rodriguez Zambrano, his spouse, Carolina Gomez, and their three children,
Katherine Abigail Rodriguez, Joshua Alexander Rodriguez and Carolina Gomez, are
citizens of Ecuador, Venezuela, and the United States, respectively.
[4]
Mr. Rodriguez
Zambrano and his wife lived illegally in the United States
for 10 years before coming to Canada.
[5]
On November 26, 2002,
the applicants arrived in Canada and claimed refugee protection. Their
claims were rejected by the Refugee Protection Division of the Immigration and
Refugee Board (RPD). On July 20, 2005, the application for leave for judicial
review of the RPD’s decision was dismissed.
[6]
On January 18, 2006,
the applicants applied for a pre-removal risk assessment.
[7]
On March 9, 2006, the
applicants applied for permanent residence on humanitarian and compassionate
grounds.
[8]
On June 13, 2006, the
pre-removal risk assessment was rejected by officer Mazzotti.
[9]
The applicants were
scheduled to be removed from Canada to the United States
on July 18, 2006.
[10]
The applicants
requested a deferral of their removal on the basis that they would voluntarily
comply with the removal order and make their own travel arrangements to another
country so they could avoid deportation to the United States.
This was because the applicants believed that they might be arrested and
detained in the United
States. A deferral of
removal was granted to permit the family to make travel arrangements.
[11]
The applicants then
made a second request for deferral on the basis of their outstanding
humanitarian and compassionate application. This second request was refused by
a removal officer.
[12]
On July 12, 2006, the
applicants commenced an application for judicial review of the negative
decision of the removal officer.
[13]
On July 18, 2006, the
Federal Court granted the applicants a stay of removal pending the
determination of their application for judicial review.
[14]
On August 6, 2006,
the applicants were informed by letter that their humanitarian and
compassionate application had been transferred to the Citizenship and
Immigration Canada (CIC) office in Mississauga,
Ontario, for further processing.
[15]
On July 3, 2007, the
applicants’ humanitarian and compassionate application was denied by officer
Mazzotti. Officer Mazzotti worked at the CIC office in Niagra Falls, Ontario.
[16]
On July 10, 2007,
notice of the negative humanitarian and compassionate decision was received by
the applicants’ counsel. The notice was sent by the officer who had refused
the applicants’ second request for a deferral of removal.
[17]
Also on July 10,
2007, the Federal Court allowed the applicants’ application for judicial
review, quashed the decision of the removal officer, and remitted the deferral
request to a new removal officer for determination “as expeditiously as
possible.”
[18]
On July 11, 2007, the
applicants commenced an application for judicial review of the negative
humanitarian and compassionate decision. That is the application currently
before the Court.
[19]
On July 12, 2007, the
applicants’ deferral request was redetermined by a different removal officer
and again refused.
The
Officer’s Decision
[20]
After considering the
applicants’ application on humanitarian and compassionate grounds, the officer
concluded that no exemption would be granted.
[21]
In the course of reaching
her decision, the officer considered a number of factors, including:
·
the hardship possibly
faced by the applicants upon return to Ecuador or Venezuela;
·
the effect of removal
on the applicants’ family and personal relationships;
·
the applicants’
degree of establishment in Canada;
·
the applicants’
establishment and ties in Ecuador, Venezuela, and the United States;
·
the best interests of
the children;
·
the mental state of
the applicants; and
·
the effect of the
applicants’ return to their respective countries of origin.
[22]
In refusing the
application, the officer made a number of findings. The relevant findings are
summarized below:
·
The officer noted
that the RPD had determined the applicants not to be credible and their fears
not to be well-founded. After reviewing the documentary evidence, the officer
concluded that adequate state protection existed in both Ecuador and Venezuela. The officer was of the view that any risk faced by the
applicants did not amount to unusual and undeserved or disproportionate
hardship.
·
The officer noted
that the applicants did not have any family living in Canada, but did acknowledge the collection of letters submitted by
their friends and co-workers.
·
The officer noted
that Mr. Rodriguez Zambrano failed to provide updated information as to when he
began his employment, whether he continued to be employed, or whether he had
sought other employment opportunities. The officer noted that the applicants
were self-supporting and operated a general cleaning business. The officer
also noted that the principal applicant had completed several courses,
obtaining certificates and diplomas. The officer further noted the applicants’
participation in the community, specifically their involvement in the church
and their sponsorship of a child in Zambia.
·
The officer noted
that the applicants had minimal difficulties obtaining employment and pursuing
academic study in Ecuador, Venezuela, and the United States. In the officer’s view, there was
insufficient evidence to find that the applicants would have any difficulties
adjusting in Ecuador or Venezuela. The officer also noted that the
applicants had a family network that could assist in the family’s
reintegration. Finding that the applicants’ ties and establishment in Ecuador
and Venezuela were extensive, the officer concluded
that the applicants’ personal circumstances were not such that the hardships
would be unusual and undeserved or disproportionate.
·
The officer noted the
positive academic achievement of the children in Canada,
but observed that updated information had not been provided by the applicants.
While the officer acknowledged that children in Canada
may enjoy better social and economic amenities, the officer was of the view
that there was little evidence to indicate that the basic amenities would not
be provided in Ecuador or Venezuela. The officer also noted that the
applicants had provided no evidence to demonstrate that there would be any
legal obstacle to the children residing in Ecuador
or Venezuela. In finding that the hardships faced by
the children would not be unusual and undeserved or disproportionate, the officer
pointed to the demonstrated ability of the children to readjust and the network
existing in each country to facilitate the children’s adjustment.
·
The officer noted the
applicants’ psychological assessment, but observed that it did not indicate their
functional level. The officer also noted that there was insufficient evidence
as to whether the applicants continued to suffer from the same symptoms or
continued to receive treatment. The officer further noted the absence of any
evidence indicating that treatment was not available in Ecuador or Venezuela.
·
The officer noted
that the applicants’ return to Ecuador was feasible. As for the children, the
officer observed that it would be in their best interests for the family to
resettle as a unit. The officer placed particular emphasis on the applicants’
demonstrated ability to establish themselves and their transferable skills. In
the officer’s view, the fact that Canada was a more desirable place for the
applicants to live was not determinative of their humanitarian and
compassionate application.
[23]
On the evidence
provided by the applicants, the officer concluded that the hardships arising
from the failure to grant an exemption would not be unusual and undeserved or
disproportionate.
The Issues
[24]
The applicants raise
the following issues:
1)
Whether the officer
breached the duty of fairness owed to the applicants:
a.
by not providing the
applicants with an opportunity to update the information supporting their
application;
b.
by determining the
humanitarian and compassionate application; or
c.
by relying on
extrinsic evidence without notice to the applicants.
2)
Whether the
circumstances surrounding the refusal of the humanitarian and compassionate
application give rise to a reasonable apprehension of bias.
3)
Whether the officer
erred by applying the wrong legal test in assessing the humanitarian and
compassionate application.
4)
Whether the officer’s
decision was unreasonable in assessing:
a.
the risk faced by the
applicants;
b.
the best interests of
the children; or
c.
the applicants’
degree of establishment.
5)
Whether the
applicants are entitled to an award of costs.
The
Standard of Review
[25]
There are now only
two standards of review: reasonableness and correctness. See: Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 34.
[26]
Determining the
appropriate standard of review involves two steps. First, the Court must
ascertain whether the jurisprudence has already satisfactorily determined the
degree of deference to be accorded to the particular type of question at
issue. If so, the required analysis is deemed to have been performed and is
not required. Where that initial inquiry proves unsuccessful, the second step
requires the Court to consider the relevant standard of review factors. Those
factors include: (i) the presence or absence of a privative clause; (ii) the
purpose of the decision-maker in question, as determined by its enabling
legislation; (iii) the nature of the question at issue; and (iv) the relative
expertise of the decision-maker. See: Dunsmuir at paragraphs 57, 62,
and 64.
[27]
Examples of issues
that will generally attract scrutiny on a correctness standard include:
questions of law that are of importance to the legal system and fall outside
the expertise of the administrative decision-maker; constitutional questions
regarding the division of legislative powers; true questions of jurisdiction or
vires; and matters of fairness. See: Dunsmuir at paragraphs 55,
58, 59, 60, 129 and 151.
[28]
Other questions will
generally attract review on the reasonableness standard, including matters of:
fact; mixed law and fact where the legal issues cannot be easily separated from
the factual issues; discretion; and policy. See: Dunsmuir at paragraphs
51 and 53. The reasonableness standard will also generally apply where an
administrative tribunal is interpreting its own enabling statute, or statutes
closely connected to its function. See: Dunsmuir at paragraph 54.
Guidance as to what other questions attract deference may also be found in the
existing case law. See: Dunsmuir at paragraph 54.
[29]
Turning to the issues
raised in this case, it is for the Court to determine whether an administrative
decision-maker has adhered to the principles of procedural fairness. No
deference is due. See: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph
100. Such matters continue to fall within the supervising function of the Court
on judicial review. See: Dunsmuir at paragraphs 129 and 151.
[30]
The question of
whether an officer applied the correct test in assessing risk in an
humanitarian and compassionate application is a question of law, and it has
been held to be reviewable on the standard of correctness. See, for example, Pinter
v. Minister of Citizenship and Immigration), [2005] F.C.J. No. 366 at paragraphs
3-5 (QL). Legal questions of central importance to the legal system as a whole
and outside a decision-maker’s specialized area of expertise continue to
attract scrutiny on a correctness standard. Questions of law that do not rise
to this level may be compatible with a reasonableness standard. See: Dunsmuir
at paragraphs 55 and 60. Having regard to the absence of a privative clause,
the relative lack of expertise on the part of an officer to appreciate whether
he or she has applied the wrong test at law, and the importance of ensuring
that officers apply the test that Parliament has prescribed, I conclude that
the question of whether the officer applied the correct test is reviewable on
the correctness standard.
[31]
The appropriate
standard of review for a humanitarian and compassionate decision as a whole has
previously been held to be reasonableness simpliciter. See: Baker v.
Canada (Minister of Citizenship and
Immigration), [1999] 2
S.C.R. 817 at paragraphs 57-62. In my view, given the discretionary nature of
a humanitarian and compassionate decision and its factual intensity, the
deferential standard of reasonableness continues to be appropriate. See: Dunsmuir
at paragraphs 51 and 53.
[32]
As to what the two
standards of review require of a reviewing court, the correctness standard does
not require the Court to show deference to the decision-maker. Rather, the Court
is to undertake its own analysis and determine whether it agrees with the
determination made by the decision-maker. In the event that the Court
disagrees, it is to substitute its own view and provide the correct answer.
See: Dunsmuir at paragraph 50. Review on the reasonableness standard
requires the Court to inquire into the qualities that make a decision
reasonable, which include both the process and the outcome. Reasonableness is
concerned principally with the existence of justification, transparency, and
intelligibility in the decision-making process. It is also concerned with
whether the decision falls within the range of acceptable outcomes that are
defensible in fact and in law. See: Dunsmuir at paragraph 47.
[33]
I now apply the
appropriate standard of review to each asserted error.
Application
of the Standard of Review to the Issues
1. Did
the officer breach the duty of fairness?
a)
The opportunity to update the information provided
[34]
The applicants
submitted the affidavit of a lawyer who has practiced immigration law for thirty-six
years. He swore that, in his experience, it is CIC’s practice to ask an
applicant for updated information before a final decision is made on a
humanitarian and compassionate application. The applicants say that they
understood they would be contacted and asked to provide further information,
but they were not.
[35]
On this evidence, the
applicants argue that they had a legitimate expectation that they would be able
to present updated information and they were denied procedural fairness when
they were not afforded that opportunity. They point to the officer's comments
in the decision that no updated information had been provided in order to argue
that the lack of updated evidence impeded the officer's ability to make a
proper assessment of the best interests of the children.
[36]
At paragraph 26 of
its reasons in Baker, cited above, the Supreme Court of Canada wrote, in
the context of legitimate expectations, that the circumstances that affect
procedural fairness take into account the promises or regular practices of
administrative decision-makers. Generally, it is unfair for them to act in
contravention of their representations as to procedure.
[37]
The applicants gave
no evidence about the source of their expectation that they would be contacted by
CIC and asked to provide updated information.
[38]
The most
authoritative source with respect to procedural representations about inland
humanitarian and compassionate applications is the immigration policy manual,
IP 5, entitled "Immigration Applications in Canada
made on Humanitarian or Compassionate Grounds." The manual does not
represent that applicants will be asked to provide updated submissions.
Section 5.26 instructs officers that they are not required to elicit
information on humanitarian and compassionate factors and that the onus is on
the applicants to put forth factors that they feel exist in their case. That
instruction should not lead an applicant to believe that he or she will be
contacted and asked for further or updated information.
[39]
This Court has held
that an applicant bears the burden of supplying all of the documentation necessary
to support their claim and that an officer is not required to request updated
information. See, for example, Melchor v. Canada (Minister of Citizenship and
Immigration), [2004]
F.C.J. No. 1600 (QL) and Arumugam v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1360 (QL). In Arumugam, the
Court wrote at paragraph 17 that:
In my opinion, although the
[officer] did not seek new or updated country information from the applicant or
elsewhere after the interview in March 1999, except for the PDRCC decision,
there was no duty on the [officer] to do so. It was open to the applicant to
submit further relevant information following the interview at any time before
the decision, whether it be personal or related to the changing circumstances
in Sri
Lanka.
The applicant did not do so. The [officer] rendered a decision based on the
evidence provided to her. I cannot agree that the process was unfair or that
the decision was unreasonable where the applicant did not take any initiative
to provide further information concerning country conditions which, in his
opinion, deteriorated through 1999. The responsibility of the [officer] was to
consider the application to apply for admission on h&c grounds on the basis
of the evidence provided by the applicant, and any evidence available from the
applicant's immigration records or provided by the Minister. This the officer
did.
[40]
I come to the same
conclusion. The applicants were assisted by counsel when they prepared and
submitted their humanitarian and compassionate application. They could have,
but did not, provide updated information.
[41]
Further, and in any
event, the applicants did not provide any evidence of significant, new
information that they could have provided that would have been material to the
decision. In other words, the applicants have advanced no evidence to support
the position that the decision would have been different had they been afforded
the opportunity to update their submissions. Thus, even if there was an
obligation on the part of the officer to request updated submissions, if the
failure to do so had no impact on the decision, the Court will not intervene.
See: Yassine v. Canada (Minister of Employment and Immigration)
(1994), 172 N.R. 308
(F.C.A.).
b) The application was decided by
a pre-removal risk assessment officer
[42]
The applicants submit
that they had a legitimate expectation that their application would be decided
by a humanitarian and compassionate officer, not a pre-removal risk assessment
officer. They rely upon IP 5, which they say instructs that humanitarian and
compassionate applications are only referred to a pre-removal risk assessment
officer for decision when there are insufficient humanitarian and compassionate
grounds upon which a positive decision can be made or when there is an existing
pre-removal or risk assessment application that is being processed
simultaneously. The applicants say that neither situation applied to their
application.
[43]
Section 13.2 of IP 5
states:
Role
of H&C Units: Preliminary screening without formal H&C assessment
When
the H&C application is referred by the Case Processing Centre to the
H&C Unit, the Unit performs a preliminary screening of applications and
documentation to determine whether the application indicates a claim to
personal risk.
If
there is no claim of personal risk, the application is referred to an H&C
officer.
If
there is a claim of personal risk, but there appears to be sufficient other
non-risk H&C grounds for accepting the application, the application is
referred to an H&C officer.
If
there is a claim of personal risk, but there does not appear to be sufficient
other non-risk H&C grounds for accepting the application, the application
is referred to the PRRA unit.
[44]
The submissions filed
in support of the humanitarian and compassionate application were relatively
extensive. Three pages were devoted to humanitarian and compassionate
factors. Four pages were devoted to risk. In the order of 69 pages of country
conditions documentation was filed with the submissions.
[45]
The applicants’ humanitarian
and compassionate claim certainly advanced a claim of personal risk and, in my
view, it was reasonably open to a screening officer to conclude that there did
not appear to be other sufficient non-risk humanitarian and compassionate
grounds for accepting the application. On that evidence, the applicants have
not shown that it was unfair that their application was screened and referred
to the pre-removal risk assessment unit for adjudication.
c) Reliance upon extrinsic
evidence
[46]
The officer is also said
to have erred by relying upon two extrinsic sources of information. First,
the officer relied upon information from a publication entitled
"Citizenship Laws of the World" to find that the applicants' children
could obtain either Ecuadorian or Venezuelan citizenship. Second, the officer
relied upon the website "thebestofecuador.com" to find that the
applicants could all reside in Ecuador.
[47]
I believe that it is
settled law that the duty of fairness requires disclosure of documents if their
disclosure is necessary in order for the person concerned to have a meaningful
opportunity to present his or her case fully and fairly to the decision-maker.
The overriding concern with respect to disclosure is whether the document is
one that the individual is aware or deemed to be aware. See, for example, Chen
v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 193
(T.D.), and Asmelash v. Canada (Minister of Citizenship and
Immigration), [2005]
F.C.J. No. 2145 (QL).
[48]
The issue of whether
the family could live together in Ecuador was raised in 2004 in proceedings before
the RPD. The RPD had provided RIR ECU40090.E to the applicants. This document
stated that "the foreign wife of an Ecuadorian national can request
naturalization through an expedited process." By July of 2006, a year
before the humanitarian and compassionate application was decided, the
applicants also knew that the pre-removal risk assessment officer had relied
upon the "Citizenship Laws of the World" publication to find that the
children could obtain either Ecuadorian or Venezuelan citizenship.
[49]
In my view, on these
facts, the applicants have failed to establish that they required disclosure of
"Citizenship Laws of the World" in order to present their case fully
and fairly to the officer. They had raised the issue of the family's ability
to reintegrate into either Ecuador or Venezuela because some members of the family were
not citizens of those countries. They were aware of the existence of the
impugned document a year before the decision was made. The applicants could
have filed supplementary submissions if they wished to contest the information
found in the document.
[50]
As for the officer's
reliance on the website, I agree that the applicants could not have reasonably
anticipated that the officer would rely on information from this particular
website. However, the applicants knew that the issue of their ability to live
together in Ecuador was a live one. The applicants failed
to establish that the officer obtained any information from this website that
was incorrect or that they could have refuted. In the absence of such
evidence, any failure to consult the applicants about this information was not
material to the officer's decision and the Court cannot conclude that the decision
would have been different had the applicants been given the opportunity to
respond. Therefore, there is no ground upon which the Court should intervene.
See: Yassine, cited above.
2. Is
there a reasonable apprehension of bias?
[51]
The applicants submit
that the circumstances of their case demonstrate that the immigration
authorities made a concerted effort to deny the applicants’ ongoing
applications and requests, without due process, in an effort to immediately
remove them from Canada. The following facts are said to
establish this bias:
·
on the same day that
this Court set aside the decision of the removal officer, which had refused the
applicants’ request for a deferral of removal, the same officer conveyed the
negative humanitarian and compassionate decision to the applicants' lawyer;
·
the officer who
rendered the negative humanitarian and compassionate decision was from the same
office as the removal officer and was the same officer who had rejected the
applicants' pre-removal risk assessment; and
·
two days after this
Court set aside the decision of the removal officer, directing that the matter
be redetermined as expeditiously as possible, another removal officer refused
the request and set a new removal date without seeking updated submissions from
the applicants.
[52]
The test at law for
the existence of the reasonable apprehension of bias was described in the
following terms by the Supreme Court of Canada in Committee for Justice and
Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394:
[T]he
apprehension of bias must be a reasonable one, held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that test is “what
would an informed person, viewing the matter realistically and practically –
and having thought the matter through – conclude. Would he think that it is
more likely than not that [the decision-maker], whether consciously or
unconsciously, would not decide fairly.” [emphasis added]
[53]
As a matter of law, a
high threshold must be met in order to establish either bias or the
apprehension of bias. See: R. v. R.D.S., [1997] 3 S.C.R. 484 at 532,
and Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at paragraph 76.
[54]
The circumstances the
applicants rely upon are, in my view, matters of coincidence that are
insufficient to establish any reasonable apprehension of bias:
·
The negative
humanitarian and compassionate decision (which had been made a week earlier)
was faxed to the applicants' lawyer at 7:25 a.m. on July 10, 2007. This was
obviously well before the Court's reasons of that date were released. The
timing of the transmission of the humanitarian and compassionate decision in
relation to the Court's decision was a matter of pure coincidence.
·
Because this was a
matter of coincidence, nothing flows from the fact that the removal officer and
the officer who decided the humanitarian and compassionate application were
from the same geographic office. The mere fact that one officer dealt with
both the pre-removal risk assessment and the humanitarian and compassionate
application does not establish bias. See: Monemi v. Canada (Solicitor General) (2004), 266 F.T.R. 31 (F.C.).
·
When the Court set
aside the decision of the removal officer, it expressly directed that the
decision be redetermined as expeditiously as possible. This is what, quite
literally, was done. While the second removal officer did not seek updated
submissions with respect to the appropriateness of removal on the long past
scheduled removal date, the officer set a new removal date. This gave the
applicants the opportunity to again request a deferral of removal and to make
submissions in support of that request.
3. Did
the officer apply the wrong legal test?
[55]
The applicants submit
that the officer focused on the risk aspect of the humanitarian and
compassionate application. They further submit that, while the officer
mentioned the appropriate test (the existence of unusual, undeserved or
disproportionate hardship), the officer applied the wrong test. This is said
to be evidenced by the fact that the officer relied upon the existence of state
protection and changed country conditions. The officer ought to have instead
considered the issue of hardship.
[56]
It is instructive to
review the applicants' submissions in their humanitarian and compassionate
application regarding the issue of risk. The applicants:
·
attached their
Personal Information Form narrative and stated that the risk they faced was
described in the narrative;
·
attached country
condition documentation;
·
stated that "in
assessing the risk that the applicant's [sic] face if returned to their
home countries it is useful to perform an assessment of the usual issues
identified at refugee hearings” and went on to discuss the agents of
persecution, nexus, state protection, and the existence of an internal flight
alternative; and
·
did not discuss
unusual, undeserved or disproportionate hardship.
[57]
Thus, the applicants'
submissions invited consideration of the very matters the officer discussed in
her reasons. The officer cannot be faulted for engaging in the analysis the
applicants invited. At the conclusion of the analysis, the officer went on to
discuss the appropriate test of hardship.
[58]
On those facts, the applicants
have failed to establish that the officer erred by applying the wrong test.
4. Was
the decision unreasonable?
a) The
risk faced by the applicants
[59]
The decision is said
to be unreasonable because the officer ignored the applicants' documentary evidence
on country conditions and their submissions on risk. The officer is also said
to have ignored the serious harm that was described in a psychological report
prepared by Dr. Pilowsky.
[60]
With respect to the
documentary evidence and submissions on risk, it is not strictly correct to say
that the officer ignored the documentary evidence the applicants had provided.
For example, the applicants had submitted the 2004 United States Department of
State reports for Venezuela and Ecuador and a 2005 Amnesty International report
"Ecuador: Threats and violence against government critics increase",
which dealt with threats to journalists, opposition politicians, a university
rector, and a religious aid development organization. The officer cited the
2007 United States Department of State reports for Venezuela and Ecuador and a 2006 Amnesty International report. The officer
cannot be faulted for reviewing more recent and relevant information.
[61]
While the applicants
rely upon the decision of this Court in Cepeda–Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998), 157
F.T.R. 35 (T.D.), they have failed to point to any material evidence that was
contrary to the officer's findings. Thus, the applicants have failed to
establish any error on this ground.
[62]
With respect to Dr.
Pilowsky’s psychological report, the applicants did not submit this report to
the officer or make any submissions upon it. Rather, the officer obtained the
report from the applicants' submissions on their pre-removal risk assessment.
Notwithstanding, the applicants now argue that the officer failed to adequately
consider the report.
[63]
The officer noted in
her reasons that:
Dr.
Pilowsky’s report states: “I believe she meets the diagnostic criteria for
a Major Depressive Disorder, Moderate Severity (296.22) and chronic symptoms of
Posttraumatic Stress Disorder (PTSD)”. Similarly, Dr. Pilowksy believed
that the [principal applicant] suffered the same conditions as his spouse. An
explanation of the diagnostic test was not provided in documentary evidence.
The report provided does not identify the applicants’ score with respect to the
Global Assessment of Functioning; and no clinical description of their level of
functioning is provided. There is insufficient evidence to support that the
applicants continue suffer from the above-mentioned symptoms and furthermore,
there is no indication that they received or continue to receive treatment for
their diagnosis. The evidence before me does not support that the applicants
are having difficulty functioning. Counsel for the applicants has not
submitted objective documentary evidence to indicate that treatment, if
required, is not available for the applicants in either one of their home
countries. [emphasis in original]
[64]
Moreover, in reasons
reported as Zambrano v. Canada (Minister of Public Safety and Emergency
Preparedness), [2007]
F.C.J. No. 982 (QL), Justice Phelan commented about this report in the context
of considering the propriety of the removal officer's refusal to defer
removal. At paragraph 12, he wrote:
The Removal Officer made no error in consideration of the
psychological report and it did not merit a detailed analysis. The report, if
accepted, would mean that the Applicants could never be removed because they
feared and were stressed by the thought that they would be removed to the
country in which they were persecuted. Whatever the merits of this subjective
basis for the report, the Immigration and Refugee Board and the PRRA Officer
had rejected as credible the very factual basis on which the fear and stress
were based.
[65]
I endorse and adopt
those comments.
[66]
In all of these circumstances,
the officer's consideration of Dr. Pilowsky’s report was reasonable.
b) The best interests of the
children
[67]
The applicants
complain that the documentary evidence contradicted the officer's conclusion
that the children would have access to the basic amenities in Ecuador and Venezuela. They also argue that the officer speculated
that the children would have been exposed to the Spanish language and culture
by their parents, unreasonably relied upon the children's transition from the
United States to Canada as an indicator of their ability to make a transition
to a Spanish-speaking country, and ignored evidence that the applicants had
described their family in their home countries to be impoverished and not able
to provide assistance.
[68]
Again, one must
consider the submissions made to the officer. Only one paragraph was devoted
specifically to the children. That paragraph detailed their academic achievement
and friends in Canada. While it referred to the fact that the
children have studied in English, it was silent about their ability to speak
Spanish at home. The applicants did not identify any lack of amenities in
Venezuela or Ecuador and simply described their families as
not being in a "financial position to be able to support the applicants.”
[69]
There was evidence
before the officer that at least one child, Katherine, was studying English as
a second language, which suggests that Spanish was spoken at home.
[70]
In my view, the
officer considered all of the evidence and submissions made to her. Her
reasons reflect a careful and sympathetic assessment of the children's
interests as required. See: Hawthorne v. Canada (Minister of Citizenship and
Immigration), [2003] 2
F.C. 555 (C.A.). While the officer acknowledged the
children’s academic achievement and noted that they may enjoy better social and
economic amenities in Canada, the officer was ultimately of the view
that the potential hardships in Ecuador or Venezuela
would not be unusual and undeserved or disproportionate. The officer relied
upon the demonstrated ability of the children to readjust, the network existing
in each country to facilitate the children’s adjustment, and the absence of
evidence that basic social and educative amenities would not be provided in Ecuador or Venezuela.
[71]
The officer
ultimately found that the applicants had failed to establish that "the
general consequences of relocating and resettling back in their home countries,
would have a significant negative impact on the children which would amount to
an unusual and undeserved or disproportionate hardship." In my view, the
officer's reasons justified that conclusion in an intelligible fashion. As
there was evidence to support the officer's findings, the decision also comes
within the range of acceptable outcomes. Accordingly, the officer's finding
with respect to the best interests of the children was not unreasonable.
c) The applicants' establishment
[72]
The applicants argue
that their application was primarily based upon their establishment in Canada. They say that, while the officer acknowledged their
positive establishment factors, the officer made no findings with regard to
establishment.
[73]
In my view, the
applicants simply disagree with the weight the officer assigned to the
evidence. Establishment is merely one of a number of factors to be considered
by an officer and the failure to make an express finding on the extent of
establishment is not, in this case, a reviewable error. The officer clearly
appreciated all of the relevant establishment factors. The facts of this case
are very distinguishable from those before the Court in Raudales v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J.
No. 532 (QL) which the applicants rely upon.
[74]
In closing on this
issue, I adopt the comments of my late colleague Justice Rouleau in Chau v. Canada (Minister of Citizenship and Immigration, [2002] F.C.J. No. 119 (QL). There, he
wrote at paragraphs 27 through 28:
The applicant in the
present case raised a number of arguments which, when considered together,
amount to several inconveniences by leaving Canada and submit an
application abroad which is the normal rule laid down by Parliament. As
Lemieux J. rightly state in Mayburov v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 953 (QL) at
para. 39, inconvenience is not the criteria of undue hardship as laid out
in the guidelines. The material filed in support of her application leads one
to believe that the Applicant could well be a model immigrant and a welcome
addition to the Canadian community; she has shown herself to be law-abiding,
hard-working, enterprising and thrifty since her illegal entry into Canada.
However, that is not the test as to whether or not there are sufficient
humanitarian and compassionate grounds to warrant exceptional relief. As
Pelletier J. stated in Irimie, supra at para. 26:
[...]
To make it the test is to make the H & C process an ex post facto screening
device which supplants the screening process contained in the Immigration Act
and Regulations. This would encourage gambling on refugee claims in the belief
that if someone can stay in Canada long enough to demonstrate that they are the
kind of persons Canada wants, they will be allowed to stay. The H & C
process is not designated to eliminate hardship; it is designated to provide
relief from unusual, undeserved or disproportionate hardship.
The
burden which the applicant had to discharge was whether the Immigration
Officer's decision not to grant her an exemption for the inland processing of
her permanent residence application was unreasonable. When deciding this issue,
the reviewing court cannot overstep its role. In the absence of an error in the
legal sense, the Court could not and should not substitute its opinion for that
of the Immigration Officer. The perspective of the reviewing judge is to
examine the evidence before the Immigration Officer and determine whether there
was absence of evidence supporting her conclusion or whether her decision was
made contrary to the overwhelming weight of the evidence. I cannot reach that
conclusion.
[75]
Similarly, the applicants
in this case appear to be hard-working, law-abiding, self-sufficient,
enterprising, thrifty, and charitable to others. They will face hardship if
forced to leave Canada. However, they have not established
that the officer erred in finding that such hardship would not be unusual and
undeserved or disproportionate.
5. Costs
[76]
Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22, provides that
no costs are to be awarded on an application for judicial review unless the Court,
for special reasons, makes such an order.
[77]
The threshold for
“special reasons” within the meaning of Rule 22 is high. Special reasons may
exist where the Minister’s conduct is “unfair, oppressive, improper or actuated
by bad faith.” See: Uppal v. Canada (Minister of Citizenship and
Immigration), [2005]
F.C.J. No. 1390 at paragraph 8 (QL).
[78]
Given that I have
found no error or unfairness, no special reasons exist for an award of costs.
Conclusion
[79]
For these reasons,
the application for judicial review will be dismissed. Counsel posed no
question for certification, and I see no question arising on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial
review is dismissed, without costs.
“Eleanor
R. Dawson”
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