Date: 20130104
Docket:
IMM-9550-11
Citation: 2013
FC 3
Ottawa, Ontario,
January 4, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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EDGARD PATRICIO PEREZ ALCOCER,
CELINA RENDON ELIZALDE,
DIANA PEREZ RENDON AND
PATRICIO PEREZ RENDON
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
In
2005, Mr Edgard Patricio Perez Alcocer was kidnapped and held captive for four
days in Mexico. He was released on payment of a $20,000 ransom. Out of fear of
reprisals, he did not report the incident to police. Nevertheless, believing
that Mr Perez Alcocer had reported them, his captors continued to threaten him.
Ultimately, he did go to police but they told him there was nothing to be done.
As the threats continued, Mr Perez Alcocer fled to Canada in 2007. His wife,
his daughter, and his son joined him shortly thereafter. A second son was born
in Canada.
[2]
The
family made a claim for refugee protection but that was turned down. They
subsequently applied for a pre-removal risk assessment (PRRA). It, too, was
denied. They applied for humanitarian and compassionate relief (H&C) and
were turned down again. In this application for judicial review, they challenge
the H&C decision. Their principal argument is that the H&C officer
failed to conduct an adequate analysis of the best interests of the children.
They ask me to quash the officer’s decision and order another officer to
reconsider their application.
[3]
I
agree that the officer failed to be “alert, alive and sensitive” to the
children’s best interests. This rendered the officer’s decision unreasonable.
Therefore, I will allow this application for judicial review.
[4]
I
need only consider the issue of the best interests of the children.
II. The Officer’s
Analysis of the Children’s Best Interests
[5]
The
officer noted that the children take swimming and skating lessons in Canada, and also attend day camps.
[6]
She
found that the children will be upset and disappointed if they have to return
to Mexico. However, there is no evidence that they will be denied basic
amenities and be personally affected by the prevailing conditions in Mexico. Returning to Mexico would not be contrary to their best interests or cause them
unusual, undeserved or disproportionate hardship.
III. Was the Officer’s
Analysis Adequate?
[7]
The
Minister argues that the officer’s analysis was adequate because he considered
the impact that the move to Mexico would have on the children. There being no
evidence of any particular harm, the officer reasonably concluded that the
children’s best interests would not be seriously compromised by a return to Mexico.
[8]
In
my view, the officer missed some important factors.
[9]
The
officer considered a psychological report in which Mr Perez Alcocer was
diagnosed with Post Traumatic Stress Disorder (PTSD). She noted that there was
no evidence that Mr Perez Alcocer was being treated for his condition or that
treatment was unavailable in Mexico.
[10]
However
the officer did not consider some of the report’s key findings. It states that
Mr Perez Alcocer sleeps poorly and worries about his family’s safety; he
experiences dissociative behaviour and memories of traumatizing events; if he
returns to Mexico, Mr Perez Alcocer’s condition will worsen because of his fear
for his family; the entire family will feel the psychological effects of a
return to Mexico. The officer did not refer to these factors.
[11]
In
addition, the officer did not consider the advantages for the children if the
family were permitted to stay in Canada. The evidence before the officer
contained letters from teachers, school certificates, and documentation of
their community activities. The officer did not refer to any of this evidence
beyond noting the children’s involvement in some extracurricular activities.
[12]
Further,
the officer seemed unaware that there was a Canadian-born child involved. He
was entitled to remain in Canada. Yet, the officer noted that “both children”
(not all three) will have the support of their parents in Mexico. The officer failed to weigh the comparative benefits of remaining in Canada and moving to Mexico for the Canadian-born child.
[13]
Finally,
the officer concluded that the children will not experience significant harm in
Mexico that would amount to unusual, undeserved, or disproportionate
hardship. This is neither the correct test (Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475, at para 9), nor
the proper framework of analysis (Williams v Canada (Minister
of Citizenship and Immigration), 2012 FC 166 at para 63).
[14]
Accordingly,
I find that the officer’s analysis of the best interests of the children was
inadequate. This resulted in an unreasonable conclusion.
IV. Conclusion and
Disposition
[15]
The
officer failed to be “alert, alive and sensitive” to the best interests of the
children affected by her decision, most particularly the Canadian-born child.
This failure caused the officer to render a decision that did not fall within
the range of defensible outcomes based on the facts and the law. The decision
is unreasonable. Therefore, I must allow this application for judicial review
and order another officer to reconsider the application. Neither party proposed
a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration.
2.
No
question of general importance is stated.
“James W. O’Reilly”
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