Docket:
IMM-2361-13
Citation: 2013 FC 976
Ottawa, Ontario, this 25th
day of September 2013
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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MARCO TULIO MORENO HERNANDEZ
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Applicant
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And
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is the second trip to the Federal Court
concerning Mr. Moreno Hernandez’s application for permanent residence from
within Canada on humanitarian and compassionate [H&C] grounds, under
subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (the “Act”).
[2]
The first trip to this Court resulted in a
judgment, dated September 11, 2012 which set aside a decision of a Senior
Immigration Officer. My colleague, Justice Roger T. Hughes, concluded that the
officer’s decision was “wholly unreasonable having regard to the factual
circumstances of this particular case”. As a result the Court ordered that the
matter be re-determined by a different officer “having regard to the correct
law and the particular facts in this case and that the Applicant was, at the
material time, a 17-year-old child”. Such redetermination was conducted and it
resulted in a decision by another Senior Immigration Officer (the “officer”) dated
March 11, 2013. That negative decision is challenged on judicial review
pursuant to section 72 of the Act and leave was granted on June 13 last.
[3]
The facts of this case will be important.
Fortunately, they are not disputed by the parties.
The facts
[4]
The applicant was born on October 22, 1994 in Honduras. He is a citizen of that country. The record shows that the applicant has a
mother, a stepfather as well as a sister, a brother, a half-sister and two half-brothers.
They all reside in Honduras.
[5]
It is not disputed that the applicant, living
with his family in Honduras, was living in harsh conditions. Their
accommodations were minimal, his stepfather did not have continuous employment
and they are still living in those conditions in a small village of about 1,000
inhabitants.
[6]
It is not disputed either that the applicant, in
October 2008, was sent to the United States illegally. Arrested and detained
for a period of two months, he was returned to Honduras.
[7]
A year later, he was again sent outside of the
country by his family. After having transited through Guatemala, Mexico and the United States, he arrived in Canada on December 14, 2009 and made a refugee claim in
this country on January 5, 2010.
[8]
His refugee claim was denied on August 26, 2011.
The main issue, as found by the Refugee Protection Division, was the
credibility of the applicant. The testimony concerning his forced recruitment
and threats by the Maras gang in Honduras was not believed. It appears that it
is not contested by the applicant that his credibility was deficient because he
now acknowledges that he had not been subjected to threats and there were no
attempts to recruit him while he was in Honduras. He stated in writing:
I made up a story for
my refugee claim because I thought it would be easier for me to stay in Canada if I did. Just like my mother said in her talk with my lawyer, the gangs were not
trying to get me to join them before I left Honduras, and I did not run around
committing crimes with them.
In spite of that
concession, one of the elements raised in the H&C application is the renewed
concern that he would be a suitable candidate for recruitment by the Maras were
he to be returned to his country.
[9]
On November 23, 2011, he submitted an H&C
application. As indicated, the application was denied, but this Court quashed
the decision and ordered a redetermination.
The officer’s
decision
[10]
The officer conducting the redetermination had
to address three different issues raised by the applicant. First, the interests
of the child had to be considered. As pointed out earlier, the application is
to be dealt with on the basis that the applicant was 17 years of age. Second,
it was argued that the applicant is well established in this country and that
militates in favour of granting his H&C application. Finally, evidence was
presented and arguments were made about the adverse country conditions the
applicant would face if he were to return to Honduras and, thus, whether this
would constitute undue hardship.
[11]
The officer identifies in the decision the three
grounds that had been presented. It is stated that the best interests of the
child were carefully considered, as required because the application was made
at the time the applicant was 17 years of age. The officer then proceeds to
examine carefully the establishment of the applicant in Canada and the adverse country conditions he would face in Honduras.
[12]
The establishment of the applicant in this
country is acknowledged throughout the reasons. By all accounts, the applicant
is doing very well in school and in his community, in spite of the fact that he
is here without his family and is a “ward of the Ministry of Children and Family
Development in British Columbia”. He lives with foster parents and five other
children. The officer declares however that
. . . it is my
opinion that the fact that the applicant may enjoy better opportunities in
Canada than in Honduras does not mean that the discretion afforded by
subsection 25(1) of the Immigration and Refugee Protection Act (IRPA) will be
exercised in a positive manner.
Having to return
to Honduras will cause the applicant difficulties, but the officer considers
that the skills acquired in Canada and his personality traits will assist him
in readjusting in his native country. The officer concludes by writing:
I have carefully
considered the evidence before me, mindful of the Federal Court’s concern that
the previous “Officer’s reasons failed to have regard to the overwhelming
positive evidence as to the establishment of the Applicant in Canada”. I acknowledge that the applicant has attended high school in Canada since March 2010, that he has improved his English, that he has had a job, and that
he has formed close relationships with a variety of people, several of whom
have written letters in support of the applicant. However, based on my analysis
above of the evidence regarding the applicant’s establishment which is before
me in this H&C application, I am of the opinion that it would not be
contrary to the applicant’s best interests to have him returned to Honduras.
[13]
The officer then proceeds to examine the adverse
country conditions if the applicant were to be returned to Honduras. The officer fairly recognizes that adverse conditions may warrant the exercise of
humanitarian and compassionate discretion. Indeed, it is recognized that “[t]he
H&C assessment is lower in threshold than PRRA and is not limited to the
PRRA’s specific legislative parameters of persecution: Risk to life, torture
and cruel and unusual treatment or punishment”. There is no doubt that the
situation in Honduras is rather bleak. However, the officer concludes that it
is mere speculation to state that gangs would attempt to recruit the applicant
if he returned to his country. As for the opportunities available to the
applicant in Honduras, the officer considers that he would be better equipped
to deal with the situation in Honduras now that he has acquired some skills and
education in Canada.
[14]
In view of the argument presented by counsel for
the applicant about the fettering of the discretion on the part of the officer,
it is important to examine carefully the position taken with respect to
sections 96 and 97 of the Act.
[15]
Subsection 25(1.3) of the Act is the provision
that was invoked by the officer to exclude from consideration on this
application the claim of risk to life that was already considered in the
refugee application that was denied in 2011. Subsection 25(1.3) reads:
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25. (1.3) In examining the request of a foreign national in Canada,
the Minister may not consider the factors that are taken into account in the
determination of whether a person is a Convention refugee under section 96 or
a person in need of protection under subsection 97(1) but must consider
elements that are related to the hardships that affect the foreign national.
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25. (1.3) Le ministre, dans l’étude de
la demande faite au titre du paragraphe (1) d’un étranger se trouvant au
Canada, ne tient compte d’aucun des facteurs servant à établir la qualité de
réfugié – au sens de la Convention – aux termes de l’article 96 ou de
personne à protéger au titre du paragraphe 97(1); il tient compte, toutefois,
des difficultés auxquelles l’étranger fait face.
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[16]
The officer does not have the discretion to
ignore subsection 25(1.3). The decision makes the point that the fears for the
applicant’s life at the hands of gangs and the smuggler who had him leave Honduras could not be considered again because they have been addressed in the refugee
application. However, the officer refers specifically to “adverse country
conditions that have a direct negative impact on the applicant are a relevant
factor in the assessment of an H&C application that is submitted on or
after June 29, 2010”. It is on that basis that the decision goes on to state:
. . . In fact, the
evidence indicates that he had no problems with gangs while he was living in El
Pedernal. I am of the opinion that it is speculation to conclude that gangs in Honduras would try to recruit the applicant if he were to return to that country. I do not
find that counsel on behalf of the applicant has provided sufficient objective
evidence for me to conclude that the applicant’s removal to Honduras would subject him to a risk that would warrant the exercise of humanitarian and
compassionate discretion.
The standard of
review
[17]
The applicant and the respondent agree that a
standard of reasonableness will apply to the assessment to be made of a
decision on an H&C application. However, the applicant argues that a
standard of correctness is required with respect to the refusal of the officer
to assess certain risks because, in the view of the applicant, this constitutes
the fettering of discretion which carries a higher standard of review.
Analysis
[18]
I do not believe that the officer has fettered
the discretion that is provided by section 25 of the Act. When considered
carefully, the reasons for the decision merely exclude from consideration the
“risks” that had already been the subject of a decision on the refugee
application. It would not be appropriate in this case to consider fully the
meaning to be ascribed to subsection 25(1.3) of the Act. The matter was not
fully argued and it is not essential for the disposition of the case. Suffice
it to say that the officer considered the elements related to the hardship that
affect the foreign national, including that he might be the subject of
recruitment attempts if he were to return to his country. It is a conclusion
that was based on the evidence in front of the officer. More importantly, the
evidence with respect to the claims concerning section 97 of the Act was ruled
to be not credible and, indeed, it was confirmed that it was not credible
through a written statement made by the applicant himself.
[19]
In my view, the more difficult issue is that
which is at the heart of the applicant’s argument. The applicant argues that
the decision, as a whole, is unreasonable. In his view, the interests of the
child must be carefully defined and there must be an articulation for why they
are not sufficient to warrant the application of the discretion of section 25
of the Act. Here, the applicant argues that the interests of the child were
minimized, which makes the decision unreasonable. There is a need to examine
carefully these interests before they are to be dismissed.
[20]
In essence, the applicant claims that the
decision-maker lifted the arguments and sought to minimize them with a view to
concluding, without careful analysis, that they were insufficient to warrant
the application of section 25.
[21]
It is subsection 25(1) that finds application in
this case. It reads:
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25. (1) Subject to subsection (1.2), the Minister must, on request of
a foreign national in Canada who applies for permanent resident status and
who is inadmissible – other than under section 34, 35 or 37 – or does not
meet the requirements of this Act, and may, on request from a foreign
national outside Canada – other than a foreign national who is inadmissible
under sections 34, 35 or 37 – who applies for a permanent resident visa,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
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25. (1) Sous réserve du paragraphe
(1.2), le ministre doit, sur demande d’un étranger se trouvant au Canada qui
demande le statut de résident permanent et qui soit est interdit de
territoire – sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37
– , soit ne se conforme pas à la présente loi, et peut, sur demande d’un
étranger se trouvant hors du Canada – sauf s’il est interdit de territoire au
titre des articles 34, 35 ou 37 – qui demande un visa de résident permanent,
étudier le cas de cet étranger; il peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des considérations d’ordre humanitaire relatives à l’étranger
le justifient, compte tenu de l’intérêt supérieur de l’enfant directement
touché.
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[22]
A fair reading of that provision does not allow
for the conclusion that the interests of the child are paramount. They must
carry weight but they are not the sole consideration to be taken by the
Minister in making the decision. The Supreme Court of Canada decision in Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [Baker]
describes the appropriate balance to be given. One can read at paragraph 75 of
the decision:
[75] The
certified question asks whether the best interests of children must be a
primary consideration when assessing an applicant under s. 114(2) and the
Regulations. The principles discussed above indicate that, for the exercise of
the discretion to fall within the standard of reasonableness, the
decision-maker should consider children’s best interests as an important
factor, give them substantial weight, and be alert, alive and sensitive to
them. That is not to say that children’s best interests must always outweigh
other considerations, or that there will not be other reasons for denying an
H&C claim even when children’s interests are given this consideration.
However, where the interests of children are minimized, in a manner
inconsistent with Canada’s humanitarian and compassionate tradition and the
Minister’s guidelines, the decision will be unreasonable.
[23]
I also find illuminating the words of Iacobucci
J. in Canada (Director of Investigation and Research) v Southam Inc.,
[1997] 1 S.C.R. 748, at paragraph 56:
[56] .
. . An unreasonable decision is one that, in the main, is not supported by any
reasons that can stand up to a somewhat probing examination. Accordingly, a court
reviewing a conclusion on the reasonableness standard must look to see whether
any reasons support it. The defect, if there is one, could presumably be in the
evidentiary foundation itself or in the logical process by which conclusions
are sought to be drawn from it.
[24]
I would have thought that this conforms with the
often quoted paragraph 47 in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190:
[47] Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation within
the range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[25]
In the case at hand, I have read and re-read the
reasons given by the officer. I am of course aware that it is not for this
Court to substitute its discretion for that of the officer. A significant
measure of deference is owed to the decision-maker. However, I have not been
able to find the reasons that support the conclusion that was reached.
[26]
My review of the decision leaves me with the
statement of the arguments and the conclusion that they do not warrant the application
of section 25. Hence, having found what would appear to be a number of factors
that would favour the application of H&C considerations provided for in
section 25, the decision-maker simply concludes, at page 8 of his decision,
that:
. . . I am of the
opinion that it would not be contrary to the applicant’s best interests to have
him returned to Honduras.
[27]
Similarly, the decision-maker declares that “I
do not find that counsel on behalf of the applicant has provided sufficient
objective evidence to bring me to conclude that the applicant’s removal to Honduras would subject him to a risk that would warrant the exercise of humanitarian and
compassionate discretion”.
[28]
We are left wondering why this evidence would
not be sufficient.
[29]
This is, in my opinion, especially important in
view of the Supreme Court’s decision in Baker, supra, where the
Court puts special emphasis on the need for the decision to be animated by the
recognition of compassionate or humanitarian considerations. One can read at
paragraph 66:
[66] The
wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker
exercise the power based upon “compassionate or humanitarian considerations”
(emphasis added). These words and their meaning must be central in determining
whether an individual H&C decision was a reasonable exercise of the power
conferred by Parliament. The legislation and regulations direct the Minister to
determine whether the person’s admission should be facilitated owing to the
existence of such considerations. They show Parliament’s intention that those
exercising the discretion conferred by the statute act in a humanitarian and
compassionate manner. This Court has found that it is necessary for the
Minister to consider an H&C request when an application is made: Jiminez-Perez,
supra. Similarly, when considering it, the request must be evaluated in
a manner that is respectful of humanitarian and compassionate considerations.
Further, one can
read comments about the importance of the best interests of the child:
[74] .
. . Therefore, attentiveness and sensitivity to the importance of the rights of
children, to their best interests, and to the hardship that may be caused to
them by a negative decision is essential for an H&C decision to be made in
a reasonable manner. While deference should be given to immigration officers on
s. 114(2) judicial review applications, decisions cannot stand when the manner
in which the decision was made and the approach taken are in conflict with
humanitarian and compassionate values. The Minister’s guidelines themselves
reflect this approach. However, the decision here was inconsistent with it.
[30]
As a matter of first impression, we find in this
case a child of 14 years of age being sent to the United States, by his
parents, because of the dire circumstances in which they find themselves. Upon
being returned to Honduras, the same child is sent, a year later, through Guatemala, Mexico and the United States to Canada. He is by then 15 years old. It is not
disputed that the applicant came to Canada because he wanted to help his family
financially. On the record before the Court, there is no suggestion that he
came to Canada for ulterior motives and it is understood that the applicant’s
family is very poor with limited prospects. He has since, by every account,
done his best to adapt to his new surroundings and he appears to be in the
process of completing his high school education. One would expect that, in such
circumstances where the evidence appears to be favourable to the applicant, the
decision-maker would articulate the reasons why the interests of the child and
humanitarian and compassionate considerations which must animate the
decision-making, as per Baker, supra, were not sufficient. In the
case at hand, what we have, instead, is a declaration that it was not
sufficient, with the further rationale that the skills acquired in Canada will be assets usable if returned to Honduras.
[31]
It would seem to me that, as a matter of first
impression, there appears to be a serious case for the possible application of
section 25 such that the decision-maker would recognize the need for a strong
articulation of the countervailing arguments and rationale in order for the
decision to be ruled to be reasonable. I wish to make it clear that it is not
for this Court to substitute its discretion for that of the decision-maker. But
the reasonableness of the decision is measured by the articulation of its
reasons and outcomes. There may be other considerations, of a public-policy
nature for instance, that should come into play. However, they were not
disclosed in a decision that called for an articulation of reasons justifying
the outcome chosen.
[32]
In this case, the articulation of the reasons
is, in my view, deficient. As such, it cannot be said that the decision is
reasonable. My Reasons for Judgment should not be taken to mean that it is a
foreclosed conclusion that section 25 of the Act ought to be applied in favour
of the applicant. Conversely, however, if it is not possible to articulate
reasons, that may very well indicate that the range of acceptable outcomes in
this case is very narrow.
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