Date:
20131001
Docket:
IMM-1301-13
Citation:
2013 FC 1002
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, October 1, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
|
|
DAISY JANE VERA
FLORES
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF
CITIZENSHIP
AND IMMIGRATION AND
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001 c 27 [IRPA] for judicial review of the decision
made on August 13, 2012, by an immigration officer, which rejected the
applicant’s application for permanent residence based on humanitarian and
compassionate considerations [H&C application].
I. Facts
[2]
The
applicant is a 23‑year‑old Mexican citizen who arrived in Canada on
November 1, 2007, at which time she sought refugee protection.
[3]
The
applicant left her country of origin with her mother, her two young brothers
and her sister in order to flee certain problems; having suffered physical and
sexual abuse in Mexico at the hands of her former father‑in‑law,
the applicant submits that she would still be at risk in that country if she
had to return.
[4]
On
September 6, 2011, the Refugee Protection Division [RPD] of the
Immigration and Refugee Board [IRB] rejected her refugee claim. The RPD found
that state protection was available and that there was an internal flight
alternative [IFA]. The applicant and her family then filed an application for
leave, which was granted, and judicial review of the RPD’s decision, but they
discontinued it on the recommendation of their former counsel because the
applicant’s mother had initiated an application for sponsorship and permanent
residence.
[5]
The
applicant then filed a pre‑removal risk application [PRRA], which was
rejected. The applicant did not dispute the rejection of her application.
[6]
On
June 21, 2012, the applicant submitted an H&C application, relying on
her degree of establishment in Canada, the best interests of the children
involved, the risks and hardship in Mexico and her medical condition caused by
the sexual violence she had suffered.
[7]
The
H&C application was dismissed. The applicant was informed of this on
February 12, 2013, and she filed an application for leave and judicial
review of that decision on February 18, 2013.
[8]
The
applicant also requested and obtained a stay of enforcement of the removal
order scheduled for March 25, 2013.
II. Impugned
decision
[9]
The
immigration officer began his review of the case by stating that, under
subsection 25(1.3) of the IRPA, he had excluded from his review the risks
invoked concerning sections 96 and 97 of the Act. The decision points out
that, to be exempted from her obligation to submit her application for permanent
residence from outside the country and her obligation to satisfy the
requirements of a particular class of permanent residents, the applicant had to
convince the immigration officer that she would face unusual and undeserved or
disproportionate hardship if she had to submit her application from outside the
country.
[10]
The
officer rejected the H&C application after examining the applicant’s
relationship with her family, her health, the issue of the best interests of
the children involved and the potential hardship that a return to Mexico would
represent for her. In the officer’s opinion, the hardship that the applicant
would experience in returning to Mexico would not be undeserved and unusual or
disproportionate.
[11]
First,
the officer studied the issue of the applicant’s level of establishment in
Canada. Relying on the documentation submitted, the officer stated that the
applicant had not filed an application for a work or study permit since 2010
and that she had not worked or volunteered in Canada. The officer noted that
the applicant assisted her young brothers, in particular with their homework,
and that a number of acquaintances had prepared letters in support of her
application. However, the officer noted that no such letters had been written
by her mother or sister or any close friend. The decision also states that the
applicant had lived with her common‑law spouse from August 2009 to April
2012 and thus had lived apart from members of her family for two and a half
years although she had probably stayed in contact with them. The documentation
also supported a finding that the applicant had a group of friends and that her
family got together to celebrate birthdays, inter alia.
[12]
While
recognizing the family’s difficulties, the officer found that the applicant’s
level of establishment appeared insufficient to grant the exemption set out in
section 25 of the IRPA. Certainly, the applicant would be separated from
her family for some time, but she could stay in contact through various means
of communication. The officer ended his analysis of this point by stating that
the applicant would not be a total orphan in Mexico because there were still
members of her family there.
[13]
Then,
the officer focused on the best interests of the children involved. The
decision recognized that the applicant had played an increasingly important
role in the her brothers’ lives for the last few months but found that there
was nothing to suggest that the applicant’s absence would be fundamentally
harmful for the children, who would still be surrounded by their family and
their social network.
[14]
The
officer also addressed the issue of the hardship the applicant would face if
she returned to Mexico. The decision states that the applicant is no longer a
child and that she should be able to look after herself. After taking into
consideration the documentation submitted, the officer said that he was not
satisfied that the fact the applicant is a woman would cause hardship within
the meaning of the IRPA. The decision recognizes that the applicant would not
return to Mexico under the best circumstances and that she would face some
hardship in reintegrating into the country but nonetheless adds that,
considering her abilities and the presence of members of her family, this
hardship is not undeserved, unusual or disproportionate.
[15]
Finally,
the officer reviewed the issue of the applicant’s health, specifically the
therapy that she began because of the sexual abuse she had suffered at the
hands of her former father‑in‑law. The officer stated that
resources are offered to women, particularly in Mexico City, and that the
applicant showed no sign of a medical condition that would interfere with her
return to Mexico.
III. Applicant’s
arguments
[16]
The
applicant states that the immigration officer erred in his decision on the
H&C application and that therefore he did not correctly apply
section 25 of the IRPA.
[17]
First,
relying on the relevant jurisprudence, she states that the officer did not use
the correct test for assessing hardship for the purposes of section 25 of
the IRPA. He should have examined the humanitarian and compassionate grounds as
a whole rather than in isolation.
[18]
The
applicant also argues that the officer improperly assessed the hardship she
would face if she had to apply for permanent residence from outside the
country. She points out that her credibility was never challenged, either by
the IRB when the refugee claim was reviewed or by the immigration officer. The
applicant adds that the officer accepted as true the allegations regarding the
sexual abuse suffered at the hands of her former father‑in‑law in
the city of Leon, Mexico. In his analysis, the officer also stated that the
applicant could count on the support of her family members in Leon, that is, in
the city where she had been sexually assaulted. The applicant says that she
needs to be surrounded by her immediate family.
[19]
Moreover,
the applicant agrees that she lived apart from her family in Montréal but
states that it cannot be said, as the immigration officer did, that the fact
she lived with her spouse outside of the family home while keeping personal
contact with the family is tantamount to living alone outside the country
without direct contact with the family.
[20]
The
applicant states that a return to Mexico would have serious consequences for
her. The officer misapprehended the evidence that was presented to him because
he was required to analyze the case by taking into account not only the
situation of women in Mexico but specifically the situation of women who have
been physically and sexually abused. The National Documentation Package on
Mexico contains articles about this. Also, the officer carried out a general
analysis of the situation whereas he should have considered the circumstances
that are unique to her: the applicant is a young 23‑year‑old woman;
she was sexually assaulted by her former father‑in‑law; she will be
alone without the support of her family and has no occupation or means to
support herself.
[21]
The
applicant also alleges that the immigration officer used the wrong test in his
analysis of the impact that the applicant’s return to Mexico would have on the
children. Rather than applying the best interests of the children test as the
jurisprudence mandates, the officer analyzed the situation by requiring her to
demonstrate the existence of excessive hardship for the applicant’s brothers
and sisters.
[22]
Last,
on several occasions, the officer referred to the decision he had made on the
applicant’s PRRA application even though the two procedures require separate
analyses. Thus, in the applicant‘s view, including the previous decision in the
decision that is the subject of this review was an error.
IV. Respondent’s
arguments
[23]
The
respondent states that the officer applied the correct test in assessing
hardship for the purposes of section 25 of the IRPA and that it was
reasonable for him to find that there would be no unusual and undeserved or
disproportionate hardship for the applicant if she had to apply for permanent
residence from outside the country.
[24]
The
respondent submits that the officer consistently applied the correct test, i.e.
unusual and undeserved or disproportionate hardship, throughout his analysis
and that, moreover, this test is explicitly set out in the decision. He adds
that the fact that the officer simply referred to the PRRA decision and the
decision on the refugee claim is not sufficient to demonstrate that the officer
did not consider the issue of whether the risk could result in hardship.
[25]
Furthermore,
the respondent asserts that the applicant is inviting the Court to re‑examine
the evidence and to reach a different conclusion, which is not the role of the
Court.
[26]
As
regards the level of establishment issue, the respondent is of the view that
the officer’s decision was reasonable and was based on a review of the evidence
because the officer considered a great deal of evidence before concluding that
the applicant’s level of establishment in Canada was not sufficient to grant an
exemption under section 25 of the IRPA.
[27]
The
respondent also states that the officer properly considered the applicant’s
personal situation in his analysis and that the impugned decision refers to
numerous factors pertaining to her personal situation. The respondent also
refutes the applicant’s argument, which he characterizes as misleading, about
the officer’s statement that the applicant could count on the support of family
members in Leon, even though that is the city where she was sexually assaulted.
In this regard, the respondent points out that the RPD found that state
protection was available to the applicant in Mexico. Moreover, the respondent
adds that the officer did take the applicant’s family ties into account but
that he was simply not convinced that physical proximity was necessary since
the applicant had already lived apart from her family. Accordingly, it was
reasonable to conclude that the applicant’s return to Mexico would not prevent
her from maintaining relationships with the assistance of various means of
communication.
[28]
Also,
the respondent is of the opinion that the officer applied the correct test in
his analysis of the best interests of the children and that he made his
decision after properly examining the evidence. Furthermore, contrary to the
case law that the applicant relies on, the children involved in this case are
her brothers and sisters, not her own children. She is not the primary person
supporting them.
[29]
In
addition, with regard to the issue of the applicant’s alleged hardship, the
respondent sets out a series of factors that the officer considered and states
that, as a result, the decision is reasonable.
[30]
Last,
with respect to the applicant’s health, the respondent states that the Court
does not have the diagnosis and opinion of a health professional indicating
that a return to Mexico would jeopardize the applicant’s health. She submitted
only her counsel’s allegations and a letter written by an organization that
assists victims of rape and incest; the officer took this evidence into
consideration, but it simply was not sufficient to find that the applicant
would face unusual and undeserved or disproportionate hardship if she had to
apply for permanent residence from outside the country.
V. Applicant’s
reply
[31]
In
addition to repeating in large part the arguments in her initial memorandum,
the applicant added some clarification.
[32]
She
states that the purpose of her application to the Court is not to obtain
reconsideration of the evidence but rather an assessment of its treatment by
the immigration officer who, in the applicant’s view, made an unreasonable
decision. She repeats that the humanitarian and compassionate considerations
presented in support of her H&C application must be examined as a whole and
that the officer did not correctly assess the applicant’s hardship and all her
personal circumstances. She also reiterates that the officer did not use the
correct test in his analysis of the best interests of the children involved.
VI. Issues
[33]
This
case raises two issues:
i. Did
the immigration officer apply the correct test in assessing hardship for the
purposes
of
section 25 of the IRPA?
ii.
Was
it reasonable for the immigration officer to find that the applicant
would
not face unusual and undeserved or disproportionate hardship if she had to
apply for permanent residence from outside the country?
VII. Standard
of review
[34]
As
the respondent indicates, the appropriate standard for determining whether the
officer stated the correct test in his assessment of the humanitarian and
compassionate considerations, that is, the first issue in this case, is correctness
because this is a question of law (see Pereira
v Canada (Minister of Citizenship and Immigration),
2011 FC 1413 at para 8, [2011] FCJ No 1784; see also Ebonka v Canada (Minister
of Citizenship and Immigration), 2009 FC 80 at
para 16, [2009] FCJ No 122 [Ebonka] and Premnauth v Canada (Minister
of Citizenship and Immigration), 2009 FC 1125 at
para 20, [2009] FCJ No 1594 [Premnauth]).
[35]
However,
the second issue in this case, that is, the application of this test to the
applicant’s situation, must be judicially reviewed on a reasonableness standard
because it is a question of mixed fact and law (see Pereira at paras 8‑9;
see also Ebonka, above, at para 16 and Premnauth,
above, at para 21). Accordingly, the Court must show deference to the
officer’s decision and intervene only in situations where the impugned decision
does not fall within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
VIII. Analysis
A. Did the immigration officer
apply the correct test in assessing hardship for the purposes of
section 25 of the IRPA?
[36]
In
the first paragraphs of his decision, the immigration officer set out the test
he intended to apply to his analysis of hardship for the purposes of
section 25 of the IRPA, namely, the test of “unusual and undeserved or
disproportionate hardship”, and that is the correct test to apply in this case.
Indeed, as the applicant rightly notes, the Court has already established, in Singh v Canada (Minister of
Citizenship and Immigration), 2009 FC 11 at paras 1-2, [2009] FCJ No 4, the
test to be used in examining hardship in the context of an application for
permanent residence based on humanitarian and compassionate considerations:
1 One of the cornerstones of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), is the requirement
that persons who wish to settle in Canada must, prior to their arrival in
Canada, submit an application from outside Canada and qualify for and obtain a
permanent resident visa. Section 25 of the IRPA gives the Minister the
discretion to approve deserving cases for processing within Canada. This is
clearly an exceptional remedy, as is made clear by the wording of this
provision (Doumbouya v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1186, 325 F.T.R. 186, at paragraph 6).
2 To obtain this exemption, the applicants had to prove
that they would face unusual, undeserved or disproportionate hardship if they
were required to file their respective applications for permanent residence
from outside the country (Doumbouya, above, at paragraph 8; Akinbowale v.
Canada (Minister of Citizenship and Immigration), 2007 FC 1221, at
paragraphs 14 and 24; Djerroud v. Canada (Minister of Citizenship
and Immigration), 2007 FC 981, 160 A.C.W.S. (3d) 881, at
paragraph 32). [Not underlined
in the original.]
[37]
Therefore,
it is appropriate to find that the officer based his decision on the correct
test.
[38]
In
addition, the applicant states that the officer was required to examine the
humanitarian and compassionate grounds as a whole rather than in isolation.
However, as the respondent properly notes, the immigration officer concluded
his decision by stating the following: “Individually and cumulatively, I
am not satisfied, based upon the information provided, that any hardship
Ms. Vera Flores may face in returning to Mexico would be either
disproportionate or unusual and undeserved. [Not underlined in the original.]”
It appears, then, from this passage that contrary to the applicant’s argument
the immigration officer examined the humanitarian and compassionate grounds, on
both an individual and cumulative basis, prior to making his decision.
[39]
Accordingly,
the first issue in this case does not warrant the Court’s intervention.
B. Was it
reasonable for the immigration officer to find that the applicant would not
face unusual and undeserved or disproportionate hardship if she had to apply
for permanent residence from outside the country?
[40]
This
conclusion of the immigration officer was reasonable.
[41]
To
begin, it should be noted that the exemption under section 25 of the IRPA
is the exception, not the rule, and that the onus is, in fact, on the person
submitting an H&C application to adduce evidence that supports the person’s
allegations (see Kisana
v Canada (Minister of Citizenship and Immigration) 2009 FCA 189 at para 35, [2009] FCJ No 713; Owusu v Canada (Minister of Citizenship and Immigration),
2004 FCA 38 at para 5, [2004] 2 FCR 635). Thus, it was incumbent on the
applicant to convince the officer that her personal situation was such that
having to apply for permanent residence from outside the country would cause
unusual and undeserved or disproportionate hardship.
[42]
The
applicant states that the immigration officer committed various errors in
assessing the case that make the decision he gave unreasonable, in particular,
with respect to her establishment in Canada, the best interests of the children
involved, the hardship she would encounter in Mexico and her health. She says
that the officer did not take her personal situation into account in the
decision. From reading the decision, it is possible to ascertain that the
officer conducted a valid examination of the various points the applicant raised.
Indeed, the officer’s decision refers to a series of factors concerning the
applicant’s personal situation, factors that he weighed in his analysis,
including her family relationships, the hardship she had experienced and the
circumstances in which she would return to Mexico. The same is true for her
level of establishment in Canada, which the officer reasonably found to be
insufficient to grant an exemption under section 25 of the IRPA. Moreover,
the officer concluded that the hardship the applicant would encounter in Mexico
and the state of her health could not justify granting an H&C application
only after examining a considerable amount of evidence on this subject.
[43]
As
for the argument concerning the city of Leon, the place where the applicant was
born and where she was abused by her former father‑in‑law, the
Court notes that there was no evidence before the decision‑maker that he
was in that city. In her own letter in support of her application, the
applicant did not discuss the issue of returning to her native city. She had
the burden of presenting the situation, and she did not do so. In addition, the
applicant’s family in Mexico does not just live in the city of Leon. The
decision shows that she has family elsewhere in Mexico City. The immigration officer
cannot be faulted for not considering that the applicant’s former father‑in‑law
was still in the city of Leon. Moreover, it is appropriate to note that the
RPD, in its decision, had concluded that state protection was available.
[44]
The
immigration officer also noted that the applicant had lived with her spouse for
almost 32 months. For him, this demonstrated a certain autonomy on the part of
the applicant, who had thus lived away from her family. He used this situation
to explain that this separation was comparable to the one she will experience
in returning to Mexico except for the fact she will be unable to visit her
family members who remain here. However, he added that she will be able to
communicate with them by telephone, Internet and mail. The applicant disagrees
with this finding. Considering the decision in its entirety, the connection the
officer made between these two situations is reasonable. Certainly, it will be
more difficult to live at a distance, but the applicant will be able to continuously
keep in touch with her mother and her family in Canada.
[45]
The
applicant also complains that the decision does not really take into
consideration the fact that the person being forced to return to Mexico is a
young 23‑year old woman who has experienced painful events. After reading
the decision, I disagree with this. The officer considered these facts in his
decision. The applicant would have preferred that the issue be addressed in a
more elaborate manner, but in the circumstances the comments made were
reasonable.
[46]
It
is also submitted that the officer referred to information from the PRRA
decision. As the respondent states, such references are acceptable and do not
justify the Court’s intervention on this issue (see Chowdhury v Canada
(Minister of Citizenship and Immigration), 2012 FC 943, para 15, [2012] FCJ
No 1012).
[47]
In
addition, the applicant believes that her psychological condition caused by her
former father‑in‑law’s assaults should have led the officer to
conclude that it was better that she remain in Canada. Like the officer, the
Court notes that the therapy sessions are quite recent and that there are
psychological services in Mexico. Such a finding is reasonable.
[48]
Finally,
regarding the more specific question of the test that applies to the issue of
the interests of the children involved, I am of the view that the officer
applied the correct test. As the Federal Court of Appeal stated in Hawthorne
v Canada (Minister of Citizenship and Immigration), 2002 FCA 475 at para 4,
[2002] FCJ No 1687: “The ‘best interests of the child’ are determined by
considering the benefit to the child of the parent’s non-removal from Canada as
well as the hardship the child would suffer from either her parent’s removal
from Canada . . .”. In this case, the officer did in fact discuss the
benefits of the applicant’s presence for her brothers and sisters. Moreover,
the officer was alert, alive and sensitive to the best interests of the child (see Legault v Canada (Minister of Citizenship and
Immigration), 2002 FCA 125 at para 12, [2002] FCJ No 457; Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 75; Kolosovs
v Canada (Minister of Citizenship and Immigration), 2008 FC 165 at paras
8-12, 323 FTR 181). Indeed, he examined the
evidence presented to him but concluded that the best interests of the children
did not justify granting the applicant’s H&C application. Moreover, as the
respondent points out, the applicant is not the mother of the children
involved, and she is not their primary support.
[49]
In
his decision, the immigration officer showed that he was alive to the
applicant’s situation and recognized that she would certainly experience
hardship in returning to Mexico. However, after examining the evidence before
him, he nonetheless found that he was not satisfied, based on this evidence,
that Vera Flores would face unusual and undeserved or disproportionate
hardship if she had to apply for permanent residence from Mexico. He reasonably
assessed the grounds submitted by the applicant and, considering the
examination he conducted, it was completely reasonable for him to reach that
conclusion. In addition, as the respondent points out, the role of the Court is
not to re‑examine the evidence.
[50]
Accordingly,
the second issue in this case does not justify the Court’s intervention.
[51]
The
parties were invited to submit a question for certification, but no question
was proposed.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this
application for judicial review is dismissed. No question is certified.
“Simon Noël”
Certified
true translation
Mary
Jo Egan, LLB
Email this Content