Docket:
IMM-496-13
Citation:
2014 FC 530
Ottawa, Ontario, June 2, 2014
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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SANDRA ELIZABETH MOLINA
DE VAZQUEZ, LEANDRO MARIANO VAZQUEZ MOLINA, LAUTARO NAHUEL VAZQUEZ
MOLINA
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of I. Fonkin, Senior Immigration Officer (the Officer), refusing
Sandra Elizabeth Molina de Vazquez’s (the principal Applicant) application for
permanent residence from within Canada based on humanitarian and compassionate
(H&C) grounds. The decision was rendered on November 22, 2012 and
communicated to the principal Applicant on January 2, 2013. The application
also included two of the principal Applicant’s sons, Leandro and Lautaro, both
minors at the time of the decision. The principal Applicant has two other
children; Hernan, who was recently deported to Argentina, and Geronimo, a 10 year
old Canadian citizen.
[2]
On February 21, 2013, Justice Zinn dismissed the
motion for a stay of execution. The principal Applicant and her sons were
removed on February 23, 2013.
[3]
On the basis of the analysis set out below, this
application for judicial review ought to be dismissed.
I.
Facts
[4]
The principal Applicant is a citizen of Argentina. She left Argentina on February 14, 2000, after having allegedly been threatened
because her husband’s father was involved in crime. She arrived in Canada on February 16, 2000 along with her husband Omar Gustavo Vazquez and her three sons
Hernan (born in 1994), Leandro (born in 1996) and Lautaro (born in 1997). They
made a refugee claim upon their arrival, but it was dismissed on October 17,
2000 for lack of nexus between their alleged persecution and any of the
Convention grounds.
[5]
In May 2001, the principal Applicant and her
family left Canada for the United States, where they lived until their return
to Canada on August 18, 2001. They then made a second refugee claim.
[6]
In April 2002, the principal Applicant gave
birth to her fourth son, Geronimo. In October 2002, the principal Applicant and
her husband separated.
[7]
The second refugee claim was denied on January
29, 2003 but the principal Applicant claims she had no knowledge of it because
she was no longer living with her husband and she had moved to a different
address. The Officer mentioned in his reasons, however, that the principal Applicant
applied to this Court for leave to appeal the negative refugee determination in
2003, which was eventually denied.
[8]
The Applicants failed to appear for their Pre-Removal
interview scheduled for May of 2005. It was only in 2008, when the principal
Applicant’s ex-husband was deported to Argentina, that she claims she learned
of what had happened to their second refugee claim.
[9]
In April 2012, the principal Applicant’s son
Leandro was intercepted by the police. It is at that point in time that the principal
Applicant and her family came to the attention of the Canadian Border Services
Agency (CBSA). When the principal Applicant contacted CBSA, she was served with
a Pre-Removal Risk Assessment (PRRA). By then, she had been working without an
employment authorization for eight years (her last one having expired in July
of 2004).
[10]
The principal Applicant’s eldest son, Hernan,
also got into trouble with the law, and his PRRA was found to be negative. He
was therefore deported in May 2012, after he turned 18.
[11]
The principal Applicant’s PRRA was rejected on
November 21, 2012 on the grounds that she had not rebutted the presumption of
state protection and the finding with respect to the existence of an internal
flight alternative.
[12]
On June 19, 2012, the principal Applicant filed
an H&C application on two main grounds: her establishment in Canada and the best interests of her children (BIOC).
[13]
The H&C application was dismissed on
November 22, 2012. The decision was communicated to the principal Applicant on
January 2, 2013. The Applicants filed the present application for leave and
judicial review of the H&C dismissal on January 17, 2013.
[14]
On February 14, 2013, the Applicants requested a
stay of removal, which was dismissed on February 21, 2013. The principal Applicant
and her minor sons were removed to Argentina on February 23, 2013.
II.
Decision under review
[15]
After reviewing the principal Applicant’s
immigration history in Canada, her employment, volunteer work, and letters in
support of her application, the Officer also reviewed her four sons’
conditions. The Officer noted, among other things, the psychologist report
regarding Geronimo’s learning disability and anxiety, Hernan’s deportation,
Leandro’s special education teacher’s statements regarding his learning
disability, and Lautaro’s involvement in soccer.
[16]
Regarding the principal Applicant’s
establishment, the Officer noted that, while she has been living in Canada for
over 12 years and has had steady employment, first as a cleaner and then as a
pastry specialist, the evidence had not shown that returning to Argentina would
lead her to lose her experience, skills and training, or that she would be unable
to find similar employment. Also, even if she has been involved in volunteer
activities in her community and at her son’s school, the principal Applicant
has not demonstrated that she would be unable to partake in similar activities
in Argentina or that doing so would result in undue hardship.
[17]
The Officer also considered the BIOC. Although
the Officer acknowledged that Leandro and Lautaro would probably face a phase
of adjustment in returning to Argentina, the Officer indicated that they would
have many options to finish their high school studies and would receive strong
family support. The Officer then referred to various websites describing the
high quality of the Argentinean educational system.
[18]
The Officer mentioned that English schools are
also accessible since English is Argentina’s second official language. The
Officer also indicated that many special education programs were implemented
and could address Leandro’s learning disability.
[19]
The Officer further stated that Leandro and
Lautaro were fluent in Spanish, having been exposed to the Spanish language at
home and through their involvement in the Latin community in Canada.
[20]
The Officer noted that with regards to
Geronimo’s situation, being a Canadian citizen, moving to the Argentinean
schooling system and culture would probably involve a significant adjustment. However,
considering the Argentinean government’s efforts to provide a strong
educational system, good family support, and keeping in mind that Spanish is the
primary language at home, the Officer found that Geronimo’s transition would be
manageable.
[21]
In his summary, the Officer notes:
The Applicant came to Canada in the year 2000. The Applicant had two refugee hearings and two negative
determinations. After the refugee decisions were delivered to the Applicant,
CBSA requested that the Applicant appear for a Pre-Removal interview, in 2005.
The Applicant did not appear. A warrant was issued against the Applicant for
failing to appear. The warrant remained active for approximately 7 years when
in April of 2012 the Applicant presented herself before the CBSA as her son
Leandro came to CBSA’s attention. In the following month, in May, the
Applicant’s eldest son Hernan was deported to Argentina. In June the Applicant
submitted this H&C application. I note that the last valid Work Permit the
Applicant was issued expired on 17Jul2004.
The Applicant evaded the immigration
authorities for approximately 7 years. The Applicant states that she is
established in Canada; however, the moderate level of establishment the
Applicant achieved was based on working without authorization and by not
complying with the immigration laws and policies. Not appearing as requested by
the Canadian authorities was a choice the Applicant made and that has brought
much stress and anxiety to the Applicant and her children.
Decision, p 11; Application Record, p 16
[22]
The Officer added that, even if positive weight
can be given to the BIOC, it does not, by itself, outweigh all the other
factors considered. This resulted in his conclusion that the principal Applicant
had not demonstrated that her return to Argentina would result in unusual,
undeserved or disproportionate hardship.
III.
Issues
[23]
This application for judicial review turns
essentially on the following three questions:
A.
Did the Officer err by relying on four
independently researched sources regarding education in Argentina without providing the Applicants with the opportunity to respond?
B.
Did the Officer err in his analysis of the best
interests of the children?
C.
Did the Officer err in his assessment of the
Applicants’ establishment in Canada?
IV.
Analysis
[24]
It is well established that the reasonableness
standard applies on an application for judicial review of an H&C decision:
see e.g., Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at para 18. As for the first question, it must be assessed on the
standard of correctness as it refers to an issue of procedural fairness: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Stephenson v Canada (Minister of Citizenship and Immigration), 2011 FC 932 at para 29.
[24]
A.
Did the Officer err by relying on four
independently researched sources regarding education in Argentina without providing the Applicants with the opportunity to respond?
[25]
Counsel for the Applicants argued that the
Officer erred in relying on extrinsic evidence that was not full, fair and
accurate, and breached procedural fairness by not giving the Applicants an
opportunity to respond. The sources relied upon regarding education in Argentina are four websites, including tourism websites. These websites were used to
conclude that the principal Applicant’s sons would have access in Argentina to
education and special education programs for students with learning disabilities.
[26]
The Officer did not disclose these sources to
the Applicants, and counsel submitted that even if they are found online and
are publicly available, the Applicants could not reasonably be expected to know
about them. It is also contended that the evidence relied upon was not full,
fair and accurate because the sources are not of the nature referred to in the Operational
Manual IP5 – Immigrants Applications in Canada made on Humanitarian or Compassionate
Grounds (the Manual) and do not constitute a relevant portrayal of the
Argentinean educational system.
[27]
I agree with the Applicants’ assertion that not
everything found online can be considered as publicly available. If it were
otherwise, as I stated in Sinnasamy v Canada (Minister of Citizenship and
Immigration), 2008 FC 67 (at para 39), it “would
impose an insurmountable burden on the applicant as virtually everything is
nowadays accessible on line”. An officer should therefore be prudent
when considering and relying upon “materials that could
not be described as the kind of standard documents that applicants can
reasonably expect officers to consult” (Mazrekaj v Canada (Minister
of Citizenship and Immigration), 2012 FC 953 at para 12). In fact, as
stated by the Federal Court of Appeal in Mancia v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461 [Mancia] at para 22:
[W]here the immigration officer intends to rely
on evidence which is not normally found, or was not available at the time the
applicant filed his submissions, in documentation centres, fairness dictates
that the applicant be informed of any novel and significant information which
evidences a change in the general country conditions that may affect the
disposition of the case.
See also: N.O.R. v Canada (Minister of Citizenship and Immigration), 2011 FC 1240 at para 28; Arteaga v Canada (Minister of Citizenship and Immigration), 2013 FC 778 at para 24; Begum v Canada (Minister of Citizenship and Immigration), 2013 FC 824 at para 36
[28]
That being said, it is not the document itself
which dictates whether it is “extrinsic” evidence which must be disclosed to an
applicant in advance, but whether the information itself contained in that
document is information that would be known by an applicant, in light of the
nature of the submissions made: Jiminez v Canada (Minister of Citizenship
and Immigration), 2010 FC 1078 at para 19; Stephenson v Canada (Minister
of Citizenship and Immigration), 2011 FC 932 at paras 38-39. In the case at
bar, while the particular websites consulted by the Officer might be considered
somewhat unorthodox and are clearly not standard sources, they contained
general information on the Argentinean school system which would have been
reasonably accessible by the Applicants. They provide general information on
the Argentinean school system that could have been found elsewhere by the
Applicants, and that information can clearly not be characterized as “novel and significant information which evidences a change in
the general country conditions that may affect the disposition of the case”,
as stated by the Federal Court of Appeal in Mancia.
[29]
I would also venture to add that the principal Applicant
did not rely on her children’s learning disabilities in her H&C submissions
before the Officer. There was no submission that the children would not be able
to register for school in Argentina, or that they would not receive the proper
care and support that they may need to cope with their learning challenges. As
noted by the Respondent, the stated hardship was that they would “probably readjust losing time in school” [sic] and
would be “deprived of considering any of their already
chosen career paths if they are sent back to Argentina. The career
opportunities in Argentina are very different of [sic] the Canadian society”.
In that context, the Officer’s findings with respect to Argentina’s educational system and its capacity to deal with special needs, was
superfluous, to the extent that the issue was not even raised by the
Applicants.
[30]
The principal Applicant filed a supplementary
affidavit with the Court on December 16, 2013, outlining the difficulties she
encountered in registering her sons in school and substantiating her claim that
special education programs for learning disabilities are unavailable in Argentina. She claimed that if she had been presented with the “extrinsic” evidence about Argentina’s educational system, she would then have provided that affidavit to the Officer.
[31]
It is trite law that evidence that was not
before the decision-maker at the moment of its decision, should not be taken
into consideration during the judicial review: Quiroa v Canada (Minister of
Citizenship and Immigration), 2007 FC 495 at para 26; Adil v Canada
(Minister of Citizenship and Immigration), 2010 FC 987 at para 44; Shahid
v Canada (Minister of Citizenship and Immigration), [1993] FCJ No 1333 at
para 4. It will be accepted only when issues of procedural fairness are at
stake and, if so, when the information is necessary. In the case at bar, the
information found in the supplementary affidavit relates to a question of fact,
and clearly did not exist prior to the Officer’s decision being rendered.
Moreover, the information is of no probative value and purely anecdotal; it is
self-serving and the affiant could not be cross-examined. This affidavit is therefore
of no value in assessing the reasonableness of the Officer’s findings with
respect to the Argentinean school system.
[32]
For all of the foregoing reasons, I am therefore
of the view that the evidence relied upon by the Officer was not extrinsic, and
that the Officer did not breach procedural fairness in failing to provide the Applicants
with the opportunity to respond.
B.
Did the Officer err in his analysis of the best
interests of the children?
[33]
The principal Applicant submits that the
Officer’s conclusions on BIOC were unreasonable since the particular needs of
her sons, were not properly taken into consideration. Even if the Officer had
noted that English education and special education programs were offered in Argentina, he did not assess whether the principal Applicant was able to afford this kind
of education or if it would effectively be available to her sons. Particularly
regarding the principal Applicant’s youngest son Geronimo, the principal Applicant
considers that the Officer did not take into account his anxiety and the fact
that his Spanish linguistic abilities are very limited because he had neither learned
to speak nor write Spanish. It was therefore unreasonable, according to the principal
Applicant, to conclude that her sons would face a moderate adjustment.
[34]
Once again, the findings of the Officer must be
assessed in the context of the principal Applicant’s submissions on her H&C
application. There was indeed evidence on the record (primarily school records
and, in Geronimo’s case, a psychological assessment) showing the children’s
(and especially Geronimo’s) special educational needs. However, the H&C
submissions do not raise any learning disability; to the contrary, it is stated
that Leandro and Lautaro “are very smart students, both
have average grades in school they are good athletes” (Applicants’
Record, p 52). As for Geronimo, the only mention of his educational challenges
is to the effect that he suffers “from anxiety and
learning disability in the moderate to severe range” as a result of his
mother’s problems with regards to her immigration status (Applicants’ Record, p
54). The unusual, undeserved or disproportionate hardship alleged on behalf of
the children is that they would “probably” have to
“readjust losing time in school”, and “would be deprived of considering any of their already chosen
career paths if they are sent back to Argentina” (Applicants’ Record, p
56).
[35]
It appears that the Officer considered the
educational system in Argentina as a result of the contradiction between the
consultant’s statements referred to in the previous paragraph and the evidence
submitted in support of the H&C application. The Officer’s findings with
respect to the high quality of the Argentinean educational system are supported
by the evidence, and there was nothing before him showing that Geronimo would
not have access to a school where his special needs would be addressed.
[36]
The Officer did not deny that the children would
have to go through an adjustment period. However, he did conclude that the adjustment
required for the two older boys would be a moderate one in light of their
language abilities, family support and the Argentinean educational system. The
Officer also accepted that the adjustment for the younger child may be a
significant one, in light of the fact that his Spanish language skills are weak.
He was of the view, however, that it would be manageable given his exposure to
the Spanish language and culture at home. These findings are entirely
reasonable, and fall “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”:
Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 at para 47.
[37]
Even if it could be argued that the Officer has
underestimated the difficulties that the children would face upon returning to Argentina, particularly for Geronimo, it would hardly be sufficient to override his overall
analysis. It is to be remembered that the Officer did conclude that the best
interests of the children was a positive factor in the overall assessment of an
H&C application. He found, however, that this one positive factor does not
outweigh all of the other factors, and such a finding is consistent with the
decision of the Supreme Court in Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, where Justice L’Heureux-Dubé found (at para
75) that the children’s best interests will not always outweigh other
considerations.
C.
Did the Officer err in his assessment of the
Applicants’ establishment in Canada?
[38]
The principal Applicant submits that the
Officer’s conclusions regarding her establishment in Canada were unreasonable.
Not only has she completed a pastry workshop, supporting the fact that she has
special training for her employment, but she also provided a specialized
service to her employer (i.e. South American pastries). More importantly, she
argues that the Officer should not have put as much emphasis on the fact that
she overstayed in Canada following the expiry of her work permit in 2004. She
relied on Sebbe v Canada (Minister of Citizenship and Immigration), 2012
FC 813, for the proposition that it is “irrelevant
whether the persons knew he or she was subject to removal when they took steps
to establish themselves and their families in Canada” (at para 23).
[39]
I cannot accede to this argument. First of all,
the Officer does not assert that the principal Applicant did not provide
evidence of special training; what the Officer says is that she has not
provided evidence that she has special training and that her skill set
would be lost if she returned to her country of origin, which could, if
established, amount to undue hardship (Applicants’ Record, p 13).
[40]
Second, the principal Applicant provided no
evidence at all that her employer would experience hardship if she were
removed. In fact, the Officer finds that she works in an occupation where her
skills are not unique to Canada. There is no evidence that her employer will
have any difficulty at all in replacing her upon removal. Moreover, the principal
Applicant has not demonstrated she would not be able to find other employment
in Argentina.
[41]
I agree with the Applicants that being without
status does not automatically lead to the non application of section 25 of
the Immigration and Refugee Protection Act, SC 2001, c 27: acting
otherwise would render the H&C scheme irrelevant (see e.g., Benyk v Canada (Minister of Citizenship and Immigration), 2009 FC 950 at para 14). If merely remaining
in Canada pending the outcome of legal procedures, even after a failed refugee
claim for example, may not necessarily be a negative factor, the same cannot be
said if an applicant has been flouting the law and ignoring lawful orders to
leave the country. I agree with the Respondent that obtaining a discretionary
exemption from the application of the usual legal requirements, as a result of
disobeying the law, would fly in the face of immigration policy. As stated by
the Federal Court of Appeal in Canada (Minister of Citizenship and
Immigration) v Legault, 2002 FCA 125 [Legault] at para 19:
In short, the Immigration Act and the Canadian
immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with
the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives
himself priority over those who do respect the requirements of the Act. The
Minister, who is responsible for the application of the policy and the Act, is
definitely authorised to refuse the exception requested by a person who has
established the existence of humanitarian and compassionate grounds, if he
believes, for example, that the circumstances surrounding his entry and stay in
Canada discredit him or create a precedent susceptible of encouraging illegal
entry in Canada. In this sense, the Minister is at liberty to take into
consideration the fact that the humanitarian and compassionate grounds that a
person claims are the result of his own actions. (emphasis added)
[42]
Contrary to the Applicants’ argument, Legault
cannot be distinguished from the case at bar because the applicant in that case
had illegally entered Canada to evade prosecution in the United States. It is clear that Legault stands for the broader proposition that
positive factors may not prevail if an applicant has not acted in good faith
and in compliance with Canadian laws. Those who ignore lawful orders to leave
the country, contribute to eroding the immigration scheme of Canada and creating a precedent susceptible of encouraging disregard for Canada’s laws. When
establishment is a function of having deliberately chosen to evade removal, it
should not provide an applicant with an advantage over those who have complied
with the law. Indeed, this finding underlies the reasons of the motion Judge for
dismissing the Applicants’ motion to stay their removal.
[43]
The Manual specifically addresses the situation
in which individuals choose to remain in Canada after flouting Canada’s immigration laws, and requires officers to treat it as a negative factor.
Furthermore, the Manual sets out certain criteria for consideration, which
includes whether the applicant has a good civil record. In the case at bar, it
is clear that the Applicants do not have a good civil record based on both their
flouting of Canada’s immigration laws, which resulted in being underground for
seven years, and in the son coming to the attention of Toronto police. The principal
Applicant claimed she did not know she was supposed to report for a Pre-Removal
interview in 2005. It is hard to believe, however, that she lived all those
years in Canada without ever inquiring as to her status, especially after
learning that her husband had been removed. She was at the very least negligent
(bordering on wilful blindness) in not inquiring about regularizing her status
in Canada, and it appears that she only submitted her H&C application once
having been caught through the actions of the police and then the CBSA.
[44]
I find, therefore, that the Officer did not err
in taking this factor into consideration and did not give it overriding weight,
as argued by the Applicants. The sole factor given positive consideration was
the BIOC. Despite characterizing the principal Applicant’s establishment as
“moderate”, the Officer pointed out that her skills were not unique to Canada
and that they would not be lost upon removal, that schools and newcomer
facilities are not reliant on the principal Applicant for her services, and
that she is not established in Canada to a degree that should she return to her
country of origin, she would suffer unusual, and undeserved or disproportionate
hardship due to severing ties with Canada. In those circumstances, the Officer
could give significant weight to the fact that her establishment was accumulated
as a result of having evaded removal and remaining underground until caught by
police on an unrelated matter.
V.
Conclusion
[45]
For all of the foregoing reasons, I come to the
conclusion that this application for judicial review must be dismissed. No
question for certification was proposed by the parties, and none will be
certified.
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