Docket: IMM-5877-13
Citation:
2015 FC 233
Ottawa, Ontario, February 23, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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FRANCISCO GONZALEZ CARRILLO
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Applicant
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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
I.
Nature of the Matter and Background
[1]
The Applicant seeks judicial review of a
decision whereby he was refused an exemption from the in-Canada selection criteria
for applying for permanent residence.
[2]
The Applicant is a 41 year-old citizen of
Guatemala, where his wife and teenaged children still live. After leaving
Guatemala in August, 2007, the Applicant lived in the United States of America
for a while before making his way to Canada on May 13, 2008, where he sought refugee
protection. He claimed that he was a security officer in Guatemala who had been
targeted by dangerous criminals for his role in the investigation of a
high-profile killing, and that his brother had been murdered because of his
actions.
[3]
On March 11, 2011, the Applicant’s claim for
refugee status was rejected by the Refugee Protection Division [the RPD] of the
Immigration and Refugee Board. Although the RPD found that the Applicant was a
security officer and the killing that he described had happened, it was not
convinced that the Applicant was personally involved in the investigation
because he “could not describe where the incident took
place, what time of day, how it happened, how police divided up
responsibilities, who did what, where the culprits were, or how anything at all
transpired that day.” Even if the RPD had believed him, however, the
Applicant had said that his only job was to provide security, first at the
murder scene and then again when the culprits were arrested. The RPD found that
would not have made him a target, especially since there was no evidence that
any of the other officials who were far more instrumental in the investigation
were being targeted. Finally, the RPD was not convinced that the murder of the
Applicant’s brother and the incidents where his car and home were shot at were
connected to the investigation. Rather, the RPD determined that those incidents
were just symptoms of the endemic criminality and violence that plagues Guatemala. The RPD thus dismissed the Applicant’s refugee claim, and this Court denied the
Applicant leave to apply for judicial review of that decision on July 15, 2011
(Gonzalez Carrillo v Minister of Citizenship and Immigration,
IMM-2478-11).
[4]
On June 20, 2012, the Applicant applied for
permanent residence on the basis of humanitarian and compassionate [H&C]
grounds under subsection 25(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the IRPA], but his application was refused some nine
months later. The Applicant then applied for judicial review of the negative
H&C decision, but he discontinued the judicial review application after the
Minister of Citizenship and Immigration agreed to reconsider the matter.
[5]
Nevertheless, the senior immigration officer
[the Officer] who reconsidered the Applicant’s H&C application also refused
the application on August 29, 2013. The Applicant now seeks judicial review of
that Officer’s decision pursuant to subsection 72(1) of the IRPA,
requesting that this Court set aside the negative decision and send the matter
back to a different officer for re-determination.
II.
Decision under Review
[6]
The Applicant repeated in his H&C
application many of the same concerns that had been rejected by the RPD,
although he also added that another brother had since been murdered and the
Applicant fears that it happened for the same reasons. The Officer noted that subsection
25(1.3) of the IRPA precludes consideration of factors under sections 96
and 97(1) of the IRPA, but said that these matters could still be
relevant to assessing the degree of hardship the Applicant would face.
Nevertheless, the Officer gave a great deal of weight to the RPD’s findings,
and so found that the Applicant did not face any specific threat in Guatemala. The Officer also considered the United States’ Department of State report on
country conditions in Guatemala. Although there are many problems in that
country, the Officer concluded that the “research does
not indicate that the government of Guatemala subjects its citizens to a
sustained and systemic denial of their core human rights,” and that the
Applicant would have recourse to state protection. The Officer also decided
that the Applicant had not proven that “he would be
subjected personally to conditions not faced by the general population.”
[7]
The Applicant had presented to the Officer
letters from a psychologist who had examined him and opined that the Applicant
would be unable to resume his role in his family if he returned to Guatemala because he suffered from major depressive disorder [MDD] and post-traumatic
stress disorder [PTSD]. The Officer was not convinced that this would affect
his ability to provide for his family, noting that the Applicant had quickly obtained
employment once he came to Canada, and that he only went to see the
psychologist some four years later in advance of his H&C application. The
Officer also did not consider it reasonable that the Applicant would not have
sought treatment after his diagnosis. The Officer determined that the Applicant
would suffer from the same disorders wherever he was in the world, and that
there are facilities for the treatment of such disorders available in Guatemala. The Officer thus rejected this aspect of the Applicant’s claim.
[8]
The Officer next considered the situation of the
Applicant’s wife and children, to whom the Applicant has remained loyal and had
been sending money. The Officer decided that the best interests of the children
would be served if the Applicant returned to them in Guatemala and supplied his
care and support. While the Applicant’s counsel had suggested that the
Applicant might harm his family or himself because of his MDD and PTSD, the
Officer stated there was no evidence of that and that his family could seek
protection from the police if such a risk did materialize. Furthermore, the
Officer rejected the contention that the Applicant’s disability would prevent
him from finding employment in Guatemala since it had not affected his ability
to work in Canada. Although the Applicant’s standard of living would likely be
lower in Guatemala, the Officer observed that that is true of many countries
and, hence, did not consider this to be a hardship unforeseen by the IRPA.
[9]
The Officer was also not convinced that
disturbing the Applicant’s establishment in Canada would be an unusual and
undeserved or disproportionate hardship. Although he had a good civil record,
was a hard worker and had integrated into his community, this level of
establishment was expected due to the benefits supplied to him while he awaited
a decision on his refugee claim. The Officer also was not convinced that the
hardship from having to forsake his efforts here was undeserved, since the
Applicant could have left Canada before he had achieved these things and never
had a reasonable expectation that he would be allowed to stay permanently.
Furthermore, the Applicant could maintain contact with his friends he leaves
behind by way of the internet, telephone or mail, and there was no reason to
expect that he could not build a similar support network in Guatemala. The Officer thus gave little weight to the Applicant’s level of establishment.
[10]
The Officer concluded by referring to Irimie
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1906 (QL)
at para 26, 10 Imm LR (3d) 206, where Mr. Justice Pelletier observed that “[t]he H & C process is not designed to eliminate
hardship; it is designed to provide relief from unusual, undeserved or
disproportionate hardship.” While it might be hard for the Applicant to
readapt to life in Guatemala, the Officer was not convinced that it rose to
that level of hardship and therefore dismissed the application.
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[11]
The Applicant states that the Officer
fundamentally erred by failing to properly analyze the psychological harm to
the Applicant if he returns to Guatemala. Although the Officer apparently
accepted the diagnosis of MDD and PTSD, the Applicant argues that the Officer
made only collateral references to the report and never addressed its main
thesis, which was that the Applicant’s mental condition would deteriorate in
Guatemala. The Applicant says this would be like sending a soldier with PTSD
back into a war zone, and he asserts that this Court has set aside other
H&C decisions for similar errors (citing Lara Martinez v Canada (Citizenship
and Immigration), 2012 FC 1295 at para 24, 14 Imm LR (4th) 66; Perez
Arias v Canada (Citizenship and Immigration), 2011 FC 757 at para 15, 3 Imm
LR (4th) 100).
[12]
Further, the Applicant says that the Officer was
wrong to draw an adverse inference from the Applicant’s failure to seek
treatment, and adds that the Officer’s reference to the Pan American Health
Organization [PAHO] report is irrelevant. The Applicant says that the
psychological reports were just evaluations and not prescriptions for any form
of clinical treatment.
[13]
The Applicant states that the Officer’s decision
lacks not only humanity, but compassion as well. The Applicant has suffered
immense hardship during his life, and he says that it was cold and cruel for
the Officer to state that his family could access police protection if his
mental disabilities frighten them. In addition, the Applicant says that the
Officer was simply wrong to state that the Applicant did not provide “any information on their [his family’s] personal circumstances
or indicated that they have been subjected to any threats or…faced hardships in
any way.” The letters from the Applicant’s mother and from his wife
contradict this finding by the Officer.
[14]
The Applicant also criticizes the Officer’s best
interests of the children [the BIOC] analysis. Specifically, the Applicant says
that the Officer failed to apply the paradigm established in Williams v Canada (Citizenship and Immigration), 2012 FC 166 at para 63 [Williams]. He also
says that the Officer was wrong to mention that the Applicant was familiar with
the language and customs in Guatemala, as that has nothing to do with the BIOC.
Furthermore, the Applicant says that if the psychological reports were accepted,
it would not be in the best interests of his children if he returned to
Guatemala.
[15]
The Applicant further argues that the Officer
unreasonably dismissed the general country conditions evidence. He says that Guatemala is a poor and inhospitable country plagued by crime and violence. He argues that
he “was not required to show how he would be personally
affected” by those conditions, and that it was unreasonable for the
Officer to dismiss any hardship he would face on the basis that others in Guatemala are equally affected (citing Diabate v Canada (Citizenship and Immigration), 2013
FC 129 at paras 36-37, 427 FTR 87 [Diabate]).
B.
The Respondent’s Arguments
[16]
The Respondent says that the decision under
review is reasonable and falls within the acceptable range of outcomes on the
facts and the law. The Respondent says that the Applicant’s arguments basically
ask the Court to reweigh the evidence.
[17]
In the Respondent’s submission, the Officer not
only refers to the psychological reports, but assesses the contents of such
reports appropriately and reasonably. The Respondent says it was reasonable for
the Officer to consider the PAHO report when determining what treatment might
be available to the Applicant for his psychological problems in Guatemala. According
to the Respondent, these reasons satisfy the criteria set out in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16, [2011] 3 S.C.R. 708, which has significantly reduced the
scope for setting aside a decision on the basis that the decision-maker did not
sufficiently consider the contents of a psychological report (citing Kaur v
Canada (Citizenship and Immigration), 2012 FC 1379 at paras 33-34, [2014] 2
FCR 3 [Kaur]).
[18]
The Respondent also argues that the Officer did
not err when assessing the BIOC. The Applicant would be reunited with his
children if he returned to Guatemala, and the Officer says that it was
reasonable to find that to be in their best interests. Further, the Applicant
argues that officers are not required to apply the Williams formula
(citing Webb v Canada (Citizenship and Immigration), 2012 FC 1060 at
para 13, 417 FTR 306). In short, the Respondent says that the Officer was
alert, alive and sensitive to the BIOC and the decision in this regard was reasonable.
[19]
Similarly, the Respondent argues that there was
insufficient evidence that the Applicant would harm anyone or could not find
employment in Guatemala, and says that it was reasonable for the Officer to
recognize that.
[20]
As to the country conditions, the Respondent claims
that the Applicant had a burden to satisfy the Officer that he would face
hardship in this respect (citing Piard v Canada (Citizenship and
Immigration), 2013 FC 170; Owusu v Canada (Minister of Citizenship and
Immigration), 2004 FCA 38, [2004] 2 FCR 635 [Owusu]). The Applicant did
not do so in this case, so the Respondent contends that the Officer did not err
by rejecting his application.
IV.
Issues and Analysis
A.
Standard of Review
[21]
The appropriate standard of review for questions
of mixed fact and law with respect to an H&C decision is that of
reasonableness (see: Inneh v Canada (Citizenship and Immigration), 2009
FC 108 at para 13; Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at para 18, [2010] 1 FCR 360). The Federal Court of Appeal
recently confirmed that in Kanthasamy v Canada (Citizenship and Immigration),
2014 FCA 113 at paras 30, 32, 372 DLR (4th) 539 [Kanthasamy], saying that
an H&C decision is analogous to the type of decision that attracted the
reasonableness standard of review in Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
SCR 559.
[22]
Thus, the Court should not interfere if an
H&C officer’s decision is intelligible, transparent, and justifiable and
falls within the range of possible, acceptable outcomes that are defensible in
respect of the facts and the law. A reviewing Court can neither reweigh the
evidence that was before the Officer, nor substitute its own view of a
preferable outcome: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at paras 59 and 61, [2009] 1 S.C.R. 339. As a corollary, the Court does not
have “carte blanche to reformulate a tribunal’s
decision in a way that casts aside an unreasonable chain of analysis in favour
of the court’s own rationale for the result” (Alberta (Information
and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at
para 54, [2011] 3 S.C.R. 654).
B.
Was the Officer’s Decision Reasonable?
[23]
In reviewing the Officer’s decision in this
case, it is important to note that section 25 of the IRPA allows for
exemptions from the general rule in section 11 of IRPA, which requires
foreign nationals to apply for visas to enter Canada from outside of Canada. It
is well-established by the case law that H&C decisions by senior immigration
officers are highly discretionary and, thus, entitled to deference by this
Court.
[24]
In this case, it cannot be said that the Officer
unreasonably assessed or failed to properly consider the psychologist’s
reports. On the contrary, while the Officer may not have specifically mentioned
all of the evidence presented by such reports, it is clear upon review of the
Officer’s decision that he or she specifically considered the main conclusion
that the Applicant would suffer from PTSD and MDD wherever he is in the world
and, also, reasonably determined that there are health care facilities and
treatment available to the Applicant in Guatemala.
[25]
Also, it cannot be said that the Officer
unreasonably assessed the best interests of the Applicant’s children. Although
the Applicant’s submissions to the Officer as to the BIOC were relatively
brief, the Officer nonetheless explicitly addressed not only the Applicant’s
argument that the BIOC would be best served if the children eventually were
reunited with their father in Canada where he is earning income, but also the
other factors such as the economic conditions in Guatemala, the Applicant’s
psychological conditions and the Applicant’s employment opportunities. Upon
review of the Officer’s decision and reasons in this regard, it is apparent
that he or she was alert, alive and sensitive to the best interests of the
Applicant’s children.
[26]
Lastly, the Officer properly considered the
hardship the Applicant would face upon return to Guatemala. The Officer correctly
prefaced the decision by acknowledging the principle that when risk is cited as
a factor in an H&C application, it is to be assessed in the context of an
applicant’s degree of hardship. After reviewing the country conditions in
Guatemala, the Officer reasonably found that the Applicant had failed to
establish that he would be subjected personally to any negative country conditions,
and had failed to show that the hardship of his return to Guatemala amounted to
unusual and undeserved or disproportionate hardship. Moreover, it was
reasonable for the Officer here not to reassess the risk that had already been
assessed by the RPD.
[27]
Admittedly, the Officer problematically implied
that hardship from country conditions only counts if it is “not faced by the general population.” Importing such
a requirement from subparagraph 97(1)(b)(ii) of the IRPA is an error (Diabate
at para 36), as the “focus should be upon the hardship
to the individual and, once established, that hardship need not be greater than
that faced by anyone else in that country” (Maroukel v Canada
(Citizenship and Immigration), 2015 FC 83 at para 35). In this case, however,
the Officer reasonably agreed with the RPD’s findings that the Applicant had
never been targeted by criminals in Guatemala. As such, the Applicant failed to
establish any direct link between the country conditions evidence and his own
situation (Kanthasamy at para 48). While the Officer’s choice of
phrasing was unfortunate, judicial review is not a “line-by-line
treasure hunt for error” (Communications, Energy and Paperworkers
Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at
para 54, [2013] 2 S.C.R. 458), and reasons “should be read
with a view to understanding, not to puzzling over every possible
inconsistency, ambiguity or infelicity of expression” (Canada
(Citizenship and Immigration) v Ragupathy, 2006 FCA 151 at para 15, [2007]
1 FCR 490).
[28]
Ultimately, I agree with the Respondent that the
Applicant failed to supply enough evidence to satisfy the Officer that he would
suffer unusual and undeserved, or disproportionate, hardship by being required
to apply for a permanent resident visa from outside Canada (see: Owusu at
paras 5 and 8).
[29]
The Officer’s decision is intelligible,
transparent, and justifiable and falls within the range of possible, acceptable
outcomes that are defensible in respect of the facts and the law.
V.
Conclusion
[30]
In the result, therefore, the Applicant’s
application for judicial review should be and is hereby dismissed. Neither
party suggested a question for certification; so, no such question is
certified.
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