Date: 20060612
Docket: IMM-5199-05
Citation: 2006 FC 736
Fredericton, New Brunswick, June 12, 2006
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
PABLO ARIEL ZAMORAGALLEGOS,
VERONICA MARIA PERLO RUFFINATO,
MAGDALENA AILEN ZAMORAPERLO and
DAVID FACUNDO ZAMORAPERLO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Pablo Ariel Zamora Gallegos (the "Principal Applicant"), his wife Veronica Maria Perlo Ruffinato, their daughter Magdalena Ailen Zamora Perlo and their son David Facundo Zamora Perlo (the "Applicants") seek judicial review of the decision dated August 15, 2005 by an immigration officer, denying their application to be granted landing in Canada on humanitarian and compassionate ("H & C") grounds pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act").
[2] The Principal Applicant, his wife and daughter are citizens of Argentina. Their son David is an American citizen. A third child, Nicolas Ariel Zamora Perlo, was born in Canada; he is not party to this application.
[3] The Principal Applicant claimed that he was the subject of threats in Argentina because his brother Mario, who worked as an informal taxi driver, was being targeted by criminal gangs. On one occasion in 1998, the Principal Applicant was accosted by a group of men who mistook him for his brother. He was insulted and threatened.
[4] In June 1999, he received a phone call, threatening death to his family, including a young baby.
[5] The following year, in June 2000, the family fled to the United States and settled in Utah. David was born while the family lived in Utah. Following the events of September 11, 2001, the Principal Applicant and his family were fearful that they would be deported to Argentina and decided to move to Canada to claim refugee protection. The family arrived in Canada on November 12, 2002 and claimed protection on that same day.
[6] On June 9, 2003, the Refugee Protection Division dismissed their claim, on the grounds that the Principal Applicant and the Applicants did not have a well-founded fear of persecution on Convention grounds in Argentina.
[7] The Principal Applicant and the Applicants sought a Pre-Removal Risk Assessment ("PRRA"). This application was dismissed on March 3, 2005. The PRRA Officer determined that there was no new evidence to show that an internal flight alternative, that was previously identified by the Refugee Protection Division, was no longer available.
[8] On March 5, 2004, the Principal Applicant and the Applicants submitted an H & C application. The basis of that application was the hardship that they would face if required to apply for permanent residence outside Canada. They referred to the best interests of their children, particularly those of Nicolas who is a Canadian citizen. The Principal Applicant and his wife expressed a fear of returning to Argentina, on the basis of being at risk from a criminal gang.
[9] A risk assessment was prepared as part of the H & C process. This assessment concluded that the Principal Applicant and the Applicants do not face a reasonable chance of persecution in Argentinaand that it would not be unduly harsh for them to relocate to the internal flight alternative of Buenos Aires. The Principal Applicant and his family had lived in Cordoba prior to leaving Argentina.
[10] The Principal Applicant and the Applicants were given the opportunity to respond to this risk assessment. They submitted further material, focusing on the poverty and poor educational prospects that the minor Applicants would face in Argentina. These submissions did not persuade the PRRA Officer to alter the original opinion.
[11] The Principal Applicant and the Applicants made additional submissions in support of their H & C application. They referred to the level of their establishment in Canada, as well as the undue, underserved and disproportionate hardship that they would face if they were denied an exemption pursuant to subsection 25(1) of the Act. The best interests of the children were said to be paramount.
[12] The negative H & C decision was made on August 15, 2005. The Immigration Officer found that there was insufficient evidence to establish unusual, undeserved or disproportionate hardship that would justify an exemption from the Act's requirements to seek landing in Canadafrom outside the country.
[13] The Immigration Officer considered the family's establishment in Canada, their fear of returning to Argentina, the emotional disruption that would result from their separation from Canada, country conditions in Argentina, and the best interests of their children.
[14] The Immigration Officer also considered the fact that the Applicants would not qualify for permanent resident visas even if they applied from outside the country. Having addressed all relevant factors, she concluded that an exemption would not be granted in their case on H & C grounds.
[15] The Principal Applicant and the Applicants challenge the decision on the grounds that the Immigration Officer fettered her discretion, failed to consider the best interests of the children and failed to consider the totality of the evidence before her.
III. Discussion and Disposition
[16] Subsections 11(1) and 25(1) of the Act are relevant and provide as follows:
| 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
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11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
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[17] The next matter to be considered is the appropriate standard of review. The decision in question was made by an administrative decision-maker exercising delegated power under the Act. In order to determine the applicable standard in reviewing this decision, a pragmatic and functional analysis must be applied. Four factors are to be considered: the presence of a privative clause; the expertise of the decision-maker; the purpose of the legislation; and the nature of the question.
[18] The first factor is neutral, since the Act contains neither a privative clause nor a full right of appeal. Judicial review is available, if leave is granted.
[19] Immigration officers continually deal with assessments of H & C applications. Their relative expertise is greater than that of the Court and tends to attract greater deference.
[20] The broad purpose of the Act is to regulate the admission of immigrants into Canada and to maintain the security of Canadian society. This involves consideration of many interests which may conflict with each other. Decisions made in a polycentric context tend to attract judicial deference.
[21] The final factor is the nature of the question. Here, the Immigration Officer was required to exercise her discretion and make factual determinations. This discretion is to be informed by the Act and Regulations, and involves an element of statutory interpretation. The application of the statutory and regulatory provisions to the evidence yields a question of mixed law and fact. Such a question is reviewable on the standard of reasonableness simpliciter.
[22] The decision under review is a discretionary one. The hallmark of a discretionary decision is that the outcome is not inevitable. The decision-maker is subject to the standard described in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 as follows:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[23] The Applicants argue that the Immigration Officer fettered her discretion with respect to assessing evidence of their establishment in Canada by improperly relying on the fact that removal orders had been issued against them. Having regard to the record, I am not persuaded that the Immigration Officer committed a reviewable error in the manner in which she dealt with the issue of establishment, including the outstanding removal orders. The existence of those orders is a fact that was to be considered by the Immigration Officer and taken into account in her assessment of the degree to which the Applicants had established themselves in Canada. I am satisfied that she did not err in her assessment of the relevant facts.
[24] I am equally satisfied that the Immigration Officer was alert and alive to the best interests of the minor Applicants, in accordance with the guidance provided by the relevant jurisprudence, that is Baker and Hawthorne. One of the minor Applicants is a citizen of the United States. The Immigration Officer considered this as well as the fact that the third child of the family is a Canadian citizen. The fact that the minor Applicants may enjoy a better standard of life in Canada than in Argentina does not mean that the discretion afforded by subsection 25(1) of the Act will be exercised in a positive manner.
[25] Substantially the same arguments were raised in Serda v. Canada(Minister of Citizenship and Immigration), 2006 FC 356. In detailed reasons, Justice de Montigny addressed each of the arguments and dismissed the application for judicial review. I see no reason why a similar line of reasoning should not be employed in the instant case.
[26] In the result, this application for judicial review will be dismissed. There is no question of general importance arising for certification and no question will be certified.
ORDER
This application for judicial review is dismissed. There is no question of general importance arising for certification and no question will be certified.
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