Date: 20061121
Docket: IMM-1132-06
Citation: 2006 FC 1404
Ottawa, Ontario, November 21st,
2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
AZUCENA MARGARITA RAMOS
RAMIREZ and
JESSIE GUADALUPE ESTRADA RAMOS
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is the complex story of Azucena Margarita Ramos Ramirez, a citizen of El Salvador, and her
four children. Two of them, Kelly and Deven, were born in Canada. Her eldest
child, Kevin, was born in El Salvador, and her daughter
Jessie was born in the United States. Her husband, Jose
Angel Estrada Ramos, now lives in El Salvador with Kevin. While the other
three children currently live in Canada with their mother, Ms.
Ramirez now faces deportation with her non-Canadian daughter, Jessie.
[2]
Ms.
Ramirez filed a humanitarian and compassionate application [H&C] and a pre-removal
risk assessment [PRRA], both of which were refused by the same officer. Leave
to review the PRRA decision was denied, but leave to review the H&C
decision was granted. For the reasons that follow, I would allow this latter
application as I believe the officer’s decision was not reasonable on the basis
of the record and the submissions before me. While the decision is
unimpeachable in many respects, the officer nevertheless made a fatal error by
assessing risk factors in the H&C decision the same way she had in the
PRRA.
FACTS
[3]
Ms.
Ramirez and her husband first came to Canada in April 1993, following the civil
war in El
Salvador.
They immediately made a refugee claim when they arrived. Seven months after
their arrival, their daughter Kelly was born and therefore became a Canadian
citizen.
[4]
In
September 1994, the Immigration and Refugee Board’s Refugee Division determined
that Ms. Ramirez and her husband were not Convention refugees. This Court
denied leave to have that decision judicially reviewed.
[5]
Ms.
Ramirez and Mr. Ramos subsequently applied to become members of the
Post-Determination Refugee Claimants in Canada [PDRCC]
class, but they were refused. Out of options, they left Canada without
confirming their departure and illegally entered the U.S. in September,
1995. Shortly thereafter, in December of that same year, their daughter Jessie
was born. She is a dual citizen of both the U.S. and El Salvador.
[6]
In
October 1996, Ms. Ramirez, her husband and their two daughters illegally
returned to Canada. Because
they had earlier failed to confirm their departure from Canada, arrest
warrants were issued and executed against Ms. Ramirez and her husband.
[7]
In
July 1997, Ms. Ramirez, her husband and Jessie all tried to claim refugee
status. Ms. Ramirez and Mr. Ramos were found ineligible to make refugee claims
because their previous claims had been rejected. Their application for leave to
have that decision judicially reviewed was dismissed.
[8]
However,
Jessie was allowed to make a refugee claim. She based her claim on her fear of
being a homeless child in the U.S., as she would be forced to live there
alone (she was two years old at the time). The Board dismissed her claim
regarding the U.S. Then, the
Board found it unnecessary to deal with her arguments about El Salvador, because she
was an American citizen.
[9]
In
February 1999, Ms. Ramirez, her husband and Jessie submitted H&C applications.
These applications were refused in December 2003, and this Court denied leave
to have those decisions judicially reviewed. The three were deported to El Salvador in February
2004, and Kelly went with them. They were told they needed written authorization
to return to Canada.
[10]
In
El
Salvador,
Mr. Ramos could not find work right away, so the family moved in with relatives
in the town of Quetzaltepeque. The applicants claim that Kelly and
Jessie were too frightened to go to the school there, because it had extremely
poor facilities, they got teased by classmates, and it was next to a graveyard.
Because of poor sanitation and water quality, both girls frequently suffered
from fever, diarrhea and intestinal infections. Kelly contracted hepatitis from
the water. The girls were also sexually harassed on a regular basis by members
of a gang called the Mara 18. When their father contacted police for help, gang
members threatened to kill him.
[11]
In
April 2005, Kelly, a Canadian citizen, flew to Vancouver, while Jessie, an
American citizen, flew to Los Angeles. Ms. Ramirez paid a
“coyote” to smuggle her from El Salvador into the U.S., where she
met Jessie. The two then travelled to Vancouver, where they met Kelly. Mr.
Ramos and Kevin, their oldest child, remained in El Salvador.
[12]
Because
they entered Canada without
authorization and without attending for examination at a port of entry, Ms.
Ramirez and Jessie were found ineligible to make refugee claims and deportation
orders were made against them. Two months after having illegally entered Canada for the
second time, Ms. Ramirez gave birth to her son Deven. Thus, Deven is also a
Canadian citizen.
[13]
On
June 16, 2005, Ms. Ramirez filed both a PRRA application and an H&C
application. The basis for the PRRA application was an alleged risk from the
Mara 18 gang. On January 25, 2006, the PRRA application was refused on a number
of grounds. First, the officer found the risk from the gang had no nexus to a
Convention refugee ground under section 96 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 [the IRPA]. As well, other than written
narratives from Ms. Ramirez and her husband, the applicants had provided little
evidence of a significant, forward-looking personalized risk, as gang violence
is a general problem in El Salvador. Furthermore, the
officer found that state protection was available because police in El Salvador were trying
to address gang violence. For example, when Mr. Ramos contacted police, they
had questioned the gang members, and advised Mr. Ramos to file a criminal
complaint in court – which he did not do. Finally, the family had not shown
enough evidence to explain why they would not be safe once they left
Quetzaltepeque. Though they submitted they were too poor to relocate, they had
managed to find money to pay for the girls’ flights to Los Angeles and Vancouver, and for Ms.
Ramirez to be smuggled by a coyote. Thus, the officer found they had an
internal flight alternative in El Salvador.
THE IMPUGNED DECISION
[14]
As
I have already indicated, the H&C decision is the only one under review. In
their application, Ms. Ramirez and Jessie argued that the risk of future
harassment from Mara 18 gang members was a hardship. They claimed they would
suffer hardship if the family was separated, which would happen if Kelly and
Deven chose to stay in Canada. They also focused on the best interests
of the three children in Canada: Kelly, Jessie and Deven.
[15]
Ms.
Ramirez also claimed that Jessie and Kelly would suffer psychological hardship
if forced to return to El Salvador, because of its
violence, poverty, poor sanitation and inadequate health care and education
systems. They submitted a counsellor’s report from the Vancouver Association
for Survivors of Torture [VAST]. The report said Kelly’s symptoms from her year
in El
Salvador
were consistent with Post-Traumatic Stress Disorder. With respect to Deven, the
applicants wrote that he had been diagnosed with a kidney condition requiring
him to take antibiotics. The medication has suppressed his immune system, which
would leave him vulnerable to disease and infection. And, the applicants
claimed, he will likely require surgery to deal with his condition in the
future.
[16]
The
officer determined it was for the family to decide whether Kelly and Deven
would stay in Canada, where an
aunt was willing to care for them. She concluded the applicants had not
provided enough evidence to establish that Deven could not receive the
follow-up treatment he would need in El Salvador, though she
acknowledged its health care system was not ideal.
[17]
The
officer also referenced her decision in the PRRA application, to repeat her
conclusion that the applicants had not established personalized risk of
violence, and the finding that the family could rely on both state protection
and an internal flight alternative in El Salvador.
[18]
Finally,
the officer looked at the family’s establishment, including the fact that Ms.
Ramirez has a sister who lives in British Columbia. However, she
determined their ties with their church, community, and the length of time they
had spent in Canada were not
enough to warrant a successful application. She concluded by writing that the
H&C application process is not an alternative stream for immigrating to Canada.
THE PARTIES’ SUBMISSIONS
[19]
The
applicants have made a number of arguments under four different headings. With
respect to the best interests of the children, the applicants claim the officer
did not define each child’s interests and examine those interests with care. They
claim the officer never clearly identified Kelly and Jessie’s physical and
psychological security interests and that the officer failed to give sufficient
weight to the VAST report, as well as personal statements Kelly and Jessie wrote
about their experiences.
[20]
With
respect to the VAST report, the applicants highlight the counsellor’s
observation that Kelly would benefit from the presence of her family members in
Canada. They claim
this finding was made in the context of discussing how Kelly might recover from
the psychological trauma of returning to El Salvador in 2004. As
such, it was “illogical” for the officer to conclude that Kelly could receive
that family support in either Canada or El Salvador. Rather,
they say, the report confirmed Kelly is neither emotionally nor psychologically
equipped to go back. They also claim the officer failed to consider Kelly and
Jessie’s own expressed wishes, as set out in their handwritten statements, in
contravention of both the United Nations Convention on the Rights of the
Child, and the Immigration Manual for officers dealing with H&C
applications (IP 5). The applicants claim the officer minimized the children’s
physical security and health interests, and did not consider the impact
deportation would have on their education since they had already missed a full
year of school while in El Salvador.
[21]
The
applicants have made a different set of arguments about the notion of
“hardship”. They submit the officer applied too high a threshold test in
determining whether the children would suffer sufficient hardship to warrant a
positive decision. They claim it was an error to dismiss the family’s fears of
gang members on the same basis as in the PRRA application, since the
appropriate test for hardship in an H&C application is lower than the
standard of proof to establish risk in a PRRA. For the same reasons, they say
the officer should have responded to concerns that Deven could become seriously
ill in El
Salvador
because of poor sanitation and his suppressed immune system.
[22]
The
third set of arguments revolves around the officer’s conclusion that the
applicants had an internal flight alternative. The applicants challenge that
conclusion by claiming the family has no financial resources to leave Quetzaltepeque.
They say they were only able to leave El Salvador with money Ms. Ramirez
borrowed from her sister. While acknowledging that they could have used the
money to move to another town within El Salvador, instead of flying the
children to North
America,
the applicants argue that would not have solved the long-term problem of how
the family would pay rent and otherwise support itself in the new location
after the borrowed money was gone.
[23]
Finally,
they claim the officer fettered her discretion by writing that the H&C
process is not an alternative stream for immigrating to Canada. If they
were to apply for a permanent resident visa from outside Canada, they say
they would be refused because they lack the qualifications to be accepted as
independent skilled workers.
[24]
The
Minister has disputed each and every issue raised by the applicants. First of
all, the Minister argues the officer was alert, alive and sensitive to the best
interests of the three children. She was required to assess that issue, but not
to treat it as determinative. Counsel for the Minister also submits the officer
did not ignore any evidence, but rather simply concluded that the best
interests of the children were not sufficient to grant the H&C application.
This was a reasonable conclusion, in light of the family’s history of illegally
immigrating to Canada.
[25]
In
response to the argument that the officer erred by failing to identify the
girls’ best interests separately from determining the hardship they would face
on returning to El Salvador, the Minister argues that an officer does not have
to separately identify a child’s best interests and determine hardship. The
Minister also claims the officer did consider the VAST report, and made no
error by failing to refer directly to the girls’ written statements. The
officer is presumed to have considered all the evidence, and her reasons
illustrate she was aware of the issues contained in the girls’ statements. With
respect to Deven, the Minister claims there was not enough evidence to conclude
Deven could not get any necessary medication in El Salvador. Further,
there was no evidence to support Ms. Ramirez’s claim that he will likely need
surgery in the future or risk serious illness because of his suppressed immune
system.
[26]
As
for the appropriate test for “hardship”, the Minister claims that this is not a
term of art. Relying on Canada (Minister of
Citizenship and Immigration) v. Hawthorne, 2002 FCA 475,
it is contended that a strict approach must be avoided when reviewing
discretionary decisions made pursuant to subsection 25(1) of the IRPA. The
officer therefore made no reviewable error by using the language of “hardship”
in analyzing the best interests of the children.
[27]
Thirdly,
the Minister submits the officer was entitled to adopt factual findings she
made in the PRRA decision for the purpose of assessing hardship in the H&C
application – specifically, state protection and an internal flight alternative.
The same findings of fact could be used to assess risk in the PRRA, and
hardship in the H&C. The Minister also writes the officer was entitled to
consider the family’s ability to get enough money to return to Canada; it was
relevant to the issue of whether the family could relocate within El Salvador.
[28]
Finally,
the Minister asserts that the officer did not fetter her discretion. She simply
acknowledged the limited role of subsection 25(1) within IRPA – that it is an
exceptional provision, dependent on Ministerial discretion. The Minister
concludes by stating that the purpose of subsection 25(1) is to grant relief
from the requirement to apply for a visa abroad, in exceptional situations not
envisioned by the legislation.
ISSUES
[29]
This
application for judicial review raises three issues
1. Was the officer alert,
alive and sensitive to the best interests of the children and the hardship they
would face if removed to El
Salvador?
2. Did the officer err in
assessing the applicants’ claim of hardship if removed to El Salvador?
3. Did the officer fetter
her discretion by stating that subsection 25 of the IRPA is not intended to
serve as an alternative stream for immigration to Canada?
ANALYSIS
[30]
The
applicable standard of review with respect to a decision on an H&C
application is reasonableness. After a careful application of the pragmatic and
functional approach to determine the appropriate standard of review for such
decisions, Justice Claire L’Heureux-Dubé concluded, in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 62:
I conclude that considerable
deference should be accorded to immigration officers exercising the powers
conferred by the legislation, given the fact-specific nature of the inquiry,
its role within the statutory scheme as an exception, the fact that the
decision-maker is the Minister, and the considerable discretion evidenced by
the statutory language. Yet the absence of a privative clause, the explicit
contemplation of judicial review by the Federal Court – Trial Division and the
Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should
not be as deferential as “patent unreasonableness”. I conclude, weighing all
these factors, that the appropriate standard of review is reasonableness simpliciter.
[31]
This
Court will therefore interfere with the H&C decision only if it discloses no
line of analysis which could reasonably lead the immigration officer from the
evidence to the conclusion she reached. Having said this, I am also mindful of
the fact that some of the applicants’ arguments involve the interpretation of
legal concepts. The issue of defining “hardship” in the context of analyzing
the best interests of a child, for one, does not involve first and foremost an
appreciation of the facts. The same can be said of the question as to whether
an immigration officer must evaluate risk differently in the context of a PRRA
application and an H&C application. While these issues are more properly
characterized as questions of mixed fact and law as opposed to being fact-specific,
I do not believe they warrant a different standard of review. Indeed, it seems
to me the mixed nature of these questions merely reinforces the appropriateness
of the reasonableness standard.
1) Best
interests of the children
[32]
The
applicants have attacked virtually every aspect of the immigration officer’s
analysis of the best interests of the children. Before addressing the specific
errors alleged, it is worth repeating that it is not this Court’s role to
re-weigh the evidence that was before the officer. The fact that this Court may
have come to a different conclusion is not sufficient to establish a reviewable
error: Canada (Minister of
Citizenship and Immigration) v. Legault, 2002 FCA 125 at
paragraphs 11-12; de Zamora v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1602 at paragraphs 11, 18; Davoudifar v.
Canada (Minister of Citizenship and Immigration), 2006 FC 316 at paragraphs
24-26, 42-43.
[33]
I
have carefully reviewed the record that was in front of the officer as well as
her reasons for dismissing the H&C application, and I am unable to conclude
that she was not “alert, alive and sensitive” to the best interests of the
children. Indeed, she went as far as saying that this was the strongest factor
in support of the application. She considered each and every area of concern
the applicants raised, including the potential physical and psychological
hardship the children might suffer if removed, the difficulty Kelly and Jessie
had adjusting to El Salvador after they were removed from Canada, the less than
ideal socio-economic conditions in El Salvador, the family’s financial
circumstances in El Salvador, the VAST report regarding the effect of removal
on Kelly, the consequences of removal on Deven’s health problems, and the
possible risk to the girls from gang members.
[34]
Yet,
the officer concluded that the best interests of the children involved in this
case would not be so compromised as to warrant a positive decision. She wrote,
in particular: “While it is always preferable for children involved to have as
much stability as possible, I do not find that their re-location to El Salvador will
constitute unusual and undeserved or disproportionate hardship” (Applicant’s
Record, page 11).
[35]
The
applicants make much of the fact that the officer agreed with the findings in the
VAST report that Kelly will benefit from the presence of family members in Canada, but
nevertheless declared she was not satisfied the children would suffer unusual
and undeserved or disproportionate hardship if this occurs in El Salvador and
not in Canada. This finding, according to the applicants, is illogical and ignores
the fact that Kelly is not emotionally or psychologically equipped to return to
El
Salvador.
[36]
First
of all, it cannot seriously be argued that the officer ignored an important
piece of evidence, as she referred to that report explicitly in her reasons. Secondly,
I can see nothing illogical in the officer’s conclusion. She merely concluded
that Kelly would be better off and more able to cope with her Post-Traumatic
Stress Disorder if she lived with her family, but that this could be done in
either El
Salvador
or Canada. I note in
passing that if she were to go back to El Salvador with her mother, sister and
brother, the family would be reunited, a prospect that is far from a given if
they were to stay in Canada.
[37]
Of
course, the officer did not deny that the conditions of living in El Salvador were much
less favourable than in Canada. But this is not the test for the purposes
of an H&C application, as often reiterated by this Court. As I said in Serda
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 356, at paragraph 31:
Finally, the Applicants have
argued that conditions in Argentina are dismal and not good for
raising children. They cited statistics from the documentation, which were also
considered by the H&C Officer, to show that Canada is a more desirable place to live in
general. But the fact that Canada is a more desirable place to live is not
determinative on an H&C application (Vasquez v. Canada (M.C.I.),
2005 FC 91; Dreta v. Canada (M.C.I.), 2005 FC 1239); if it were
otherwise, the huge majority of people living illegally in Canada would have to
be granted permanent resident status for Humanitarian and Compassionate reasons.
This is certainly not what Parliament intended in adopting section 25 of the Immigration
and Refugee Protection Act.
[38]
There
is equally no merit in the applicants’ allegations that the officer erred by
not referring explicitly to the children’s handwritten statements. While it is
no doubt true that the officer’s burden of explanation increases with the
relevance of the evidence, as found by Justice John Evans in Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) (QL),
it is equally true that an officer does not have to mention every piece of
evidence. In the present case, the children’s letters are simply further
evidence that they wish to remain in Canada because they feel
happier and more secure here. The officer’s reasons demonstrate that she was
well aware of these issues and of the children’s desire to stay here.
[39]
Finally,
I agree with the Minister that the officer was entitled to consider the fact
that the applicants could have relocated within El Salvador to avoid the
harassment Kelly and Jessie allegedly faced from gang members but instead
decided to use funds from Ms. Ramirez’s sister to illegally return to Canada. The
question of how the applicants decided to use their financial resources was
relevant and directly related to the strength of their claim that they had to
flee El
Salvador
because they could not afford to relocate elsewhere within the country.
[40]
As
for the officer’s other alleged errors regarding the best interests of the
children, I am of the view that the applicants’ arguments are no more than an
attempt to re-litigate the file and to re-weigh evidence in their favour. It is
true that the officer did not pay much attention to the possible consequences
for Kelly if she remained in Canada without her mother. However, far from
being an oversight, I believe the officer simply assumed this was an unlikely
scenario. As for the potential consequences of removing Deven to El Salvador considering
his medical condition, there was no evidence that Deven will likely require
surgery or become seriously ill in El Salvador because antibiotics
have suppressed his immune system. All things considered, the officer’s reasons
are cogent and thorough, and while one may disagree with the conclusions she drew
from the evidence, it cannot be said she was not alert, alive and sensitive to
the best interests of the children.
2) The test
of hardship
[41]
As
I indicated above, the same immigration officer decided the applicants’ PRRA
and H&C application. In doing so, she imported some conclusions from the
PRRA decision about risk into her H&C reasons with respect to hardship. The
applicants claim this was improper, because the notion of “hardship” is notably
broader than that of “risk” in a PRRA application.
[42]
It
is beyond dispute that the concept of “hardship” in an H&C application and
the “risk” contemplated in a PRRA are not equivalent and must be assessed
according to a different standard. As explained by Chief Justice Allan Lutfy in
Pinter v. Canada (Minister of
Citizenship and Immigration), 2005 FC 296:
[3] In an application for humanitarian
and compassionate consideration under section 25 of the Immigration and Refugee
Protection Act (IRPA), the applicant's burden is to satisfy the decision-maker
that there would be unusual and undeserved or disproportionate hardship to
obtain a permanent resident visa from outside Canada.
[4] In a pre-removal risk assessment
under sections 97, 112 and 113 of the IRPA, protection may be afforded to a
person who, upon removal from Canada to their country of nationality, would
be subject to a risk to their life or to a risk of cruel and unusual treatment.
[5] In my view, it was an error in law
for the immigration officer to have concluded that she was not required to deal
with risk factors in her assessment of the humanitarian and compassionate
application. She should not have closed her mind to risk factors even though a
valid negative pre-removal risk assessment may have been made. There may
well be risk considerations which are relevant to an application for permanent
residence from within Canada which fall well below the higher
threshold of risk to life or cruel and unusual punishment. [Emphasis Added]
[43]
Now,
it is perfectly legitimate for an officer to rely on the same set of factual
findings in assessing an H&C and a PRRA application, provided that these
facts are analyzed through the right analytical prism. This is precisely where
the officer’s assessment in the present case falls short. While she did assess
the risk factors the applicants submitted, she did not assess them against the
appropriate standard. Instead of asking herself if the risk factors amounted to
unusual, undeserved or disproportionate hardship, the officer was content with
relying on her PRRA decision. Here is how she dealt with this issue in her
reasons:
The applicants cite
personalized risk upon their return. As the Pre Removal Risk Assessment Officer
who has rendered a negative protection decision on the applicant’s file, I have
read and considered the applicant’s claim in reference to risk and I am not
persuaded that this family will suffer personalized risk upon their return to El Salvador. I reference the PRRA
decision here in the context of personal risk factors cited by the applicant.
Based on the documentary
evidence cited in the PRRA decision, I find that the applicant and her family
would be able to obtain state protection should they find themselves being
harassed by local gang members upon their return to El Salvador. I also find that should the applicant
continue to be fearful to the gang members in their neighbourhood in
Quezaltepeque, they could relocate to another city or village within El Salvador. I also note that the
applicant and her children have support in El Salvador in terms of extended and immediate
family members.
Considering all the risk
factors presented in this case, including the availability of state protection
and a viable IFA, I do not find that the applicant and her family will suffer
personalised risk upon their return to El Salvador.
[44]
There
is not a scintilla in the above-quoted passage of a discussion relating to
hardship as opposed to risk. Even in her conclusion, the officer returns to
this theme and states: “I am satisfied that the applicant would be able to
apply to immigrate to Canada through the standard overseas procedures without
requiring an exemption from the usual requirements without putting her at risk
to life or risk to her family’s personal security.”
[45]
While
it may be that violence, harassment and the poor health and sanitary conditions
may not amount to a personalized risk for the purposes of a PRRA application,
these factors may well be sufficient to establish unusual, undeserved or
disproportionate hardship. I would therefore adopt the following conclusion
reached by Justice O’Keefe in Dharamraj v. Canada (Minister of
Citizenship and Immigration), 2006 FC 674:
[24] There is no dispute that
there is a higher burden on the applicants to establish risk for the purposes
of a PRRA than there is for H & C purposes. Consequently, there may be
circumstances where risk would be relevant for an H & C application but not
for a PRRA application.
[25] In the present case, the
officer merely adopted the assessment of risk made by the IRB and the PRRA
officer without further analysis for the purpose of the H & C application. In
my opinion, the officer made an unreasonable decision because she did not
consider the risk factors in the context of the H & C application.
[46]
Again,
there is nothing wrong with relying on the same factors assessed in the context
of a PRRA to determine if an applicant would suffer from unusual, undeserved or
disproportionate hardship if returned to his or her country of origin. What is
crucial, however, is that the assessment be done against the proper standard
and criteria relevant to each analysis. In the context of an H&C
application, Chapter IP 5 of the Immigration Manual published by
Citizenship and Immigration Canada provides useful guidance. Unusual and
undeserved hardship is described as a hardship “not anticipated by the Act or
Regulations” or resulting of “circumstances beyond the person’s control,” while
disproportionate hardship is described as a hardship that “would have a
disproportionate impact on the applicant due to their personal circumstances.”
[47]
Officers
who rule on both the PRRA and the H&C applications of the same applicants
will obviously be at greater risk of confusing the two separate and distinct
analyses required by these procedures. Even if well aware of the different
rationales underlying these two kinds of applications, they may be drawn to the
same conclusions, perhaps inadvertently, if only because it is often difficult,
if not conceptually at least in practice, to disregard a previous determination
made on the basis of the same facts. This is not to say that the practice of
having the same officer reviewing both applications should be discouraged. Consistency
is also a virtue, and there is no better way to achieve coherence than by
having the same officer assessing the same person’s PRRA and H&C
applications. But extra care should be taken to ensure the two processes are
kept separate.
[48]
Specifically,
when deciding a PRRA, immigration officers are conducting a risk assessment.
While it is true that H&C applications may also raise “risk factors,” that
does not change the fact that an H&C application is about assessing
hardship. That an application may involve issues of risk does not convert the
application into a second risk analysis. Rather, other issues, like the best
interests of the children, and risk factors, are to be assessed as parts, or
subsets, of this global hardship analysis.
[49]
I
am not suggesting that the officer failed to assess hardship in her decision.
Indeed, she addressed it in significant detail when assessing the best
interests of the children. But with respect to the risk factors, the officer approached
the issue as though it was subject to the same considerations as in the PRRA.
[50]
For
all the above reasons, I am therefore of the view that the officer erred in
concluding that the applicant and her family would not suffer personalised risk
upon their return to El Salvador. This was not the
enquiry she was tasked to perform in examining her H&C application. Since
the proper characterization of the hardship that an applicant would face if
returned to his or her country of origin is crucial in assessing an H&C
application, I am of the view that this error is fatal and that the officer’s decision
cannot be held to be reasonable.
3) Did the
officer fetter her discretion?
[51]
I
would make one last point before drawing these reasons to a close. The
applicants have argued that the officer fettered her discretion by stating that
H&C applications are “not in place to serve as alternative stream for
immigration to Canada.” I must say that I can see nothing wrong with
this statement. Section 25 clearly creates an exemption from the normal
requirements of the IRPA. The Minister’s discretionary power to grant an
exemption from the normal statutory requirements of the IRPA is intended to
provide relief for exceptional situations not envisioned by the Act. The fact
that a foreign national would not qualify for permanent residence under the
normal statutory criteria cannot itself be an unusual and undeserved or
disproportionate hardship.
[52]
Indeed,
it would have been perfectly legitimate for the officer to decide that, despite
the fact that they are deserving of compassion, the applicants must
nevertheless apply from their country of origin on public policy grounds. As
recognized by Justice Robert Décary in Legault, above, at paragraph 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.
[53]
It
is therefore with some reluctance that I am granting this application for
judicial review. I am mindful of the fact that Ms. Ramirez and her children
have entered Canada without
authorization on two occasions, and have made extensive use, to no avail, of
the various procedures provided by the IRPA to challenge the negative decisions
relating to their numerous applications. But this is not the ground upon which
her H&C application was rejected. Even if the Minister and his delegates
are allowed considerable discretion in deciding whether an applicant ought to
be allowed to apply for permanent residency from within Canada, that discretion
is not absolute and must be confined by the legislative authority delineating
this power. In the present case, I have found that the officer erred in misapplying
the criteria governing the granting of the exemption found in section 25 of the
IRPA.
[54]
The
applicants have submitted two questions for certification. In light of my
conclusion that this application for judicial review should be granted, there
is no need to deal with these questions at this juncture.
JUDGMENT
THIS COURT
ORDERS THAT: The application for judicial review is granted and the
matter is remitted for reconsideration by a differently constituted panel. No
questions are certified.
"Yves
de Montigny"
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