Date: 19990514
Docket: IMM-3256-98
BETWEEN:
JORGE ELIAS DUQUE LORENZANA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant, a 32-year old citizen of Guatemala, entered Canada, where his sister lives, as a visitor in April 1994. His refugee claim was denied on November 11, 1995. On August 13, 1997, a post-claim determination officer found the applicant not to be a member of the post-determination refugee claimants in Canada class.
[2] In December 1997, the applicant sought permanent residence from within Canada on humanitarian and compassionate grounds.1 In her letter of decision, the immigration officer determined that there were insufficient humanitarian and compassionate factors to warrant an exemption from normal legislative requirements.
[3] The applicant"s challenge of the immigration officer"s decision raises issues concerning the latter"s comments in her Humanitarian and Compassionate Narrative Report.2 This report was prepared on June 4, 1998, the date of the applicant"s interview with the immigration officer. The report is divided into six sections:
| Section 1: Background Information |
| Section 2: Relatives in Canada |
| Section 3: Relatives in Home Country |
| Section 4: Humanitarian and Compassionate Considerations |
| Section 5: Degree of Establishment |
| Section 6: Decision and Rationale |
This form report has been completed in handwriting. The notes under section 4 deal principally with establishment issues concerning the applicant"s work history in Canada, his sources of support, his savings and his community involvement. The notes continue under section 5 (the words "degree of establishment" have been scratched out) and under section 6 with a summary of the applicant"s reasons for wishing to apply for permanent residence from within Canada. The last words under section 6, immediately above the immigration officer"s signature, are: "Refusal: (see remarks on [computer] screen)".
[4] Counsel for the applicant referred to the immigration officer"s remarks taken from the computer screen as her "rationale", which he stated is the term used by departmental officials, presumably in the context of section 6 ("Decision and Rationale") of the report. In her rationale, the immigration officer noted that:
| ... applicant"s main reason for wishing to apply for permanent residence within Canada is that he claims he is afraid to return to Guatemala for political reasons; ... applicant"s reasons for fear of return to Guatemala are the same as those presented in his refugee claim and PDRCC review; applicant did not have any new information to present concerning his fear of return to Guatemala; ... |
The immigration officer then concluded that there would be no undue or disproportionate hardship suffered by the applicant should he be required to submit an application for permanent residence from Guatemala as required by the legislation.
[5] The applicant"s first argument, that the immigration officer erred in not assessing and considering his establishment in Canada in her decision and rationale, fails upon a closer review of her report. The applicant"s distinction between the immigration officer"s handwritten notes and her remarks recorded on computer is one without substance. The information, including the data with respect to the establishment issues, is all part of the same report.
[6] Concerning the applicant"s establishment in Canada, the immigration officer noted that he has resided continuously with his sister since his arrival in this country. She noted his work history since 1995, including his gainful employment since March 1996, as a full-time baker. The immigration officer referred to his modest savings and his limited community involvement.
[7] With respect to the applicant"s concern in returning to Guatemala, the immigration officer noted that: "... he is afraid to return to Guatemala for the same reasons he presented in his refugee claim". This is followed with a summary of the difficulties encountered by the applicant as a union leader in Guatemala, including his detention by security forces for three days.
[8] The immigration officer was not misdirected when she referred to the applicant"s fear of returning to Guatemala as his "main reason" for wishing to apply for permanent residence from within Canada. The applicant invoked the same reason in his application form and his affidavit material does not dispute the immigration officer"s emphasis on this point in her observations.
[9] In Sandhu v. Canada (Minister of Citizenship and Immigration),3 my colleague Justice Cullen dealt with a similar situation in these terms:
| The above passage indicates that the immigration officer was well aware of the applicant"s concerns relating to fear. Although she does not specifically refer to this fear in her recommendation, it is evident that these concerns were before her. On the basis of the above passage, I cannot conclude that the immigration officer failed to consider the applicant"s fear of returning to India. The immigration officer did not fail to consider relevant evidence in this regard.4 |
The same can be said about the notes of the immigration officer in this case. While her section 6 rationale focussed on the applicant"s fear of returning to Guatemala, I am satisfied that her refusal of the humanitarian and compassionate application was made with due consideration to the factors concerning his establishment in Canada, which are set out at some length in her notes. There is no statutory requirement for the immigration officer to provide reasons for her decision. In the same spirit, nor was she obliged to refer to each of her considerations in her rationale.
[10] In his second argument, the applicant urges that the immigration officer failed to make any independent risk assessment herself in relying totally on the decisions of the Convention Refugee Determination Division and the post-claim determination officer. This submission must fail, in my view, on the basis of the applicant"s affidavit when his response to the immigration officer who asked if he was afraid to return to Guatemala:
| I confirmed that I was. I told the officer that I had political problems, in particular because I was a union activist, gave details of my problems, and confirmed that these were the reason for my refugee claim in Canada. I said I was still afraid for the same reasons and that conditions in Guatemala were still dangerous and unsafe. [Emphasis added.] |
[11] In Gautam v. Canada (Minister of Citizenship and Immigration),5 my colleague Justice Evans considered an identical argument that the immigration officer"s discretion was fettered by failing to conduct an independent risk assessment, where the applicant invoked the same reasons that had been raised in the refugee hearing and the PDRCC review. I agree fully with the conclusion of Evans J.: "It was quite appropriate for the officer to rely on the rejection of the other claims in rejecting the subsection 114(2) claim, in the absence of either additional evidence, or a submission that on their return ... the applicants would be subject to unduly harsh sanctions, ...".6
[12] In this case, the applicant suggested that the immigration officer had failed to consider documentary evidence that he provided to her during the interview, in addition to the extensive material that had been filed with his application. After noting that she had carefully reviewed all the information she gathered during the interview, the immigration officer concluded that the "applicant did not have any new information to present concerning his fear of return to Guatemala". This statement which can be read as meaning that the immigration officer concluded, even after reviewing the supplementary country condition documentation, that he had presented no "new information" concerning his fear of returning to Guatemala. Even if the visa officer did not review the new documentary evidence, which the applicant has not established, there appears to be little, if any, information disclosed in this material to suggest that the situation in Guatemala had worsened. The passages relied upon by the applicant"s counsel refer to post-1996 peace process human rights violations, none of which is related to the difficulties alleged by the applicant as the grounds for his fear of returning to Guatemala.
[13] For these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
May 14, 1999
__________________
1 This application was made pursuant to subsection 114(2) of the Immigration Act , 1985 R.S.C., c. I-2.
2 Tribunal record, pp. 216-21.
3 (1997), 40 Imm. L.R. (2d) 142 (F.C.T.D.).
4 Ibid. at paragraph 9. The finding of fact in paragraph 26 of the decision does not alterthe principle referred to by Cullen J. in the passage that I have quoted. In Ogunfowora v. Canada (Minister of Citizenship and Immigration) (1997), 47 Admin. L.R. (2d) 182 (F.C.T.D.), the immigration officer failed to refer to important medical reports, a situation that can easily be distinguished from this case.
5 (29 April 1999), IMM-2725-98 (F.C.T.D.).
6 Ibid. at paragraph 18.
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