Date: 20100107
Docket: IMM-3262-08
Citation: 2010 FC 19
Ottawa, Ontario, January
7, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
LYUDMYLA HNATUSKO
OLEKDSAMDR HNATUSKO
Applicants
And
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of a pre-removal risk assessment (PRRA) officer (the officer) dated
May 29, 2008, wherein the officer decided that an exemption would not be
granted for permanent residence on an humanitarian and compassionate (H&C)
ground application.
[2]
The
applicants request that the decision be set aside pursuant to subsection 18(1)
of the Federal Courts Act, R.S.C. 1985, c. F-7 and the matter referred
back to a different officer for redetermination.
Background
[3]
Lyudmyla
Hnatusko and Olekdsamdr Hnatusko (the applicants) are citizens of the Ukraine. Oleksandr Hnatusko
(the son) arrived in Canada on January 26, 2002 and
filed a claim for refugee protection. Lyudmyla Hnatusko (the principal
applicant and mother of the co-applicant) arrived in Canada on September 7, 2002
and also filed a claim for refugee protection.
[4]
The
refugee claims were heard jointly on July 19, 2004. A negative decision was
rendered on August 25, 2004. The claim was refused because the Refugee
Protection Division (the Board) found that on a balance of probabilities, the
applicants did not suffer the harm alleged, the Board found the country
documents did not support the allegations that Pentecostals are persecuted in
the Ukraine, and found that the applicants were not credible in their claims of
persecution based on religious belief. Leave for judicial review was denied.
[5]
On
December 19, 2007, the applicants filed an H&C application and in March of
2008 were called in to an immigration office to complete a PRRA application.
The applications were heard contemporaneously and decided by the officer.
[6]
On
May 30, 2008, the applicants’ PRRA application was denied. Leave for judicial
review of the PRRA decision was granted and was heard alongside the leave for
judicial review of this, the H&C decision.
[7]
The
basis of the applicants’ wish to remain in Canada is religious persecution as part of an
untraditional faith in the Ukraine: Pentecostals.
[8]
In
the H&C application, the principal applicant also raised the issue of
domestic abuse by her husband in Canada. The principal applicant stated that her former
counsel mistakenly argued that the domestic abuse she experienced in Canada at
the hands of her husband would preclude her from being able to defend herself
against violence and gender based discrimination in the Ukraine. The principal
applicant feels this was an error and states that it was the domestic abuse
suffered at the hands of her ex-husband that she wished to be the focus of the
H&C application. She stayed with an abusive husband who had been sponsoring
her in an application for permanent residency and only left him when the abuse
became overbearing and violent.
The Officer’s Decision
[9]
The
officer found that the issues in the Board hearing and the PRRA and H&C
application to be quite similar, but noted that the focus in an H&C
analysis was on hardship faced by the applicant, as opposed to risk of
persecution. The officer had concluded in the PRRA decision that there was
insufficient evidence that religious freedom for the applicants would not exist
in the Ukraine. Further,
there was insufficient evidence that they would be subjected to persecution
despite instances of harassment and discrimination towards religious groups.
These instances, for the officer, in the H&C context, did not amount to
unusual, undeserved or disproportionate hardship. She specifically pointed to a
BBC News Report which documented the increase in popularity of the Pentecostal Church in the
Ukraine and the
reported 25, 000 members in the capital, Kiev.
[10] The officer
then addressed the issue of domestic abuse and noted the abuse that the
principal applicant suffered by her Canadian husband. The officer mentions that
the principal applicant’s counsel raised concerns of whether she will have the
right to fair and impartial justice and whether she will be able to defend
herself in the Ukraine, but concludes that there is insufficient evidence that
the applicant would be faced with gender-related discrimination and violence in
the Ukraine.
[11] The officer also noted
the principal applicant’s ties to the community and substantial degree of
establishment, but considered that such establishment was to be expected given
the principal applicant’s time in Canada and her abilities and did not warrant an
exception. The length of time the applicants have been in Canada was not given
any weight because the applicants chose to remain in Canada under enforceable
removal orders knowing that there was always a possibility that they would have
to leave. Close relationships with friends would naturally develop while in Canada, according to the
officer. However, most of their life has been spent in the Ukraine and there is no
evidence that they could not reintegrate. Similar levels of independence and
establishment would therefore be achievable in the Ukraine.
Issues
[12] The applicants
submitted the following issues for consideration:
1. Did the PRRA officer
err in law in failing to evaluate this H&C application according to the CIC
Manual IP-5 Guidelines section 13.10 and failing to apply the Gender Guidelines
issued by the Chairperson?
2. Did the PRRA officer
err in law in relying on extrinsic and irrelevant factors to refuse the
application and in failing to provide the applicants an opportunity to respond
to her concerns?
[13]
I
would rephrase the issues as follows:
1. What is the appropriate standard of
review?
2. Did the officer commit a reviewable
error by failing to discuss or refer to the specific sections of the CIC Manual
dealing with family violence and the Gender Guidelines?
3. Did the officer err in
the evaluation of the evidence?
Applicants’ Written Submissions
[14] Initially,
the applicants were represented by an immigration consultant who failed to
raise the issue of domestic violence experienced by the principal applicant
appropriately. No reference was made to the Gender Guidelines or any case law
on the issue of gender violence in H&C applications. Further, for some
unknown reason, the immigration consultant argued that the principal applicant
feared domestic violence arising in the Ukraine. This was in
error. The fear and impact of violence were as a result of the principal
applicant’s husband’s abuse. No submissions were made on this and as such, the wrong
test went to the officer.
[15]
Mr.
Justice LeDain in Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 defined
the standard of care of counsel which was stated as that of a “reasonably
competent solicitor”. Because of the incompetence of the immigration
consultant, the principal applicant was deprived of a full and complete
determination of her case. The principal applicant gave the immigration
consultant police reports, hospital records and a summary of the abuse but they
were not submitted. The principal applicant should not be punished for the
negligence of her counsel.
[16]
The
CIC Manual specifically mandates that the officer ought to consider using
positive discretion when a person leaves an abusive relationship and a sponsorship
fails. This H&C decision fell within the parameters of the domestic
violence policy and ought to have been evaluated accordingly.
[17] In regards to
the decision as a whole, the officer appeared to be focused mainly on the issue
of the applicant’s religious persecution. It is evident that the assessment was
erroneously made in the context of a PRRA.
[18]
Finally,
it is the applicants’ position that the H&C application was based on
domestic violence and establishment. Detailed information on employment
including tax returns provided a more complete application based on length of
stay, continuous employment, good civil record and integration into the community;
which were not considered in their totality.
Respondent’s Written Submissions
[19]
It
was incumbent on the applicants to submit all information and raise all issues
to satisfy the requirements of the Act (see Owusu v. Canada 2004 FCA
38). A very high threshold must be met before incompetence of a representative will
result in a redetermination. Framing the issues differently falls short of the
threshold required to be met.
[20]
The
officer did consider risk as part of the H&C application as she appropriately
factored in the possibility of disproportionate hardship if returned to the Ukraine. In any
case, the domestic violence was considered within the broader risk assessment
(ie: hardship focus). The officer stated “I am cognizant of the fact the principal
applicant was abused, while in Canada, by her Canadian husband...”.
[21] In regards to
the Gender Guidelines, they have no application to the H&C process or
decision. The applicants’ reliance on IP-5, 13.10, which deals with family
violence, is also misplaced. It is clear that the manual and guidelines are not
legally binding and do not create any legal entitlement, but more importantly,
there was no concern that the officer misunderstood the principal applicant’s
situation, as section 13.10 attempts to address.
[22]
The
final issue regarding the totality of the evidence and weighing of factors is
beyond the role of the Court in this judicial review. The H&C application
is not a simple application of legal principles but a fact specific weighing of
factors. The officer addressed the relevant factors and as such there was no
error, even if the Court would have weighted the factors differently.
Analysis and Decision
[23]
Issue
1
What is the appropriate
standard of review?
The Supreme
Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 stated at paragraph 62 that a standard of review
analysis does not need to be conducted where the standard of review applicable
to the particular question before the Court is well-settled by past
jurisprudence.
[24]
The seminal case for
H&C applications is Baker v. MCI, 1999 Can. LII 699 (S.C.C.). In Baker
above, it was held that the standard of review applicable to an officer's
decision of whether or not to grant an exemption based on H&C considerations was reasonableness simpliciter
which, Dunsmuir above, collapsed to the standard of reasonableness. The
Supreme Court in Baker above, stated 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.
[25]
Since Dunsmuir above, other judicial reviews of H&C
decisions have adopted reasonableness given the discretionary nature of such a
decision and its factual underpinning” (see Zambrano v. Canada (Minister
of Citizenship and Immigration), 2008
FC 481 (Can, LII), 2008 FC 481).
[26]
For a decision to be reasonable, there must be justification,
transparency and intelligibility within the decision making process. The
decision must fall within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law (see Dunsmuir above, at
paragraph 47).
[27]
Issue 2
Did the officer commit a reviewable error by
failing to discuss or refer to the specific sections of the CIC Manual dealing
with family violence and the Gender Guidelines?
With respect to CIC Manual IP-5,
section 13.10, there is no doubt that this section applies to the principal
applicant’s situation but at the same time, the mere applicability of the
section does not have the effect of automatically causing the applicants’
H&C application to succeed.
[28]
In
the present case, the officer was aware of the abusive situation that the
principal applicant had left and the officer did not fault the principal
applicant for no longer having an approved sponsorship.
[29]
There
was no reviewable error with respect to the application of section 13.10 which
reads:
Family
violence
13.10
Family members in Canada, particularly spouses, who are in
abusive relationships and are not permanent residents or Canadian citizens, may
feel compelled to stay in the relationship or abusive situation in order to
remain in Canada; this could put them at risk.
Officers
should be sensitive to situations where the spouse (or other family member) of
a Canadian citizen or permanent resident leaves an abusive situation and, as a
result, does not have an approved sponsorship.
[30]
The
applicants also submitted that the officer failed to apply the chairperson’s
guidelines and thus made a reviewable error. I am of the view that these
guidelines, the Gender Guidelines, more aptly apply in the adjudication of
Convention refugee claims. Consequently, the officer did not make a reviewable
error in this respect.
[31]
The
applicants’ representative was an immigration consultant. The applicants have
submitted that the consultant did not properly frame the issues in the H&C
application and thus, was negligent resulting in a denial of natural justice
for them. From a review of the file, I am satisfied that despite this, the real
issues and factual background was understood by the officer. The officer was
aware of the domestic abuse in Canada. The officer made no error in this respect.
[32]
Issue
3
Did the officer err in
the evaluation of the evidence?
I am of the
view that the evidence was analyzed in detail and in respect to the H&C
considerations enunciated in the Act. The officer made mention of the
employment of the principal applicant, the ties to the community, and the
length of time spent in Canada. I do not accept that these factors were
ignored because of an undue focus on risk emanating from the PRRA decision. The
officer recognized the appropriate place of evaluating risk: as a hardship
factor.
[33]
As
a result, I am of the opinion that the officer did not make a reviewable error
and consequently, the application for judicial review is dismissed.
[34]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[35]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration
and Refugee Protection Act, S.C. 2001, c.27:
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3.(1)
The objectives of this Act with respect to immigration are
(a) to permit Canada to pursue the maximum social, cultural and economic
benefits of immigration;
(b) to enrich
and strengthen the social and cultural fabric of Canadian society, while
respecting the federal, bilingual and multicultural character of Canada;
(b.1) to
support and assist the development of minority official languages communities
in Canada;
(c) to support
the development of a strong and prosperous Canadian economy, in which the
benefits of immigration are shared across all regions of Canada;
(d) to see
that families are reunited in Canada;
(e) to promote
the successful integration of permanent residents into Canada, while recognizing that integration involves mutual
obligations for new immigrants and Canadian society;
(f) to
support, by means of consistent standards and prompt processing, the
attainment of immigration goals established by the Government of Canada in
consultation with the provinces;
(g) to
facilitate the entry of visitors, students and temporary workers for purposes
such as trade, commerce, tourism, international understanding and cultural,
educational and scientific activities;
(h) to protect
the health and safety of Canadians and to maintain the security of Canadian
society;
(i) to promote
international justice and security by fostering respect for human rights and
by denying access to Canadian territory to persons who are criminals or
security risks; and
(j) to work in
cooperation with the provinces to secure better recognition of the foreign
credentials of permanent residents and their more rapid integration into
society.
25.(1) The
Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or on request of a foreign national outside
Canada, 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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3.(1)
En matière d’immigration, la présente loi a pour objet :
a) de
permettre au Canada de retirer de l’immigration le maximum
d’avantages sociaux, culturels et économiques;
b) d’enrichir
et de renforcer le tissu social et culturel du Canada
dans le respect de son caractère fédéral, bilingue et multiculturel;
b.1) de
favoriser le développement des collectivités de langues officielles
minoritaires au Canada;
c) de
favoriser le développement économique et la prospérité du Canada et de faire en sorte que toutes les régions puissent
bénéficier des avantages économiques découlant de l’immigration;
d) de veiller
à la réunification des familles au Canada;
e)
de promouvoir l’intégration des résidents permanents au Canada, compte tenu
du fait que cette intégration suppose des obligations pour les nouveaux
arrivants et pour la société canadienne;
f)
d’atteindre, par la prise de normes uniformes et l’application d’un
traitement efficace, les objectifs fixés pour l’immigration par le
gouvernement fédéral après consultation des provinces;
g) de
faciliter l’entrée des visiteurs, étudiants et travailleurs temporaires qui
viennent au Canada dans le cadre d’activités
commerciales, touristiques, culturelles, éducatives, scientifiques ou autres,
ou pour favoriser la bonne entente à l’échelle internationale;
h)
de protéger la santé des Canadiens et de garantir leur sécurité;
i) de
promouvoir, à l’échelle internationale, la justice et la sécurité par le
respect des droits de la personne et l’interdiction de territoire aux
personnes qui sont des criminels ou constituent un danger pour la sécurité;
j)
de veiller, de concert avec les provinces, à aider les résidents permanents à
mieux faire reconnaître leurs titres de compétence et à s’intégrer plus
rapidement à la société.
25.(1) Le ministre doit, sur
demande d’un étranger se trouvant au Canada qui est interdit de territoire ou
qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou
sur demande d’un étranger se trouvant hors du Canada, 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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