Date: 20100813
Docket: IMM-4853-09
Citation 2010 FC 820
Ottawa, Ontario,
August 13, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
CINDI (CINDY) YUMIKO HERNANDEZ
CARDENAS
JAIME ALDAIR PALMA HERNANDEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants applied for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), asking the Court to
set aside a decision of a Pre-Removal Risk Assessment (PRRA) officer. The officer
rejected their PRRA application on August 19, 2009.
[2]
For the
reasons that follow this application is dismissed.
Preliminary Matter
[3]
This
application was scheduled and came on for hearing in Toronto on August 11, 2010. On August 6, 2010,
Catherine Kerr, counsel for the applicants, wrote to the Court enclosing a copy
of a letter she had written to the respondent and a copy of a Notice from Legal
Aid, dated July 13, 2010, which her office received while she was on vacation.
The Notice from Legal Aid reads as follows:
You acknowledged the Legal Aid
certificate in this case in February of this year. The client has applied for
a change of lawyer. Please refer to the reasons attached. Apparently, the
client was requesting a Spanish speaking lawyer. Please comment on this
client’s reasons. Please advise as to the status of the case, or as to what
steps have been taken by you if any. Please comment on your relationship with
the client.
It is noted that the client applied for
this change last March. It is noted on the system that you were notified of
the change request on May 25 last, and were invited to respond, but no response
has been received to date, as far as we are aware.
Legal Aid has been tardy in processing
this change of lawyer request on account of the transformation of Legal Aid, a
process that has involved the closure of six area offices within the GTA and
the centralization of client files and a staff complement to administer those
client files in this District Office.
You may call me at extension 4227 to
discuss or leave a detailed message.
[4]
The Court
advised all counsel that they were expected to attend at the hearing and could
speak to the request made by Ms. Kerr to the party opposite for an adjournment.
No Notice of Change of Solicitor has been filed as required by the Federal
Courts Rules and Ms. Kerr remains solicitor of record for the applicants.
[5]
At the
hearing of this matter, Ms. Kerr informed the Court that the applicants had
terminated her retainer and had told her so in May 2010. Ms. Kerr said that
she assumed that other counsel would be appointed. She requested an
adjournment.
[6]
The
request for an adjournment was denied. This hearing date was scheduled more
than three months ago. Despite Ms. Kerr’s retainer being terminated shortly
thereafter, neither she nor the applicants took any steps to inform either the
respondent or the Court of that fact. There is no evidence that the applicants
have taken any steps to retain other counsel and
Ms. Kerr acknowledged that she has been unable to contact the applicants since
May 2010.
[7]
The Court
sets fixed dates for its hearings. That is unquestionably a benefit to counsel
and their clients. The applicants knew or ought to have known the date
scheduled for this hearing and taken steps to obtain representation or appear
in person to make oral submissions. The Court has fixed judicial and
administrative resources and every adjournment granted means that those
resources have been squandered and another equally deserving applicant’s matter
will not be scheduled as promptly as it would have been had the adjournment
been denied. For these reasons, as well as the absence of any prejudice to the
applicants, the request for an adjournment was denied.
[8]
As a
consequence of that ruling and because the applicants had informed Ms. Kerr
that they no longer wished her to represent them, Ms. Kerr informed the Court
that she would not be making any oral submissions to the Court on the
application but that the applicants would be relying on the written memorandum
of argument that had been filed.
[9]
Counsel
for the respondent made brief oral submissions. The respondent sought leave to
rely on an affidavit of the PRRA officer filed in the stay application in this
file, but not included in the Respondent’s Record in this application. The
Court granted leave, subject to determining what weight, if any, to give it in
light of the failure to include it in the Record. In the end, it was
unnecessary to consider this additional evidence.
[10]
Although
Ms. Kerr was taking no active role in making submissions, she informed the
Court that she would not have proposed any question for certification in this
application.
Background
[11]
Ms. Cindi
Yumiko Hernandez Cardenas is a citizen of Mexico who arrived in Canada with her partner, Jesus Gonzalez Luna,
on February 23, 2003. Mr. Gonzalez Luna had been married to a woman whose
father was a police officer in Mexico. The relationship between
Mr. Gonzalez Luna and his wife broke down, and he began dating Ms. Hernandez
Cardenas. Shortly after they began dating, Mr. Gonzalez Luna began receiving
threats to his life, and Ms. Hernandez Cardenas did as well. She claimed that
she did not know exactly who was threatening Mr. Gonzalez Luna and her, but she
suspected that it may have been the father and brothers of Mr. Gonzalez Luna’s
ex-wife. Both Mr. Gonzalez Luna and Ms. Hernandez Cardenas made refugee claims
upon their arrival in Canada. Ms. Hernandez Cardenas’ son
Jaime, the other applicant, arrived in Canada approximately five months later with the
help of his grandmother.
[12]
Ms.
Hernandez Cardenas claims that approximately five to six months after she
arrived in Canada, Mr. Gonzalez Luna began to
abuse her. She reported this abuse to the police and pressed charges. She
also received a restraining order. Mr. Gonzalez Luna was then convicted of
assault and, as a result, he was deported.
[13]
Ms.
Hernandez Cardenas and her son Jaime’s refugee claims were considered on July
28, 2005. On August 23, 2005, they were rejected primarily because the Refugee
Protection Division (RPD) of the Immigration and Refugee Board found that there
was adequate state protection available for the applicants and also that there
was a viable internal flight alternative (IFA).
[14]
It appears
that Ms. Hernandez Cardenas was married to a Canadian citizen at some point
during her time in Canada. She had a second child,
Kevin, with this man. They are now separated because he was also abusive and
he had a gambling problem.
[15]
In 2006,
the Catholic Children’s Aid Society (CCAS) removed both Jaime and Kevin from
Ms. Hernandez Cardenas’ care because she had fallen into a deep depression and
was unable to effectively look after her children. Kevin was returned to Ms.
Hernandez Cardenas’ care in August 2009 with a temporary supervision order. Jaime,
however, remained in the care of the CCAS because he suffered from
developmental delays, behavioural problems, and tubular sclerosis. On April
28, 2008, Jaime became a Crown ward. On August 15, 2008, Ms. Hernandez
Cardenas was granted weekly access to Jaime.
[16]
Ms.
Hernandez Cardenas submitted a PRRA application for Jaime and herself in
December 2008. She claimed that they were at risk in Mexico because Mr. Gonzalez Luna wanted revenge
for having been deported as a result of the criminal charges she pressed. She
made her original submissions without the aid of a lawyer. However, in January
2009, she retained counsel, who made further submissions on her behalf. On
August 19, 2009, the PRRA application was rejected.
[17]
The officer
further noted that Jaime is a Crown ward and that his mother did not have
custodial or parental rights, and that the Catholic Children’s Aid Society
(CCAS) confirmed that Jaime would be relying on his mother’s risk submissions.
[18]
The officer
then reviewed the applicants’ past in Canada,
noting that their refugee claims were denied and that the risks claimed on the
PRRA application were essentially the same as those that were before the RPD. No
application had been made to review that decision. The RPD rejected the claim
of risk from the ex-common law partner because it was speculative and because
the applicants had a viable IFA in Tabasco, Campeche, Cancun, Oaxaca and Monterrey. The RPD had also concluded that state
protection would be available to the applicants if the ex-partner was able to
locate them. The officer found that the applicants had not provided sufficient
evidence to overcome the RPD’s conclusions regarding the existence of state
protection and an IFA.
[19]
The officer
considered the evidence presented by the applicants in support of their PRRA
application. The officer noted the applicants’ claim that the ex-partner made
threats to Ms. Hernandez Cardenas and that he had attacked her mother’s house. Although
the applicants provided pictures of the damage to the mother’s house, the officer
indicated that they were blurry and dark and the original photos were never
submitted, despite the applicants asserting that they would be submitted. The officer
further noted that the applicants provided few details on when the incident
occurred, how recently, and how often. Nevertheless, the officer accepted that
the incident occurred sometime prior to December 2008. The officer found that
the fact that the principal applicant’s mother still lives in Merida, Yucatan, where the
applicants used to live, does not speak to the reasonableness or viability of
an IFA in the locations listed by the RPD or its determination of the
availability of state protection.
[20]
The officer
also considered the documentary evidence submitted by the applicants, noting
that the documents indicate that there are ongoing problems of domestic and
gender violence and general crime in Mexico.
The officer found that these were not new risk developments, but were simply
updates on problems and concerns that existed at the time the RPD made its
determination.
[21]
The
officer further noted that little evidence was provided relating to the
reasonableness and viability of the IFA locations. As a result, the officer
concluded that the applicants had provided insufficient information to
establish that the IFA locations were no longer reasonable or viable.
[22]
The
officer also looked to recent documentary evidence and found that the country
conditions in Mexico were consistent with those
that existed at the time the RPD made its decision. The officer further found
that the documents did not speak of a change in conditions such that the IFA or
the state protection would no longer be available. Thus, the officer concluded
that the application failed to meet both ss. 96 and 97 of the Act since an IFA
is a determinative factor indicating protection.
Issues
[23]
The
applicants raise three issues in their memorandum:
1. Did the PRRA officer have the jurisdiction to consider
humanitarian and compassionate factors in the adjudication of the applicants’
PRRA application?
2. If the PRRA officer had jurisdiction to consider
humanitarian and compassionate factors, did the applicants have a legitimate
expectation that the PRRA officer would consider such humanitarian and
compassionate factors as were before the officer?
3. If there was a legitimate expectation that the PRRA
officer would consider humanitarian and compassionate factors, did the PRRA
officer fail to properly consider all of the evidence before her including
evidence regarding the best interests of the minor applicant?
[24]
I believe
that the issues raised may be more appropriately described as the following two
issues:
1.
Did the PRRA officer create a legitimate
expectation that humanitarian and compassionate factors would be considered?
2.
Did the PRRA officer err by failing to consider
all the evidence before her, particularly evidence regarding the best interests
of the minor applicant?
Analysis
1. Did the PRRA officer create a legitimate
expectation that humanitarian and compassionate factors would be considered?
[25]
The
applicants submit that the officer created a legitimate expectation that the humanitarian
and compassionate (H&C) factors submitted would be considered as part of
the PRRA assessment. The applicants submit that the doctrine of legitimate
expectations is an aspect of the duty of fairness, and say that it was unfair
for the officer to fail to consider the H&C factors submitted to her. The
applicants submit that the officer created a legitimate expectation that
H&C factors would be considered by requesting information regarding the
nature of the relationship between the applicants and Jaime’s status as a Crown
ward. The applicants further submit that when the officer was discussing the
applicants’ case with counsel, the officer asked if the applicants had made an
H&C application. Counsel indicated that the applicants had not and that
the H&C considerations had only been submitted to the officer, to which the
officer replied “Okay”. The applicants submit that this also created a
legitimate expectation that the H&C factors would be considered by leading
the applicants to believe that the officer had agreed to consider them. The
applicants further submit that if the officer did not intend to consider such
factors, she had a duty as a matter of fairness to advise the applicants that
they would not be considered.
[26]
I agree
with the submission of the respondent that the record fails to disclose any
commitment by the officer to consider H&C considerations and, furthermore,
if the applicants formed the view that there had been such a commitment, that
view was unreasonable.
[27]
First, I
am not convinced that the officer created a legitimate expectation that
humanitarian and compassionate submissions would be considered. The applicants
suggest that by requesting information about Ms. Hernandez Cardenas’
relationship with Jaime and his status as a Crown ward, the officer invited
humanitarian and compassionate submissions and created a legitimate expectation
that such submissions would be considered. I believe that misconstrues the
words used and the request made by the officer. The letter to which the
applicants are referring states:
When making your updated
submissions, please provide an update on Ms. Hernandez Cardenas (sic)
custody and relationship with respect to Jaime Aldair Palma Hernandez, and an
update on his status as a ward of the Crown.
[28]
In my
view, this does not invite humanitarian and compassionate submissions. It
was noted in the applicants’ first PRRA submissions that Jaime has become a
Crown ward, that the judge had recommended that Ms. Hernandez Cardenas apply
for a status review application, and that she fully intended on making such an
application. She indicates later in her submissions that she intended on
making this application at the custody hearing for Kevin on February 13, 2009. The
letter from the officer was written on January 30, 2009, prior to further
submissions from counsel. In my view, the officer was not requesting
humanitarian and compassionate submissions, but was instead seeking information
that would help her determine whether Ms. Hernandez Cardenas had made the
status review application, whether she had since been granted some type of
custody over Jaime, or whether Jaime was still considered a Crown ward, which
had implications for his scheduled removal. It is unreasonable to say in these
circumstances that the officer was asking for H&C submissions when she
requested the information.
[29]
Similarly,
the applicants submit that the officer created a legitimate expectation that
she would consider the H&C submissions because when she was informed by
counsel that Ms. Hernandez Cardenas had not made a humanitarian and
compassionate application, she said “Okay.” That view of a single word
response, in the circumstances, in my determination is patently unreasonable. Ms.
Hernandez Cardenas said in her original submissions that she was in the process
of making an application for landing in Canada on H&C grounds. The reasonable view
is that the officer was asking whether such an application had been made for
her own information. I do not find that simply responding “Okay” to counsel’s
indication that no H&C application was made created a positive duty on the
officer to either consider these factors or inform counsel and the applicants
that she would not be considering these submissions.
[30]
Second,
I agree with the respondent that the doctrine of legitimate expectations cannot
be used to counter Parliament’s expressed intent: dela Fuente v. Canada (M.C.I.), 2006 FCA 186. Section
113(c) of the Act sets out the scope of considerations in a PRRA application to
those described in sections 96 to 98 of the Act. Parliament’s clearly
expressed intent was to limit PRRA applications to those considerations. The
doctrine of legitimate expectations cannot be raised to conflict with the officer’s
statutory duty. To accept the applicants’ submission would require such a
determination.
2. Did the PRRA officer err by failing to
consider all the evidence before her, particularly evidence regarding the best
interests of the minor applicant?
[31]
The
applicants submit that the officer had jurisdiction to hear and consider both
H&C factors and risk factors. The applicants rely on the decision of Kim
v. Canada (Minister of Citizenship and Immigration), 2005 FC 437, where the Court
found that the same officer can decide both PRRA applications and H&C
applications. The applicants further rely on Zolotareva v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1274, where the Court found that while there was no requirement for
officers to consider H&C factors, PRRA officers could represent the
Minister for the purposes of an H&C application. Thus, the applicants
submit, the officer had jurisdiction to consider the applicants’ request to
remain in Canada on H&C grounds.
[32]
The
applicants then say that the officer clearly erred by failing to consider the
totality of the evidence, including the best interests of the minor applicant,
Jaime. They list a number of pieces of information of which the officer was
aware and had a duty to consider, including:
i.
As a Crown ward, Jaime would not be deported as
a matter of policy;
ii.
Jaime would be alone in Canada
if his mother was deported;
iii.
As a pre-adolescent with health and emotional
problems, Jaime is not likely to be adopted;
iv.
Jaime had already experienced abuse while in
foster care;
v.
A family court determined that it was in Jaime’s
best interests to have access to his mother;
vi.
Ms. Hernandez Cardenas exercised her access
rights for over one and a half years and continues to do so;
vii.
As a child with a number of challenges and a
likely lifetime of unstable foster care, Jaime would need regular access to his
mother more than other Crown wards;
viii.
If Ms. Hernandez Cardenas was deported, Kevin
would also leave with her and Jaime would also lose the relationship with his
brother; and
ix.
A CCAS social worker was of the opinion that it
was crucial to Jaime’s emotional and developmental health that he continues to
have time with his mother and brother every week.
[33]
The
applicants note that despite the existence of all this information, the only
comment the officer makes regarding the applicants’ H&C submissions is that
Jaime is a Crown ward and that Ms. Hernandez Cardenas no longer has custody or
parental rights in relationship to him. The applicants submit that not only
did the officer fail to consider the totality of the evidence, but her
statement is also wrong, as Ms. Hernandez Cardenas still exercises the parental
right of access. The applicants cite Okoloubu v. Canada (Minister of
Citizenship and Immigration.), 2008 FCA 326, wherein the Federal Court of
Appeal stated that officers must have the best interests of the child and the
importance of the family unit in mind when determining H&C applications. The
applicants further cite Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, wherein the Supreme Court stated that
family-related interests include the best interests of the child and that a
decision will be unreasonable if it minimizes the interests of the children
involved in a manner inconsistent with Canada’s humanitarian and compassionate
tradition. The applicants submit that it is clear from the decision that the officer
was neither alert nor sensitive to the best interests of Jaime.
[34]
Again,
I agree with the submissions of the respondent. The fundamental flaw in the
applicants’ reasoning is that the authorities they cite involve situations
where there has been an H&C application made. No such application was made
in this case. This Court has held that until the requirements of the Immigration
and Refugee Protection Regulations, SOR 2002-227 have been complied with,
there is no H&C application filed: Toussaint v. Canada (Minister of Citizenship and Immigration), 2009 FC 873. These applicants made no “application in
writing accompanied by an application to remain in Canada as a permanent resident” with the
required fee and therefore made no request under section 25 of the Act. Had
there been an H&C application then it is correct, as the authorities cited
by the applicants held, that the same PRRA officer could have made
determinations on both applications. Only in that scenario could the
officer have considered H&C considerations.
[35]
The Federal
Court of Appeal in Varga
v. Canada (Minister of Citizenship and Immigration), 2006 FCA 394, has
firmly stated that while the same officer may consider both a PRRA application and
an H&C application, the two processes should not be confused and an officer
has no obligation to consider H&C factors in the context of a PRRA. The
case law establishes, without question in my mind, that in making a PRRA
determination an officer does not have a duty to consider H&C submissions
either based on the doctrine of legitimate expectation or otherwise.
Accordingly, this officer did not err by failing to consider these submissions.
[36]
Furthermore,
I am of the view that the officer would have erred in law had she considered
the alleged H&C factors cited by the applicants. The task of the officer
when making a PRRA determination is proscribed by section 113 of the Act to be
limited to the risk factors set out in sections 96 to 98 of the Act. The officer
is assessing risk, and is not to consider other reasons why an applicant might
be better off staying in Canada. There are other appropriate mechanisms
in the legislation for that type of assessment.
Conclusion
[37]
I find
that the officer did not create a legitimate expectation that H&C
submissions would be considered. Further, the doctrine of legitimate
expectations cannot be used to circumvent the clear statutory authority to
consider PRRA applications solely on the basis of ss. 96 to 98 of the Act. As a
result, the officer did not err in failing to consider submissions regarding
the best interests of the child.
[38]
For the
foregoing reasons this application is dismissed. There is no question that is
properly certifiable on the record before this Court.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application is dismissed; and
2. No question
is certified.
"Russel W. Zinn"
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