Date:
20120207
Docket:
IMM-6874-10
Citation:
2012 FC 164
Ottawa, Ontario, February
7, 2012
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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VICTOR HUGO MORALES
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I.
Introduction
[1]
This is an application for judicial review filed under subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
from a decision of the immigration officer (Officer) refusing to grant
permanent residence status to Victor Hugo Morales (Mr. Morales) or an
exemption from any applicable criteria or obligation for an application on
humanitarian and compassionate considerations under subsection 25(1) of
the IRPA.
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
Mr. Morales, a citizen of Chile, is a professional musician. He immigrated to Canada in 1978, shortly before he turned 8
years old and became a permanent resident.
[4]
He is the father of three children. His eldest son is from his first marriage; he lives in Ontario and has
little or no relationship with his father.
[5]
His two younger sons, aged 14 and 15, are from a second marriage. Mr. Morales was divorced on February 23, 2004.
The divorce decree granted custody of the children to
his spouse. Mr. Morales claims that he is
actively involved with his sons; he ensures that he is present in their lives.
[6]
Mr. Morales has had a troubled past because he was both a
witness to and a victim of violence at the hands of his father. As a teenager, he developed a dependency on alcohol and
drugs until 2004. Since then, has allegedly
been rehabilitated, with only one temporary relapse in 2008.
[7]
Between 1994 and 2004, Mr. Morales pled guilty to 12 criminal
offences, including possession of drugs with the intent to traffic, possession
of drugs, possession of break-in instruments, accessory to robbery, impaired
driving and threats and assault.
[8]
A deportation order was issued against Mr. Morales on March 26,
1997, because of his criminal offences. Consequently, he lost his permanent resident status, which he received
after he arrived in Canada.
[9]
Mr. Morales appealed this decision. On February 24, 1998, the Immigration and Refugee Board’s
Immigration Appeal Division [IRB-IAD] dismissed his appeal and upheld the
removal order.
[10]
Between 1998 and 2008, Mr. Morales had four arrest warrants
issued against him for failing to appear for investigation and removal from
Canada.
[11]
In February 2009, Mr. Morales filed an Application for
Pre-Removal Risk Assessment [PRRA], which was refused on November 4, 2010.
[12]
On April 29, 2009, Mr. Morales applied under
humanitarian considerations [H&C] to be exempt from the inadmissibility
affecting him and from the obligation to file his application for permanent
residence from outside Canada.
[13]
The H&C application was refused on October 28, 2010. The Officer concluded that Mr. Morales failed to
establish on a balance of probabilities that he would experience any unusual,
undeserved or disproportionate hardship if he were required to file his
application for permanent residence abroad, taking into consideration the best
interests of his children who are directly affected.
III.
Legislation
[14]
Subsection 25(1)
of the IRPA reads as follows:
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Humanitarian
and compassionate considerations — request of foreign national
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Séjour pour motif d’ordre humanitaire à
la demande de l’étranger
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25. (1) The Minister
must, on request of a foreign national in Canada who is inadmissible or who
does not meet the requirements of this Act, and may, 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 obligations of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to the foreign national, taking into
account the best interests of a child directly affected.
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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, sur demande d’un étranger
se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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IV.
Issue
and standard of review
A.
Issue
[15]
This application for judicial review only raises a single issue:
·
Did the Officer err by finding that the applicant would not
experience any unusual, undeserved or disproportionate hardship if he were
required to file his application for permanent residence for humanitarian and
compassionate considerations abroad?
B.
Standard
of review
[16]
In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 [Dunsmuir], the Supreme Court
of Canada found that, at paragraph 62 of its decision, when determining the
appropriate standard of review, the first step is to “ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of deference
to be accorded with regard to a particular category of question”.
[17]
In
Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at
para 62, the Supreme Court explained that the appropriate standard of review for humanitarian
and compassionate considerations is reasonableness (see also Paz v
Canada (Minister of Citizenship and Immigration),
2009 FC 412, [2009] FCJ No 497 at paras 22-25).
[18]
Therefore,
the Court must consider “the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, at para
47).
V.
Position
of the parties
A.
Position of Mr. Morales
[19]
Mr. Morales
submits that he has been well integrated in Canada since 1978, that
his entire family lives there and that he does not know his country of birth, Chile.
[20]
He
states that the Officer’s decision violates the Canada’s international commitments
on children’s rights. Mr. Morales points out that in enacting the IRPA,
Canada adopted, among others, the objective of encouraging family reunification.
Therefore, the Officer had to take into account the best interests of his
children, which she did not do. He submitted that his two minor sons depend on
him because he takes care of their education, their health—in short, their
well-being.
[21]
Mr. Morales alleges that the Officer’s decision was in excess
of her jurisdiction since she failed to comply with the principle of
proportionality, an important principle in international law.
[22]
He further submitted that the Officer ignored, disregarded without
reason and refused to consider several pieces of evidence filed in support of
the application on humanitarian and compassionate grounds.
[23]
Mr. Morales believes that the decision was without merit and
arbitrary since it was contrary to the Canadian Charter of Rights and
Freedoms, Part 1 of The Constitution Act, 1982, being
Schedule B to the Canada Act, 1982, (UK), 1982, c 11 [Charter]. He claims that removing him would violate his rights to life
and security under section 7 of the Charter since it would lead to
a disproportional situation for his family, in particular for his mother for
whom he is the primary informal caregiver and his two minor children.
B.
Respondent’s
position
[24]
The respondent relies on the Officer’s decision. He submits that it carefully reviews all aspects of the
H&C application filed by Mr. Morales. All
the documents and information provided were considered. Contrary to what Mr. Morales argues, the Officer was
not disregarding the letters written by his family. She weighed their relevance as evidence.
[25]
The Officer considered Mr. Morales’s immigration and criminal
history.
She then reviewed his children’s situation to
determine what is in their best interests. She
also considered the degree to which Mr. Morales is established in Canada.
The respondent submitted that the Officer is alert,
alive and sensitive to the best interests of the children.
[26]
The respondent submitted that the best interests of the children
do not automatically result in a favourable response to an H&C application.
This criterion is one of many.
[27]
The respondent alleges that Mr. Morales is attempting to
minimize his criminal past. It cannot be said
that these crimes were only minor and without violence. The respondent submits that the Officer had to pay careful
attention to Mr. Morales’s criminal past, which she did.
[28]
The respondent also notes that it cannot be said that Mr. Morales
has been a good citizen for six years since a warrant was issued for his
arrest in August 2008. In addition, he did
not file an income tax return for several years, which shows his lack of
respect toward the Canadian authorities.
VI. Analysis
[29]
“In applications for exemption based on H&C considerations,
the decision-making procedure is entirely discretionary and is used to
determine whether an exemption is justified” (see Doumbouya v Canada (Minister
of Citizenship and Immigration) 2007 FC 1186, [2007] FCJ No 1552 at
para 7; Kawtharani v Canada (Minister of Citizenship and Immigration),
2006 FC 162, FCJ No 220 at para 15[Kawtharani]). Thus, the
onus is on the applicant to demonstrate that the hardship that he would face,
if he had to file his application for permanent residence abroad, are unusual,
undeserved or disproportionate (see Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] FCJ No 457
at para 23).
[30]
In
Serda v Canada (Minister
of Citizenship and Immigration), 2006 FC 356, [2006] FCJ No 425,
Justice de Montigny explained the meaning of the words “unusual and undeserved or disproportionate”. In paragraph 20
of the decision, he wrote:
In assessing an
application for landing from within Canada on Humanitarian and Compassionate
grounds made pursuant to section 25, the Immigration Officer is provided
with Ministerial guidelines. Immigration Manual IP5 – Immigration Applications
in Canada made on Humanitarian or Compassionate Grounds, a manual put out by
the Minister of Citizenship and Immigration Canada, provides guidelines on what
is meant by Humanitarian and Compassionate grounds …
...
The IP5 Manual goes on
to define “unusual and undeserved” hardship and “disproportionate” hardship. It
states, at paragraphs 6.7 and 6.8:
6.7 Unusual and
undeserved hardship
Unusual and undeserved
hardship is:
- the hardship (of
having to apply for a permanent resident visa from outside of Canada) that the
applicant would have to face should be, in most cases, unusual, in other words,
a hardship not anticipated by the Act or Regulations; and
- the hardship (of
having to apply for a permanent resident visa from outside of Canada) that the
applicant would face should be, in most cases, the result of circumstances
beyond the person’s control.
6.8 Disproportionate
hardship
Humanitarian and
compassionate grounds may exist in cases that would not meet the “unusual and
undeserved” criteria but where the hardship (of having to apply for a permanent
resident visa from outside of Canada) would have a disproportionate impact on
the applicant due to their personal circumstances.
[31]
Hardship that is inherent in having to leave Canada
is insufficient in itself to exempt an applicant under subsection 25(1) of
the IRPA (see Kawtharani at para 16).
[32]
Mr. Morales submitted that the Officer erred by failing to
consider the evidence before her. The respondent
takes the opposite position.
[33]
There
is a presumption that the Officer considered the evidence as a whole before
making a decision (Townsend v Canada (Minister of
Citizenship and Immigration), 2003 FCT 371, [2003] FCJ No 516).
[34]
In this case, the Court finds that the Officer considered all the
evidence before her. She wrote: “Applicant submitted a
letter from his youngest son [and from] ex wife and her sister … I grant little
weight to these documents as they constitute interested proof as they were
probably written in the sole goal of supporting the Application for permanent
residence” (page 18 of the Tribunal Record). The Officer considered the evidence filed by Mr. Morales,
but she gave them little probative value, given that they came from interested
parties. Indeed, the Court recognized that the
Officer’s wording was not very good, but she exercised her discretion as
mandated to her under the law.
[35]
In addition, Mr. Morales submitted that the Officer ignored
the best interests of his children. The Court wishes to reiterate that the
case law establishes that the best interests of the child are certainly an
important factor, but are not determinative (Hawthorne v Canada (Minister
of Citizenship and Immigration), 2002 FCA 475 at para 2).
[36]
The Court believes that the Officer is alert, alive and sensitive
to the child’s situation. She devoted part of
her decision to analyzing the best interests of the children and found that the
evidence submitted does not establish that the hardship alleged by Mr. Morales
would be unusual and undeserved or disproportionate. The Officer pointed out “the
information before me does not demonstrate that neither the Applicant’s level
of implication nor that it would cause his children harm if ties were severed …
No evidence [were] submitted as to whether or not the Applicant provides
financial support for any of his 3 children” (page 18 of the Tribunal Record).
[37]
The Officer reviewed Mr. Morales’s immigration history and
his criminal record. She noted that Mr. Morales “has
a Criminal History over many years which resulted in his Permanent residence
being revoked” (page 20 of the Tribunal Record). She also noted that four arrest warrants were issued against him in 1998
and 2008 for failing to appear for investigation and removal from Canada.
She points out that Mr. Morales has only filed
four income tax returns since he has been in Canada, during the years 2006 to
2009, reporting an income of $0. The Officer
gave some weight to this evidence, which shows a limited degree of
establishment in Canada. The Officer has broad discretion when assessing
the evidence before her (see Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, [1999] FCJ No 39 at paras 57
to 62). She may determine the relevance of the
evidence for the purposes of the H&C application.
[38]
Mr. Morales pointed out his role as primary informal
caregiver for his mother since his brothers and sisters are working full time
and cannot take care of their mother. However, the
Officer found that it was reasonable to believe that the applicant’s brothers
and sisters could help their mother during his absence.
[39]
The Officer acknowledges that after 30 years in Canada, Mr. Morales
has been able to integrate in certain respects. However, she found that the evidence in the file do not support Mr. Morales’s
claims that the hardship that he would encounter, if he had to apply for
permanent residence from Chile, are not unusual and undeserved or
disproportionate. The Officer’s assessment seems to be reasonable.
[40]
“This Court is not to lightly interfere with the discretion given
to an H&C officer … As long as the H&C officer considers the relevant,
appropriate factors from an H&C perspective, the Court cannot interfere
with the weight the H&C officer gives to the different factors, even if it
would have weighed the factors differently” (Hamzai v Canada (Minister
of Citizenship and Immigration), 2006 FC 1108, [2006] FCJ No 1408 at
para 24).
[41]
Mr. Morales
also submitted that his removal to Chile is inconsistent with section 7
and sections 12, 15 and 27 of the Charter. In Thiara v Canada
(Minister of Citizenship and Immigration),
2008 FCA 151, [2008] FCJ No 668, the Court explained: “Paragraph 3(3)(f)
of the IRPA does not require that an officer exercising discretion under s.25
of the IRPA specifically refer to and analyse the international human rights
instruments to which Canada is a signatory. It is sufficient if the Officer
addresses the substance of the issues raised”, which she did in this case.
[42]
In
Medovarski v Canada (Minister of
Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 at para 46,
the Supreme Court of Canada wrote: “The most fundamental principle
of immigration law is that non-citizens do not have an unqualified right to
enter or remain in Canada: Chiarelli v Canada (Minister of Employment
and Immigration), [1992] 1 S.C.R. 711 … Thus the
deportation of a non-citizen in itself cannot implicate the liberty and
security interests protected by s. 7 of the Canadian Charter of Rights
and Freedoms”. The Officer’s decision is not inconsistent with Mr. Morales’s
rights to liberty and security. Furthermore, no evidence was submitted to the
Officer to establish that Mr. Morales would be a victim of cruel and
unusual treatment if he had to file his permanent residence application from
his country of origin.
[43]
Mr. Morales also
based his objection on section 15 of the Charter. The Supreme Court of Canada wrote on this topic at paragraph 105 of Gosselin
v Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 [Gosselin]:
“A majority of this Court has held that the objective of s. 15 is to
affirm the dignity of individuals and groups by protecting them from unfair
governmental action, which differentiates on the basis of characteristics that
can be changed, if at all, only at great personal cost”. This excerpt from Gosselin
is a reminder that removal of a person does not constitute unfair government action
that differentiates on the basis of characteristics that can be changed,
especially when this person has a serious criminal past (see A.M.M. v Canada (Minister
of Public Safety and Emergency Preparedness), 2009 FC 809, [2009] FCJ No 920
at para 36). Mr. Morales failed to establish that he has suffered an injustice
under section 15 of the Charter.
VII. Conclusion
[44]
Mr. Morales
failed to establish that the Officer erred in assessing the evidence or the
applicable law when she reviewed his application under subsection 25(1) of
the IRPA, which would warrant this Court’s intervention. Therefore, this
application for judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that
1.
The
application for judicial review is dismissed; and
2.
There
is no question of general interest to certify.
“André
F.J. Scott”
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