Date: 20101101
Docket: IMM-1307-10
Citation: 2010 FC 1071
Ottawa, Ontario, November 1, 2010
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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MEROPI DUKA
IRINI CUCI
VERONIKA CUCI
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Applicants
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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
[1]
The
main applicant, Ms. Meropi Duka and her two minor daughters, Irini and Veronika
Cuci, are Albanian citizens. They challenge the legality of a decision rendered
on January 10, 2010, refusing the applicants’ application for permanent
resident status based on humanitarian and compassionate grounds (the H&C
application).
[2]
Subsection
25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27
(the Act), provides an exemption to the requirement of having to apply for a
visa from outside of Canada “if the Minister is of the opinion that [such an exemption]
is justified by humanitarian and compassionate considerations relating to [the
applicant], taking into account the best interests of a child directly
affected, or by public policy considerations.”
[3]
The
applicants are failed refugee claimants. They made both an application for a
pre‑removal risk assessment (PRRA) and the present H&C application.
[4]
In a
PRRA, under sections 97, 112 and 113 of the Act, 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. In
an H&C application under section 25 of the Act, 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.
[5]
As
the law now stands, risk factors must be considered in the overall assessment
of an H&C application, even though a valid negative PRRA 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 (Pinter v. Canada (Minister of
Citizenship and Immigration), 2005 FC 296 at paragraph 5).
[6]
In
the case at bar, the H&C application is made on the two-fold basis
that the main applicant is well integrated in Canadian society, is a victim of
domestic violence and fears for her life at the hands of her former husband,
Mr. Harallamb Cuci, who lives in Albania, and also that the best interests of
the children are that they remain in Canada considering that besides their fear
of an abusive and violent father, they have spent over nine years in Canada,
have started their education here and have established social networks.
[7]
The
allegations of risk made by the applicants were considered by the same
immigration officer, Ms. J. Luneau (the officer), who dismissed the PRRA and
the H&C applications in separate decisions. With respect to the rejection
of the H&C application, the officer has determined that the applicants have
not
established that they would suffer “unusual, undeserved or disproportionate
hardship” if they are required to apply for permanent resident status outside
of Canada (i.e. Albania).
[8]
Only
the legality of the decision dismissing the H&C application has to be considered
by the Court. The applicants make the following arguments against the officer’s
decision:
(a) The officer
had a duty to conduct an interview because her decision was based on a negative
credibility finding;
(b) The officer’s
analysis of the applicant’s risk from her former husband is unreasonable;
(c) The officer
failed to apply the proper legal test when she conducted a risk assessment in
her analysis of the H&C application; and
(d) The officer’s
conclusions regarding the best interests of the children are unreasonable.
[9]
The
first ground concerns procedural fairness and must be decided on a correctness
standard. The alleged failure to apply the proper legal test should also be
decided on the correctness standard considering the particular nature of the
arguments made on both sides. The two other grounds question the reasonableness
per se of the findings and overall conclusion of the officer, and thus,
are to be assessed using the well known reasonableness test (Frank v. Canada (Minister of
Citizenship and Immigration), 2010 FC 270 at paragraphs 15 to 17).
[10]
The
present application shall be allowed. For the reasons below, the Court finds
that there has been a breach of procedural fairness and that the officer’s
conclusions regarding the best interests of the children are unreasonable.
Accordingly, it is not necessary to address the other grounds of review raised
by the applicants.
Procedural fairness
[11]
It
is understood by both parties that an interview is not generally required to
ensure procedural fairness when evaluating an H&C application. In Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker),
the Supreme Court of Canada observed at paragraphs 33 and 34 that
immigration officer decisions are "very different from judicial
decisions" and that what is required is “meaningful participation” in the
decision making process. See also Bui v. Canada (Minister of
Citizenship & Immigration), 2005 FC 816, 140 A.C.W.S. (3d) 364 at
paragraph 10 (Bui).
[12]
Although
it was ultimately determined in Baker, above, that no oral hearing was
required, in that case credibility was not at issue, nor was it alleged that
the applicant or her children would suffer hardship because their lives would
possibly be endangered by returning them to their home country. Thus, only a
flexible and principled approach can reconcile policy reasons – it is expedient
that there should not be an unnecessary and unwise allocation of resources,
with legal contingencies – fundamental justice suggests that an oral hearing
may sometimes be the only way to decide a case where serious issues of
credibility are at stake, especially so if the life or security of the person
is allegedly threatened (Singh v. Canada (Minister of Employment and
Immigration), [1985] 1 S.C.R. 177).
[13]
The
above approach is consistent with the caselaw: while it is generally recognized
that an H&C applicant has no legitimate expectation that he or she will be
interviewed (Owusu v. Canada (Minister of Citizenship and Immigration),
2004 FCA 38, [2004] 2 F.C.R. 635 at paragraph 8), an oral
interview may have been required where the impugned decision is based on an
adverse credibility finding, otherwise such finding cannot withstand judicial
scrutiny (Doumbouya v. Canada (Minister of Citizenship and Immigration),
2007 FC 1186, 325 F.T.R. 186 (Eng.) at paragraph 74; Alwan v.
Canada (Minister of Citizenship and Immigration), 2008 FC 37 at paragraph
16).
[14]
Having
closely read the impugned decision in light of the totality of the evidence, it
appears to the Court that credibility was central to the determination of the
H&C application, as the officer turned down all the evidence substantiating
the applicants’ allegations of domestic violence and threats against their
lives and security.
[15]
Again,
some background is necessary in order to contextualize the allegations of
hardship made by the applicants in their H&C application. An important
aspect hinges on the fear for their lives from the former husband and father of
the children who “was able to locate [the applicants] in Canada and called [the
applicants] regularly, trying to force [the main applicant] to return to
Albania”, as alleged by the main applicant in the declaration that was
submitted in support of the H&C application in 2008.
[16]
In
2001, the main applicant was not yet divorced from her alleged abusive husband.
At the time of arrival in Canada with the minor applicants, she lied to the
immigration authorities in saying that criminals wanted to kill them or
otherwise extort money. However, the main applicant later claimed before the
Immigration and Refugee Board (IRB) that she had been actively engaged in
political activities with her sister after the fall of the communists; this
resulted from being struck by an automobile after the commemoration of the
assassination of a political leader in Albania.
[17]
In
2002, the IRB found that the entire story was a fabrication and dismissed the
applicants’ claim.
[18]
In
2003, the main applicant obtained a divorce judgment in the Province of Quebec.
[19]
In
her declaration in support of the H&C application, the main applicant, who
apologetically “[regrets] having betrayed the trust of the people and the
authorities of Canada”, makes the following statement:
It is important to note that for a long
time after my arrival in Canada, I told no one in this
country that I had been a victim of domestic violence. The culture of my
country of origin is such that such realities are ignored or kept secret, and
the social culture in Albania makes the woman responsible
for being beaten. This is a source of shame for women in my country, and for
myself in particular. I was even ashamed to talk about my problems with my
former husband with my present lawyer. In fact, it was not until 18 months
after my first visit to Mr. Saint-Pierre’s office that I dared tell him about
the abused I had suffered.
[20]
The
eldest daughter was born in December 1992. She was 8 years old when the
applicants arrived in Canada. In her statement dated January 20, 2007
tendered in support of the H&C application, she declares:
[TRANSLATION]
I certify that, while I was living in Albania, my parents did not get along very well. My father was a
very quick-tempered man. He often got angry for no good reason. When he was
angry, he would beat my mother and sometimes me. He would break everything around
him. He drank a lot and when that happened, he would beat my mother and
threaten her with a knife. He was very lazy and hardly worked. He took things
from others and gave nothing in return. He would take money from the house and,
most of the time, spend it on alcohol. He would leave us without food. He often
complained about anything and nothing. There was never a time when he did
something right. The only thing he knew how to do was to hit us and shout at
us. My father was very jealous of my mother. He would never let her go outside
or get in touch with people from outside. Nor could anyone come to our house.
He often beat my mother when he felt jealous. When I told him to stop, he would
hit me. I cannot possibly describe how bad his character was. I fervently thank
the people who helped us get out. Even in Canada, he did
not leave us alone. He would call us everyday, using vulgar language, and tell us
that he would find us and kill us. Also, every night, he would telephone us and
keep us from sleeping. He told us that we were not going to get away from him
once he found us. I pray every day that that doesn’t happen.
[21]
Further
corroborative evidence was filed with the officer to buttress the applicants’
allegations of the abuse suffered by the main applicant and her daughters,
notably from a family friend from Albania, the main applicant’s mother and also
her uncle, the municipality where the couple lived and letters of doctors who
tended to wounds which the main applicant suffered following abuse from her former
husband. The evidence points to the same set of facts: the main applicant’s
former husband tried to keep her from contacting family members as much as
possible and he was jealous, possessive and violent.
[22]
The
crucial question is whether the officer’s decision relied primarily on a
finding of negative credibility to dismiss the allegations of risk in the
consideration of hardship. Reading the reasoning of the officer, it is implicit
that she felt strongly that, once again, the main applicant was not truthful.
[23]
The
officer starts by noting that the main applicant, who was found non credible by
the IRB, now comes up with a new set of fears of return. In her analysis of the
new evidence submitted by the applicants, she expresses her concerns and finds
a number of “contradictions”. She excludes corroborating evidence coming from
individuals who have a close tie with the applicants. She faults the applicants
for never having submitted police reports. She finds implausible the basic
reason why the main applicant left Albania in the first place
(i.e. their fear of an abusive husband). She questions the ability of the main
applicant to travel with her children without the consent of her former
husband.
[24]
The
documentary evidence submitted reasonably supported the applicants’ claim of
domestic violence and risk, if the main applicant and her eldest daughter are
otherwise credible. If the evidence were accepted at face value, the
applicant’s allegations of abusive conduct and fear from the main applicant’s
former husband would have been considered true. Thus, in deciding as she did,
the officer necessarily discredited the evidence. Perhaps there are apparent
inconsistencies in the documentary evidence, but they turn out to be peripheral
and rather minor elements in the total picture drawn by the applicants.
Otherwise, if it is claimed that these inconsistencies are material, the
applicants should have been confronted with same and allowed the opportunity to
provide their explanations.
[25]
The
applicants should have been allowed to participate in a meaningful fashion in the
decision-making process and should have been given the opportunity to respond
to the officer’s doubts concerning their credibility. Shadow-boxing goes
against principles of fairness. New evidence corroborating the allegations of
risk was submitted by the applicants. Despite the low opinion the officer may
have had of the main applicant, young children are involved; the eldest
daughter has made very serious allegations against her father. Therefore, given
the central importance of credibility in this case, an oral interview should
have been conducted by the officer in this case.
[26]
In
view of the breach to procedural fairness, the findings made by the officer
cannot stand. In any event, the Court finds the impugned decision otherwise
reviewable because the officer’s conclusions regarding the best interests of
the children are unreasonable.
Best interests of the children
[27]
In
addition to the breach of procedural fairness the applicants have raised a
number of grounds to attack the impugned decision. The broad issue is whether
the officer’s decision, considered as a whole, can sustain a somewhat probing
examination by the Court.
[28]
As
long as the decision falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law, the Court will not intervene
with the immigration officer’s decision (Dunsmuir v. New Brunswick, 2008 SCC 9 at
paragraph 47). Moreover, in reviewing the legality of a decision
dismissing an H&C application, the Court should be careful not to consider
factors that it feels are relevant only to outweigh or diminish a number of
other relevant considerations that have been taken into account by the officer
(Frank, above, at paragraph 15).
[29]
That
being said, we need only consider, in this part of the present reasons, whether
the
officer’s conclusions regarding the best interests of the children are
unreasonable. As
aforesaid, since Baker, Parliament has made it clear in enacting section
25 of the Act in 2002 that the Minister must “tak[e] into account the best
interests of a child directly affected, or […] public policy considerations.”
[30]
The
best interests of children directly involved do not necessarily trump other
factors for consideration in an H&C application (Legault v. Canada (Minister of
Citizenship and Immigration), [2002] F.C. 358 (F.C.A.)). However, in
order to fall within the range of reasonable, the decision-maker must consider
children’s best interests as “an important factor, give them substantial weight
and be alert, alive and sensitive to them.” (Baker, above, at
paragraph 75). Moreover,
while the
operational manuals are not law and are not binding, they are valuable
guidelines to the immigration officers in carrying out their duties and in
assessing the reasonableness of their decisions (Frank, above, at
paragraph 21; John v. Canada (Minister of Citizenship and Immigration),
2010 FC 85 at paragraph 7).
[31]
In
this application, the applicants refer to the Operational Manual IP-5
Immigrant Applications in Canada made on Humanitarian and Compassionate Grounds
(the Manual) and argue that the
officer failed to consider the particular situation of the two minor applicants
in light of the relevant factors listed therein. In particular, section 5.14 of the Manual
states that where an application relies in whole or in part on the best
interests of the children, the officer is obliged to identify and examine all
factors related to the children’s lives.
[32]
The
following factors are listed as examples of factors to be considered by the officer
when raised :
• The
age of the child;
• The
level of dependency between the child and the H&C applicant or the child
and their sponsor;
• The
degree of the child’s establishment in Canada;
• The
child’s links to the country in relation to which the H&C assessment is
being considered;
•
The conditions of that country and the potential impact on the child
•
Medical issues or special needs the child may have;
•
The impact to the child’s education; and
• Matters
related to the child’s gender.
[33]
According
to the evidence on record, besides the risk of return to Albania personal to
the minor applicants and their present level of dependency on their mother, the
main applicant, the following elements can be highlighted:
(a) Age – Veronika
and Irini are ten and seventeen respectively. To be uprooted at either age
would not be an easy experience;
(b) Establishment
in Canada
– Both minor applicants are very well established in Canada. They have
lived here for the past nine years and are well integrated into Canadian
society. They speak English and French and are well-regarded by classmates and
teachers alike. The evidence also states that Irini suffers from anxiety,
described as sometimes fairly severe, and occasional panic attacks. Her doctor
stated that her unresolved immigration status is a contributing factor;
(c) Links to Albania – Irini left
Albania when she was
eight and has not returned. She has lived her entire adolescence in Canada and
no doubt has very few links in Albania, besides her family.
Veronika left Albania when she was
one and undoubtedly has no memories of Albania; and
(d) Education – The minor
applicants both attend private school in Montréal. While there is an education
system open to girls in Albania, this still poses a
question of the quality of the education available to the minor applicants and
whether it would be difficult to transfer from a Canadian school to an Albanian
one. With respect to their adaptation, it must be noted that Veronika has only
ever attended school in Canada and Irini had attended only for a few years
before moving to Canada.
[34]
In
the case at bar, the officer has contented herself with a two paragraph
analysis of the best interests of the two minor applicants.
[35]
In
short, the officer acknowledges that the main applicant’s fear for her
daughters is due to her personal fear of domestic abuse, but does not examine
the particular evidence submitted with respect to the two minor applicants,
especially the eldest daughter who fears an abusive and violent father.
[36]
The
officer also notes that the minor applicants have integrated themselves and
have established social networks. However, she finds that their best interests
will not be compromised by a return to Albania, given their
years of study in Canada, their new skills and their ability to adapt,
as well as the fact that they are returning with their mother to a country
where they have family, know the language, and there is an education system.
[37]
Such
lip service to a number of relevant factors in the impugned decision, coupled
with a cursory analysis of the children’s best interests, is not sufficient in
the opinion of the Court to satisfy the requirement that the officer consider
their particular situation and that she “be alert, alive and sensitive”.
Accordingly, it cannot be said that the decision to dismiss the H&C
application “falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at
paragraph 47).
Conclusion
[38]
For
the above reasons, the impugned decision shall be set aside and the matter
shall be remitted for redetermination by a different immigration officer who
shall notably conduct an oral hearing prior making a final determination with
respect to the H&C application.
Question for
certification
[39]
The
respondent proposes the following question for certification:
To ensure procedural fairness, must a
negative H&C decision by virtue of paragraph 25(1) of the Immigration and
Refugee Protection Act, based on the applicant’s credibility, be made following
an interview of the applicant on his (her) H&C application?
[40]
The
test for certification is found at paragraph 74(d) of the Act and section 18(1)
of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22. The test states that a question may only be certified if it is a
serious question of general importance and which would be dispositive of an
appeal (Zazai v. Canada (Minister of Citizenship and Immigration), 2004
FCA 89, 318 N.R. 365 at paragraph 11).
[41]
The
proposed question does not meet this test.
[42]
First,
the question must transcend the particular factual context in which it has
arisen. In this instance, the proposed question does not “lend itself to a
generic approach leading to an answer of general application” (Boni v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 68, 357 N.R. 326). It may well
be one of these cases where the Federal Court of Appeal could refuse to answer
a question that has been improperly certified, resulting in the dismissal of
the appeal (Kunkel v. Canada (Minister of Citizenship and Immigration),
2009 FCA 347).
[43]
While
it is certainly a very serious question, the obligation to grant an interview
in order to evaluate negative credibility is fact-specific. Moreover, if the
jurisprudence is contradictory as the respondent asserts – a point I am not
ready to endorse – the contradiction is only apparent, as it is very hard to
answer the proposed question in the abstract.
[44]
Indeed,
as the applicant submits, “a blanket statement that there is no right to an
interview in an H&C context goes against the pragmatic approach required by
the Supreme Court of Canada in Baker, above, and further unnecessarily
withers the important safeguards of the administrative decision-making
process”.
[45]
In
view of this finding, it is not necessary to decide whether the proposed
question meets the second part of the test for certification, which is the
question must be dispositive of an appeal, an issue that is perhaps debatable
considering the position taken by respondent’s counsel in his letter to the
Court, who has maintained throughout the proceeding that “the officer did not
base her decision on the Applicants’ lack of credibility, but rather on the
fact that there was insufficient proof and no objective basis as to the risks
they alleged”.
[46]
For
these reasons, the Court declines to certify the proposed question.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES:
1.
The
application is allowed;
2.
The
decision made by the officer on January 10, 2010 dismissing the applicants’
H&C application is set aside and the matter is remitted for
redetermination by a different immigration officer who shall notably conduct an
oral hearing prior to making a final determination with respect to the H&C
application;
3.
No
question of general importance is certified.
“Luc
Martineau”
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