Date: 20110204
Docket: IMM-3050-10
Citation: 2011 FC 129
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, February 4, 2011
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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FERNANDO ALBERTO HERNANDEZ MALVAEZ
ALEJANDRA BERENICE FLORES SANCHEZ
MARIA CONCEPTION MALVAEZ
OLIVARES
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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]
This
is an application for judicial review in accordance with subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c. 27 (Act), of the
decision dated March 31, 2010, of the pre-removal risk assessment officer (PRRA
officer), who rejected the applicants’ application for permanent residence from
within Canada based on humanitarian and compassionate considerations (H&C
application).
Factual background
[2]
The
principal applicant, Fernando Alberto Hernandez Malvaez, his spouse, Alejandra
Berenice Flores Sanchez, and his mother, Maria Concepcion Malvaez Olivares, are
all Mexican nationals.
[3]
Before
the Immigration and Refugee Board, Refugee Protection Division (RPD), Mr. Malvaez
alleged that in January 2006, the director of the collections division for the
Mexican Social Insurance Institute, where he worked, had approached him and
asked him to collect 500,000 pesos and secretly give this amount to the
director.
[4]
Mr.
Malvaez stated that he had resigned from his position in February 2006 and that
he had purportedly tried twice to file a complaint. In March 2006, he was
allegedly hired by the company from which he collected the 500,000 pesos. He
then learned that his boss had recommended him for the purpose of trafficking premiums.
Mr. Malvaez therefore apparently quit his job under the threat that he would
regret having refused to make money and that death would ensue.
[5]
In
May 2006, Mr. Malvaez purportedly received several threats. The company in
question purportedly belonged to Senator Medina Placencia and there was
apparently an agreement between the Senator and employees of the Institute to
misappropriate funds paid to the Institute. On July 20, 2006, Mr. Malvaez
allegedly tried to file a complaint against the company, but was told by the Leon office of
the Public Prosecutor that no one could file a complaint against a senator and
he could be killed as a rebel.
[6]
Mr.
Malvaez purportedly insisted and was told to come back the next day to retrieve
his complaint. That same evening, he apparently received death threats on his
cellular phone.
[7]
Upon
their arrival in Canada on July 24, 2006, Mr. Malvaez and his spouse
immediately claimed refugee protection. As for the principal applicant’s
mother, she came to join her son in Canada on September 22, 2007. She
also claimed refugee protection upon her arrival in Canada, alleging
that she had also received threats and had been physically assaulted by
individuals looking for her son.
[8]
Further
to a hearing before the Immigration and Refugee Board on February 7, 2008, and
May 26, 2008, the applicants received, on May 28, 2008, a negative decision by
the RPD to the effect that they were not Convention refugees or persons in need
of protection.
[9]
On
May 1, 2009, the applicants filed an application for permanent residence based
on humanitarian and compassionate considerations.
[10]
On
July 29, 2009, the applicants submitted a PRRA application (Docket
IMM-2981-10).
[11]
On
March 31, 2010, the H&C application was rejected. That decision is the
subject of this application for judicial review.
Impugned decision
[12]
When
she rejected the applicants’ application, the officer, in charge of assessing
H&C considerations, took the following factors into account:
a.
the
establishment of the applicants in Canada;
and
b.
their fear
of returning to Mexico.
[13]
The
officer noted that Mr. Malvaez and his spouse had taken a francization program
and that Mr. Malvaez had taken training in safe lift truck driving. Ms. Sanchez
has worked as a housekeeper since July 2008. The officer also noted that the
applicants have been registered as volunteers at a centre since December 2008, but
that the letter supporting this does not mention their number of volunteering hours.
[14]
As
for Mr. Malvaez’s mother, she also took francization courses and volunteers at
the ABC centre.
[15]
The
officer referred to the numerous letters of support in their file and the fact
that the couple works and volunteers. However, the officer found that even
though these are positive elements for their application, these are not
determinative factors in granting an exemption from filing their application
for permanent residence abroad.
[16]
The
officer went on to indicate that she attached little weight to the principal applicant’s
allegations of fears as he had not demonstrated having been employed from
August 2003 to February 2006 by the Mexican Social Insurance Institute or the
company allegedly belonging to Senator Medina Placencia.
[17]
The
officer mentioned that the file contained a statement of earnings dated August 2005,
an employment contract and an employee card. However, the employment contract
stipulated that the principal applicant had been hired by the company for a
fixed term from August 4, 2005, to August 31, 2005; the statement of earnings showed
earnings for 28 days of work performed in August 2005; and the employee card
confirmed that Mr. Malvaez was a fiscal notification officer and the card was
issued on January 6, 2005, and expired on January 15, 2006.
[18]
Mr.
Malvaez has been in Canada since 2006. The officer is of the opinion that
he had the opportunity to document these facts, especially since this was
mentioned to him during his hearing with the RPD. Because Mr. Malvaez was
unable to demonstrate that he was an employee of the Institute in January and
February 2006, the officer attached little weight to Mr. Malvaez’s allegations
of threats by his director, which were purportedly made during this period.
[19]
The
officer raised certain contradictions between the statements made by Mr. Malvaez
in his PIF and those made during his interview on July 24, 2006. First, Mr. Malvaez
stated that he feared a company threatening him with death, and then he
accepted an employment contract with this same company a month later.
[20]
The
officer raised the fact that Mr. Malvaez had bought plane tickets for Canada on May 31, 2006,
but that his departure was not until July 24, 2006. Thus, the officer found
that she attached little weight to the fears alleged by Mr. Malvaez and that
consequently, they did not represent unusual and undeserved or disproportionate
hardship.
[21]
Furthermore,
the officer also raised the fact that Mr. Malvaez had filed a complaint with
the Attorney General of Justice’s Office on July 20, 2006. However, the information
indicated on the form led the officer to conclude that there was no tangible
information to support the allegations that Mr. Malvaez had filed a complaint
against the company and its alleged owner, Senator Carlos Medina Placencia. Furthermore,
the officer stated that, after researching on-line, Senator Carlos Medina Placencia
no longer appeared on the list of 101 senators on the official site of the Mexican
senate. She therefore attached little weight to the alleged fears.
[22]
The
officer went on to assess the additional evidence submitted regarding the
accident that Ms. Estrada Chavez, Mr. Malvaez’s immediate superior at the
Institute, allegedly experienced. The officer found that the documents
submitted do not show that Ms. Estrada Chavez’s accident was directly caused by
the threats allegedly made by her bosses.
[23]
In
conclusion, the officer attached little weight to Ms. Estrada Chavez’s
testimony and found that her situation did not support Mr. Malvaez’s
allegations.
Relevant
provision
[24]
Section
25 of the Immigration and Refugee Protection Act applies to this
application:
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Humanitarian and compassionate considerations -
request of foreign national
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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Séjour pour motif d’ordre humanitaire à la
demande de l’étranger
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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Issue
[25]
In this application for judicial review, the
issue is whether the PRRA officer erred in rendering her decision on the
applicants’ H&C application. More specifically, did
the officer err by failing to complete the proper analysis and applying the wrong
test to the assessment of the risks raised?
Standard of
review
[26]
In
Kim v Canada (Minister of Citizenship and Immigration) 2008 FC 632, [2008]
FCJ No 824, at para 24, Justice O’Keefe stated that the appropriate standard of
review for H&C decisions is reasonableness (see Barzegaran
v Canada (Minister of Citizenship and Immigration), 2008 FC 681, [2008] FCJ No 867, at paras 15 to 20, and Zambrano v
Canada (Minister of Citizenship and Immigration),
2008 FC 481, [2008] FCJ No 601, at para 31):
[24] . . . the
appropriate standard of review for H&C decisions is reasonableness based on
the authority of Baker, above. . . .
[27]
The
question of whether an officer applied the correct test in assessing risk in a
humanitarian and compassionate application is a question of law, and it has
been held to be reviewable on the standard of correctness (see Pinter v
Canada (Minister of Citizenship and Immigration), 2005 FC 296,
[2005] FCJ No 366, at paras 3 to 5).
Analysis
[28]
For
an assessment of humanitarian and compassionate considerations, it is up to the
applicant to prove to the decision-maker that his or her particular case is
such that the hardship of having to obtain a permanent resident visa from
outside Canada would be
either unusual and undeserved or disproportionate. In the context of an H&C
assessment involving fears of return, the risk factor is assessed as a whole
and the test to apply is to define whether the risks experienced by the
applicant are such that they are equivalent to unusual and undeserved or
disproportionate hardship justifying an exemption from applying for permanent
residence abroad in accordance with subsection 11(1) of the Act.
[29]
The
H&C decision-making process is entirely discretionary as it considers
whether the granting of an exemption is warranted (see Paz v
Canada (Minister of
Citizenship and Immigration) 2009 FC
412, [2009] FCJ No 497, at para 17).
[30]
Chapter IP 5, “Immigration Applications in Canada made on Humanitarian or Compassionate Grounds”, of the Inland
Processing Manual by Citizenship and Immigration Canada contains a definition
of “unusual and undeserved” and “disproportionate” hardship:
5.6. The
assessment of hardship
The
assessment of hardship in an H&C application is a means by which CIC
decision-makers may determine whether there are sufficient H&C grounds to
justify granting the requested exemption(s).
Individual
H&C factors put forward by the applicant should not be considered in
isolation when determining the hardship that an applicant would face; rather,
hardship is determined as a result of a global assessment of H&C
considerations put forth by the applicant. In other words, hardship is assessed
by weighing together all of the H&C considerations submitted by the
applicant.
Unusual and
undeserved hardship
The
hardship faced by the applicant (if they were not granted the requested
exemption) would be, in most cases, unusual. In other words, a hardship not
anticipated by the Act or Regulations; and
The
hardship faced by the applicant (if they were not granted the requested exemption)
would be, in most cases, the result of circumstances beyond the person’s
control.
OR
Disproportionate
hardship
Sufficient
humanitarian and compassionate grounds may also exist in cases that would not
meet the “unusual and
undeserved” criteria but
where the hardship of not being granted the requested exemption(s) would have
an unreasonable impact on the applicant due to their personal circumstances.
[31]
In
this case, the reasons alleged in support of the H&C application read as
follows:
[translation]
Corruption
in Mexico has increased considerably. This corruption even infiltrates the Mexican
authorities. I fear for my life and the lives of my family members, if we were
to return to Mexico, I am certain that they would kill us
because my problem is connected to a member of parliament.
[Court Record, decision page 6]
[32]
According
to the applicants, the officer focussed on the “risk” aspect of their H&C application.
They are also alleging that, even though she mentioned the appropriate test
(the existence of unusual and undeserved or disproportionate hardship), the
wrong test was applied.
[33]
The
Court notes that the officer clearly indicated the correct test to be applied
and that her analysis was conducted in two parts. First, she assessed the
establishment of the applicants in Canada, and then their alleged
risks in Mexico.
[34]
In
assessing the evidence on the degree to which the applicants are established in
Canada, the officer
emphasized the applicants’ efforts with respect to their work, volunteering and
training/courses. Moreover, she found that these were positive elements.
However, she concluded that these were not determinative elements in themselves.
[35]
As
the Minister pointed out, the case law has repeatedly established that the degree
of establishment in itself is not a determinative factor and is not sufficient
in demonstrating unusual and undeserved or disproportionate hardship. The
principal applicant disagrees with the weight the officer attached to the
evidence. The degree of establishment is merely one of several factors the
officer must consider, and the lack of an explicit finding on the degree of
establishment is not a reviewable error (see Lee v Canada
(Minister of Citizenship and Immigration) 2005 FC
413, [2005] FCJ No 507, at para 9, and Singh v Canada (Minister of Citizenship and Immigration)
2009 FC 11, [2009] FCJ No 4).
[36]
Contrary
to the principal applicant’s claims, the Court is of the opinion that the
officer not only reviewed the evidence and arguments, but also demonstrated why
she did not attach any weight to them. In this case, the officer assessed the
documents submitted and drew the necessary inferences.
[37]
Furthermore,
this Court has repeatedly stated that the documentary evidence on the situation
of a country is not sufficient in demonstrating an applicant’s allegations (Maichibi v Canada
(Minister of Citizenship and Immigration), 2008 FC 138, [2008] FCJ No 168, at paras 23‑24).
[38]
The
applicants are claiming that the officer applied the wrong assessment test. It
is apparent in reading the reasons that the officer applied the proper test and
that she truly had it in mind. She also referred to it five (5) times in her
decision.
[39]
In
this case, the Court is therefore of the opinion that it was not unreasonable
for the officer to find that none of the documents submitted demonstrated that
the alleged risks would cause unusual and undeserved or disproportionate
hardship.
[40]
In light of the foregoing, the Court finds that the officer
did not err in rendering her decision. Consequently, the application for
judicial review will be dismissed. No question for certification was proposed and
this application does not give rise to any.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for
judicial review be dismissed. No question is to be certified.
“Richard
Boivin”
Certified
true translation
Janine
Anderson, Translator
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