Date: 20080609
Docket: IMM-5221-07
Citation: 2008 FC 720
Ottawa, Ontario, June 9,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
EDGARDO MONTIVERO, ROSA NORA
ROSALES DE MONTIVERO,
WALTER ALJANDRO MONTIVERO, YESICA PAULA
MONTIVERO
AND JUAN GABRIEL MONTIVERO
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants seek to quash the decision of an Immigration Officer denying their
application for an exemption on humanitarian and compassionate (H&C)
grounds.
[2]
The
applicants arrived in Canada in 2000 and applied for refugee status on
the basis of a fear of persecution by corrupt police officers whom Edgardo had
denounced in Argentina. Their
refugee claims were dismissed on May 3, 2002. A request for an exemption from the requirement to apply for permanent
resident status from outside Canada was made on April 9, 2003. The applicants applied for
a Pre-Removal Risk Assessment (PRRA) on June 30, 2006, after being informed of
the opportunity to do so. The PRRA decision issued on October 25, 2007 was
negative and leave for judicial review of that decision was denied.
Impugned
decision
[3]
On
October 26, 2007, the same Immigration Officer who came to a negative
determination on the PRRA application rejected the H&C application. The
latter application had been based on the best interests of the minor son and daughter
of the adult applicants and the daughter’s child, Canadian citizen by birth,
their establishment in Canada and their claims of personalized risk. In
a thorough decision running 13 pages in length, the Officer assessed the
hardship which would be faced by the applicants on each point should they be
returned to apply for permanent residence from Argentina.
Issues
[4]
The
applicants raise two issues:
a. Did the Immigration Officer apply the correct test?
b. Are the
reasons given by the Officer sufficient?
Standard of
review
[5]
The
insufficiency of reasons is a matter of procedural fairness, which, if found to
have been breached, will require the decision to be set aside and the matter
returned for reassessment. The selection of the appropriate legal test,
however, is a question of law which may be decided on a correctness standard if
it is of central importance to the legal system as a whole and outside a
decision-maker's specialized area of expertise: Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9. If a question of law fails to reach this
threshold, it may be reviewed on a reasonableness standard.
[6]
My
colleague Justice Eleanor R. Dawson recently determined that the selection of
the appropriate test in the context of an H&C application should be
assessed by the Court on a correctness standard: Zambrano v. Canada (Minister of
Citizenship and Immigration), 2008 FC 481, [2008] F.C.J. No. 601. In
coming to this conclusion, she noted the importance of holding officers to the
tests prescribed by Parliament. This aptly describes a central role of the
Court in its exercise of judicial review and I agree that the correctness
standard should be applied here.
Adequacy of
reasons
[7]
The
applicants alleged that the reasons provided were inadequate, citing Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565. As noted above, I found the reasons given
by the Officer in this instance to be detailed and thorough. This was not a
case, as in Adu, where the officer had simply described the material
factors and delivered a conclusory decision without any explanation as to how
they had been analysed. In my view, the reasons here were sufficient for the
applicants to understand the Officer’s analysis of the relevant considerations
and did not fall short of the standard required for procedural fairness.
[8]
As a
consequence, I informed the parties on reserving my decision on the question of
whether the correct test was applied that the reasons would not be found to
have been inadequate.
Was the
correct legal test used?
[9]
The
applicants submit that the test for
personalized risk under sections 96 and 97 of the IRPA is different from
that of undue hardship under section 25 H&C applications. They claim that
the assessment of the availability of state protection to the applicants is unnecessary
under a section 25 undue hardship analysis. They assert that the Officer’s
assessment of this factor shows that the Officer erroneously imposed the higher
section 96 and 97 threshold to the applicants’ section 25 application.
[10]
The respondent counters that the Officer
properly applied section 13.6 of the IP 5 Manual which directs that risk, in
the assessment of an H&C application, must be considered where raised in
the context of hardship. The Officer considered the hardship which might arise
from the risks alleged by the applicants and found that it was not undue or
disproportionate. Such analysis does not show that the Officer assessed their
application on the basis of an incorrect test.
[11]
I
agree with the respondent that the applicants have not shown that the Officer
applied an incorrect test or threshold to their application. I note that the
applicants raised the question of state protection in their submissions on the
H&C application. They cannot now argue that such an issue was irrelevant to
that assessment.
[12]
The
Officer did not simply state that there was insufficient evidence of risk or of
inadequate state protection for the applicants and end the analysis there, as
in Ramirez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1404, [2006] F.C.J. No. 1763. Had
that occurred, I would have found that there had been an error of law requiring
the decision to be vacated. In the present case, it is noted several times in
the Officer’s analysis that the question of alleged risk on an H&C
assessment must be considered in the context of hardship. The decision ends
with the following:
I am not satisfied that the hardship
associated with returning to Argentina constitutes unusual and
undeserved or disproportionate hardship.
[13]
Accordingly,
I do not agree that the decision was made on the basis of the wrong legal test
and will not set it aside. No questions were proposed for certification and
none are found on the facts of this case.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application is
dismissed. No questions are certified.
“Richard
G. Mosley”
Email this Content