Docket:
IMM-904-13
Citation: 2014 FC 261
Ottawa, Ontario, March 18, 2014
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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VICTOR CUTBERTO AYALA LOPEZ
EVELYN RUIZ PANTOJA
ESTEBAN AYALA RUIZ
GENESIS THALIA AYALA RUIZ
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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
I. INTRODUCTION
[1]
This is the judicial review of a decision
denying permanent residence status on H&C grounds. The Applicants are
Victor Cutberto Ayala Lopez, his wife and two children aged 7 and 4.
II. BACKGROUND
[2]
The relevant statutory provision in respect of
the Immigration Officer’s [Officer] decision is section 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]:
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25. (1) Subject to subsection (1.2), the
Minister must, on request of a foreign national in Canada who applies for
permanent resident status and who is inadmissible — other than under section
34, 35 or 37 — or who does not meet the requirements of this Act, and may, on
request of a foreign national outside Canada — other than a foreign national
who is inadmissible under section 34, 35 or 37 — who applies for a permanent
resident visa, 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.
…
(1.3) In examining the request of a
foreign national in Canada, the Minister may not consider the factors that
are taken into account in the determination of whether a person is a
Convention refugee under section 96 or a person in need of protection under
subsection 97(1) but must consider elements related to the hardships that
affect the foreign national.
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25. (1) Sous réserve du paragraphe (1.2),
le ministre doit, sur demande d’un étranger se trouvant au Canada qui demande
le statut de résident permanent et qui soit est interdit de territoire — sauf
si c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se
conforme pas à la présente loi, et peut, sur demande d’un étranger se
trouvant hors du Canada — sauf s’il est interdit de territoire au titre des
articles 34, 35 ou 37 — qui demande un visa de résident permanent, 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.
…
(1.3) Le ministre, dans l’étude de la
demande faite au titre du paragraphe (1) d’un étranger se trouvant au Canada,
ne tient compte d’aucun des facteurs servant à établir la qualité de réfugié
— au sens de la Convention — aux termes de l’article 96 ou de personne à
protéger au titre du paragraphe 97(1); il tient compte, toutefois, des
difficultés auxquelles l’étranger fait face.
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[3]
The Applicants are citizens of Mexico and they have been in Canada for four years. Their refugee claim was rejected and leave for judicial review was
denied. The Applicants then applied for permanent residence on humanitarian and
compassionate grounds, the current matter at issue.
[4]
The Officer understood the Applicants’ claim to consist of three
elements: (a) the father had been threatened by a criminal organization in
Mexico and therefore they could not return to their hometown; (b) that the
family was now established in Canada and would face hardship if forced to leave
and (c) that the best interests of the children were to remain in Canada.
[5]
The Officer referred to the law which bound him particularly s 25(1) and
(1.3) of IRPA as amended by the Balanced Refugee Reform Act, SC 2010, c 8.
He concluded that the Applicants had to demonstrate that applying for permanent
residency from outside Canada would constitute unusual and undeserved or
disproportionate hardship.
[6]
In considering the Applicants’ degree of establishment, the
Officer began by noting that the Applicants had been in Canada only four years
and that the oldest child was in school but the youngest was not of school age.
The mother has worked as a cashier since 2011. The Officer considered evidence
of the father’s volunteer work but could not find that it had lasted longer
than a month. The father was now employed as a concrete machine operator and
had received positive performance evaluations which the Officer found weighed
in his favour; however, the Officer did not accept that his employer would have
difficulty replacing him. The Officer accepted there was an auto sales business
registered in the father’s name, but noted that there was no evidence demonstrating
that the company was actively doing business, that it had any assets or has
provided employment to Canadians.
Based on these
factors, the Officer concluded that the Applicants’ establishment was a
positive consideration but it was not exceptional. Rather, it was what would be
expected of people living in Canada hoping to acquire permanent residence.
[7]
On the matter of the best interests of the child, the Officer held that
this was but one, although important, factor in the analysis of hardship. The
Officer concluded that the children had not developed a significant degree of
attachment to Canada and would be able to adapt upon a return to Mexico. There was no evidence of psychological harm flowing from a return to Mexico or of growing up in unfavourable economic or social conditions.
[8]
Finally, the Officer canvassed other factors including the
resourcefulness and adaptability of the parents. Given their ability to settle
and find employment in Canada, the Officer found they would likely be able to
do so in a Mexican town other than their home town upon return. While the
Applicants may have a lower standard of living in Mexico than what they
currently enjoy in Canada, this was consistent with that of other similarly
situated Mexican citizens.
[9]
From all of this, the Officer concluded that there were insufficient
H&C grounds to justify approving the permanent residence applications.
III. ANALYSIS
[10]
The standard of review for these decisions on “Establishment” is well
settled as “reasonableness” (Tindale v Canada (Minister of Citizenship and
Immigration), 2012 FC 236, 407 FTR 9 [Tindale]; Diabate v Canada (Minister of Citizenship and Immigration), 2013 FC 129, 427 FTR 87).
[11]
The Applicants argue that the decision is unreasonable because the
Officer did not justify his conclusions. In effect, the Applicants argue that
the Officer did not explain why the Applicants’ circumstances were not
exceptional.
[12]
With respect, that argument reverses the burden. The Applicants are
required to show why their circumstance was exceptional. Further, they must
show that their exceptional circumstances will result in unusual, undeserved or
disproportionate hardship if they are made to apply for permanent residence
from outside of Canada.
[13]
The Officer laid out a clear line of reasoning explaining the factors
considered and the weight given to the key pieces of evidence. It is inaccurate
to assert that the Officer did not consider the temporal component of the case.
The Officer made direct reference to the four years in Canada and what occurred in those four years (see Certified Tribunal Record, page 6). Where she did
not give much weight to the evidence, she provided an explanation. For example,
she did not give much weight to the father’s volunteering as the documentary
evidence established he had only volunteered for a month. Similarly, she did
not assign much weight to the auto sale business as there was no evidence
beyond a business registration certificate that the company was actively doing
business. The Officer also explained why the Applicants’ case did not meet the
“exceptional” threshold (see Certified Tribunal Record, page 7).
[14]
The Applicants’ real complaint is with the weight the Officer assigned
to the evidence and they seek to have this Court re-weigh that evidence. That
is something this Court cannot and should not do. Section 25 is a highly
discretionary provision (an exception to the general rule) and deference is
owed to the Respondent where the Respondent’s official has laid out a clear and
reasonable line of reasoning to justify a conclusion which itself is
reasonable.
[15]
The decisions in Adu v Canada (Minister of Citizenship and
Immigration), 2005 FC 565, 139 ACWS (3d) 164, Cobham v Canada (Minister
of Citizenship and Immigration), 2009 FC 585, 178 ACWS (3d) 421 and Tindale
are all cases where the applicant could not tell the real basis for the
decision and where the applicant had spent considerably more time in Canada
leading to a greater presumption of establishment. That is not the case here.
In those cases, the decision under review lacked the qualities referred to in
paragraph 14. I am not convinced that, as the Respondent argues, Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62, [2011] 3 S.C.R. 708, has necessarily rendered the above
decisions of less precedential value but I need not decide that point.
[16]
Therefore, I can find nothing unreasonable about the decision under
review.
IV. CONCLUSION
[17]
This judicial review will be dismissed. There are no questions
for certification.
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