Docket: IMM-1265-13
Citation:
2014 FC 579
Ottawa, Ontario, June 18, 2014
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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MARIO QUINTANAR PARDO
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INGRID MARIA VARGAS GHINES
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REGINA QUINTANAR VARGAS
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of a decision by an
Immigration Officer dismissing the Applicants’ application for permanent
residence on humanitarian and compassionate [H&C] grounds made pursuant to
s 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27.
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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.
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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.
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…
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(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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(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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II.
Background
[2]
The male Applicant was kidnapped for ransom in Mexico, held 10 days and then released. When his kidnappers continued to harass him, he and
his family escaped to Canada in 2009. Their refugee claim was rejected but
thereafter they had a Canadian born child. They then applied for permanent
residence on H&C grounds.
[3]
The H&C decision rejected the application.
It was noted that the H&C application was received on November 23, 2011
following the enactment of the Balanced Refugee Reform Act of June 29,
2010. A critical new provision is s 25(1.3) as above.
[4]
The Immigration Officer found that there was
positive establishment but nothing exceptional.
[5]
The Immigration Officer did a thorough analysis
of country conditions noting in particular that crime and drug-related violence
was a problem in Mexico as was corruption. However, despite these general
problems, some areas were less affected such as Mexico City – the Applicants’
home town. The Immigration Officer also effectively held that the Applicants
have internal flight alternatives because other cities/areas were also safe.
The Immigration Officer considered factors such as resettlement and employment,
violence against women and discrimination.
[6]
On the critical determination of the best
interest of the children [BIOC], the BIOC is a substantial factor in an H&C
analysis but not the overriding one. It must be considered along with other
factors. The Immigration Officer found the Applicants’ fear to be speculative,
that they have family in Mexico City and that the children were young enough to
adapt. While remaining in Canada is the preferred option, return to Mexico is not contrary to the BIOC concept.
[7]
In terms of country conditions/personal safety,
while there may be concerns, the generalized country conditions in Mexico were not sufficient to reach the disproportionate, unusual and undeserved hardship test
in part because the conditions were faced by all residents.
[8]
Having examined the case by separate factors,
the Immigration Officer concluded that on the whole the Applicants did not face
unusual, undeserved and disproportionate hardship in returning to Mexico. The H&C application was dismissed.
III.
Analysis
[9]
The issues in this judicial review are:
•
Did the Officer apply the correct test for
hardship and was the Immigration Officer’s conclusion in respect of generalized
country conditions reasonable?
•
Was the decision reasonable with respect to the
evidence of crime and best interests of the children?
[10]
The issue of the correct test for hardship is
reviewable on a standard of correctness (Ambassa v Canada (Minister of Citizenship and Immigration), 2012 FC 158, 211 ACWS (3d) 434).
Whether
the discretion was exercised properly is reviewable on a standard of
reasonableness (Lemus v Canada (Minister of Citizenship and Immigration),
2012 FC 1274, 221 ACWS (3d) 966).
A.
Re: Correct Test
[11]
The Immigration Officer, having considered the
considerable evidence, determined that the concerns for personal safety did not
constitute a hardship that was unusual, undeserved or disproportionate.
The
Immigration Officer did not dismiss evidence of hardship just because it was
the same level of hardship faced by the general population in Mexico.
[12]
In the Immigration Officer’s analysis, she
reviewed the country conditions and noted that while crime and drug violence
were problems, the level of such violence is different depending on the
location in Mexico. The Applicants’ home state of Mexico City experienced
significantly less violence and was better equipped to deal with crime than any
other state.
[13]
The Immigration Officer is entitled to consider
what conditions prevail in different parts of the country and what the impact
of such conditions (in this case crime and drug violence) would have on an
applicant.
In
the present case, the Immigration Officer concluded that the Applicants would
not suffer unusual, undeserved or disproportionate hardship given the levels of
crime and drug violence in their home area.
[14]
The Immigration Officer applied the proper legal
test to the facts and did not just repeat the wording of the test without
regard to the facts.
B.
Re: Reasonableness of Decision
[15]
The Applicants challenge the decision by arguing
that the Immigration Officer ignored crimes other than murder and reached an
unreasonable result after doing the “best interests of the children” analysis.
[16]
In effect, the Applicants want this Court to reweigh
the evidence and substitute the Court’s judgment for that of the Immigration
Officer. It is simply inaccurate to suggest that the Immigration Officer
focused the analysis of risk solely on crimes of murder when the reality is
that the Immigration Officer referred to crimes generally, drug crime,
corruption and human rights violation.
[17]
Likewise, the challenge to “the best interests
of the children” finding is not one where the Court can or should substitute
its analysis. The Immigration Officer was “alert, alive and sensitive” to the
children. The Immigration Officer noted the risks children face in Mexico including violence, poverty, sexual exploitation and lack of educational
opportunities. The Immigration Officer even found that the children would be
better off in Canada but that conclusion is not tantamount to finding that a
less preferable country is the basis for a hardship finding.
[18]
The “best interests of the children” conclusion
was based on proper legal grounds and was reasonable on the facts of this case.
IV.
Conclusion
[19]
Therefore, this judicial review will be
dismissed. There is no question for certification.
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