Docket: IMM-2521-16
Citation:
2016 FC 1344
Ottawa, Ontario, December 6, 2016
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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ANDREA AYON DE
LA ROCHA
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Applicant
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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
[1]
The applicant asks this Court to review a
decision of an Immigration Officer [officer], dated May 25, 2016, dismissing
her application based on humanitarian and compassionate grounds [the H&C
application].
[2]
The applicant had the burden to establish
humanitarian and compassionate considerations, based on her personal
circumstances, in order to facilitate the processing of her application for
permanent residence within Canada. The grant of an H&C application is
discretionary. The applicable standard of review of the impugned decision is
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII), [2008] 1
SCR 190 at para 47; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 (CanLII), [2009] 1 S.C.R. 339 at para 59). The issue today is whether the
refusal to exempt the applicant, pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] from applying for a
permanent visa from outside Canada, falls within a range of possible and
acceptable outcomes.
[3]
The relevant facts are not contested.
[4]
The applicant is a 48 year old female citizen of
Mexico who left her country in 2006 and lived in the United States of America
for two years. She arrived in Canada in 2008, seeking refugee protection on the
ground that members of organized crime and a federal police officer had
threatened her. In 2010, the Refugee Protection Division of the Immigration and
Refugee Board of Canada – who did not believe that there was still a danger – denied
her asylum claim, concluding that she had an internal flight alternative in
Monterey or Cancun. In 2015, the applicant made an H&C application based on
her establishment in Canada, the discrimination that she would face in the
labour market based on age and gender and, finally the best interest of her
grandson.
[5]
In dismissing the H&C application, the
officer noted that the applicant would not be returning to an unfamiliar
country, language or culture. She will be capable of re-establishing herself,
as she had already moved to the United States and Canada and secured employment
in the cleaning and janitorial industry. Furthermore, the officer did not consider
that the applicant would personally face discrimination, as there was no
evidence that, before leaving Mexico, she was refused jobs opportunities or was
forced to leave her previous job due to her gender or age. The officer also noted
that the applicant lived most of her life in Mexico and was well established
with an already existent social network, including two daughters and several
siblings. Moreover, while her son, daughter-in-law and grandson reside in
Canada, there was no proof that they are dependent on her and that her leaving
Canada would negatively impact their relationship.
[6]
The applicant reasserts before this Court that
if she is forced to apply for her permanent resident visa from outside of
Canada, she will personally face disproportionate, undeserved and unusual
hardship. The applicant submits that the officer made speculative statements
and that there is no evidence supporting the finding that the applicant’s
skills acquired in Canada are transferable in Mexico. The applicant also submits
that due to her age and gender, no one will employ her in Mexico, or that she will
otherwise be discriminated. Furthermore, the applicant submits that there is no
legal requirement to demonstrate that she has been personally discriminated,
and that she can rely on general country conditions which show there is age and
gender discrimination in Mexico. In this regard, the applicant submits that the
officer did not consider all the relevant documentary evidence and that the laws
in Mexico, which prohibit discrimination, are rarely followed and their
enforcement mechanisms are not useful.
[7]
The respondent invites the Court to dismiss the
present application for judicial review, as the applicant is merely in
disagreement with the result and has been unable to point out any reviewable
error in the reasoning of the officer. Respondent’s learned counsel remarks
that the applicant mentions in her H&C application: “[In Mexico] if I do what I do [in Canada], my salary would
be around $80 per week. [In Canada] I make around $1000 per week”. While
the applicant may find it difficult to return to Mexico, the respondent
stresses that subsection 25(1) of the IRPA does not have the objective to make
up for the differences in the pay or standard of living between Canada and
other countries. While the applicant would be much better if she was allowed to
stay in Canada, it remains that numerous persons in her condition are required
to make an application for permanent resident visa from outside Canada and have
to wait long delays before being accepted.
[8]
I endorse the grounds of dismissal submitted by
the respondent. I agree with the respondent that the applicant merely invites
the Court to reassess the evidence and substitute itself to the administrative
decision-maker. In the present case, no reviewable error has been made by the
officer. The conclusion of the officer that the applicant has not established
that a positive exemption is warranted on H&C grounds is not unreasonable.
The reasons are focused on all three factors that needed to be analyzed in the
applicant’s H&C application: her establishment in Canada, the
discrimination that she would face in Mexico and the best interest of her
grandson. The officer explained why each of these reasons were either not
sufficient for an exemption grant or were simply not proved by balance of
probabilities. While a cursory review of the relevant H&C factors will not
be sufficient, nor a selective reading of contradictory relevant evidence can
hold, I am satisfied that the officer carefully reviewed all the applicant’s
submissions and evidence on record, and was not satisfied that her particular
situation warranted an exemption on H&C grounds. The conclusion is
supported by intelligible reasons and an articulate reasoning which is not
arbitrary or capricious. In particular, the applicant’s past ability to
re-establish herself in both the United States and Canada demonstrates that she
should be able to find employment and re-establish herself in Mexico, a country
in which she lived most of her life and have already an existent network. It
was not unreasonable for the officer to conclude that her gained skills in the
cleaning and janitorial industry in the United States and Canada would be
transferable to Mexico and could help her find employment. Furthermore, there
was no proof that the applicant has in the past faced any discrimination, and
while the situation is not perfect, there are laws prohibiting discrimination. The
dismissal of the H&C application is an acceptable outcome.
[9]
The present application for judicial review is
dismissed. There is no question of general importance to certify in this case.
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