Dockets:
A-510-12
Citation: 2014
FCA 114
CORAM:
BLAIS C.J.
SHARLOW J.A.
STRATAS J.A.
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BETWEEN:
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JOSE MARIA SERRANO LEMUS, ENMA
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ALVARADO DE SERRANO, AND
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JOSE MARIA SERRANO ALVARADO
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Appellants
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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
STRATAS J.A.
[1]
The appellants (collectively
the “Lemus family”) appeal from the judgment of the Federal Court (per
Justice Near): 2012 FC 1274. The Federal Court dismissed the Lemus family’s application
for judicial review from the Minister’s refusal to grant humanitarian and
compassionate relief under subsection 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
[2]
This Court heard this appeal
together with the appeal in Kanthasamy v. Canada (Minister of Citizenship
and Immigration), file no. A-272-13: 2014 FCA 113. Accordingly, I direct
that a copy of these reasons be sent to counsel in this case and to counsel in
the Kanthasamy appeal. These reasons should also be placed in the Kanthasamy
appeal file.
[3]
Central to both appeals is a
common issue: the interpretation of subsection 25(1) of the Act, as amended by
the Balanced Refugee Reform Act, S.C. 2010, c. 8, section 4. That amendment added new subsection 25(1.3).
[4]
The certified questions in
this appeal raise this issue of interpretation. In Kanthasamy, I
concluded that the Minister’s interpretation of subsections 25(1) and 25(1.3) –
an interpretation adopted by the Federal Court in this case – is substantially correct.
Therefore, I would answer the certified questions in this case in a manner
consistent with my reasons in Kanthasamy.
[5]
The remaining issues in this
appeal concern the Lemus family’s Charter challenge to subsection 25(1.3) of
the Act and the reasonableness of the Minister’s denial of its application for
humanitarian and compassionate relief under subsection 25(1) of the Act.
[6]
I reject the Lemus family’s Charter
challenge. However, I find the Minister’s decision to be unreasonable.
Therefore, I would allow the appeal, set aside the decision of the Federal
Court, grant the application for judicial review, and remit the matter to the
Minister for redetermination in accordance with these reasons.
A. The basic facts
[7]
The Lemus family arrived in Canada from El Salvador and applied for refugee status in Canada. The Refugee Protection Division
dismissed the application.
[8]
The Refugee Protection
Division found that the applicants were not Convention refugees or persons in
need of protection. They did not establish a link to any of the grounds in
section 96 of the Act. As business owners, they feared crime from the Mara
Salvatruchia or crime and violence generally. But these were risks faced
generally by others in El Salvador. There was no evidence suggesting that they
would be targeted upon their return to El Salvador.
[9]
The Lemus family applied to
the Minister for humanitarian and compassionate relief under subsection 25(1)
of the Act, relying upon the family’s establishment in Canada, the best interests of the child, and the severe hardship and risk that the family would
encounter upon returning to El Salvador. Mr. Lemus’ spouse suffers from
post-traumatic stress disorder and depression due to a sexual assault in El Salvador. Mr. Lemus’ child, a teenage male, was said to be a potential target of the
Mara Salvatruchia.
[10]
The Minister’s Officer
rejected the subsection 25(1) application. I set out the reasons for the
rejection below, in the context of reasonableness review.
B. Analysis
[11]
In Kanthasamy, on the
issue regarding how subsections 25(1) and 25(1.3) should be interpreted, I
concluded as follows (at paragraph 81):
Matters such
as well-founded fear of persecution, risk to life, and risk of cruel and
unusual treatment or punishment – factors under sections 96 and 97 – may not be
considered under subsection 25(1) by virtue of subsection 25(1.3) but the facts
underlying those factors may nevertheless be relevant insofar as they related
to whether the applicant is directly and personally experiencing unusual and undeserved, or disproportionate hardship.
[12]
I also emphasized that in
applying this standard, Officers may have regard to the Minister’s processing
manual for guidance. However, Officers must have regard to all of the facts and
circumstances before them and apply this standard in an open-minded way,
unfettered by the statements in the manual.
[13]
The Lemus family attacks the
validity of subsection 25(1.3) on the basis of sections 7 and 15 of the Charter
and the constitutional principle of the rule of law.
[14]
To some extent, I have dealt
with these issues in my rejection of Mr. Kanthasamy’s Charter values analysis:
see Kanthasamy, supra at paragraphs 77 and 78.
[15]
Subsection 25(1.3) in no way
offends the constitutional principle of the rule of law, as that principle has
been interpreted by the Supreme Court of Canada in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 at paragraph
58:
This
Court has described the rule of law as embracing three principles.
The first recognizes that “the law is supreme over officials of the government
as well as private individuals, and thereby preclusive of the influence of
arbitrary power”: Reference re Manitoba Language Rights, at p. 748. The
second “requires the creation and maintenance of an actual order of positive
laws which preserves and embodies the more general principle of normative
order”: Reference re Manitoba Language Rights, at p. 749. The third
requires that “the relationship between the state and the individual…be
regulated by law”: Reference re Secession of Quebec, at para. 71.
In
my view, the Lemus family is using the phrase “rule of law” as a catch-all
ground of constitutional attack. That is not legally sound. When the validity
of legislation is challenged on the basis that it offends the rule of law, the
validity of the challenge must be assessed on the basis of the principles set
out in Imperial Tobacco. See also Yeager v.
Day, 2013 FCA 258 at paragraph 13.
[16]
As for section 7 of the
Charter, subsection 25(1.3), by requiring an assessment of the hardships facing
the Lemus family, accommodates whatever rights to liberty and security of the
person they have. Officers deciding applications for humanitarian and
compassionate relief under subsection 25(1) must consider all of the facts
bearing upon whether there is unusual or undeserved, or disproportionate
hardship.
[17]
The Lemus family’s section
15 submissions are predicated on the assumption that subsection 25(1.3) treats
applicants for humanitarian and compassionate relief differently from
applicants who are not refugee claimants. This is not so: all applicants
receive the same hardship assessment. Therefore, I reject the section 15
submissions.
[18]
Turning to the Officer’s
decision in this case, for the reasons set out in Kanthasamy, supra,
the standard of review of the Officer’s decision is reasonableness. The Federal
Court correctly so found.
[19]
The Federal Court went on to
find that the Officer’s decision was reasonable.
[20]
The Federal Court noted that
the Officer properly attached significance to the presence of family members in
El Salvador. The Officer found that these family members “should be able to
provide some support and assistance to the applicants in re-establishing
themselves upon return.”
[21]
The Federal Court also
noted, with approval, that the Officer found that the hardship and general
country conditions were “generally faced by the population.” As for the spouse
and her condition, the Officer found that she could “obtain any necessary
medical or psychological assistance she may require upon return to El Salvador, as she had done previously.” Considering the degree of establishment in Canada, the Officer concluded that it “is as expected” given their length of stay in Canada and is “not exceptional.”
[22]
To this point, I agree with
the Federal Court that the outcome reached by the Officer was acceptable and
defensible on the facts and the law.
[23]
Where I part company with
the Federal Court is in its view that the Officer reached an acceptable and
defensible decision given the interpretation of subsection 25(1.3) set out in Kanthasamy
and described above.
[24]
While the Officer noted the
existence of subsection 25(1.3), she did not look at the facts relevant to the
matters raised in the application for refugee protection that might have also
been relevant to whether requiring the Lemus family to return to El Salvador
would cause unusual and undeserved, or disproportionate hardship.
[25]
This is evident from the
following passage from the Officer’s reasons:
The
applicant’s Humanitarian and Compassionate application is based in part upon
risks that the applicants would face if returned to El Salvador, specifically
risk related to a fear of the Mara Salvatruchia and the fear of recruitment of
the minor applicant by this gang. These risks are described in Section 96 and
97 of IRPA and as such, they can only be addressed by the Immigration and
Refugee Board (IRB). The evidence before me indicates that these fears have
been addressed by the IRB and the applicant’s refugee claim has been refused. As
I do not have the jurisdiction to reassess claims due to a fear of risk, as
outlined in Section A96 and A97 [sic] of IRPA, I did not consider the
evidence that pertains to the applicant’s fear of return to El Salvador, however, I did consider the non-risk factors that the applicant has cited.
[26]
The Officer failed in the
remainder of the reasons to assess, through the lens of hardship, the risk that
the child would be targeted by the Mara Salvatruchia. The Officer did assess
the best interests of the child, but in different respects, noting that “there
is insufficient evidence before me to indicate that his basic amenities would
not be met in El Salvador,” where the child has “extended family members who
continue to reside in El Salvador.” On that basis, I conclude that the decision
is unreasonable and cannot stand.
[27]
The Minister submitted that
there was enough evidence in the record to sustain the Officer’s decision to
reject the Lemus family’s application for humanitarian and compassionate
relief. The Minister invited us to find material in the record before the
Officer to sustain the outcome she reached.
[28]
The Minister’s submission is
supported by a literal reading of the following statement in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 48:
We agree with David Dyzenhaus where he states that the
concept of “deference as respect” requires of the courts “not submission but a
respectful attention to the reasons offered or which could be offered in
support of a decision”: “The Politics of Deference: Judicial Review and
Democracy”, in M. Taggart, ed., The Province of Administrative Law
(1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per
L’Heureux-Dubé J.; Ryan, at para. 49).
[29]
However, Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61 suggests that this does not allow a reviewing court free rein to
dive into the record before the administrative decision-maker to save the
decision.
[30]
In Alberta Teachers’
Association, at paragraph 54, Justice Rothstein, writing for the majority
of the Supreme Court, found that giving respectful attention to the reasons
which could be offered in support of a decision is not a “carte blanche
to reformulate a tribunal’s decision in a way that casts aside an unreasonable
chain of analysis in favour of the court’s own rationale for the result.”
[31]
At paragraph 55 of Alberta
Teachers’ Association, Justice Rothstein envisaged that:
[i]n
some cases, it may be that a reviewing court cannot adequately show deference
to the administrative decision maker without first providing the decision maker
the opportunity to give its own reasons for the decision. In such a case, even
though there is an implied decision, the court may see fit to remit the issue
to the tribunal to allow the tribunal to provide reasons.
[32]
On the day after the Supreme
Court decided Alberta Teachers’ Association, it released Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury
Board), 2011 SCC 62. In it, the Supreme Court reiterated paragraph 48 of Dunsmuir.
It did not cite Alberta Teachers’ Association.
[33]
At paragraphs 11 and 12 of Newfoundland
Nurses, the Court reiterated the need for reviewing courts to pay
“respectful attention to the reasons…which could be offered in
support of a decision” [my emphasis]. In the
same case, the Supreme Court
adopted the following additional excerpt from Professor Dyzenhaus’ article, in
an unqualified manner without any rationale:
For
if it is right that among the reasons for deference are the appointment of the
tribunal and not the court as the front line adjudicator, the tribunal’s
proximity to the dispute, its expertise, etc., then it is also the case that
its decision should be presumed to be correct even if its reasons are in some
respects defective.
One
might well query the idea that reviewing courts are to presume the correctness
of administrators’ decisions, even in the face of a defect. One might also query
whether, in trying to sustain an outcome reached by flawed reasoning, the
reviewing court might be coopering up an outcome that the administrator,
knowing of its error, might not have itself reached. Finally, whether an
outcome should be left in place because of the strength of the record or other
considerations has traditionally been something for the remedial stage of the
analysis, not an earlier stage: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6.
[34]
But these are queries for
another day. We now have a practical question to resolve. Alberta Teachers’
Association was released on one day and Newfoundland Nurses released
on the very next day, with the latter not commenting on the former. Which of
the two cases states the principle that ought to be applied in this case? In my
view, it is Alberta Teachers’ Association. I make the following
observations.
[35]
First, the statements made
in Newfoundland Nurses about paragraph 48 of Dunsmuir
arose in the context of a discussion about how to analyze sparse reasons given
by an administrative tribunal. That is not the issue before us.
[36]
Second, in Alberta Teachers’
Association the Supreme Court had to deal directly with paragraph 48 of Dunsmuir
on the facts of the case before it. Its discussion was central to its
disposition of the case. The same cannot be said of the discussion about
paragraph 48 of Dunsmuir in Newfoundland Nurses.
[37]
Therefore, I conclude that
in this case, the controlling authority is Alberta Teachers’ Association.
It follows that it would not be appropriate, in this case, to accept the
Minister’s invitation and supplement or recast the Officer’s reasons to save her
decision.
[38]
This is a situation where
the Officer, informed by these reasons of her error and of the proper standard
to be applied, might well reach a different result. There is evidence in the
record that could support a decision either way. I cannot say that the record leans
so heavily against relief that sending the matter back to the Officer would
serve no useful purpose, as per MiningWatch Canada, supra. Nor can I say that the record is unequivocally in favour of
relief allowing us to award mandamus and grant the subsection 25(1)
application.
[39]
It follows that the
Officer’s decision is unreasonable and the matter should be sent back for
redetermination.
C. Disposition
[40]
In light of my reasons in Kanthasamy,
supra, I would answer the certified questions as follows:
1. What
is the nature of the risk, if any, to be assessed with respect to humanitarian
and compassionate considerations under section 25 of IRPA, as amended by
the Balanced Refugee Reform Act?
Answer:
Matters such as well-founded fear of persecution, risk to life, and risk of
cruel and unusual treatment or punishment – factors under sections 96 and 97 –
may not be considered under subsection 25(1) by virtue of subsection 25(1.3).
However, the facts underlying those factors may nevertheless be relevant
insofar as they related to whether the applicant is directly and personally
experiencing unusual and
undeserved, or disproportionate
hardship.
2. Does
the exclusion from consideration on humanitarian and compassionate grounds of
the “factors” taken into account in the determination of whether a person needs
protection under sections 96 or 97 of IRPA mean that the facts presented
to the decision-maker in the application for protection may not be used in a
determination of the “elements related to the hardships” faced by a foreign
national under subsection 25(1.3) of IRPA?
Answer:
No. All facts related to the hardships may be provided and considered.
[41]
For the foregoing reasons, I
would allow the appeal, set aside the decision of the Federal Court, grant the
application for judicial review, and remit the matter to the Minister for
redetermination in accordance with these reasons.
[42]
Counsel for the Lemus family
seeks solicitor and client costs. In my view, there are no special reasons for an
award of costs under section 22 of the Federal Courts Immigration and
Refugee Protection Rules, SOR/93-22.
"David Stratas"
“I agree.
Pierre Blais C.J.”
“I agree.
K. Sharlow J.A.”
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