Date: 20030401
Docket: IMM-2751-02
Neutral citation: 2003 FCT 385
Ottawa, Ontario, Tuesday, the 1st day of April, 2003
Present: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
EDWIN OMAR FIGUEROA RAUDALES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Figueroa Raudales brings this application for judicial review from the decision of an immigration officer, dated May 29, 2002, not to exempt Mr. Figueroa Raudales on humanitarian and compassionate ("H & C") grounds from the legislative requirement that he apply for landing from outside of Canada.
BACKGROUND FACTS
[2] In his application for exemption on H & C grounds Mr. Figueroa Raudales states that he was born in 1983 in the capital city of Honduras, Tegucigalpa. Until he was 15 years of age he lived in poverty with his mother, grandmother and two siblings in one of the poorest and most dangerous parts of the city. In August 1998, Mr. Figueroa Raudales left Honduras, destined for Vancouver, where his two uncles lived. Mr. Raudales walked and hitchhiked to Vancouver, arriving in Canada in January 1999. During that five month period Mr. Raudales was robbed twice and detained in a Mexican prison.
[3] After making an unsuccessful refugee claim, and receiving a negative Post-Determination Refugee Claimants in Canada Class decision in September 2001, Mr. Figueroa Raudales made his H & C application.
[4] Since he has been in Canada, Mr. Figueroa Raudales has lived with friends, family and on his own. He lived with his uncles in Vancouver until November 2000 when he then moved with one uncle, and his uncle's wife, to Nelson, British Columbia. The applicant lived in Nelson with his aunt and uncle for three months. Due to lack of space after his aunt gave birth to a child Mr. Figueroa Raudales moved in with a retired Nelson school teacher where he lived from March 2001 until November 2001. He then moved in with another Nelson school teacher, with whom he was still living at the time his H & C application was heard.
[5] Mr. Figueroa Raudales has attended high school throughout his time in Canada. He is in the top quartile of his class, with a full academic class schedule. He has become fluent in English, which he did not speak before arriving in Canada. Mr. Figueroa Raudales has taken a life-skill development class at the community centre and is said by a youth support worker to have developed skills in managing finances, setting goals and career plans, writing resumes, and job interviews. He has worked at a part-time job and has had a summer job. Additionally, he manages the high school senior basketball team, participates in the student council, and plans to become a nurse.
[6] Mr. Figueroa Raudales' application for H & C consideration was supported by a report from a psychologist. That psychologist reported that, given his proven resilience, damage to Mr. Figueroa Raudales was not a certainty should he be required to leave Canada, but that the psychologist was of the opinion that Mr. Figueroa Raudales was much better off in Canada, living free of fear.
THE IMMIGRATION OFFICER'S DECISION
[7] The immigration officer's written decision and reasons are recorded in the file as follows:
I have been asked to consider the United Nations Convention on the Rights of the Child in this case. I find that Part 1 Article 1 of the Convention states Child means every human below the age of 18 years. Edwin is 19 years of age as of April 2002 and is not considered a child by definition.
Edwin has received due process under the refugee program. Edwin's efforts to remain in Canada via the refugee process have been exhausted. He was not found to be a refugee, did not apply for judicial review and PCDO did not find there was a reasonable possibility of risk if he was to return to Honduras.
After considering all the information regarding Edwin's fear of returning to Honduras (counsels [sic] submissions, PCDO reasons and statements at interview 19 February 2002), no new issues have been raised, I find there has been no unique or specific risk identified which would effect [sic] him personally. I do not find that Edwin would be at any greater risk than other citizens of Honduras.
The Government of Honduras has increased its spending in the areas of Health and Education and I do not find that Edwin has had less access than other citizens of Honduras. The government provides free, universal and compulsory education through the age of 13. Edwin's application shows that he was 15 years old attending his 10th year of education until June 1998. He left Honduras in August 1998 destined to Canada.
A person who is in Canada making a claim to refugee status is allowed to work or study as the case may be, which would allow them to become self-sufficient and to integrate into the community. Since the refugee process takes several years to run its course, it is expected that a certain level of establishment would take place during this time. I find that Edwin has established himself as any student would, but there is no significant degree of establishment. He has not remained in Canada for so long or established such strong ties that it would be unreasonable for him to return to Honduras.
As a young man concentrating on his education, Edwin has been on Social Assistance for the majority of his time in Canada. Since November 2001 Ms. Nancy Pulsifer has provided accommodation in her home. In November 2001 "The Friends for Edwin Raudales" group was formed and created a trust fund to provide for his basic needs while his application was being processed. They are providing for his food and scholastic needs while attending school and contribute to the processing fees of his immigration processing.
Edwin is not residing with extended family members, nor are they in a position to provide him with financial support, although he states he visits them often.
He has lived the majority of his time in Canada by himself or with friends. His entire close family members reside at his family home or a close distance from that home in Honduras.
I have reviewed the psychological assessment report dated April 26, 2002 provided by counsel and take note as the Doctor stated in his conclusions, that this report was based on Edwin's self-report and that of four individuals who are decidedly supportive of his desire to remain in Canada. The fifth and sixth paragraphs of the section titled SUMMARY AND CONCLUSIONS describes Edwin's state if deported but also states factors suggestive of a gradual and relatively uncomplicated emotional recovery which include a demonstrated resiliency and his previous history of relatively healthy psychological functioning. This report does not indicate a current adverse condition or that long term adverse effects are a certainty if he were to return to Honduras.
I have reviewed all the information on this file, including the submissions, answers to questions posed at the interview. It has not been demonstrated that compelling grounds exist for in Canada processing of this case or that unusual and undeserved or disproportionate hardship exist that is not anticipated by the Immigration Act or Regulations. It has not been demonstrated to my satisfaction that sufficient humanitarian and compassionate grounds exist in this case to warrant a waiver of the visa requirement. [underlining added]
THE ISSUES
[8] On Mr. Figueroa Raudales' behalf it is asserted that the immigration officer erred in the following respects:
1. The officer erred in assessing the application on the basis that Mr. Figueroa Raudales is an adult.
2. The officer erred by misinterpreting the psychological report provided in support of the application.
3. The officer erred in concluding that Mr. Figueroa Raudales was not established in Canada.
THE STANDARD OF REVIEW
[9] Since the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at page 857 it is well settled that the standard of review with respect to H & C decisions made by an immigration officer is reasonableness simpliciter.
[10] As to what is an unreasonable decision, in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Mr. Justice Iacobucci at paragraph 56 wrote for the Court that:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence.
[11] A court reviewing a decision on judicial review may not intervene in the exercise of discretion simply because the court would have weighed relevant factors differently and arrived at a different decision. The decision must, however, be able to withstand a somewhat probing examination.
ANALYSIS
[12] With respect to the first error asserted, the officer considered that Mr. Figueroa Raudales was 19 and was not a child, according to the United Nations Convention on the Rights of the Child. This is said to be an error because under the Age of Majority Act, R.S.B.C. 1996, Ch. 7, a person is no longer a child upon reaching the age of 19, and Mr. Figueroa Raudales was only 18 years old when he made his application. Mr. Figueroa Raudales relies upon a decision of the Federal Court of Appeal, Canada (Minister of Employment and Immigration) v. Brar (1993), 152 N.R. 157 to argue that the relevant date for assessing age is the date of an application.
[13] I am not persuaded that the officer so erred. At issue in Brar was whether an individual was a "dependant" within the meaning of the Immigration Regulations, 1978, SOR/78-172. As such, the decision is not directly relevant and I find it is of no assistance.
[14] Rather, on an H & C application, the age of a primary applicant is a relevant factor to be considered, particularly if an applicant's age is of special significance. In the present case, the officer fully appreciated and considered Mr. Figueroa Raudales' age.
[15] With respect to the second asserted error, the officer had regard to the psychological report and did not misapprehend its contents. The officer was entitled to conclude that the report did not indicate that long term adverse effects were a certainty should Mr. Figueroa Raudales be required to return to Honduras. In so doing, the officer did not err.
[16] I am, however, satisfied that the officer's factual conclusion that "...Edwin has established himself as any student would..." does not withstand the somewhat probing examination contemplated by the Supreme Court of Canada in Southam, supra.
[17] In this regard, in addition to the information recited above, before the immigration officer was unchallenged evidence that:
· A trust fund was established for Mr. Figueroa Raudales by citizens of Nelson, British Columbia, in order to pay his education and legal expenses, so that he would not have to collect social assistance in order to continue his education. The monies in the trust fund were gathered through fund-raising events, rallies and donations from community members.
· In addition to the trust fund, in the order of 1,800 Nelson area residents signed a petition in support of Mr. Figueroa Raudales' H & C application.
· Mr. Figueroa Raudales' teachers, as well as the principal of his high school and the superintendent of the school division, wrote letters in support of his H & C application. So, too, did the student council president who "would like to easily state that Edwin Raudales is very significant to our school".
· The council of the Corporation of City of Nelson passed a resolution that a letter of support for Mr. Figueroa Raudales be sent to the Minister of Immigration to support his application for immigrant status in Canada.
· In dismissing his refugee claim the Refugee Division of the Immigration and Refugee Board, while acknowledging that it was beyond its power to make H & C decisions, noted that the Refugee Division was very impressed with Mr. Figueroa Raudales' character and initiative and that "...his situation in Honduras is an unenviable one".
[18] In my opinion, on all of the evidence before him, the officer made a patently unreasonable finding of fact in determining that Mr. Figueroa Raudales had not established himself in Canada more than would any other high school student. In circumstances where the community is donating funds and directly providing the wherewithal to cover Mr. Figueroa Raudales' living and education expenses, where the city council wrote to the Minister of Immigration to support the application, and where the principal and superintendent of schools wrote to support the H & C application, it cannot be said that Mr. Figueroa Raudales' establishment in the community is not significant and is no different than that of any other student. The finding is contrary to the overwhelming weight of the evidence.
[19] Establishment is, pursuant to the Minister's guidelines as found in Chapter 5 of the Inland Processing Manual, a relevant factor to consider when assessing an H & C application. Absent a proper assessment of establishment, in my view, a proper determination could not be made in this case as to whether requiring Mr. Figueroa Raudales to apply for permanent residence from abroad would constitute hardship that is unusual and undeserved or disproportionate.
[20] In the result, notwithstanding the able submissions of counsel for the Minister, the application for judicial review is allowed.
[21] Counsel posed no question for certification and no question arises on this record.
ORDER
[22] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the immigration officer dated May 29, 2002, is quashed and set aside.
2. The matter is remitted for re-determination before a different immigration officer.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2751-02
STYLE OF CAUSE: Edwin Omar Figueroa Raudales v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 11, 2003
REASONS FOR ORDER AND ORDER: Justice Eleanor R. Dawson
APPEARANCES:
Ms. Emma Andrews FOR APPLICANT
Mr. Halldor Bjarnason
Ms. Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Andrews, Bjarnason FOR APPLICANT
Vancouver, British Columbia
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada