Date: 20050627
Docket: IMM-5513-04
Citation: 2005 FC 899
Ottawa, Ontario, this 27th day of June, 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
RICARDO HORACIO FERNANDEZ and
CLAUDIA ELISABETH ONTIVEROS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of an Immigration officer (the "officer") dated June 9, 2004, wherein the officer rejected the Applicants' application for consideration on humanitarian and compassionate ("H & C") grounds (the "H & C application"). The Applicants seek an Order for a writ of certiorari quashing this decision, and an Order for a writ of mandamus directing the H & C application be reassessed by a different immigration officer, with direction that the Respondent inquire further of the Applicants if any additional information is required or additional concerns are raised. The Applicants also seek their costs in this matter.
ISSUES
[2] Did the officer err in law when considering the Applicants' H & C application, either by failing to seek a risk assessment or await the results of a pre-removal risk assessment (the "PRRA"), by failing to properly assess the best interests of the children, or by failing to properly consider the Applicants' level of establishment in Canada?
CONCLUSION
[3] For the reasons outlined below, the officer did err in her assessment of the Applicants' situation, and this application for judicial review is consequently granted.
BACKGROUND
[4] The Applicants, Ricardo Horacio Fernandez (Mr. Fernandez, or the "Principal Applicant") and Claudia Elisabeth Ontiveros (Mrs. Ontiveros) (collectively, the "Applicants), came to Canada with their two children on May 27, 2000. All are citizens of Argentina. A third child was born in Canada in October 2000. The Principal Applicant claimed refugee status on account of his political opinion, but was rejected in September 2001 by the Immigration and Refugee Board (the "IRB") under the provisions of the former Immigration Act. The IRB determined that although the Principal Applicant's account of persecution was credible, there was no nexus between the fear of further persecution and a Convention refugee ground (as was required at that time).
[5] On November 22, 2002, the Applicants submitted their H & C application. In support, they outlined their fears in returning to Argentina, the likelihood that the Principal Applicant would suffer a psychological setback if forced to return (in a psychological report dated October 18, 2002, Mr. Fernandez was found to suffer from Post-Traumatic Stress Disorder ("PTSD")), the connections with their community that the family has forged since their arrival in Canada, and the best interests of their children.
THE OFFICER'S DECISION
[6] On June 9, 2004, the Applicants' H & C application to have their application for permanent residence processed from within Canada was rejected. No reasons were given at that time.
[7] The officer's reasons can be found in the Humanitarian and Compassionate Narrative Form (p. 7 of the Applicants' Record; p. 3 of the Tribunal Record). The officer noted that the Applicants have become reasonably established in Canada. She acknowledged the support they have offered to certain members of their community (e.g., Mr. Fernandez's sister and brother-in law Graciela and Hector Tolu, Patricia del Vecchio and her two children with special needs, Clara Barrios). She considered, however, that this support could be otherwise provided. She also considered that the best interests of the children, including the Canadian-born child, would be served as well in Argentina as in Canada, since there is extended family remaining in Argentina. Concerning the risk should the Applicants be returned to Argentina, the officer found there was no need to order a risk assessment since, in her opinion, the Applicants had provided insufficient evidence as to personalized risk, and this, despite the fact that she noted a PRRA was still pending in the Applicants' case. Finally, the officer found insufficient evidence had been provided as to the continuing nature of Mr. Fernandez's PTSD and whether he could continue to receive treatment in Argentina (or indeed, whether he is currently receiving treatment in Canada).
SUBMISSIONS
The Applicants
[8] The Applicants submit that the officer erred in law in three ways:
(1) By rendering her decision without seeking a risk opinion or otherwise making her own assessment of risk, or by not waiting for the PRRA to be complete. That argument has become academic since a negative PRRA report was rendered in January 2005;
(2) By failing to properly assess or by minimizing the best interests of the children; and,
(3) By failing to consider relevant evidence with respect to the Applicants' degree of establishment in Canada.
The Respondent
[9] The Respondent submits that the officer's decision was reasonable upon the facts available to it, and that therefore the Court should not interfere. H & C officers are not required to refer every application for a risk determination; this is only the case where serious risk has been alleged. Here, the Applicants had failed to provide sufficient evidence in support of the alleged risk. Furthermore, the officer's findings regarding the best interests of the children were reasonable. Finally, the degree of the family's establishment in Canada was assessed, and the officer found no evidence of unusual or undue hardship should the Applicants be forced to return to Argentina pending the assessment of their application for permanent residence.
ANALYSIS
Standard of review
[10] The standard of review of H & C decisions is reasonableness simpliciter; therefore, the Applicants must demonstrate that the decision was either unreasonable or that there was a breach of procedural fairness: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
Assessment of risk
[11] The Applicants submit that, while a risk opinion is not required in all situations, the officer should have referred their file for a risk assessment in light of the evidence before her. The officer was aware that in 2001, the IRB had accepted Mr. Fernandez's account of events. Since s. 97 of IRPA does not have a nexus requirement (the area in which Mr. Fernandez's actual claim failed under the old act), the officer should have sought a risk opinion to determine whether there was an objectively identifiable risk to the Applicants before rendering her decision.
[12] In light of the discretion given to officers by the IP Guidelines, the circumstances of this case are such that the officer should have waited for the PRRA report. There was no urgency necessitating an immediate decision and no prejudice would have been caused had the officer waited for the PRRA report (see Adourian v. Canada (Minister of Citizenship and Immigration), 2002 FCT 672 at paras. 8 and 11 (T.D.)). However, as I was informed at the hearing that a negative PRRA report was completed in January 2005, this issue has now become academic.
Best interests of the children and the family's establishment in Canada
[13] The Applicants submit that the officer did not properly contextualize the best interests of the children. There was ample evidence that being separated from their friends and family in Canada would be traumatic. The evidence that Mr. Fernandez was likely to relapse into PTSD, should the family be returned to Argentina, was not considered by the officer in the context of the children's best interest. Finally, not only did the officer improperly assess the weight to be given to the Applicants' family here in Canada (Graciela and Hector Tolu), she also failed to properly assess the weight that should be given to the family's extended "family" (e.g., the del Vecchio children).
[14] In support of their submissions, the Applicants cite Jamrich v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1076 (F.C.) (Jamrich), which in turn cites Raudales v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 532 (Raudales). Both cases look at the degree of establishment of an applicant in order to determine whether there are sufficient H & C grounds to allow them to remain in Canada while their residency requests are processed. In both cases, circumstances showed that the integration into the community surpassed that of an average immigrant. In Jamrich, the children were in school and involved in community groups. The parents were both gainfully employed. The family was very involved in its church. In Raudales, Dawson J. stated the following, at paras. 18-19:
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.
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.
[15] The Applicants also cite the IP-5 Guidelines, and I reproduce the relevant section here:
11.2 Assessing the applicant's degree of establishment in Canada
The degree of the applicant's establishment in Canada may include such questions as:
- Does the applicant have a history of stable employment?
- Is there a pattern of sound financial management?
- Has the applicant integrated into the community through involvement in community organizations, volunteer or other activities?
- Has the applicant undertaken any professional, linguistic or other study that show integration into Canadian society?
- Do the applicant and family members have a good civil record in Canada (e.g. no interventions by police or other authorities for child or spouse abuse, criminal charges)?
[16] I think, in light of the above IP-5 Guidelines and the decisions in Jamrich and Raudales, the officer did not reasonably assess the best interests of the children or the degree of establishment the Applicants have achieved in the community. For instance, the officer stated that she was "not satisfied that there is no one else available for the families that have expressed need for the applicants to remain in Canada" (see page 1 of her decision). This is not the proper test. The question is not whether someone else would equally be able to fulfill the role should the Applicants be removed from Canada, but whether their removal will cause undue hardship. This was not properly assessed by the officer.
[17] There was ample evidence before the officer that the Applicants have become quite established in Canada. Mr. Fernandez and Mrs. Ontiveros have both been gainfully employed for over three years. They have not had recourse to social assistance since their arrival in Canada, and their employment is stable. The family is involved in its community. They are involved in their church. They have thus far proven to be law-abiding citizens, and have all made a conscious effort to learn English and further integrate into the community. The two oldest children, Leandro and Florencia work hard and do well in school and are also involved in extra-curricular activities. The youngest, Agustin, is due to begin junior kindergarten this September. Of the three, only Florencia is likely old enough to remember Argentina in any detail. While they do have family ties there, there is nothing that makes those ties any more compelling than the ties in Canada.
[18] I agree that the officer erred in minimizing the hardship that would ensue should the Applicants be forced to return to Argentina. This hardship will be felt not only by the Applicants back in Argentina where opportunities are limited, but also by the people who will be left behind in Canada (e.g., Hector Tolu and his company, the del Vecchio children, Clara Barrios). In the circumstances, I think it appropriate that the decision of the officer be quashed and the Applicants' H & C application be returned for reassessment by a different officer in accordance with the principles outlined above.
[19] Both counsel were asked if they had any questions to propose for certification purposes but they did not.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is granted;
The decision of the officer dated June 9, 2004, is annulled and the matter is sent back for redetermination in accordance with the applicable legal principles.
"Simon Noël" Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5513-04
STYLE OF CAUSE: RICARDO HORACIO FERNANDEZ et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY JUNE 22, 2005
REASONS FOR ORDER
AND ORDER BY: NOËL S., J.
DATED: June 27th, 2005
APPEARANCES BY: Ms. Krassina Kostadinov
For the Applicants
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD:
Ms. Krassina Kostadinov
Barrister & Solicitor
Waldman & Associates
Toronto, Ontario
For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050622
Docket: IMM-5513-04
BETWEEN:
RICARDO HORACIO FERNANDEZ et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER