PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision by a Pre-Removal Risk Assessment (PRRA) officer, dated August 31, 2006, to dismiss an application for permanent residence from within Canada on humanitarian and compassionate (H&C) grounds.
BACKGROUND
[2] Jack Willson (the applicant) is a citizen of Liberia who entered Canada illegally at a date unknown, and sought asylum on January 22, 1996.
[3] On January 18, 1999, the Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected his application and determined that he was not a Convention refugee. Following this determination, he filed an H&C application, with the support of his spouse who wished to sponsor him. On August 11, 2000, the sponsorship application was withdrawn, as the parties were no longer living together. On September 12, 2000, the H&C application was rejected.
[4] On January 29, 2002, the removal order, which became enforceable following the rejection of the H&C application, became a deportation order.
[5] On August 5, 2005, the applicant submitted a second H&C application.
DECISION UNDER REVIEW
[6] A decision was rendered on August 31, 2006, by a PRRA officer, refusing to grant an exemption under section 25 of the Act, and informing the applicant that the removal order made against him was now enforceable and that he must depart Canada immediately. The PRRA officer denied the application, on the ground that the applicant had failed to demonstrate that he would suffer unusual, undeserved or disproportionate hardship if he were required to apply for permanent residence from outside Canada.
ISSUE FOR CONSIDERATION
[7] The central issue in this application is whether the PRRA officer made a reviewable error by denying the H&C application, in particular as it relates to the assessment of the applicant’s medical condition, the situation in Liberia, the applicant’s degree of establishment in Canada, and the best interests of the child.
PERTINENT LEGISLATION
[8] The humanitarian and compassionate exemption is found at subsection 25(1) of the Act, and reads as follows:
|
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient.
|
STANDARD OF REVIEW
[9] The decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, remains the leading case for the standard of review of decisions made on H&C grounds. In Baker, above, Justice Claire L’Heureux-Dubé engaged in a detailed pragmatic and functional analysis before deciding on reasonableness simpliciter as the proper standard. As stated by Justice Frank Iaccobucci in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, at paragraph 56, “an unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination”.
[10] More recently, Madam Justice Caroline Layden-Stevensen in Agot v. Canada (Minister of Citizenship and Immigration), 2003 FCT 436, [2003] F.C.J. No. 607 (QL), provided a useful summary of the principles established in H&C applications, at paragraph 8 of her decision, where she wrote:
[...] The decision of the ministerial delegate with respect to an H&C application is a discretionary one: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). The standard of review applicable to such decisions is that of reasonableness simpliciter: Baker. The onus, on an application for an H&C exemption, is on the applicant: Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 94, [2003] F.C.J. No. 139 per Gibson J. citing Prasad v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm.L.R. (2d) 91 (F.C.T.D.) and Patel v. Canada (Minister of Citizenship and Immigration) (1997), 36 Imm.L.R. (2d) 175 (F.C.T.D.). The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh); Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (Legault). The ministerial guidelines are not law and the Minister and her agents are not bound by them, but they are accessible to the public and the Supreme Court has qualified them as being of great assistance to the court: Legault. An H&C decision must be supported by reasons: Baker. It is inappropriate to require administrative officers to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.).
ANALYSIS
[11] The test for determining whether an exemption should be granted on humanitarian and compassionate grounds was articulated in Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906 (QL), at paragraph 26, where Justice Denis Pelletier wrote that the humanitarian and compassionate exemption process “is not designed to eliminate hardship; it is designed to provide relief from unusual, undeserved or disproportionate hardship”. This is why, he also wrote at paragraph 12:
[...] It would seem to follow that the hardship which would trigger the exercise of discretion on humanitarian and compassionate grounds should be something other than that which is inherent in being asked to leave after one has been in place for a period of time. Thus, the fact that one would be leaving behind friends, perhaps family, employment or a residence would not necessarily be enough to justify the exercise of discretion.
[12] It should be noted before proceeding with the analysis in this case that the applicant is a failed refugee claimant. This is also the applicant’s second H&C application, the first one having been rejected in 2000. As these decisions were never judicially reviewed, they remain valid. In addition, it has been recognized by this Court that a second H&C application should be based on new evidence, and not simply on a re-assessment of the same evidence (Kouka c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2006 CF 1236, [2006] A.C.F. no 1561 (QL)). As I stated recently in Orozco c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2006 CF 1426, [2006] A.C.F. no 1792 (QL), it would be unrealistic to expect that an applicant could submit multiple H&C applications based on the same evidence, and expect this evidence to be evaluated independently on each occasion without regard to the previous decisions. Such an approach would allow the applicant to circumvent the legislative scheme set out by Parliament, which already contains numerous mechanisms to challenge the rejection by the initial decision-maker (such as judicial review and pre-removal risk assessments).
The Applicant’s Medical Condition
[13] The applicant claimed in his H&C application to be suffering from post-traumatic stress disorder (PTSD) due to the violence he suffered and witnessed in Liberia. The officer followed the determination of the RPD on this issue, accepting the diagnostic of PTSD but questioning the claim that this condition is linked to any event that he experienced or witnessed in Liberia, as the RPD found the applicant generally not credible and his story implausible. Rather, the officer believed that the applicant’s mental condition was most likely linked to the problems he experienced in Canada, mainly the difficulties in adapting to his new environment. For instance, his first suicide attempt followed the break-up of his relationship with his spouse and, while it is not mentioned in the officer’s analysis, his second suicide attempt, in 2003, followed his troubles with the law and the issuance of a deportation order in 2002. As for the conclusion of his doctor, a general practitioner, and his social worker, that his problems are the result of his experience in Liberia, the officer noted that they are based on the story the applicant told them, a story which has already been found not to be credible by the RPD.
[14] On this point, I find the officer’s conclusion to be reasonable, as it was up to the officer to weigh these two reports against all the other evidence before him. As stated by Madam Justice Barbara Reed in Danailov v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 1019 (QL) at paragraph 2:
With respect to the assessment of the doctor's evidence, to find that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
[15] The officer also assessed the issue of the availability of medical care in Liberia. He recognized that medical services were mediocre and access to medication was limited. Nonetheless, he noted that the applicant’s use of medication was intermittent and that progress had been made in Liberia since the cessation of hostilities in 2003 and the election in 2005. The officer finally concluded that, in any case, the applicant would not be departing for Liberia immediately, so that there was no imminent risk.
[16] As the applicant sought judicial review of the officer’s decision, and will likely seek a pre-removal risk assessment if this application is denied, the officer’s conclusion with regards to the non-imminent departure of the applicant appears quite reasonable. Given that the end of the civil war is still fairly recent, it was also reasonable to conclude that medical services should continue to improve in Liberia.
The Situation in Liberia
[17] Turning to the general situation in Liberia, the applicant submits that the officer did not consider the documentary evidence submitted, which corroborates the applicant’s testimony.
[18] The respondent for his part notes that it is trite law that a decision-maker is presumed to have considered all of the evidence and that the assessment of weight to be given to the evidence is a matter within the decision-maker’s discretion and expertise (Woolaston v. Canada (Minister of Employment and Immigration), [1973] R.C.S. 102, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, [1992] F.C.J. No. 946 (QL)).
[19] As stated in his reasons, the officer first considered the objective situation in Liberia, recognizing that it remains a dangerous country. However, the officer noted that the Department of Foreign Affairs and International Trade (DFAIT) does not advise Canadians in Liberia to leave the country, but only to avoid certain border regions where the presence of large numbers of refugees and rebels contributes to the instability. The officer did not mention any personalized risk to the applicant, which was to be expected given the negative credibility finding that was made with regards to the applicant’s story.
[20] While the presumption that the officer considered all of the evidence is rebuttable, I do not believe that it has been rebutted in this case. In his written representations, the applicant lists some documents that he claims the officer failed to consider, specifically: an Amnesty International report from 2000 and a US State Department report from 1998. Considering that the situation in Liberia has been altered significantly as a result of the end of the civil war in 2003 and the return of democracy in 2005, these particular reports would be irrelevant to the risk faced by the applicant upon his eventual return to Liberia, and it was not unreasonable for the officer to rely on the more up-to-date information provided by DFAIT.
The Applicant’s Establishment in Canada
[21] In assessing an applicant’s degree of establishment, the Inland Processing Manual for Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (the Guidelines), at section 11.2, list five questions that may be relevant to such a determination:
1. Does the applicant have a history of stable employment?
2. Is there a pattern of sound financial management?
3. Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
4. Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
5. 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)?
[22] First, the applicant’s representative submitted to the officer that the applicant had been in Canada for a significant period of time due to circumstances beyond his control. While I agree that the civil war in Liberia would have made it difficult for him to return, one must be careful when considering this particular argument. As I noted in Lee v. Canada (Minister of Citizenship and Immigration), 2005 FC 413, [2005] F.C.J. No. 507 (QL), H&C applications should not be interpreted in such a way as to encourage applicants to gamble on the fact that if they can stay in Canada long enough to demonstrate that they are the kind of persons Canada wants, they will be allowed to stay.
[23] In this case, the officer did acknowledge the length of stay in Canada, as well as the fact that the applicant has a history of stable employment. However, with regards to sound financial management, the officer noted that the applicant accepted social assistance while working in 1996 and 1997, and was ordered to repay a total of 10,576$ to the government as a result of this. While it is true that this occurred at the beginning of his stay in Canada, welfare fraud was not the only time the applicant contravened the law.
[24] In 1996, the applicant was arrested for assault and uttering death threats against his former spouse, in violation of paragraphs 266(b), 264.1(1)(a) and 264.1(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46. In 2002, he was arrested again, this time for breaking and entering and assault with a weapon against his spouse, in violation of paragraphs 348(1)(b) and (d), and paragraph 267(a) of the Criminal Code. Both cases were resolved with the applicant appearing before a justice of the peace and entering into a recognizance to keep the peace and be of good behaviour for one year, as per section 810 of the Criminal Code. In 2004, the applicant was found guilty of impaired driving, fleeing the scene of an accident and giving false information to police officers, in violation of sections 252(1.1), 249(1) (a), 249 (2), 140(1)(c) and 140(2) of the Criminal Code, and sentenced to a 50$ fine and two years of probation.
[25] The officer recognized that the medication taken by the applicant might have played a role in his 2004 accident, but not in his decision to flee the scene and give false information to the police. The officer also acknowledged that the other incidents did not result in a criminal record. However, the officer concluded that the clemency shown by the court did not erase the seriousness of the acts committed by the applicant.
[26] The applicant’s main submission on this point is that the officer gave too much weight to the “small welfare fraud” and the other “minor incidents”, at the expense of the length of his stay in Canada and the fact that he has had “almost ... no problems with anybody since he arrived”, making the decision arbitrary.
[27] Not only do I disagree with the applicant’s interpretation of the seriousness of the incidents in question, but the respondent is correct in submitting that it is not my duty to re-weigh the evidence before the officer. As long as there is a line of analysis in the officer’s decision that could reasonably lead to his conclusion, which I am convinced there is, then the Court should not intervene.
The Best Interests of the Child
[28] In Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), at paragraphs 11 and 12, Justice Robert Décary provided the following summary on the issue of the best interests of the child:
In Suresh, the Supreme Court clearly indicates that Baker did not depart from the traditional view that the weighing of relevant factors is the responsibility of the Minister or his delegate. It is certain, with Baker, that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh, that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to reexamine the weight given to the different factors by the officers.
In short, the immigration officer must be "alert, alive and sensitive" (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. [...]
[29] In this case, the officer clearly considered the best interests of the child. The applicant submitted a 1999 birth certificate, where the identity of the father was not declared, and the result of a 2005 DNA test proving that he was the father of the child in question, both of which were acknowledged by the officer. In addition, the officer noted that, when this child was born, the applicant was married to another woman. Moreover, the officer emphasized that there was no mention of this child anywhere in the applicant’s 18-page written representations. While the officer accepted the proof that the applicant has a child in Canada, he could find no evidence as to the existence of a relationship between them, and thus gave little weight to this factor, as he was entitled to do.
[30] The applicant now makes submissions with respect to the right to family life, citing international law to support his argument. Given the fact that the officer was “alert, alive and sensitive” to the best interests of the child, these submissions are irrelevant. The basis for the officer’s conclusion was the lack of evidence regarding the relationship between the applicant and the child to support a finding that the best interests of the child militated in favour of granting the application. The applicant now claims to have a very close relationship with his son, but since this information was not before the officer, it is also irrelevant now and does not affect the reasonableness of the officer’s decision.
CONCLUSION
[31] The officer concluded in his reasons that the applicant had failed to demonstrate that he would suffer unusual, undeserved or disproportionate hardship if he were required to apply for permanent residence from outside Canada, and thus refused to grant an exemption under section 25 of the Act.
[32] In light of the evidence before the officer and the detailed reasons prepared by him, I find this conclusion to be entirely reasonable and see no reason to interfere with it.
[33] For the above reasons, this judicial review is denied.
[34] The applicant suggests two questions for certification:
1. Is it mandatory for the immigration agent who is deciding on an application for humanitarian reasons to take into account the impact on a victim of organized violence or torture of being returned to the country where the abuse was suffered?
Regarding the first question, I am not satisfied that in this case, we could even contemplate the parameters of this question considering the conclusion of the RPD, which remains valid, that the applicant was not credible. I believe that this question is fact-specific and that it does not raise a question of general importance and, therefore, it will not be certified.
2. Are there generally sufficient humanitarian grounds to grant a humanitarian application in Canada when the person has resided in Canada for over five years and is without serious criminality or other negative indication?
Concerning the second question proposed by the applicant, it is sufficient to note that the officer has discretion in the analysis of the facts supporting an application on humanitarian grounds and the relative weight to be assigned to them. The analysis is made on a case by case basis, and therefore, this is not a question of general importance and will not be certified.
JUDGMENT
1. The application is denied;
2. No question for certification.
“Pierre Blais”
Judge
FEDERAL COURT
NAMES OF COUSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5261-06
STYLE OF CAUSE: JACK WILLSON v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal
DATE OF HEARING: April 18, 2007
REASONS FOR JUDGMENT AND JUDGMENT: Mr. Justice Blais
DATED: May 4, 2007
APPEARANCES:
Mr. Stewart Istvanffy FOR APPLICANT
Ms. Sylviane Roy FOR RESPONDENT
SOLICITORS OF RECORD:
ISTVANFFY VALLIÈRES & ASSOCIÉS
Montreal, Quebec FOR APPLICANT
JOHN H. SIMS, Q.C.
Montreal, Quebec FOR RESPONDENT