Date: 20030312
Docket: IMM-4255-02
Neutral Citation: 2003 FCT 304
CALGARY, Alberta, Wednesday, the 12th day of March, 2003.
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
JESUS MANUEL ELIZONDO GONZALEZ
OLIMPHYA ADRIANA HERMOSILLO De GONZALEZ
MANUEL ADRIAN ELIZONDO HERMOSILLO
GRETTA ELIZONDO HERMOSILLO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicants seek judicial review of an Immigration Officer's decision dated
August 28, 2002, wherein their humanitarian and compassionate ("H & C") application pursuant to s. 114(2) of the Immigration Act was denied.
[2] The Applicants are citizens of Mexico and have been living in Canada since 2000.
The Applicants filed an unsuccessful refugee claim in 2000, as the Convention Refugee Determination Division of the Immigration and Refugee Board determined that their claim of persecution at the hands of Mexican drug cartels and the police lacked a nexus to a Convention Refugee ground.
[3] Counsel for the Applicants then requested that the Applicants be assessed under
the Post-Determination Refugee Claimants in Canada (PDRCC) class. This application was also unsuccessful. Following this, the Applicants requested processing of their application for permanent residence in Canada on humanitarian and compassionate ("H & C") grounds.
[4] Quite apart from the actual substantive elements of the Immigration Officer's
H & C decision under review, counsel for the Applicants takes the position that the decision was reached in breach of due process, and, as a result, should be set aside. Two arguments are made in this respect, both arising from the following described course of events.
[5] On August 7, 2002, the Applicants were interviewed by the Immigration Officer
concerned. On August 7th, following the completion of the interview, counsel for the Applicants explained that he did not want his submissions to be considered finite given that more submissions would be forthcoming. The Immigration Officer indicated her acknowledgment that counsel would be supplying further materials . At no time did the Immigration Officer state that she would consider submissions closed as of the date of the interview and would not receive or consider additional materials (Applicants' Application Record (AAR), p. 13, paragraph 33). However, the Immigration Officer did state that she would try to have her decision ready in about a month (AAR, p. 13, paragraph 30).
[6] By letter dated August 20, 2002, counsel for the Applicants served additional
evidence on the Immigration Officer, and concluded by saying: "I hope to be providing you with additional letters of support soon" (AAR, p. 97).
[7] By letter dated August 29, 2002, counsel for the Applicants sent further evidence
for due consideration by the Immigration Officer. However, the record proves that the additional evidence forwarded on August 29th was not considered in reaching the decision because the decision itself is dated August 28, 2002 (AAR, p. 16).
[8] In my opinion, having been put on notice in the letter of August 20th, that
further evidence was forthcoming, it was unfair for the Immigration Officer to make the decision without taking steps to close the evidentiary record. In my opinion, upon receiving the letter of August 20th, the Immigration Officer should have contacted counsel for the Applicants to establish a specific date for the delivery of the further evidence, and to have delayed the making of the decision until that date had passed.
[9] The second element of the due process argument raised by counsel for the
Applicants concerns the obtaining of a Psychological Assessment of the Applicants.
[10] On August 20, 2002, in a separate letter from that referred to above by the same
date, counsel wrote as follows:
The Legal Aid Society Appeals Committee has approved a special disbursement for Dr. Hap Davis, a registered psychologist in the Province of Alberta, to render a psychological report in regards to the Elizondo family. I was notified of this on July 29, 2002 while on holiday.
Also while on holiday, Dr. Davis informed that he would be out of Calgary for the entire month of August.
The approval of the special disbursement request by the Legal Aid Appeals Committee is specific to Dr. Davis.
If you feel that you need the psychological report of the Elizondo family, may I please hear from you? I will then contact his office and give you a better idea, hopefully, of when Dr. Davis will return and when he might be able to complete his report.
On the other hand, if you feel that you do not require a psychological report, please feel free simply to leave a brief voice mail message to this effect.
I thank you sincerely for your attention to this letter. If there is anything else that you will require, please do not hesitate to let me know. (AAR, p. 94)
[11] In the letter of August 29th referred to above, with respect to the Psychological
assessment, counsel for the Applicants said: "I remain too eager [sic] to hear from you in response to my August 20, 2002 letter as to whether you feel you require a psychological report" (AAR, p. 99).
[12] I accept counsel for the Applicants' statement at bar that despite his request in the
August 20th letter for some confirmation of the Immigration Officer's interest in the psychological assessment, he heard no response before the making of the decision on August 28th.
[13] The reasons for the negative H & C decision are as follows:
The applicants have not severed ties to Mexico; in fact they have stronger ties to Mexico than to Canada including multiple family members and a home.
The applicants have demonstrated some evidence of establishment, integration and upgrading into Canadian society; however, it is not sufficient to grant a visa waiver.
The applicants accompanying dependants, including one Canadian born infant, are young enough to adjust and adapt to new school and economic environments. Insufficient evidence has been provided to lead me to believe that the children would be disadvantaged if they had to enroll in school in Mexico.
The applicants have become high media profile primarily based on their own actions of willingly informing and updating members of the media.
The applicants' credibility is doubtful based on inconsistencies in the submissions and at the interview. Though the applicants stated they were economically privileged, prosperous and educated individuals in Mexico, their adjustment to Canada has not been reflective of their stated abilities nor have they demonstrated their skills in Canada. They have relied on social and community assistance for the majority of their time in Canada and have not applied for a work permit until ten months after qualifying for one. This also contracts their own statement of that they would not be a burden to Canada. Furthermore, they have received substantially more from the community than they have offered. The applicants conceived and gave birth to a Canadian born child at a time when their immigration and financial status was uncertain. The applicants state they have a desperate fear of the Mexico mafia; however, they willingly informed the media of their whereabouts and situation in Canada. The applicants provided little evidence of association with St. Michael church prior to resorting to the church for sanctuary. They state they have lots to offer, however, they have not provided sufficient evidence to support this statement particularly for St. Michael's Church. Instead they provided substantial evidence of the church's support of them. Though the applicants state they fear for their life and their life is turmoil, they have not utilized any regular subsidized counselling offered at St. Michael's Church. The applicants state they travelled more than a 100 times to the USA but made a refugee claim in Canada after travelling through the USA. The applicants state the HOF forceably shoved or pushed his wife leading her to call the police for assistance. This contradicts the letters of support stating the applicants are good adjustments to Canada and his own statement that he is a good family man. Collectively these inconsistencies lead me to question their credibility.
The foregoing and in accordance with humanitarian and compassionate grounds under the Immigration and Refugee Protection Act, the applicants would not suffer unusual, undeserved or disproportionate hardship if they had to leave Canada and apply for permanent resident a visa office.
Thus, this application is refused. (AAR, p. 92)
[14] On the face of the record, including the reasons, I find that the psychological
make-up of the Applicants was very much in issue in the application. In the application, the Applicants made it clear that since arriving in Canada they have been under a great deal of psychological stress (see AAR, p. 32, p. 34, and p. 36). Therefore, it is not surprising that counsel for the Applicants made a strong effort to get funding for the production of the assessment. However, as admitted by counsel for the Applicants during the course of the oral argument in the present case, it would have been better if he had notified the Immigration Officer of the potential production of the assessment and asked her to delay her decision until it was completed and properly considered.
[15] In any event, I find that the Immigration Officer was on notice that a
Psychological Assessment could be produced in advance of the decision. I find that good professional practice required her to answer the question posed in the August 20th letter by confirming one way or the other whether the assessment should be tendered before the decision was rendered. It is not surprising that the Applicants submit he was unfair for a decision to be rendered without the issue of the Psychological Assessment being addressed by the Immigration Officer.
[16] In my opinion, to be "humanitarian and compassionate" must mean to take all
caution in reaching a critical decision about the lives of individuals who exhibit stress and fear. In particular, the greatest of caution is expected in assessing the best interests of children. As a result, in my opinion, as these factors were present at the time the decision under review was made, the Immigration Officer was under an obligation to ask for clarification about the Psychological Assessment before reaching her decision.
[17] I find that the making of the decision before all evidence was submitted, and the
failure to address the issue of the Psychological Assessment before reaching a decision, when considered together, constitutes a breach of due process which renders the decision as one made in reviewable error.
ORDER
Accordingly, I set aside the Immigration Officer's decision and refer
the matter to a different immigration officer for redetermination.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
March 12, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4255-02
STYLE OF CAUSE:Jesus Manuel Elizondo Gonzalez et al.
v. MCI
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: March 12, 2003
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: March 12, 2003
APPEARANCES:
Mr. R. Michael Birnbaum FOR APPLICANT
Mr. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. R. Michael Birnbaum
Calgary, Alberta FOR APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT