Date: 20030626
Docket: IMM-4449-02
Citation: 2003 FCT 804
Quebec, Quebec, June 26, 2003
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
MIHALY JAMRICH, SZILVIA KOVARI,
VIVIEN JAMRICH, YVETTE JAMRICH and
CHRISTOPHER JAMRICH
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act [the IRPA], of a decision by Immigration Counsellor Brenda Heal [the IC], dated August 27, 2002 and communicated to Mihaly Jamrich, Szilvia Kovari, Vivien Jamrich, Yvette Jamrich and Christopher Jamrich [the Applicants] on September 5, 2002, whereby it was decided that the Applicants would not be granted an exemption from certain legislative requirements to allow an application for permanent residence based on humanitarian and compassionate grounds [H & C] to be processed from within Canada.
FACTS
[2] Mihaly Jamrich, the male Applicant, arrived in Canada from Hungary on September 21, 1995.
[3] He filed a refugee claim on October 20, 1995.
[4] On November 15, 1995, the male Applicant's wife, Szilvia Kovari, his stepdaughters, Vivien and Ivette Michna, and his son, Christopher Jamrich, arrived in Vancouver and proceeded to file refugee claims.
[5] In a Notice of Decision dated December 3, 1997, they were found not to be Convention refugees.
[6] In January 1998, the male Applicant, his wife, stepdaughters and son, filed an application to be considered members of the Post-determination Refugee Claimants in Canada class [the PDRCC].
[7] On January 27, 2000, the Applicant couple had a son.
[8] By letter dated March 6, 2000, the Applicants were found not to be members of the PDRCC class.
[9] On or about March 17, 2000, the Applicants made an inland processing application for permanent residence on H & C grounds.
[10] By letter dated August 27, 2002, the Applicants were informed that there were insufficient H & C grounds to warrant exempting them from the requirements of section 11(1) of the IRPA, i.e. to apply for permanent residence from outside Canada in the required manner.
[11] The latter decision is the subject of this application for judicial review.
ISSUES
[12] 1. Did the IC breach the duty of fairness by considering extrinsic evidence without advising the Applicants or providing them an opportunity to reply to that evidence?
2. Did the IC err in law in misapprehending the facts of the case and in reaching conclusions unsupported by the evidence?
3. Did the IC err in law in her consideration of the Applicants' establishment in Canada?
4. Did the IC give sufficient attention to the well-being of the children in deciding to refuse the Applicants' request for inland processing of their application for permanent residence?
ANALYSIS
Standard of Review
[13] In Ojinma v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1205 [Ojinma], Mackay J. confirmed the standard of review applicable to judicial reviews of H & C decisions:
[para. 13] The law is settled regarding the standard of review which should be applied in the judicial review of H & C decisions. In Tartchinska v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 161, [2000] F.C.J. No. 373, Nadon J. (as he then was) commented, at paras. 18-19:
It is clear that exemptions for humanitarian and compassionate reasons are discretionary and that an applicant is not entitled to a particular outcome. In order to successfully attack a negative decision, an applicant must show that the decision-maker erred in law, acted in bad faith, or proceeded on an incorrect principle: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.); Shah v. M.E.I. (1994), 29 Imm. L.R. (2d) 82 (F.C.A.); Ogunfowora v. M.C.I., 41 Imm. L.R. (2d) 75 (F.C.T.D.).
The Supreme Court in Baker, supra, made it clear that the standard of review in humanitarian and compassionate grounds applications is reasonableness. Accordingly, if the impugned decision is based on reasons that can withstand somewhat probing examination, this Court is not empowered to alter that decision.
[14] Accordingly, in reviewing the IC's decision to refuse the Applicants' H & C application, I will apply the standard of reasonableness simpliciter.
1. Did the IC breach the duty of fairness by considering extrinsic evidence without advising the Applicants or providing them an opportunity to reply to that evidence?
[15] The Applicants rely on the decision of Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 when submitting that the IC erred in using the reasons of the PDRCC while not ensuring that they had a copy of it nor allowing them a chance to respond to it.
[16] On its side, the Respondent argues that the law did not require the IC to provide a copy of the PDRCC reasons to the Applicants. He bases his argument on the decision of Onjinma, supra. Indeed, in that decision, Mackay J. explains the differences of these two cases as follows:
[para. 22] While the applicant in this case was not provided with a copy of the risk opinion, he had been informed of its existence and its result. ...
...
[para. 24] The applicant further relies on Haghighi v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 123 (F.C.T.D.), where Mr. Justice Gibson quashed the H & C decision there under review. However, the facts in this case are distinguishable from the facts in Haghighi. In Haghighi, the applicant filed an H & C application, which was referred by the immigration officer to the PCDO. In reaching a negative risk assessment, the PCDO relied on a 1997 U.S. Department of State report ("the 1997 DOSS Report") which was not among the materials submitted by the applicant in support of his H & C application. ...
[para. 25] In this case, unlike Haghighi, the applicant was informed of the existence and the result of the PCDO opinion, and was invited to direct any questions regarding continued detention, status of removal, or final consideration of the H & C application to immigration authorities. Furthermore, in this case, unlike Haghighi, there is no allegation that the PCDO officer relied on any material which was not known by the applicant in considering the H & C application. The claim to unfairness in this case rests upon the inclusion of the risk opinion in materials considered in regard to the applicant's H & C application. The applicant was aware of the existence of that opinion, and of its outcome, and that it would be considered in the assessment of his H & C application. In the circumstances there was not unfairness in the process of the H & C decision.
[emphasis added]
[17] In the case at bar, unlike Haghighi, supra, the Applicants were informed of the existence and the result of the PDRCC's decision. (Tribunal Record, page 185)
[18] It is my view that the IC did not commit any reviewable error pursuant to the "duty of fairness" issue.
2. Did the IC err in law in misapprehending the facts of the case and in reaching conclusions unsupported by the evidence?
[19] I do not think that the IC made a reviewable error when concluding that the Applicants had family in Hungary. The importance of this factor was that they could assist in the Applicant family's reintegration in Hungary; it wasn't necessarily for financial assistance (although I have noted that the male Applicant, in his Personal Information Form (PIF), stated that both their parents were prosperous.) (Tribunal Record, page 239)
[20] As to the issue of the IC's statement that they were on welfare off and on from 1995 until 2000, I have read her affidavit, specifically paragraphs 13-14, and find the following passage quite relevant:
... My review of the immigration file indicates that applications for welfare were made in 1995, 1997, and 2000, and it was this information that I relied on. ...
My decision, however was not based on the fact that the Applicants had been on welfare from time to time. On the contrary, I noted that they [sic] Applicants were considered to be hard working, and that the Jamrich family had been able to work, with authorization, and support their family in Canada.
[21] I believe that the comment on welfare was open for her to make. Although there has been debate on that issue, as illustrated by pages 3 to 11 of the cross-examination on affidavit of Brenda Heal (the IC), it does not seem to me that the decision was based on how often the family received welfare. Even if there were some minor factual errors, none of them could justify the intervention of this Court pursuant to this issue.
3. Did the IC err in law in her consideration of the Applicants' establishment in Canada?
[22] The following paragraphs of the Immigration Manual : Inland Processing - 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds are with respect to the concept of "establishment" in Canada. They provide as follows:
| 5.20 Positive consideration may be warranted when the applicant has been in Canada for a significant period of time due to circumstances beyond the applicant's control. ...
When the period of inability to leave due to circumstances beyond the applicant's control is of significant duration and where there is evidence of a significant degree of establishment in Canada, these factors may combine to warrant a favourable H & C decision.
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5.20 Une étude favorable pourrait être justifiée si le demandeur est au Canada depuis assez longtemps en raison de circonstances échappant à son contrôle. [...]
Si la période d'incapacité à partir en raison de circonstances échappant au contrôle du demandeur est de longue durée et lorsqu'il y a preuve d'un degré appréciable d'établissement au Canada, ces facteurs peuvent se conjuguer pour justifier une décision CH favorable. |
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| 11.2 The applicant's degree of establishment in Canada may be a factor to consider in certain situations, particularly when evaluating some case types such as: · parents/grandparents not sponsored; · separation of parents and children (outside the family class); · de facto family members; · prolonged inability to leave Canada has led to establishment; · family violence; · former Canadian citizens; and · other cases.
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, voluntary services 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 ...
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11.2 Le degré d'établissement du demandeur au Canada peut être un facteur don't on doit tenir compte dans certains cas, particulièrement si l'on évalue certains types de cas comme les suivants : · parents/grands-parents non parrainés; · séparation des parents et des enfants (hors de la catégorie du regroupement familial); · membres de la famille de fait; · incapacité prolongée à quitter le Canada aboutissant à l'établissement; · violence familiale; · anciens citoyens canadiens; et · autres cas.
Le degré d'établissement du demandeur au Canada peut supposer certaines questions, par exemple : · Le demandeur a-t-il des antécédents d'emploi stable? · Y a-t-il une constante de saine gestion financière? · Le demandeur s'est-il intégré à la collectivité par une participation aux organisations communautaires, le bénévolat ou d'autres activités? · Le demandeur a-t-il amorcé des études professionnelles, linguistiques ou autres pour témoigner de son intégration à la société canadienne? · Le demandeur et les membres de sa famille ont-ils un bon dossier civil au Canada [...] |
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[23] In her affidavit, at paragraph 14, the IC states:
... My refusal was not because they had collected welfare from time to time, but rather, that, given that the refugee process takes several years to run its course, a certain level of establishment in the community is to be expected. From the material submitted, I could not say that their level of establishment was so different and significant so as to differ the Jamrich family from any other family who resides in Canada while undergoing the refugee determination process. Accordingly, while I took it was a positive factor that they had demonstrated establishment, this was not considered at such a level to warrant waiving the requirement that they apply for landing from outside of Canada.
The indication is that the IC has assessed the evidence of the Applicants' establishment in Canada.
[24] Nevertheless, the evidence before the IC was strong and convincing. In fact, I have some difficulty in reconciling the IC's finding of facts with her ultimate conclusion. The Applicant parents have both worked on a regular basis from January 1996 up until and after the hearing, with short periods when they received welfare.
[25] The IC's decision read:
... From their application and letters of support it shows that the family is involved with their church and the Hungarian community. I have taken into consideration the letters of support and petition submitted. All the letters attest that the Jamrich family is hard working, honest and well liked but this in itself are insufficient reasons to waive the requirement they apply for an immigrant visa in the normal manner outside of Canada. ...
[26] Considering the best interests of the children, the IC wrote:
I have given serious consideration to the best interest of Mr. Jamrich's & Ms. Kovari's four children. The three eldest children were born in Hungary. They came to Canada when they were 13, 11 and one year old, their teaches [sic] in Canada describe them as good students who work hard and are well behaved. The two eldest girls are now 19 & 17 years old and the eldest girl has graduated from school and the younger girl is in Grade twelve. The girls have submitted letters dated January 2002 commenting on their wish to remain in Canada & their achievements. They state that they have both been honour students at various times, have studied additional languages other than English at school and been involved with extra circular [sic] activities. The parents state that their 8-year-old son, Chris, is well-liked and good at sports and school. Their Canadian born son is now two years old and they state he is a healthy, active and a smart child. The letters of support submitted attest to the fact that Mr. Jamrich & Ms. Kovari are loving, caring parents who want the best for their four children. They have demonstrated that they have been good parents in both Hungary and Canada.
[27] In Raudales v. Canada (Minister of Citizenship and Immigration, [2003] F.C.J. No. 532 [Raudales], the immigration officer assessed the degree of establishment as follows:
[para. 7] ...
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.
Addressing the issue, Dawson J. held:
[para. 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.
[para. 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.
[28] The case at bar is similar than that of Raudales, supra. The IC does have very broad discretion in assessing the Applicants application. That assessment must however be in accordance with the evidence before her.
[29] In my view, the IC made an unreasonable finding of facts: the IC's conclusions that "their establishment is no more than is expected of any refugee who is given similar opportunities in Canada" and that she is "not satisfied that in their case, their establishment can be considered so different and significant that it differs from what is expected from any other person who resides in Canada while undergoing the refugee determination process" are patently unreasonable in the circumstances of this case.
4. Did the IC give sufficient attention to the well-being of the children in deciding to refuse the Applicants' request for inland processing of their application for permanent residence?
[30] Given my conclusion of the foregoing issue, it will not be necessary to address this issue.
ORDER
THIS COURT ORDERS THAT:
1. This application for judicial review is allowed, and the decision of the IC dated August 27, 2002, is quashed and set aside.
2. The matter is remitted for redetermination by a different immigration counsellor in light of these reasons.
3. No question for certification.
"Pierre Blais"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4449-02
STYLE OF CAUSE: MIHALY JAMRICH ET AL v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 4, 2003
REASONS FOR ORDER : Blais, J
AND ORDER
APPEARANCES:
Mr. Ali Yusuf FOR APPLICANT
Ms. Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Ali Yusuf FOR APPLICANT
Barrister & Solicitor
Morris Rosenberg FOR RESPONDENT
Department of Justice
Vancouver Regional Office