Date: 20030630
Docket: IMM-2014-02
Citation: 2003 FCT 813
Ottawa, Ontario, this 30th day of June, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
XINIA MARIA ANGULO ALVARADO
MARIELA CASARES ANGULO
MARGARITA CASARES ANGULO
YIENDRY CASARES ANGULO
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 Immigration Officer Yee (the "Officer") who determined on April 15, 2002, that the applicants were not entitled to admission to Canada on the basis of humanitarian or compassionate considerations noted in ss. 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act").
Facts
[2] The principal applicant, Xinia Alvarado, is a 38-year-old citizen of Costa Rica. She states that she suffered sexual abuse from her step-father in Costa Rica. She was married, but left her husband in 1992. She worked in various jobs, but left due to unwanted sexual advances and harassment. She stated that her daughter had been sexually abused by a neighbour.
[3] The principal applicant states that the poor have little access to justice in Costa Rica and that her complaints of spousal and child abuse were not investigated. She and her daughter, Mariela, left Costa Rica for Canada, and arrived on December 10, 1998.
[4] Two other daughters, Margarita and Yiendry Angulo, entered Canada on December 16, 1999. The principal applicant has had two children since arriving in Canada, Sabrina Alvarado, born December 20, 1999, and Angelina Alvarado, born March 26, 2002.
[5] The principal applicant applied for refugee status as a member of the social group poor Costa Rican women who are victims of sexual and physical abuse. Her claim was rejected on April 4, 2000. Leave for judicial review was denied.
[6] The officer's report states that the principal applicant and her five dependents applied for humanitarian and compassionate consideration on May 8, 2001. In her memorandum of law and argument, the principal applicant submits that the application was filed on May 29, 2001.
Officer's Decision
[7] By letter dated April 15, 2002, the officer informed the applicants that their individual circumstances had been reviewed and that an exemption from the requirement in ss. 9(1) of the Act (providing that every immigrant shall obtain a visa prior to entering Canada) would not be granted.
[8] The information contained in the "report to file" states that an interview was waived since no need for one was identified. The officer noted that the principal applicant had worked with Globel Direct from April to December 2000, but had not undertaken any language or vocational training. Since December 2000, she has been relying on income assistance. The officer noted that the two older girls intended to become employed after finishing high school in order to support the family, but stated that this was speculative and that insufficient evidence was provided to establish that this would occur. The officer noted that the principal applicant was involved with her church, with volunteer work, and was established to a certain extent.
[9] The officer stated that she considered the impact of a return on the principal applicant's two Canadian-born children, and noted that they would undoubtedly return with her since they had no family in Canada. She noted that the children were very young - a two year-old and an infant - young enough to assimilate into Costa Rican society. The officer stated that there was no indication of strong paternal bonds. While the officer noted that Canada is ranked first on the Human Development Index, Costa Rica ranked 48th and was considered in the top one-third of countries.
[10] Concerning the three Costa Rican-born children, the officer stated that the separation from friends might be painful, but that they would still benefit from their family unit and that they had additional relatives in Costa Rica. The Costa Rican-born children all speak Spanish. The officer stated that the children would probably experience some disruption, but would be able to overcome these difficulties.
[11] The officer also considered the psychologist's report that the principal applicant would suffer great psychological risk if she returned to Costa Rica and would be psychologically unable to seek state protection. The officer noted that this position presumes that the principal applicant will be abused on her return to Costa Rica, and that there was insufficient evidence that this would occur. She noted that the principal applicant discontinued counselling in April 2000, but nonetheless argued that, in Costa Rica, counselling is only available to those who can pay and she would therefore be psychologically at risk.
[12] In her "decision and reasons", the officer stated that she was not convinced that the applicants would suffer sexual abuse should they return to Costa Rica. She noted that the principal applicant suffers from post-traumatic stress disorder, but stated that insufficient evidence was presented to show that her symptoms would cease or that she would not find the medical care she required. The officer stated that the diagnosis did not require special consideration, since she was not satisfied that the principal applicant would suffer any more in Costa Rica than she is currently suffering in Canada. The officer noted that the principal applicant ceased counselling in April 2000, which suggested that she was no longer traumatized. She was not convinced that the principal applicant would seek counselling in Costa Rica when it was readily available in Canada.
[13] The officer acknowledged that violence against women is a serious problem around the world, but that insufficient evidence was provided by the applicant to establish that she would continue to suffer such abuse upon her return to Costa Rica.
[14] The officer stated that economic and social differences between countries are insufficient justification for processing applications from within Canada, and that any hardship that the applicants may face in returning to Costa Rica are not disproportionate to that of any other individuals who would have to return to their country to have their applications processed.
[15] The officer stated that return to Costa Rica is feasible, that the applicants had valid passports, they had no known medical conditions that would impede their return to Costa Rica, and that they had family there. The officer stated that, while re-adapting to Costa Rica as a single mother with young children may be difficult, she was satisfied that a return to that country would not create an undue, unreasonable, or disproportionate hardship.
Issues
A. Did the officer err in law by ignoring mandatory language contained in the Minister's Guidelines that require applicants that are based largely on risk to be reviewed by a PCDO?
B. Was the officer's assessment of risk unreasonable?
Standard of Review
[16] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL), the Supreme Court held that the standard of review of a decision of an officer under ss. 114(2) is reasonableness simpliciter.
Legislative Scheme
[17] Subsection 9(1) of the Act provides:
| 9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry. |
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9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée. |
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[18] Subsection 114(2) provides:
| 114. (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
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114. (2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraph (1) ou à faciliter l'admission de toute autre manière. |
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Analysis
A. Did the officer err in law by ignoring mandatory language contained in the Minister's Guidelines that require applicants that are based largely on risk to be reviewed by a PCDO?
[19] The principal applicant submits that, according to the Citizenship and Immigration Canada ("CIC") Inland Processing Manual IP 5, when an application is based "largely on risk factors", the principal applicant should be sent for review by a PCDO (Post-Claims Determination Officer) who will provide an opinion about the risks faced by the principal applicant. The principal applicant refers to section 8.8 of IP5, which provides:
Review the application and consider all the information presented by the applicant. When the application is based largely on risk factors, send the application for review by a PCDO, who will provide an opinion about the risks faced by the applicant.
[20] The principal applicant argues that, in the present case, no PCDO review occurred. The principal applicant therefore submits that the officer erred in law and rendered an unreasonable decision.
[21] In Baker, supra, L'Heureux Dubé J. reviewed three relevant indicators of children's interests in a ss. 114(2) ("H & C") application: the purposes of the Act, international law, and the ministerial guidelines governing H & C decisions. Concerning the ministerial guidelines, L'Heureux Dubé J. stated, at para. 72:
Third, the guidelines issued by the Minister to immigration officers recognize and reflect the values and approach discussed above and articulated in the Convention. As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power. [Emphasis added]
[22] The principal applicant also cites a reference to Baker, supra, from Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] S.C.J. No. 3 (QL) for the proposition that the primary error made by the immigration officer in that case was the failure to follow ministerial guidelines. At para. 36, the Supreme Court stated:
To the extent this Court reviewed the Minister's discretion in that case [Baker], its decision was based on the ministerial delegate's failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations and, most importantly, a set of published instructions to immigration officers.
[23] In Singh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1160 (QL), (2000) 186 F.T.R. 155, the H & C applicant argued on judicial review that the officer erred in failing to properly assess the risk he would face should he return to India. The officer stated that the case was not sent for risk assessment because the applicant stated that he provided the same information to the CRDD during the course of his refugee claim, which was rejected.
[24] Reed J. stated, at paras. 7-8:
I do not understand the guidelines to require an immigration officer to refer every application in which an applicant alleges he will be at risk to the PCDO for determination. Those guidelines must be read as allowing the officer discretion to determine when the risk alleged is serious enough to require such review. The guidelines themselves instruct referral to the PCDO only when the application is "based largely on risk factors".
I cannot conclude that the officer in this case fettered her discretion by relying on the CRDD decision, or in not sending the application to the PCDO for a risk assessment. The officer's decision was a reasonable one.
[25] In Adourian v. Canada (Minister of Citizenship and Immigration), 2002 FCT 672, [2002] F.C.J. No. 915 (QL), (2002) 21 Imm.L.R. (3d) 178, an H & C applicant argued on judicial review that the officer erred in failing to accord him a risk assessment and that documents submitted supported allegations of risk. Hansen J. allowed the application stating that specific risks to the applicant were identified and that, in the circumstances, it was unreasonable to conclude that there was no objectively identifiable risk. In Adourian, supra, the H & C application was filed after an unsuccessful application for permanent residence and there was no evidence of a prior risk assessment.
[26] In the case at bar, as in Singh, supra, the H & C application followed a negative CRDD decision where it can be said that the principal applicant's risks were considered. In her report to file, the officer stated: "I have reviewed all the information on file including the CRDD decision dated 04 April 2000." The officer also made reference to the CRDD's conclusion that the principal applicant had an obligation to seek protection from government authorities and that such protection was readily available.
[27] In Rodriguez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 414, [2001] F.C.J. No. 664 (QL), the principal applicant submitted that the Post Determination Refugee Canada Class (PDRCC) process was insufficient to serve as a risk assessment since the PDRCC had been conducted three years prior to the H & C assessment. In his reasons dismissing the application, McKeown J. wrote at para. 16:
...The immigration officer does not have to conduct her own risk assessment in determining an H & C application, as this is not a refugee claim. It is sufficient that she considered the Applicant's claim on this issue in coming to her decision. Her notes indicate that she did indeed give consideration to the potential risk faced by the applicant if returned to Cuba. I note that the immigration officer is entitled to weigh the evidence before her and this Court does not have the right to second guess that weighing of the evidence.
[28] I find the officer's decision to be reasonable, given that risk to the principal applicant had already been assessed prior to the negative CRDD decision of April 4, 2000. In the circumstances of this case, the officer gave consideration to the potential risk faced by the applicants if returned to Costa Rica, and properly weighed all the evidence before her, including the negative decision of the CRDD. In circumstances, as in this case, where there is evidence of a prior risk assessment, I do not read the guidelines to require an immigration officer to refer every application in which an applicant alleges he will be at risk to the PCDO for determination. In my view, the officer exercised her discretion reasonably in weighing the evidence without referring the case to a PCDO.
B. Was the officer's assessment of risk unreasonable?
[29] The principal applicant submits that it was unreasonable for the officer to reject Dr. Undurraga's opinion that the principal applicant would not obtain critical psychological counselling in Costa Rica. The principal applicant states that there was insufficient evidence to corroborate this. The principal applicant also notes that the officer did not obtain information on the Costa Rican medical system, did not alert the principal applicant that such information was relevant and did not interview the principal applicant, and argues that this combination of factors led to an unreasonable decision.
[30] In the decision, the officer stated:
To assist them in their recovery from the sexual abuse and family violence that took place in Costa Rica the applicant was referred to Teresa Ephraim, M.A., RCC at the Vancouver-Richmond Incest and Sexual Abuse Centre. From February 1999 to April 2000 applicant and Mariela received counseling on a weekly basis. Information before me indicates that as of April 2000 they have not received further counseling. Counsel submits that applicant advised him that counseling ceased because Teresa Ephraim believed that Mariela no longer needed to continue and because it became difficult for the applicant to attend after the birth of Sabrina. I note with interest that counseling ceased at around the same time as their hearing before the IRB. I note that Dr. Unduragga in her report dated January 2002 recommended that the applicant return to psychological counseling. On the day of writing this report, no further information was provided as to whether or not applicant has returned to psychological counseling.
[31] The tribunal record reveals that on January 8, 2002, the officer wrote a letter to applicants' counsel requesting, inter alia, that he advise her if the principal applicant and Mariela are still in counselling. The letter stated "If they're no longer receiving counselling, please provide an explanation as to why they are no longer benefiting from counselling." No response to this inquiry was ever received.
[32] The principal applicant contends that her credibility was never impugned by the officer and that he had no reasonable grounds for not accepting Dr. Undurraga's conclusions on the principal applicant's credibility. The principal applicant argues that the officer should have accepted Dr. Undurraga's conclusions in view of the following statement by the officer in her reasons. "I am not satisfied that these reports were prepared as an advocate for the applicants to remain in Canada." The argument is without merit. The full passage from the officer's notes is as follows:
Furthermore, I acknowledge and respect Dr. Undurraga's clinical expertise as a registered psychologist, however, I am not satisfied that these report were prepared as an advocate for the applicants to remain in Canada. I note that applicant was referred to Dr. Undurraga by counsel. I note that Dr. Undurraga had to rely on the applicant's word to establish her report and was under no obligation to verify the credibility of the facts described by her....
In essence, the officer is correctly stating that the report is based on the same facts which were before her on the application; facts that she had to consider and weigh in exercising her discretion.
[33] The officer further noted in her report to file that Dr. Undurraga's opinion was that the principal applicant:
...would not be able to obtain the treatment and the support that she needs in her country of origin since such treatment are only available to those that have the means to pay. Xinia is a woman who would be at great psychological risk in the country that offered no support to her or to her daughters in the past and is very unlikely to offer it in the future.
Dr. Undurraga's report offered more than a medical opinion, and extended to an opinion about the nature of medical services provided in Costa Rica, and an opinion about the likelihood of services being provided to the principal applicant in the future. Such matters were not in Dr. Undurraga's sphere of expertise. In the circumstances, I find that the officer's observations with respect to Dr. Undurraga's opinion regarding counselling services in Costa Rica to be reasonable. Consequently, it was open to the officer to consider, but not to accord full weight, to the psychologist's opinion. In doing so, the officer committed no reviewable error in exercising her discretion.
[34] The principal applicant submits that the officer erred in stating that it was speculative that the applicants would be subjected to sexual abuse in Costa Rica because the officer gave "no solid reasons why this pattern of abuse would not continue in the future". The principal applicant further states that the conclusion of the officer on this point is inconsistent with s. 45 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, which states: "It may be assumed that a person has well-founded fear of being persecuted if he has already been the victim of persecution for one of the reasons enumerated in the 1951 Convention".
[35] As noted by the respondent, under ss. 114(2) of the Act, the onus is on an applicant to demonstrate that her case warrants an exemption from the usual requirements of the law, that a visa be obtained before entering Canada. The officer need not show that the pattern of sexual abuse will not continue in the future. I also find the principal applicant's submission with respect to s. 45 of the United Nations Handbook to be without merit. I am not satisfied that there is a legal requirement that an officer considering an H & C application under ss. 114(2) of the Act conform to international guidelines concerning the determination of refugee claims. In any event, the principal applicant's refugee status had already been determined by the Convention Refugee Determination Division of the Immigration and Refugee Board on April 4, 2000. She was found not to be a Convention refugee.
[36] The applicants submit that the officer dismissed the principal applicant's submissions with respect to the risks to the two Canadian-born children, Sabrina (2 years old) and Angelina (an infant). The applicants state that the officer "believed that the principal applicant could choose to leave her two children in Canada". Consequently, the applicants submit that the officer dismissed the concerns or interests of the Canadian-born children.
[37] At page 6 of her reasons, the officer states:
At this time, counsel contends that if the applicants are forced to return to Costa Rica, that her Canadian born children will undoubtedly return with them, as they have no other family in Canada. This is a very difficult decision that the applicant must face, as she is free to decide what would be in the best interest of her children. Also, the Canadian citizenship of her 2 Canadian born children is a status that will always remain no matter where they reside.
[38] There is no other reference to the possibility of the two children remaining in Canada. The last paragraph of the officer's reasons states:
Return to Costa Rica is feasible. Applicants have valid passports. There are no known medical conditions that would impede their return to Costa Rica. They have family ties in Costa Rica. While re-adapting to Costa Rica as a single mother with young children may be difficult, I am satisfied that a return to Costa Rica would not create an undue, unreasonable or disproportionate hardship.
[39] In my view, the applicants have failed to substantiate the allegation that the officer believed that the two children could remain in Canada without their mother. It is therefore unnecessary to consider the argument that this belief was unreasonable.
[40] The consideration of the factor of children's best interests under ss. 114(2) does not create a prima facie presumption that the children's best interests should prevail subject only to the gravest countervailing grounds: Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 358 (QL) at para. 13. The officer noted, at page 4 of her reasons, that the two Canadian-born children would retain their Canadian citizenship. The officer also noted that the children are very young, young enough to assimilate into Costa Rica's society and that a return to Costa Rica would not create an overriding emotional and/or physical hardship. The officer also noted that there was no indication of a strong bond between the children and their father. I find that, in these circumstances, the officer did not dismiss the interests of the two Canadian-born applicants and consequently committed no reviewable error in considering their interests.
Conclusion
[41] Since the officer committed no reviewable error, the application for judicial review will be dismissed.
[42] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is dismissed.
2. There is no serious question of general importance to be certified.
"Edmond P. Blanchard.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2014-02
STYLE OF CAUSE: Xinia Maria Angulo Alvarado et al. v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 6, 2003
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: June 30, 2003
APPEARANCES:
Adrian D. Huzel FOR APPLICANTS
Ms. Banefsheh Sokhansanj FOR RESPONDENT
SOLICITORS OF RECORD:
Larson, Boulton, Shohn Stockholder FOR APPLICANTS
609 West Hastings St.
Vancouver, B.C. V6B 4W4
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
900-840 Howe St.
Vancouver B.C. V6Z 2S9