Federal Court Decisions

 

 

 

Date: 20070507

Docket: IMM-2210-06

Citation: 2007 FC 495

Ottawa, Ontario, May 7, 2007

PRESENT:     The Honourable Mr. Justice Shore

 

 

BETWEEN:

JOSE JULIAN RODRIGUEZ QUIROA

MIRIAM DEL ROSARIO PORTILLO FAJARDO

Applicants

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

INTRODUCTION

[1]               In respect of the Applicants’ permanent residence application based on humanitarian and compassionate (H&C) grounds, there is no evidence, despite what is asserted by the Applicants, that the Immigration Officer (Officer) failed to consider the Applicants’ feelings of alienation towards Guatemala and their countervailing feelings of peace and security in Canada. It is not a requirement that the Officer specifically reference that the emotional hardship of the Applicants were considered. If the reasons, when taken as a whole, indicate that the Officer was alive to the issue, they will survive a somewhat probing examination and will not be found to be unreasonable. Moreover, a disagreement with the weight given by the Officer to the factors raised by the Applicants is not a basis on which a judicial review can be allowed. (Agot v. Canada (Minister of Citizenship and Immigration), 2003 FCT 436, [2003] F.C.J. No. 607 (QL), at paragraph 8.)

 

JUDICIAL PROCEDURE

[2]               This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of an Officer dated April 7, 2006, which refused the Applicants’ application for permanent residence in Canada based on Humanitarian and Compassionate (H&C) considerations.

 

BACKGROUND

[3]               On September 26, 2000, the Applicants, Mr. Jose Julian Rodriguez Quiroa and his spouse, Mrs. Miriam del Rosario Portillo Fajardo, entered Canada and made a refugee claim.

 

[4]               On March 9, 2004, the Immigration and Refugee Board (Board) denied their claim. Leave to appeal was also denied on February 21, 2005.

 

[5]               On April 20, 2005, the Applicants filed a Pre-Removal Risk Assessment (PRRA) application which was refused on January 12, 2006.

[6]               The Applicants also made an H&C application which was refused by way of letter dated April 7, 2006.

 

DECISION UNDER REVIEW:

[7]               The Officer considered all of the evidence submitted by Mr. Quiroa and his wife, made a proper analysis of the H&C considerations, and concluded that the Applicants were not exempt from applying for permanent resident from outside of Canada pursuant to subsection 11(1) of the IRPA.

 

[8]               With respect to the issue of establishment, the Officer noted that the principle Applicant, Mr. Quiroa, after 15 months of upgrading his language skills, became steadily employed effective January 2002 at Domino’s Pizza and has since moved up the ranks from delivery man to manager.

 

[9]               The Officer also noted that the Applicant’s spouse, Mrs. Fajardo, had not become established as quickly but managed to find employment as a sales associate in December 2004.

 

[10]           The Officer recognized that the Applicants’ work ethic was commendable as evidenced by the many letters of support; however, she went on to note that “a measure of establishment and integration is expected to take place” given that the couple had arrived in October 2000.

 

[11]           The Officer further acknowledged that a certain level of financial independence had been achieved but was “not satisfied that it is to a degree that would indicate sufficient hardship were the applicants returned to their home country”.

 

[12]           With respect to the connections the couple had to Guatemala, the Officer noted that Mr. Quiroa, had two children residing in Guatemala, as well as his parents and siblings.

 

[13]           She also noted that Mr. Quiroa was a partner in the family business, which he managed from 1993 until he came to Canada in October 2000. The Officer held in this regard that a letter provided by the accountant of the company, dated September 12, 2002, did not indicate that he was no longer involved since his arrival in Canada.

 

[14]           The Officer also noted that the company was still operating at the same address “as found in the Guatemalan business directory” and that there were two additional subsidiaries in Guatemala.

 

[15]           Finally, the Officer concluded that she was not satisfied that the couple would face unusual and undeserved or disproportionate hardship should they return to Guatemala.

 

 

 

ISSUES

[16]           (1)        Can the letter provided by further affidavit by Mr. Quiroa be considered in light of the fact it was not before the Officer?

(2)        Did the Officer err in finding that the Applicants would not experience undeserved hardship if they returned to Guatemala on the basis of the following considerations:

a)         Relying on extrinsic evidence and/or misinterpreting the evidence regarding Mr. Quiroa’s family’s company in Guatemala?

b)         Ignoring evidence of “emotional hardship”?

c)         In not considering or placing more weight on evidence of the Applicants’ establishment in Canada since their arrival as refugee claimants?

d)         By failing to consider the impact that Mr. Quiroa’s removal would have on his employer, Domino’s Pizza?

 

STATUTORY FRAMEWORK

[17]           According to subsection 11(1) of the IRPA, a person must apply for permanent residence from outside Canada.

 

[18]           Pursuant to section 25 of the IRPA, the Minister is given the discretion to facilitate an individual’s admission to Canada or exempt that person from any applicable criteria or obligation under the IRPA where the Minister is satisfied that such exemption or facilitation should occur because of the existence of H&C considerations.

 

[19]           The H&C decision-making process is a highly discretionary one that considers whether a special grant of an exemption is warranted. Consequently, a refusal of an H&C application takes no right away from the individual. (Jasim v. Canada (Minister of Citizenship and Immigration), 2003 FC 1017, [2003] F.C.J. No. 1290 (QL).)

 

[20]           It is up to the Applicants to demonstrate that the hardship they would suffer, if required to apply for permanent residence in the normal manner, would be unusual, undeserved or disproportionate. Hardship that is inherent in having to leave Canada is not enough.

(Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906 (QL).)

 

[21]           There are many factors that an immigration officer can take into account when making an H&C decision. This Court has said that the immigration officer is entitled to consider, among other factors, the manner in which the individual entered and remained in Canada and whether the individual has employment or relatives in their country of origin. No one factor can be determinative of the result in a specific application. (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), at paragraphs 62-63; Pasteanu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 608, [2001] F.C.J. No. 955 (QL), at paragraph 16.)

 

[22]           Where an individual has no legal right to remain in Canada and has done so, absent from circumstances beyond his or her control, the Court has held that he or she should not be rewarded for accumulating time in Canada. (Chau v. Canada (Minister of Citizenship and Immigration), 2002 FCT 107, [2002] F.C.J. No. 119 (QL), at paragraphs 15-16.)

 

 

 

STANDARD OF REVIEW:

[23]           The appropriate standard of review for a decision of an immigration officer on an H&C application is reasonableness. (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL); Jeon v. Canada (Minister of Citizenship and Immigration), 2006 FC 87, [2006] F.C.J. No. 105 (QL), at paragraph 22.)

 

[24]           Where the issue raised is one of procedural fairness, such as the adequacy of reasons, the standard of review is correctness, and the pragmatic and functional approach need not be applied. (Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] S.C.J. No. 28 (QL).)

 

ANALYSIS:

Preliminary Issue

(1)        Can the letter provided by further affidavit by Mr. Quiroa be considered in light of the fact it was not before the Officer?

 

[25]           The Applicant submitted a letter by way of further affidavit which confirms that he has not had any “labor relationship” with his family’s company since March of 2000. The affidavit recognizes that the document was not before the Officer.

 

[26]           An application for judicial review is normally conducted on the basis of the material before the administrative decision-maker; however, affidavit evidence can be admitted on issues of procedural fairness and jurisdiction. (Lemiecha (Litigation guardian of) v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1333 (QL), at paragraph 4; Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario, 2002 FCA 218, [2002] F.C.J. No. 813 (QL), at paragraph 30, leave to appeal to S.C.C. refused (2003), 23 C.P.R. (4^th) vii.)

 

[27]           In such cases, the material will only be accepted if it is necessary. (Ecology Action Centre Society v. Canada (Attorney General), 2002 FCT 1309, [2002] F.C.J. No. 1778 (QL), at paragraph 19.)

 

[28]           The evidence presented in the affidavit goes to a finding of fact. It is not information that was before the Officer at the time of her decision, and it is not information necessary to complete the judicial review. As noted in Smith v. Canada, 2001 FCA 86, [2001] F.C.J. No. 450 (QL), at paragraphs 5-8, where an applicant includes in its record material that was not before the tribunal, the respondent should object in a timely manner. The issue in the present case has been highlighted in the Respondent’s further memorandum of argument. Should no further objection be made in the present case, the Court should note that it intends to give no weight to the document.

 

(2)        Did the Officer err in finding that the Applicants would not experience undeserved hardship if they returned to Guatemala?

 

a)                  Evidence regarding the family business

[29]           The Applicants argue that in using a current telephone book to verify the address of the family business, the Officer relied on extrinsic evidence. As such, the Officer breached the duty to act fairly because she considered extrinsic evidence without giving the Applicants an opportunity to respond. (Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 FC 205; Chen v. Canada (Minister of Employment and Immigration), [1993] F.C.J. 582 (QL); Yang v. Canada (Minister of Employment and Immigration), [1992] F.C.J. 632 (QL); Shah v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No.1299 (QL) (F.C.A.).)

 

[30]           Moreover, the Applicants submit the Officer erred by relying on a letter from the business account as evidence that the Applicant was currently still working at the family business.

 

[31]           The Applicants additionally note that the Officer found that the Applicant had engaged in language training for 15 months, when really it had only been for a period of 6 months. As such, where there is a misunderstanding of the evidence such that the decision is based on incorrect evidence, there is a breach of the duty to act fairly. (Shah, above.)

 

[32]           When dealing with matters of procedural fairness, the overriding concern with respect to the disclosure of evidence is whether the document, opinion, or report is one of which the individual is aware or deemed to be aware. (Asmelash v. Canada (Minister of Citizenship and Immigration), 2005 FC 1732, [2005] F.C.J. No. 2145 (QL), at paragraph 15; Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 266, [2002] F.C.J. No. 341 (QL), at paragraphs 33-36.)

 

[33]           Further, as specifically noted in Mancia v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 120 (QL), at paragraph 13, there is no obligation on the part of the Officer to disclose information that is available from a public source prior to the date of any submission by the Applicant.

 

[34]           The Officer relied on a publicly available source to determine the address of the Mr. Quiroa’s family’s business in Guatemala. Furthermore, the address of the company was not an issue on which the case turned.

 

[35]           With respect to the argument that the Officer misinterpreted the evidence, it is clear that Mr. Quiroa was, at the very least, one of the original people who founded the company (Applicants’ record, at page 111). The letter from the company’s accountant also did not indicate the end date of Mr. Quiroa’s last position. It was therefore not unreasonable of the Officer to have found that the Mr. Quiroa “is a partner in the family business, Tornillos Santander, which he managed from 1993 until he came to Canada in October 2000”, as there was no evidence that Mr. Quiroa had ceased to be involved or to be part of the company.

 

b)                  Ignoring evidence of emotional hardship

[36]           Mr. Quiroa and his wife argue that the Officer breached the duty of fairness owed to them by failing to consider the evidence of emotional hardship that the Applicants would face should they return to Guatemala in order to apply for permanent residence. They argue that their feelings of alienation towards Guatemala and countervailing feelings of peace towards Canada support their argument that their removal would cause them disproportionate hardship in the circumstances.

 

[37]           The Applicants have the onus to present the factors they believe warrant consideration in an H&C application. The Officer must consider the information presented, and there is a presumption that the Officer has done so (Sidhu v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 741 (QL), at paragraph 15.)

 

[38]           There is no evidence, despite what is asserted by the Applicants, that the Officer failed to consider the Applicants’ feelings of alienation towards Guatemala and their countervailing feelings of peace and security in Canada. It is not a requirement that the Officer specifically reference that the emotional hardship of the Applicants were considered. If the reasons, when taken as a whole, indicate that the Officer was alive to the issue, they will survive a somewhat probing examination and will not be found to be unreasonable. Moreover, a disagreement with the weight given by the Officer to the factors raised by the Applicants is not a basis on which a judicial review can be allowed. (Agot, above, at paragraph 8.)

 

[39]           The Officer notes that she considered all of the statements and submissions made by the Applicants, the letters of support, and the fact that there had been a certain level of establishment and integration. Nothing further was required in the circumstances. The Officer clearly recognized that part of establishing oneself is becoming accustomed to the Canadian way of life. The Officer also considered factors relating to the Applicants’ return to Guatemala, including the fact that Mr. Quiroa still had two children there, in addition to other family. Inherent in the assessment of these factors is an emotional component, namely the Applicants’ acquired attachment to Canada and their remaining attachment to Guatemala.

 

[40]           As stated in Irimie, above, at paragraph 12, the assessment of whether usual and undeserved hardship has been demonstrated is an assessment made “in relation to others who are being asked to leave Canada… 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.”

 

[41]           The question of emotional attachment, just like the question of financial attachment, is one to be considered in the assessment of the overall establishment and the hardship faced on return. These issues do not have to be specifically labeled in any certain way so long as there is evidence that they were weighed and considered. They clearly have been in the present case; therefore the conclusions reached are not unreasonable in the circumstances.

 

c)                  Evidence of establishment in Canada

[42]           Mr. Quiroa and his wife argue that the Officer did not consider the Applicants’ establishment in Canada. The Applicants refer to the specific ground set out in the Immigration manual on Humanitarian and Compassionate Grounds (Inland Processing Manual, Chapter 5 “IP5”) of a long term stay in Canada due to circumstances beyond the Applicants’ control. The Applicants assert that their stay in Canada was long-term, because it had continued since September 2000, and was “due to circumstances beyond the applicant’s control as they were waiting for their various immigration procedures and their refugee claim, judicial review, PRRA application to include, and therefore were never and still are not removable”. Referring to the example given in IP5 of what constitutes something within an applicant’s control, namely the refusal to sign a passport, the Applicants assert that the operation of Canadian law is not within their control and the ground therefore applies.

 

[43]           Contrary to the assertion of the Applicants, evidence of their establishment in Canada was clearly considered by the Officer. Further, as noted by the Respondent, the Applicants’ argument really amounts to a disagreement pertaining to the weight assigned to the evidence by the Officer. Hence, it is not the role of the Court to reexamine the weight given to the different factors by the officers. (Legault, above, at paragraph 12.)

 

[44]           Moreover, the Officer considered the submissions of the Applicants and all of the letters of support offered on their behalf. The Officer recognized that the Applicants’ work ethics were commendable and that considering the Applicants’ arrival date, a certain level of establishment and integration should be expected. The Officer further considered their level of financial establishment and the position of employment that the Applicants had held and their educational and work backgrounds. This was balanced against the fact that Mr. Quiroa had family in Guatemala and an existing family business. The Applicants’ level of establishment was therefore clearly considered and balanced against other existing factors. The Officer’s decision in this regard was therefore not unreasonable in the circumstances.

 

[45]           Furthermore, with respect to the exception noted in IP5, it does not apply to the Applicants’ case. If this were the case, the exception would apply to almost every Applicant who has taken advantage of the multiple mechanisms available to them in the Canadian immigration system.

 

[46]           Finally, this case is distinguishable from Raudales v. Canada (Minister of Citizenship and Immigration),2003 FCT 385, [2003] F.C.J. No. 532 (QL), wherein the Court set aside an Officer’s decision on the basis that the Officer’s findings were unreasonable with respect to his assessment of the Applicants’ level of establishment. The Court indicated that in:

[18]      … 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 [Emphasis added].

 

[47]           In the present case, when the evidence is taken as a whole, it cannot be said that the conclusion that the Applicants have failed to demonstrate unusual, undeserved or disproportionate hardship was unreasonable in the circumstances. As noted by the Court in Raudales, above, at paragraph 19, “Absent a proper assessment of establishment…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”. That does not mean that the Court should substitute its own assessment of the evidence in any given circumstance. In the present case, the reasons withstand a somewhat probing examination and are therefore reasonable.

 

d)                  Impact of removal on the male applicant’s employer

[48]           The Applicants argue that the Officer erred in not giving any weight to the hardship that would be caused to the Canadian company, Domino’s Pizza. (Pramauntanyath v. Canada (Minister of Citizenship and Immigration), 2005 FC 604, [2005] F.C.J. 760 (QL).)

 

[49]           In the context of Pramauntanyath, above, the Officer found that:

[3]        …

 

Although his establishment in Canada is well documented and given significant consideration, I am not satisfied that his business venture and integration is compelling, whereby having to apply from outside Canada through the normal procedure would constitute as [sic] excessive, undue and undeserved hardship.

 

[50]           Mr. Pramauntanyath was a one-third partner of a restaurant he had helped open, and he was the chef. Central to his application was his importance to the ongoing success of the restaurant and the fact that his removal from Canada, even temporarily would adversely affect him, his business, his partners, and the employees (Board’s decision, at paragraph 9).

 

[51]           In that case, the Court found that although the Officer appeared to have been given favorable consideration to the establishment of the restaurant, the Court was of the opinion that it could not find the “evidentiary foundation or the logical process which supports the Officer's conclusion” and that the decision did not stand up to a "probing examination”. The Court went on to highlight that “[a]s a matter of fairness the Applicant is entitled to "real" reasons which address his principal argument and evidence” and that:

[19]      It may well be that the Officer did not accept the central thesis of the Applicant's case but it is impossible for the Court to discern if it was considered or, if considered, the Officer's reasons for rejecting it. There may be good reasons -- it is just impossible to understand what they are, particularly where the facts are so in favour of the Applicant.

 

[52]           The Pramauntanyath case really turned on the question of procedural fairness, as the Court found that the reasons were simply not adequate. The factor presented had to be considered, and if rejected, the reasons for this had to be outlined.

 

[53]           In the present case, it is clear that the degree of the Applicants’ establishment was considered. The letters of his fellow employees and employers were specifically noted, as was his work history and work ethic.

 

[54]           When the reasons are taken as a whole, it is clear that the major points raised by the Applicants have been addressed and that the principal findings of fact are clear. The Officer did not breach her duty of procedural fairness by failing to specifically reference the hardship the business would suffer should the Applicant be removed.

 

CONCLUSION

[55]           On the basis of the above reasoning, the judicial review should be dismissed.

 

JUDGMENT

THIS COURT ORDERS that

 

1.                  The application for judicial review be dismissed;

2.                  No serious question of general importance be certified.

 

 

“Michel M.J. Shore”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-2210-06

 

STYLE OF CAUSE:                          JOSE JULIAN RODRIGUEZ QUIROA

                                                            MIRIAM DEL ROSARIO PORTILLO FAJARDO

                                                            v. THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      April 19, 2007

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          SHORE J.

 

DATED:                                             May 7, 2007

 

 

 

APPEARANCES:

 

Mr. Michael F. Loebach	FOR THE APPLICANTS
Mr. David Joseph	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

MICHAEL LOEBACH Barrister and Solicitor London (Ontario)	FOR THE APPLICANTS
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT