OTTAWA, Ontario, April 11th, 2006
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
AYLEEN MELANIE ESPINOSA DIAZ
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ingrid Marlene Diaz Ruiz (Ms. Diaz) and her daughter Ayleen Melanie Espinosa Diaz (the Applicants) are seeking a Judicial Review of their Application for Permanent Residence from within Canada on Humanitarian and Compassionate (H & C) grounds; it was denied on April 19, 2005 by Immigration Officer A.J. Martin. The Immigration Officer referred the Risk Assessment component of the Applicant's H & C claim to a PRRA Officer for determination. The Immigration Officer accepted the PRRA Officer's assessment as to the risk element and found that none existed.
[2] The H & C Application is based on the risks the Applicants face upon return to Chile, on the best interests of the ten year old child, and on establishment in Canada. The Immigration Officer determined that the Applicants would not suffer undue, disproportionate, or undeserved hardship if they were required to make their Application for Permanent Residence from outside of Canada.
[3] The Applicants are failed refugee claimants and received a negative Pre-Removal Risk Assessment Decision on January 10, 2003. Now, their Application for Permanent Residence from within Canada on Humanitarian and Compassionate grounds has been denied on April 20, 2005.
[4] Ms. Diaz is a citizen of Chile. She was born in Santiago, Chile on July 24, 1972. She is now separated from her "abusive" common law spouse, Cristian Marcelo Espinosa Reynoso (Mr. Espinosa), address presently unknown, but he is supposedly living in Canada. They have one child, Ayleen, born on March 11, 1996, who is in her mother's custody. Ayleen is a citizen of Chile and is included in this H & C Application as a dependent of Ms. Diaz.
[5] The Applicants entered Canada with Mr. Espinosa on September 17, 1999, at Pearson International Airport, and made a refugee claim on December 20, 1999, that was subsequently denied. The Applicants are subject to removal orders and, as I am told by counsel for the Respondent, so is Mr. Espinosa.
[6] The Applicants' and Mr. Espinosa's joint Application for Refugee status and their joint PRRA Application were denied. The Applicants and Mr. Espinosa also jointly applied for an H & C Assessment. This H & C Assessment was subsequently split due to the spousal abuse facts surfacing. Ms. Diaz and Mr. Espinosa are separated; she has custody rights and he has visitation rights.
[7] Ms. Diaz alleges potential risk to her from her ex-spouse if she returned to Chile and claimed that Chile was not able to provide her with the protection that she has in Canada - the H & C Officer referred this question to a PRRA Officer. The PRRA Officer determined that protection would be available to the Applicant in that democratic country. Ms. Diaz never sought help from the Chilean police after allegedly being repeatedly abused by Mr. Espinosa before coming to Canada.
[8] The Applicants' counsel gives an example of an RDP Decision, dated October 22, 2004, wherein the RPD determined that that Chilean Applicant was a Convention Refugee and that protection from the Chilean Police was not forthcoming. I will note that the Immigration Officer and this Court are not bound by that decision. Furthermore, the facts even though similar to the present case, are different: that Applicant sought police protection several times and submitted a medical report from the Clinic Hospital, University of Chile for consideration.
[9] The family law related matters and orders can be found in the Applicant's Motion Record. Suffice to say that Mr. Espinosa is an abusive man. The Applicants even had to rely on a Women's Shelter in the summer of 2003. Among other things, Ms. Diaz fears that Mr. Espinosa will take their daughter away from her. I read all the submitted information and I am satisfied that there is no need to describe in detail the private family law issues.
[10] The decision under review pertains to the negative H & C Decision and the Risk Assessment obtained from the PRRA Officer as a component of the H & C Assessment.
[11] Did the Immigration Officer make unreasonable errors, ignore material evidence or deny procedural fairness when he dismissed the Applicants' H & C Application?
[12] The standard of review for an H & C Application and for a PRRA Decision is reasonableness simpliciter.
I. H & C Application
[13] The standard of review of an Immigration Officer's discretionary decision to consider an H & C Application is reasonableness simpliciter.
[14] The law appears to be clear, it is not the role of the Federal Court to re-examine the weight given by an Immigration Officer to the various factors considered by that officer when deciding whether to grant an H & C exemption to a foreign national, MCI v. Legault, 2002 FCA 125, at para. 11.
II. PRRA Decision within the H & C Application
[15] In Kandiah v. MCI, 2005 FC 1057, Justice Dawson states at paragraphs 6-7 that:
[6] As to the appropriate standard of review to be applied to a decision of a PRRA officer, in Kim v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 540, Mr. Justice Mosley, after conducting a pragmatic and functional analysis, concluded "the appropriate standard of review for questions of fact should generally be patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter, and for questions of law, correctness". Mr. Justice Mosley also endorsed the finding of Mr. Justice Martineau in Figurado v. Canada(Solicitor General), [2005] F.C.J. No. 458, that the appropriate standard of review for the decision of a PRRA officer is reasonableness simpliciter when the decision is considered "globally and as a whole". This jurisprudence was followed by Madam Justice Layden-Stevenson in Nadarajah v. Canada(Solicitor General), [2005] F.C.J. No. 895 at paragraph 13. For the reasons given by my colleagues, I accept this to be an accurate statement of the applicable standard of review.
[7] When applying the standard of review of reasonableness simpliciter, a reviewing Court is to inquire into whether the decision is supported by reasons that are, in turn, supported by a proper evidentiary basis. An unreasonable decision is one that, in the main, is not supported by reasons that can stand up to a somewhat probing examination. (See: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56). The reviewing court must be satisfied that the conclusions drawn from the evidence are logically valid. (See: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 63). A decision will be unreasonable "only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived". A decision may satisfy the standard of review if supported by a tenable explanation, even if the explanation is not one that the reviewing court finds compelling. See: Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247 at paragraph 55.
[16] The Applicants make the following three main submissions:
A. The H & C Decision contains material factual errors and omissions that are perverse and put the Applicants at risk. This argument is divided in three subsections:
(1) The nature of Ms. Diaz and Mr. Espinosa's relationship is totally inaccurate
[17] The Immigration Officer misinterpreted the facts when he stated that Ms. Diaz had a "relaxed relationship" with Mr. Espinosa. Failing to recognize the hostile relationship is patently unreasonable.
(2) The psychological report by Dr. Pilowsky, PhD Psychology, was not addressed in the H & C Decision
[18] I will state that the report was referred to in a secondary way by the Immigration Officer.
(3) The Immigration Officer evaluated the economic establishment factor incorrectly
[19] The Applicant claims that the Immigration Officer failed to acknowledge the fact that:
· Ms. Diaz worked part-time in 2000
· Mr. Espinosa is in breach of a Court Order requiring him to pay $249/month in child support and this contributes to the necessity for the rent subsidy Ms. Diaz receives
· The social assistance Ms. Diaz collected was only $194.43
[20] I cannot accept this submission as, even though Ms. Diaz worked part-time in 2000 and even though Mr. Espinosa neglects to pay child support, Ms. Diaz still needs the rent subsidy of $705 per month (even if Mr. Espinosa paid child support, Ms. Diaz would still require a rent subsidy). The Immigration Officer concluded that Ms. Diaz is not financially independent and does rely on a subsidy every month even though she works at $9/hr. The Immigration Officer did not err in the assessment of this criteria.
B. There are errors with respect to the Risk Opinion
[21] The PRRA Officer failed to take into account the Dr. Pilowsky's psychological report.
C. The Immigration Officer breached principles of procedural fairness
[22] The Respondent makes one main submission:
[23] The Immigration Officer addressed all the pertinent H & C factors, such as family in Chile and in Canada, risk in Chile, Ms. Diaz education and resourcefulness, family law matters, and the best interest of the child.
[24] Subsection 11(1) of the Immigration and Refugee Protection Act (IRPA) requires that all foreign nationals who wish to permanently live in Canada, must apply to enter Canada from another country and obtain a visa before coming to Canada. There is an exception to subsection 11(1): the Minister can grant permanent residence to a foreign national if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations.
[25] I will discuss the following three factors, as analyzed by the Immigration Officer:
1. Risk upon Return to Chile
2. Best Interests of the Child
3. Establishment in Canada
(a) Risk upon Return to Chile
[26] The following are the significant points:
· Risk Assessment completed on October 26, 2004, by PRRA Officer R. Worrall
· Applicant claimed that "It is vital that my daughter and I remain in Canada where we receive protection against the actions and potential actions of my husband who has threatened to act against us out of revenge and other motivations."
· It was determined that the Applicant would not be at risk if she returned to Chile; she would not face a risk to life or to the security of her person
· State protection for victims of domestic violence exists in Chile, while it is imperfect
· Possibility of an Internal Flight Alternative
· PRRA Officer considered the best interests of the child
· PRRA officer listed all sources consulted
[27] I find it problematic that Ms. Diaz never sought protection from the Chilean Police when she was abused while in Chile and is now stating that she can not return to Chile as the police would not be able to protect her there. I think the PRRA Officer's analysis of state protection and risk was accurate and comprehensive.
[28] In general, there is a presumption that a state can protect its citizens and Ms. Diaz did not rebut this presumption regarding Chile with "clear and convincing proof", as required by Ward v. Canada (A.G.), [1993] 2 S.C.R. 689 at 724-725. Chile is a democratic state and the Applicant did not exhaust any courses of action available in Chile before she left and she failed to prove that Chilean police could not protect her (no police reports were ever filed in Chile). Based on the documentary evidence the PRRA Officer consulted, there is no persuasive evidence to conclude that the Applicant would not receive police protection in Chile.
[29] In Ward v. Canada (A.G.) above, the Supreme Court of Canada found that there is a presumption that a state is capable of protecting its citizens providing there has not been a complete breakdown of the state apparatus. A claimant may rebut this presumption by providing "clear and convincing proof" of the state's inability to protect; Ms. Diaz failed to do so.
(b) Best Interests of the Child
[30] The Immigration Officer considered various factors including:
· Child's age - she is young enough to make adjustments wherever she lives
· Education at a local Elementary School
· Child's access to her father
· Child's best interest to have the love and support of both parents regardless of the parent's relationship with each other
[31] The most important issue is the "Best Interests of the Child". I am satisfied that the officer was alert, alive and sensitive to the concerns of the young child. Although, I do not agree with the following statement made by the Immigration Officer: "The best interest is to have the love and support of both her parents regardless of their relationship with each other". The relationship parents have with each other, without a doubt, leaves an important impression on their child's confidence and happiness.
[32] Unfortunately, in the totality of the evidence, the best interests of the child were insufficient to establish unusual, undeserved or disproportionate hardship. This conclusion was reasonable.
(c) Establishment in Canada
[33] The following factors were considered:
· The Applicant's mother and brother live in Chile
· The Applicant entered Canada with her abusive common law husband
· The Applicant had various employment in Canada since 2001
· The Applicant received social assistance in 2004
· The Applicant is currently employed at $9/hr
· The Applicant receives subsidies of $705 per month to pay her rent of $934 - she admits that she can not support herself without this subsidy
· The Applicant has few savings
[34] I agree with the Immigration Officer's conclusion on establishment in Canada. The Applicant's establishment in Canada is consistent with other people who have lived in Canada for a few years; the Applicant has a job, some savings, yet she regularly relies on public assistance.
[35] I agree with the Immigration Officer that these three factors do not justify exemption from the permanent visa requirements. The Applicants did not show they would experience unusual, undeserved or disproportionate hardship if they were to return to Chile. I feel sadness and empathy for the Applicants and the problems they had to endure at the hands of Mr. Espinosa, but the H & C Decision is reasonable and the law does not allow me to interfere.
[36] With respect to Dr. Pilowsky's assessment of Ms. Diaz, the report was dated November 26, 2004. The clinical interview occurred on November 18, 2004, almost a month after the PRRA Decision of October 26, 2004. Why was the clinical interview and report not submitted earlier? Ms. Diaz first saw Dr. Pilowsky in October 2002, when it was determined that she suffered from Post Traumatic Stress Disorder. Regardless of the timing, the Immigration Officer did mention this report in his H & C Decision of April 2005.
JUDGMENT
For the above stated reasons, the application for judicial review is denied.
The Applicants submitted for my consideration the following question for certification:
Are undue hardship and related criteria to establish humanitarian and compassionate grounds for remaining in Canada satisfied when removal would be to a country where it is more than likely than not that the best interests of a child or a parent with custody of the child as specifically provided for in a Canadian court order would not be effectively protected?
Counsel for the Applicant has requested that I consider further post-hearing evidence. I have stated that unless I have the consent of counsel for the Respondent I would not do so.
In a letter dated April 4, 2004, counsel for the Respondent states "I have serious concerns regarding the submissions of further post hearing evidence by the Applicant's counsel. If the Court is, nevertheless, predisposed to accepting this evidence, I would submit that the evidence should be given low probative weight for the reasons below".
In that counsel for the Respondent has not given her consent, I will not consider the post hearing evidence.
With respect to the question submitted for certification, I agree with counsel for the Respondent that the question is not of general importance and is not dispositive of the issues in this case.
No question will be certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2976-05
STYLE OF CAUSE: Ingrid Marlene Diaz Ruiz et al v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 24, 2006
REASONS FOR JUDGMENT: TEITELBAUM J.
APPEARANCES:
| Daniel Fine
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| Marina Stefanovic
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SOLICITORS OF RECORD:
| Daniel Fine Barrister & Solicitor Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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