Fredericton, New Brunswick, June 12, 2006
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SANDRA VERONICA D'ALCONZO
ANGELINA PENA
XAVIERA GISELLE PENA
LEON AGUSTIN PENA
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Sergio Gustavo Pena (the "Principal Applicant"), his wife Sandra Veronica D'Alconzo, and their children Angelina Pena, Xaviera Giselle Pena and Leon Agustin Pena (the "Applicants") seek judicial review of the decision dated August 15, 2005, of an Immigration Officer. In that decision, the Immigration Officer refused the application for landing made by the Principal Applicant and the Applicants for landing from within Canada, that is an application for landing on the basis of section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act").
[2] The Principal Applicant and the Applicants are citizens of Argentina. The Principal Applicant, together with his family, arrived in Canada on December 19, 2002. He claimed refugee protection on the grounds that he feared persecution, in Argentina, from a criminal organization. The Applicants based their refugee claim upon the claim made by the Principal Applicant.
[3] The Principal Applicant provided details of his problems in Argentina in his Personal Information Form. Those problems began in 1997 when his father's car was stolen and vandalized. Other incidents followed, including an attack upon the Principal Applicant and his brothers by a group of men whom they thought were police officers. This incident was reported to the police but according to the Principal Applicant, they did not investigate.
[4] In March and April, the Principal Applicant received telephone threats that he said came from police officers who had earlier warned him not to complain. He decided to flee to the United States and in June of 2000, the Principal Applicant and the Applicants arrived in the United States. They settled in Utah and hoped to remain there permanently but following the events of September 11, 2001, they were unable to obtain status in the United States. Because they feared for their lives in Argentina, they came to Canada in December 2002 and claimed refugee status.
[5] Their refugee claim was rejected by a panel of the Immigration and Refugee Board, Refugee Protection Division (the "Board") on July 10, 2003. The Board found that the Principal Applicant and the Applicants did not have a well-founded fear of persecution in Argentina since there was no nexus between their claim and a Convention refugee ground. The Board also found that there was an internal flight alternative in Mendoza or other areas of Argentina.
[6] The Principal Applicant and the Applicants sought a Pre-Removal Risk Assessment ("PRRA"). A negative decision in that regard was issued on March 11, 2005, on the grounds that there was no new information to show that the Principal Applicant and his family would be at risk if returned to Argentina.
[7] On January 28, 2003, the Principal Applicant and the Applicants submitted an application to be exempted for the usual requirements of applying for landing from outside Canada. Such an application is familiarly called a "humanitarian and compassionate" application ("H & C application"). They referred to the high crime rate, economic depression and alleged risk to their children as grounds for this H & C application.
[8] As part of the processing of the H & C application, risk assessments were undertaken to determine if the Principal Applicant and the Applicants would face personalized risks if they were returned to Argentina.
[9] A risk assessment was issued on May 17, 2005, with the same disposition as the PRRA. The PRRA officer concluded that it would be stressful for the Principal Applicant and his family to return to Argentinabut they did not face risk in that country.
[10] Further submissions were made on behalf of the Principal Applicant and the Applicants to expand the basis of their H & C application. Reference was made to their establishment in Canada and the family income generated by the steady employment of the Principal Applicant and his wife. The best interests of the minor Applicants were raised, including reference to the enhanced education that would be available in Canada.
[11] The Immigration Officer issued a negative decision on the H & C application on August 15, 2005. The reasons for that decision show that the Immigration Officer considered both the positive factors that favoured granting the application, as well as the factors tending against granting it. The Immigration Officer considered the impact of a negative decision upon the minor Applicants and addressed two possible scenarios, that is the removal of the Applicants to the United States or removal to Argentina.
[12] With respect to the first possibility, that is removal to the United States, the Immigration Officer acknowledged that if the parents were detained by the American authorities, the resulting separation would be unfortunate for the children. However, it was noted that such an event would not constitute a hardship since it was open to the Principal Applicant and the Applicants to present themselves for voluntary removal from Canada. Voluntary departure would avoid detention in the United States.
[13] With respect to removal from Argentina, the Immigration Officer considered the concerns expressed about the well-being of the children. The reduced quality of life in Argentina, in comparison with Canada, was noted. However, the Immigration Officer was not persuaded that it would be contrary to the best interests of the children to return to Argentina with their parents. Ultimately, the Immigration Officer concluded that, having regard to all H & C factors, there was insufficient evidence of unusual, undeserved or disproportionate hardship to warrant an exemption from the statutory requirements that the Principal Applicant and the Applicants seek landing in Canada in the usual way, that is from outside the country.
II. Submissions
[14] Broadly speaking, the Principal Applicant and the Applicants argue that the Immigration Officer erred by fettering her discretion in failing to consider the degree of establishment in Canada. They submit that subsection 25(1) of the Act allows a fresh look at a prospective immigrant's situation and previous proceedings are not to be considered, relying in this regard upon the decision in Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722 (T.D.).
[15] The Applicants argue that the Immigration Officer's decision of the best interests of the children was perverse, capricious and without basis. In this regard, they rely on the decision in Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Hawthorne v. Canada(Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.).
[16] For his part, the Minister of Citizenship and Immigration (the "Respondent") takes the position that the decision in question is subject to review on the standard of reasonableness, pursuant to Baker. This standard attracts significant deference and the decision under review must be sustained if it is supported by any tenable evidence; see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247. The Respondent submits that the conclusions and inferences drawn by the Immigration Officer are supported by the evidence and the Court should not intervene.
[17] The Respondent further argues that the Immigration Officer did not fetter her discretion and properly considered the evidence before her, including the evidence relating to the minor Applicants and their best interests.
III. Discussion and Disposition
[18] Subsections 11(1) and 25(1) of the Act are relevant and provide as follows:
| 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient. |
[19] The next matter to be considered is the appropriate standard of review. The decision in question was made by an administrative decision-maker exercising delegated power under the Act. In order to determine the applicable standard in reviewing this decision, a pragmatic and functional analysis must be applied. Four factors are to be considered: the presence of a privative clause; the expertise of the decision-maker; the purpose of the legislation; and the nature of the question.
[20] The first factor is neutral, since the Act contains neither a privative clause nor a full right of appeal. Judicial review is available, if leave is granted.
[21] Immigration officers continually deal with assessments of H & C applications. Their relative expertise is greater than that of the Court and tends to attract greater deference.
[22] The broad purpose of the Act is to regulate the admission of immigrants into Canada and to maintain the security of Canadian society. This involves consideration of many interests which may conflict with each other. Decisions made in a polycentric context tend to attract judicial deference.
[23] The final factor is the nature of the question. Here, the Immigration Officer was required to exercise her discretion and make factual determinations. This discretion is to be informed by the Act and Regulations, and involves an element of statutory interpretation. The application of the statutory and regulatory provisions to the evidence yields a question of mixed law and fact. Such a question is reviewable on the standard of reasonableness simpliciter.
[24] The decision under review is a discretionary one. The hallmark of a discretionary decision is that the outcome is not inevitable. The decision-maker is subject to the standard described in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 as follows:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[25] The Applicants argue that the Immigration Officer fettered her discretion with respect to assessing evidence of their establishment in Canada by improperly relying on the fact that removal orders had been issued against them. Having regard to the record, I am not persuaded that the Immigration Officer committed a reviewable error in the manner in which she dealt with the issue of establishment, including the outstanding removal orders. The existence of those orders is a fact that was to be considered by the Immigration Officer and taken into account in her assessment of
the degree to which the Applicants had established themselves in Canada. I am satisfied that she did not err in her assessment of the relevant facts.
[26] I am equally satisfied that the Immigration Officer was alert and alive to the best interests of the minor Applicants, in accordance with the guidance provided by the relevant jurisprudence, that is Baker and Hawthorne. The fact that the minor Applicants may enjoy a better standard of life in Canada than in Argentina does not mean that the discretion afforded by subsection 25(1) of the Act will be exercised in a positive manner.
[27] Substantially the same arguments were raised in Serda v. Canada(Minister of Citizenship and Immigration), 2006 FC 356. In detailed reasons, Justice de Montigny addressed each of the arguments and dismissed the application for judicial review. I see no reason why a similar line of reasoning should not be employed in the instant case.
[28] In the result, this application for judicial review will be dismissed. There is no question of general importance arising for certification and no question will be certified.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5193-05
STYLE OF CAUSE: SERGIO GUSTAVO PENA et al. v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: March 8, 2006
APPEARANCES:
|
Ms. Rishma Shariff |
|
|
Mr. Rick Garvin |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Caron & Partners LLP Calgary, Alberta
|
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| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE RESPONDENT |