Date: 20060824

Docket: IMM-346-06

Citation:  2006 FC 1003

Ottawa, Ontario, the 24th day of August 2006

Present: The Honourable Mr. Justice Shore

 

BETWEEN:

CESAR AUGUSTO SALOMON HERRADA

CARMEN LUZ RAZETO SILVA

ERICKA PAOLO SALOMON RAZETO

CESAR ABDEL SALOMON RAZETO

CESAR NAIF SALOMON RAZETO

Applicants

and

 

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

INTRODUCTION

[1]       “As for the applicants’ arguments that the officer improperly weighted certain pieces of evidence, I would reaffirm that, as was pointed out in the Agot v. Canada, supra, decision, the weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion. Therefore, as long as the totality of the evidence was properly examined, the question of weight remains entirely within the expertise of the immigration officer . . . .

Once again, I want to reiterate the fact that this Court cannot lightly interfere with the discretion given to immigration officers. The H & C decision was a fact driven analysis, requiring the weighing of many factors. I find that the immigration officer considered all of the relevant and appropriate factors from a humanitarian and compassionate perspective, and did not commit any errors which would justify this Court’s interference”.

(As specified in Lee v. Canada (Minister of Citizenship and Immigration), 2005 FC 413, [2005] F.C.J. No. 507 (QL), at paragraphs 10 and 13, by Mr. Justice Pierre Blais.)

 

(See also Agot v. Canada (Minister of Citizenship and Immigration), 2003 FC 436, [2003] F.C.J. No. 607 (QL), at paragraph 8, in which Madam Justice Carolyn Layden‑Stevenson reviewed several of the principles relating to applications on humanitarian and compassionate considerations, including the one stating that this Court must not re-assess the factors in an application for judicial review of a discretionary decision).

 

NATURE OF THE JUDICIAL PROCEEDING

[2]       This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision of an immigration officer dated December 13, 2005, by which an application for permanent residency based on humanitarian and compassionate considerations, filed under section 25 of the Act, was refused.

 

FACTS

[3]       The applicants, Cesar Augusto Salomon Herrada, his spouse, Carmen Luz Razeto Silva, and their three children, Ericka Paola Salomon Razeto, Cesar Abdel Salomon Razeto, and Cesar Naif Salomon Razeto, are all citizens of Peru.

 

[4]       They came to Canada on September 22, 2002, to claim refugee protection, alleging having been persecuted in Peru by members of the “Shining Path”. Ms. Razeto Silva and the children based their applications on that of Mr. Salomon Herrada.

 

[5]       Mr. Salomon Herrada worked as a lawyer and legal adviser in two universities in Peru. Ms. Razeto Silva is a psychologist by training. Their daughter Ericka is a surgeon and worked in a hospital in Peru. Both of their sons were studying before they left for Canada. Abdel was studying law, and Naif was finishing high school.

 

[6]       In June 2002, a student at the faculty of law at San Martin de Porres University (where Mr. Salomon Herrada was working) was allegedly arrested on a charge of being a member of the Shining Path. The student in question (Carlos Garcia Robles) allegedly admitted that in 2000 he took part in the murder of an accountant working at the faculty of accounting, acting as an accomplice of two other students from the same faculty, Willy Martinez Ramos and Moïses Begazo Malpartida.

 

[7]       The rector of the University, Antonio Chang Escobedo, allegedly instructed Mr. Salomon Herrada to review the case of Mr. Garcia Robles to determine whether there were other active members of the Shining Path at San Martin de Porres University.

 

[8]       In conducting the research, Mr. Salomon Herrada allegedly came across the names of Willy Martinez Ramos and Moïses Begazo Malpartida in the case file of Mr. Garcia Robles, and he advised the rector of the University accordingly.

 

[9]       Around 7:00 p.m. on June 28, 2002, Willy Martinez Ramos, Moïses Begazo Malpartida, and three other persons allegedly went to Mr. Salomon Herrada’s residence and entered the house. Mr. Martinez Ramos allegedly pointed a firearm at Mr. Salomon Herrada and threatened to kill him and his family if he continued his investigation into the Shining Path.

 

[10]     The next day, Mr. Salomon Herrada supposedly filed a complaint with the police and asked for personal protection for himself and family. He also told the rector of the University about the incident, who gave him the choice of continuing or ending the review of the case. Mr. Salomon Herrada alleged that he decided to continue his investigation but took time off from his work at the University and hired a bodyguard/chauffeur for protection.

 

[11]     On September 6, 2002, when he was leaving home to go to work, a bullet allegedly hit his bodyguard, who was killed while trying to protect Mr. Salomon Herrada from an attack. Later that day, Mr. Salomon Herrada allegedly received a telephone call saying that he, not the chauffeur, was the target and that the Shining Path would kill him and his family.

 

[12]     Following the death of his bodyguard, Mr. Salomon Herrada allegedly filed another complaint with the police.

 

[13]     On September 16, 2002, Mr. Salomon Herrada allegedly found a letter under his door. According to the letter, he would be killed if he did not withdraw the complaints he had filed.

 

[14]     According to Mr. Salomon Herrada, in light of the death of his bodyguard and the threats he received, he decided to leave Peru. He pulled his two sons out of the professional training centres where they studied and asked his daughter to quit her job. The whole family left Peru and arrived in Montréal on September 22, 2002, transiting through the United States. They claimed refugee protection immediately upon arrival in Canada.

 

[15]     On October 15, 2003, their claim for refugee protection was refused. The Refugee Protection Division (RPD) of the Immigration and Refugee Board concluded that their story was not credible and that state protection was available in Peru. Their application for leave and for judicial review was dismissed on March 4, 2004.

 

[16]     On February 21, Mr. Salomon Herrada and his family made an application for a pre‑removal risk assessment (PRRA). On February 25, they applied for permanent residency on humanitarian and compassionate considerations under subsection 25(1) of the Act. The present application for judicial review concerns the rejection of the application for permanent residence on humanitarian and compassionate considerations. Mr. Salomon Herrada and his family also filed an application for judicial review of the rejection of their application for a PRRA (IMM-347-06).

 

[17]     In February 2006, Mr. Salomon Herrada and his family made a second application for a PRRA. This application was rejected on March 8, 2006. On April 5, 2006, they filed a motion to stay with the Federal Court, but the motion was dismissed. Mr. Salomon Herrada and his family left Canada in June 2006.

 

IMPUGNED DECISION

[18]     The immigration officer rejected the application for permanent residency based on humanitarian and compassionate considerations because he was of the opinion there were insufficient humanitarian and compassionate considerations to warrant an exemption from the requirement of obtaining a visa outside of Canada.

 

[19]     The immigration officer determined that the family’s establishment and integration in Canada were minimal. Although the family had shown that they were to a certain degree willing and able to establish themselves in, integrate in and adapt to Canada, this was insufficient according to the immigration officer.

 

[20]     The immigration officer did not believe that the family would be at risk if they had to return to Peru to apply for permanent residency. Mr. Salomon Herrada had not proven that he or his family were in danger, and even if that were the case, he had not proven that he could not obtain protection from the Peruvian authorities. Moreover, the family did not show that having to file an application from outside Canada would cause them unusual and undeserved or disproportionate hardship.

 

[21]     The immigration officer seemed to be of the opinion that the family was trying to use the request for an exemption and the application for permanent residency on humanitarian and compassionate considerations as a means to immigrate to Canada without following the procedures required by legislation. In the reasons for his decision, he stated that the family’s behaviour seemed inconsistent with that of persons who allegedly made a snap decision to flee their country following threats to their lives, because some of the documents submitted in evidence were obtained before the threatening letter was received.

 

ISSUE

[22]     The only issue in this case is the following:

1. Did the immigration officer make a reviewable error in rejecting the application for permanent residence based on humanitarian and compassionate considerations made by Mr. Salomon Herrada and his family?

 

ANALYSIS

 

            Legislation

[23]     Under subsection 25(1) of the Act, the Minister may grant permanent residency or an exemption from an obligation of the Act if he is satisfied that there are humanitarian and compassionate considerations or public policy grounds that warrant such a decision:

 

Standard of review

[24]     Using a pragmatic and functional approach, the Supreme Court of Canada decided in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL), at paragraphs 57-62, that the appropriate standard of review for applications based on humanitarian and compassionate considerations is that of reasonableness simpliciter:

These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court–Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as “patent unreasonableness”. I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter. (Baker, supra, at paragraph 62).

 

 

[25]     In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116 (QL), at paragraph 56, Mr. Justice Frank Iacobucci explained what constitutes an unreasonable decision:

. . . An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.

 

 

[26]     Furthermore, as stated by Mr. Justice François Lemieux in I.G. v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1704 (QL), at paragraph 39:

Not only does Baker require a more focussed approach by immigration officers, it places a new and more “hands-on” responsibility by a reviewing judge. A reviewing judge must take a “hard look” at the H & C decision, must assess whether it is reasonable by examining the reasons to see if they can stand up to a somewhat probing examination in the evidentiary foundation.

 

 

            Preliminary observations

[27]     Mr. Salomon Herrada and his family submitted several documents in evidence which had not been submitted to the immigration officer. These were more recent documents or ones they obtained recently. In the case of an application for judicial review, this Court may only consider evidence that was submitted to the immigration officer. If these documents were relevant to their application, Mr. Salomon Herrada and his family should have sent them to the immigration officer as soon as they received them, before the decision was mase, so that he could take them into consideration when reviewing the application.

 

[28]     Mr. Salomon Herrada and his family alleged that because they had been sent a letter instructing them to attend a meeting on January 10, 2006, to update their file, they expected that they would be given an opportunity at this meeting to submit the additional evidence they had just received. However, the decision had already been made on December 13, 2005. In spite of the importance of this letter to Mr. Salomon Herrada and his family, it is not included in the applicant’s record or in the panel record. Therefore, this Court is unable to determine whether there was an breach of natural justice on this point.

 

Did the immigration officer make a reviewable error in rejecting the application for permanent residence based on humanitarian and compassionate considerations made by Mr. Salomon Herrada and his family?

 

 

[29]     The examination of an application under subsection 25(1) of the Act involves two distinct assessments. When making the first assessment, the decision-maker must determine if the applicant has satisfied him or her that an exemption from the requirement to obtain a permanent application for residency from outside the country is warranted. An exemption is warranted when the applicant shows that his or her personal circumstances are such that he or she would suffer unusual and undeserved or disproportionate hardship if he or she were required to make his or her application for permanent residency from outside of Canada.

 

[30]     The second assessment consists in determining whether the applicant is eligible for permanent residence in Canada.

 

[31]     In this case, Mr. Salomon Herrada and his family did not succeed in showing that they would sustain unusual and undeserved or disproportionate hardship if they had to make their application from outside of Canada.

 

[32]     In their application for permanent residency based on humanitarian and compassionate considerations, Mr. Salomon Herrada and his family raised two difficulties.

 

[33]     First of all, Mr. Salomon Herrada and his family alleged they would suffer unusual and undeserved or disproportionate hardship because they were in danger in their country.

 

[34]     However, the RPD and two PRRA officers considered the danger involved in returning to Peru and unanimously concluded that Mr. Salomon Herrada and his family would not be in any danger if they were to return to their country. Moreover, the Federal Court considered the risks of return on two occasions.

 

[35]     The first time, the Court examined the risks of return when considering the application for leave regarding the decision of the RPD. The Court refused to intervene because it was of the opinion that the RPD had not erred in its decision.

 

[36]     The second time, the Court had to once again study the risks of return when it heard the motion to stay, where the underlying application was aimed at contesting the second application for a PRRA.

 

[37]     Mr. Salomon Herrada and his family seem to believe that if they add documents to the record at the stage of their application based on humanitarian and compassionate considerations, the conclusions reached by the RPD, the Federal Court and the PRRA officer about their credibility will be set aside or forgotten. Likewise, they also seem to believe that the conclusion concerning state protection in Peru will also be set aside if they submit documentary evidence about the situation in Peru.

 

[38]     However, Ahmed v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 483, [2000] F.C.J. No. 1365 (QL), at paragraph 27, specifies that the officer who processes an application based on humanitarian and compassionate considerations does not sit on an appeal or judicial review of a decision of the RPD:

In my opinion, the PCDO process is an administrative one. As such, the officer’s role is limited to a review of the evidence in the record, including any new documents and submissions presented by the applicants. Thus, it is not open for the officer to conduct a new assessment of an applicant’s credibility and to reverse the credibility findings of the Refugee Division. Just as Nadon J. stated in Hussain v. Canada (M.C.I.), that an immigration officer does not sit in appeal or review of the Refugee Board’s decision in a humanitarian and compassionate application, where its purpose is not to re-argue the facts which were originally before the Refugee Board, I am of the view that the same applies to a PDRCC application. (See also: Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751 (F.C.T.D.) (QL), at paragraph 12.)

 

[39]     Accordingly, in processing the application based on humanitarian and compassionate considerations, the immigration officer was not entitled to conduct a new assessment of the credibility of Mr. Salomon Herrada and his family and set aside the RPD’S findings regarding credibility. The immigration officer was also not entitled to set aside the conclusion of the RPD concerning the adequacy of state protection in Peru. More specifically, the immigration officer could not base his decision on the allegation that Mr. Salomon Herrada and his family had been targeted by the Shining Path, given the conclusions reached by the RPD on this point.

 

[40]     In addition, in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.), [1990] F.C.J. No. 604 (QL), the Federal Court of Appeal stated that when the only evidence before a tribunal linking the applicant to his or her claim is that of the applicant himself or herself (in addition, perhaps, to country reports from which nothing about the applicant’s claim can be directly deduced), the tribunal’s perception that the applicant is not a credible witness effectively amounts to a finding that there is no credible evidence.

 

[41]     Accordingly, the immigration officer could reasonably ignore evidence which was in no way connected with Mr. Salomon Herrada and his family, even if the evidence was to the effect that the Shining Path is a powerful organization. Mr. Salomon Herrada and his family never succeeded in satisfying any tribunal that they actually were targeted by the Shining Path.

 

[42]     In any event, the immigration officer acknowledged that the Shining Path was a powerful organization, but he noted that the documentary evidence did not show that the state was unable to protect its citizens.

 

[43]     Secondly, Mr. Salomon Herrada and his family also alleged that they would suffer unusual and undeserved or disproportionate hardship because they had developed a connection with Canada and Canadian society.

 

[44]     However, the immigration officer concluded that Mr. Salomon Herrada and his family would not face unusual and undeserved or disproportionate hardship because of their stay in Canada if they were to make an application outside of Canada. At page 4 of his reasons, the immigration officer clearly explained that the degree of their establishment in Canada was minimal.

 

[45]     The immigration officer came to this conclusion by taking into consideration their short stay in Canada, their short work experience, their relatively minimal efforts made to learn the official languages of Canada and the lack of some supporting documentation, such as invoices, a lease or proof of their volunteer activities. In reaching this conclusion, the immigration officer considered all the supporting evidence he had.

 

[46]     Accordingly, according to the case law, this Court should not intervene when it appears that the decision-maker has weighed all the evidence before him or her and has concluded, in his or her discretion, that the factors militating against granting the application on humanitarian and compassionate considerations outweighed those in its favour (Dilmohamed v. Canada (Minister of Citizenship and Immigration), 2002 FCT 9 (F.C.T.D.), [2002] F.C.J. No. 22 (QL), at paragraph 11).

 

[47]     In Vidal v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 63 (QL), at paragraph 10, Mr. Justice Barry Strayer stated that it was not up to the Court to sit in appeal on the immigration officer’s findings of fact or weighing of the various factors.

 

[48]     Having concluded that an exemption from the requirement of obtaining a visa outside of Canada was not warranted, the immigration officer was not required to conduct the second step of the assessment, in which the admissibility of Mr. Salomon Herrada and his family was to be determined.

 

CONCLUSION

[49]     It is up to an immigration officer to assess the relevant factors in an application based on humanitarian and compassionate considerations, and when all issues have been properly examined by the decision-maker, this Court must not reassess the evidence. A decision rendered on an application based on humanitarian and compassionate considerations is largely discretionary, and Parliament has entrusted this discretion to the Minister or his delegate.

 

[50]     In Lee v. Canada (Minister of Citizenship and Immigration), 2005 FC 413, [2005] F.C.J. No. 507 (QL), at paragraphs 10 and 13, Blais J. affirmed the following:

 

As for the applicants’ arguments that the officer improperly weighted certain pieces of evidence, I would reaffirm that, as was pointed out in the Agot v. Canada, supra, decision, the weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion. Therefore, as long as the totality of the evidence was properly examined, the question of weight remains entirely within the expertise of the immigration officer . . . .

Once again, I want to reiterate the fact that this Court cannot lightly interfere with the discretion given to immigration officers. The H & C decision was a fact driven analysis, requiring the weighing of many factors. I find that the immigration officer considered all of the relevant and appropriate factors from a humanitarian and compassionate perspective, and did not commit any errors which would justify this Court’s interference.

 

(See also Agot v. Canada (Minister of Citizenship and Immigration), 2003 FC 436, [2003] F.C.J. No. 607 (QL), at paragraph 8, in Layden-Stevenson J. reviewed several of the principles applying to applications based on humanitarian and compassionate considerations, including the one specifying that this Court must not re-assess the factors in an application for judicial review of a discretionary decision).

 

[51]     Because the immigration offer’s decision is reasonable and because he did not make any error warranting intervention by this Court, the application for judicial review is dismissed.

 

JUDGMENT

 

THE COURT ORDERS that

1.         The application for judicial review be dismissed;

2.         No serious question of general importance be certified. The parties did not suggest any question for certification, and the Court is of the opinion that this case turns on its own facts.

 

 

“Michel M.J. Shore”

 

 

Certified true translation

Michael Palles

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                           IMM-346-06

 

 

STYLE OF CAUSE:                          CESAR AUGUSTO SALOMON HERRADA

CARMEN LUZ RAZETO SILVA

ERICKA PAOLO SALOMON RAZETO

CESAR ABDEL SALOMON RAZETO

CESAR NAIF SALOMON RAZETO

v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                     Montréal, Quebec

 

DATE OF HEARING:                       August 15, 2006

 

REASONS FOR ORDER

AND ORDER BY:                             THE HONOURABLE MR. JUSTICE SHORE

 

DATED:                                              August 24, 2006

 

 

APPEARANCES:

 

Jean-François Fiset	FOR THE APPLICANTS
Alexandre Tavadian	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

JEAN-FRANÇOIS FISET, Lawyer Montréal, Quebec	FOR THE APPLICANTS
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT