Date: 20040927
Docket: IMM-1492-04
Citation: 2004 FC 1327
Ottawa, Ontario, this 27th day of September, 2004
Present: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
ROGELIO PONCE MELCHOR
LUIS ALBERTO BUJANDA BASACA
applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Melchor and Mr. Basaca seek judicial review of the decision of the immigration officer who refused their application for an exemption enabling them to apply for permanent residence from within Canada on humanitarian and compassionate grounds (H & C application).
[2] The applicants are citizens of Mexico who lived together in Hermosillo, in the State of Sonora, as a same sex couple for about three years before coming to Canada in July 2001, to claim refugee status on the basis of their fear of persecution based on their sexual orientation.
[3] The decision dismissing their claim concludes with the following words "if they intend to seek humanitarian or compassionate considerations outside the refugee determination process that would allow them to do so, they would both appear to be likely to successfully adapt to a future life in Canada."
[4] Thus, the applicants made their H & C application in October 2002. On January 15, 2004, they also made an application for a pre-removal risk assessment (PRAA). Both applications were refused by the same officer on January 30, 2004.
[5] The applicants filed two applications for leave and judicial review in respect to those refusals which were heard together by this Court.
[6] On March 10, 2004, O'Keefe, J. stayed the removal from Canada until a final decision on those applications.
[7] In their written submissions, the applicants raised several issues but at the hearing, they focussed on two, viz:
i) the immigration officer breached her duty of fairness by failing to ask for updated information despite the fact that their application was already fourteen months old when it was examined;
ii) the immigration officer failed to properly consider or understand the evidence and the arguments put forth by the applicant that they would suffer unusual, undeserved or disproportionate hardship not only because of risks set out in sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), but also because of the fact that they would clearly face discrimination and would have to live in a "closeted" environment that would have a direct impact on the psychological well-being of Mr. Melchor who was being treated by a psychiatrist.
[8] With respect to their first argument, the applicants also said that they relied on the practice of immigration officers working in the Vancouver area of always requesting updated information. They produced the affidavit of a lawyer practising exclusively in the field of Immigration Law in Vancouver since 1990, who states that in all her H & C applications, apparently regardless of the date of the application at the time of its review, she has been contacted by the decision maker with a request to update her client's information. Another affidavit from a young associate practising since May 2002, conveys a similar experience. On that basis, the applicants argued that they had a legitimate expectation that they would be given an opportunity to file more recent information.
[9] The Court is not satisfied that the affidavits submitted are sufficient to establish that as a rule, a request is sent in every file in Vancouver.
[10] In any event, there is absolutely no evidence that the applicants themselves were aware of the alleged practice or that their counsel relied on it. Also, there is no evidence as to what significant or material information would have been produced upon receiving such a request.
Breach of procedural fairness
[11] To support their position that the officer had a general duty to request updated information, the applicants relied on the decision of McTavish, J. in Pramauntanyath v. Canada (Minister of Citizenship and Immigration), [ 2004] F.C.J. No. 184 (QL) (T.D.). The Court finds that this decision is clearly distinguishable because in that case the immigration officer had, in fact, issued a request for updated information. Despite this, the officer issued his decision without considering the supplementary information provided by Mr. Pramauntanyath which was clearly relevant to his allegation and could have well influenced the result. The learned judge set aside the decision because she found that the officer had created a legitimate expectation on the part of the applicant that whatever new information he would provide, would be considered so long as it was sent within the specified time frame.
[12] As mentioned above, in this case, I find that the actions of the officer did not create any legitimate expectation.
[13] It is trite law that applicants bear the burden of supplying all the documentation necessary to support their application. In that respect, they can provide additional information at any time before a decision was made.
[14] In Arumugam v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No.1360 (QL) (T.D.) at paragraph 17, McKay, J said:
" In my opinion, although the IO did not seek new or updated country information from the applicant or elsewhere after the interview in March 1999, except for the PDRCC decision, there was no duty on the IO to do so. It was open to the applicant to submit further relevant information following the interview at any time before the decision, whether it be personal or related to the changing circumstances in Sri Lanka. The applicant did not do so. The IO rendered a decision based on the evidence provided to her. I cannot agree that the process was unfair or that the decision was unreasonable where the applicant did not take any initiative to provide further information concerning country conditions which, in his opinion, deteriorated through 1999. The responsibility of the IO was to consider the application to apply for admission on h & c grounds on the basis of the evidence provided by the applicant, and any evidence available from the applicant's immigration records or provided by the Minister. This the officer did."
[15] I fully agree with these comments and I find that the officer did not err in rendering her
decision without seeking further information from the applicants.
Undue, undeserved or disproportionate hardship
[16] It is agreed that this concept of hardship in and H & C application is much more extensive than the risk of persecution or a risk to life or to one's security under sections 96 and 97 of IRPA which are to be assessed in the context of the PRRA.
[17] Often, the risks raised by an applicant in a PRRA are exactly the same raised in his or her H & C application. But it is not always so. In her report, under the heading entitled "Hardship or Sanctions Upon Return to Country of Origin?" the officer described the hardship as follows, "allegations of risk are those that are cited in their PRRA application on the basis of their sexual orientation".
[18] In the section entitled "Decision and Reasons", the immigration officer says:
"The applicants' submissions for this application revolved around their allegations of risk should they return to Mexico and their degree of establishment in Canada.
I turn to their allegations of risk should they return to Mexico. Please refer to the PRRA decision dated 30 Jan 2004, in which I was the pre-removal risk assessment officer who examined their allegations of risk against the criteria set ou in 96 and 97 of IRPA....
In the context of this H & C application, risk to the life, or risk to the security of the person must also be considered. Having read and considered all information and evidence presented by the applicants as well as publicly available documentation, I do not find the applicants would face a personalised risk to their life or a risk to the security of the person if returned to Mexico."
[19] The officer does not discuss whether living "closeted" because of the social stigma attached to homosexual couples in Mexico and the discrimination they suffer, qualifies as undue or disproportionate hardship, especially considering the medical opinion on file, which indicates that a return to Mexico in such conditions would result in significant physical and psychological damage to Mr. Ponce Melchor. There was documentary evidence supporting the view that everywhere in Mexico, life was "difficult" for homosexuals.
[20] As indicated in the PRRA decision, the situation In Mexico may not amount to a risk under sections 96 and 97 because there was an internal flight alternative and state protection was available against actual mistreatment. But this does not mean that the difficult situation the applicants would face even in larger cities should not be assessed or neglected at all.
[21] I am not satisfied that the officer applied her mind to this subtle difference between what she had to do in evaluating the H & C application as opposed to what she had done in reviewing the PRRA. As she said it herself, the situation that the applicants will face upon their return was a crucial factor in assessing their H & C application. I, therefore, find that the decision in that respect was not reasonable and that this decision is material and it should be set aside.
[22] As mentioned, the applicants raised several other issues in their memorandum, which the Court need not address, given that the decision contains a material error. However, there are other aspect of the decision which could mislead the officer tasked with redetermining the matter. For example, the officer referred twice to the fact that the applicants had been in Canada since July 1997. The respondent argued that these were "typos" because in another section of the report, the officer refers to proper date of July 2001. No affidavit was filed to support this explanation. Obviously, if it was not perfectly clear in the mind of the officer that the applicants had been in Canada for two and a half years instead of six and a half years, it could well affect her evaluation of their degree of establishment.
[23] In the circumstances, it would be advisable to ensure that the decision under review not be made available to the new officer who will reconsider this matter.
[24] The parties did not propose any question for certification and the Court finds that this case turns on its own facts.
ORDER
THIS COURT ORDERS that:
The application is allowed.
The decision under review is set aside and the matter shall be redetermined by a different immigration officer taking into consideration the reasons set out above.
"Johanne Gauthier"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1492-04
STYLE OF CAUSE: ROGELIO PONCE MELCHOR, LUIS ALBERTO BUJANDA BASACA V. MCI
PLACE OF HEARING: VANCOUVER
DATE OF HEARING: September 7, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE JOHANNE GAUTHIER
APPEARANCES BY:
Mr. Bediako Buahene FOR THE APPLICANTS
Mr. Benton Mischuk FOR THE RESPONDENT
SOLICITORS OF RECORD:
BEDIAKO K. BUAHENE
Barrister and Solicitor
Vancouver, BC FOR THE APPLICANTS
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT