Ottawa, Ontario, November 28, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
GRISELDA NABEL TORRES DE ZAMORA
and
CANADA(MINISTER OF CITIZENSHIP AND IMMIGRATION)
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Griselda Torres de Zamora sought an exemption from visa requirements for herself and her children on humanitarian and compassionate grounds. An Immigration Officer refused her application on March 22, 2005. This is an application for judicial review of that decision pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c.27.
[2] The applicant is a citizen of Guatemala who arrived with her children and husband in Canada on July 30, 2002. They originally came to Canada as visitors, and subsequently overstayed their visas after being refused an extension in the summer of 2003. The applicant's husband voluntarily returned to Guatemala in December 2002. The applicant has family members in Canada, while most of her husband's family remains in Guatemala.
[3] According to the applicant, while in Guatemala her husband operated a tire business which often sold tires to the Guatemalan government. The Guatemalan government refused to pay its bills and as a result owed the applicant's husband a great deal of money. The applicant's husband repeatedly tried to have his debt paid at which time he began receiving threats over the telephone from unknown individuals. The threats were frightening to the family. The applicant's daughter had to be treated by a psychotherapist because of the nightmares and anxiety she suffered as a result of the threats.
[4] After his return to Guatemala, the applicant's husband applied for a visitor's visa to return to Canada and was denied. The applicant's husband allegedly went missing in Guatemala in September 2004 and his whereabouts remains unknown to his family.
[5] The applicant filed an Application for Landing from Within Canada on Humanitarian and Compassionate (H & C) Grounds in June 2003. Her application was based on her fear of returning to Guatemala with her children.
[6] An H & C interview was held on March 15, 2005. The applicant was notified in advance that she was to bring an interpretor with her if she required such services. She brought her brother to the interview to translate for her. Although the interview was conducted in English, it became apparent to the applicant during the interview that the Officer had at least some knowledge of Spanish.
[7] After the interview, the Officer determined that there were insufficient H & C factors to permit the applicant to apply for landing from within Canada. In particular, the Officer noted that there was not sufficient evidence of undue or disproportionate hardship if the applicant and her children were required to return to Guatemala to apply for permanent residence. A negative decision by the immigration Officer was made on March 22, 2005 accompanied by written reasons.
Issues
[8] Two issues were raised by the applicant on this judicial review. Namely, whether the Officer failed to consider the best interests of the children, and whether the Officer breached the duty of fairness owed to the applicant by using her own knowledge of Spanish to interpret the applicant's evidence.
Statutory Framework
[9] Subsection 25(1) of the Immigration and Refugee Protection Act provides as follows:
| 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. |
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.
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Standard of Review
[10] The appropriate standard of review for decisions made under section 25 is reasonableness. 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 in the statutory scheme as an exception, the fact the decision-maker is the Minister, and the wide discretion evidenced by the statutory language: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193; Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, 2002 FCA 125, leave to appeal to Supreme Court of Canada denied, [2002] S.C.C.A. No. 220).
[11] Reasonableness is not about whether the decision maker came to the right result. As stated by Justice Iacobucci in Canada(Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56. Aan 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.@ See also Law Society of New Brunswick v. Ryan, 2003 SCC 20 at paras 55-56.
[12] When considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness and the duty of fairness have been adhered to. The Court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly. (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Canadian Union of Public Employees v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29; London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4859 (C.A.) (QL)).
Did the Officer Ignore the Best Interests of the Children?
[13] Throughout the Officer's written reasons for decision, there is extensive reference to the children's interests. The applicant submits, however, that these references are illusory and that the officer was cavalier with regard to the reality which the children would experience in Guatemala.
[14] While the Officer stated that it is in the best interests of the children to be with their parents "sheltered from life's hardship" and "in an environment of love and support", this was capricious, the applicant submits, because there was evidence before the Officer that the children would be returning to an environment in which their father had disappeared, where the applicant had no means of supporting herself, and where there was a real possibility of harm to the family. Further, the Officer ignored the evidence that the threats to the family had caused the daughter such anxiety that she required psychotherapy.
[15] The applicant submits that the Officer was also cavalier with regard to the exposure to poverty and lack of education the children would face in Guatemala. The officer stated:
Perhaps the quality of the public education, public security and healthcare systems are lower than the Canadian standard and that is unfortunate but it is not a disproportionate hardship....
While it is unfortunate that poverty exists everywhere in the world and is perhaps more severe and visible in Guatemala, the children's hardship of readapting to this reality is not unusual and undeserved or disproportionate
[16] The applicant submits that in this case the Officer erred by applying the concept of 'undeserved hardship" to the applicant's children.
[17] In Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 the Federal Court of Appeal ruled that in considering an H & C application, the officer had failed to reasonably exercise her discretion by giving inadequate consideration to the best interests of the respondent's Canadian-born children. At paragraph 9 of its reasons, the Court stated:
Fourth, "hardship" is not a term of art. As noted in section 6.1 of Chapter IP 5 of the Immigration Manual (reproduced at paragraph 30 of my colleague's reasons), the administrative definition of "unusual and undeserved hardship" and "disproportionate hardship" in the Manual are "not meant as 'hard and fast' rules" and are, rather, "an attempt to provide guidance to decision makers when they exercise their discretion". It is obvious, for example, that the concept of "undeserved hardship" is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship. [Emphasis added]
[18] I agree that the concept of "undeserved hardship" is ill-suited when assessing the effects of a decision upon children who are not responsible for the circumstances in which they find themselves by reason of an accident of birth. However, I do not read Hawthorne as deciding that the use of that term by an immigration officer in considering the children's best interests constitutes reviewable error or renders the decision as a whole unreasonable.
[19] As laid down in Baker, above, the decision-maker in an H & C application must consider the children's best interests as an important factor, give them substantial weight and be alert, alive and sensitive to them. However, the children's interests must not always outweigh other considerations and there may be other reasons for denying an application even where the children's interests are to remain in Canada. It remains up to the immigration officer to determine the appropriate weight to be accorded this factor in the circumstances of the case.
[20] In this case, the circumstances cast doubt on the applicant's credibility about the situation she and her children would face in Guatemala and her reasons for wanting to remain in Canada.
[21] The question for the court to determine is whether the Officer's reasons can stand up to a somewhat probing scrutiny. I am satisfied that the Officer carefully considered and discussed the best interests of the children and that her reasons in that respect are tenable as support for the decision.
Did the Officer breach the duty of fairness owed to the applicant by using her own knowledge of Spanish to interpret the applicant's evidence?
[22] The Officer's decision in this case turned to a considerable extent on a negative assessment of the applicant's credibility about the hardships she would face if required to return to Guatemala. For the most part, the credibility determinations are based not on the interview conducted with the applicant but on other evidence before the Officer. That, alone, could be dispositive of this application as, overall, I would find that the decision satisfies the standard of reasonableness.
[23] However, the applicant submits that the manner in which the interview was conducted breached the Officer's duty of fairness and resulted in a critical error, going to the credibility of her claim.
[24] The applicant submits that she had a right to competent, impartial and continuous interpretation and that this was denied by the Officer who acted as both interviewer and interpreter. The applicant alleges that the Officer interrupted her translator and misunderstood her answers to questions. Further, that when the applicant realized that the Officer understood some Spanish, this had an effect on how she expressed herself and limited her ability to communicate. The applicant submits that this violates the principles set out in Mohammadian v. Canada(Minister of Citizenship and Immigration), [2000] F.C.J. No. 309 (F.C.T.D.) and is a breach of the duty of fairness.
[25] The Officer notes on page 2 of her decision that:
When asked to describe in her own words, the hardship she faces if forced to file APR [application for permanent residence] from abroad in the regular manner, PA [principal applicant] did not mention the trauma and seclusion resulting from her husband's disappearance or the risk to her children's well being or her fear of being targeted upon her return to Guatemala; instead she said 'If I join my husband, the visa will be refused, as they [Canadian authorities at the Visa Office] refused him when he tried to return to Canada [in NOV2002].
[26] The applicant submits that the officer relied upon this understanding of her answer in error in assessing the hardship she would face if required to submit her application from Gualtemala. She acknowledges referring to the difficulty experienced by her husband in obtaining a visa, but states that she also repeatedly said that she feared returning to Guatemala because of the threats she and her family had received prior to coming to Canada. The officer's misunderstanding, she submits, was critical to the negative result of her application. As noted above, this answer was only one of the factors that the officer took into consideration in deciding that the hardship faced would not be undue or disproportionate.
[27] In Mohammadian, above, Justice Pelletier applied the standards for interpretation services enunciated by Lamer C.J. in the context of criminal proceedings in R. v. Tran, [1994] 2 S.C.R. 951 to proceedings before the former Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board. These standards were summarized as continuity, precision, impartiality, competency and contemporaneousness. However, Mr. Mohammadian had failed to complain about the quality of the interpretation during the proceedings. Justice Pelletier concluded that the failure to object was fatal to the application for judicial review as it had been obvious to the applicant that there were problems between him and his interpreter.
[28] Justice Pelletier's decision was upheld on appeal, the Federal Court of Appeal answering the following question in the affirmative:
Where it is reasonable to expect an applicant to do so, such as when an applicant has difficulty understanding the interpreter, must the applicant object to the quality of translation before the CRDD as a condition of being able to raise the quality of translation as a ground of judicial review?
Mohammadian v. Canada(M.C.I.), [2001] 4 F.C. 85
[29] The applicant submits that in the circumstances of the interview, it was unreasonable for her to be expected to object to the officer's interpretation of her answers as she did not know how much Spanish the Officer understood. It was only upon receiving the reasons for decision that she realized the Officer's error.
[30] At paragraph 13 of his reasons for the Court of Appeal in Mohammadian, Justice Stone stated:
...It will be a question of fact in each case whether it is reasonable to expect a complaint to be made. If the interpreter is having difficulty speaking the applicant's own language and being understood by him, this is clearly a matter which should be raised at the first opportunity. On the other hand, if the errors are in the language of the hearing, which the applicant does not understand, then prior complaint may not be a reasonable expectation.
[31] In Azouz v. Canada (Minister of Citizenship and Immigration, 2002 FCT 717 (F.C.T.D.) Justice Edmond P. Blanchard dealt with a case in which there were difficulties in the interpretation of the applicant's answers from Arabic to English. Among other issues, the applicant contended that the fact that a member of the Board who spoke Arabic intervened to clarify answers and to contribute her own translations of words created an apprehension of bias. No objection was raised at the hearing. In concluding that the omission was fatal, Justice Blanchard also dismissed the argument relating to the member's interventions based on her understanding of the applicant's language.
[32] An interview or hearing is not an essential component of the duty of fairness required to be afforded on an H & C application. Having decided to provide an interview, the officer must, of course, conduct it in a fair manner. However, fairness does not dictate that the officer must ignore her own comprehension of the answers provided if she understands the language spoken by the applicant.
[33] Here, the Officer informed the applicant in advance that she was entitled to have an interpreter present and the applicant chose to bring her brother for that purpose. The applicant raised no concerns during the interview when it became apparent to her that the Officer understood at least some Spanish and when it would have been reasonable to ensure that her answers were being fully understood by the officer. Nor did she object at the interview to the complaint now made that the Officer repeatedly interrupted her brother as he translated her answers. I find that it would have been reasonable for the applicant to have raised these concerns during the interview. In the circumstances, the failure to object is fatal to her claim of a denial of procedural fairness.
[34] No questions of general importance were proposed by the parties and none are certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No questions are certified.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2265-05
STYLE OF CAUSE: GRISELDA NABEL TORRES DE ZAMORA
AND
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 16, 2005
APPEARANCES:
| Rishma N. Shariff
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| Rick Garvin
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SOLICITORS OF RECORD:
| RISHMA N. SHARIFF Caron & Partners LLP Calgary, Alberta
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| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Edmonton, Alberta
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