PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of S. Neufeld, an immigration officer, (the Officer), dated August 16, 2006, wherein it was determined that there were no humanitarian and compassionate factors justifying an exemption for the applicant from the requirement that an application for permanent residence be made from outside Canada.
[2] Celiaflor Gallardo, the applicant, entered Canada as a visitor in 2001 to visit her parents and siblings. The notes accompanying the Officer’s decision note that the applicant’s parents and four brothers are living in Canada, that her husband and three children remain in the Philippines, and that she quit her position in a factory in 2003 in order to care for her mother. The Officer concluded that while the applicant had substantial ties to Canada the applicant had not established that severing these ties would have such a significant negative impact that it would constitute undeserved or disproportionate hardship.
[3] The Officer also assessed the risk the applicant would face if she returned to the Philippines. The applicant claimed she would be at risk in the Philippines because she had witnessed a bishop having sex with an altar boy. The Officer held that the applicant had provided no information to indicate if any threats were made against her as a result of her witnessing this act and concluded that there was very little possibility that the applicant would be exposed to any risk on her return to the Philippines.
[4] The standard of review for humanitarian and compassionate decisions is reasonableness simpliciter (Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817). It is not the role of the Court to re-examine the weight given to the different factors in a decision and, consequently, the Court cannot set aside a decision even if it would have weighed the factors differently (Legault v. Minister of Citizenship and Immigration, 2002 FCA 125, Williams v. Minister of Citizenship and Immigration, 2006 FC 1474).
[5] The applicant challenges the decision on the ground that the Officer overlooked relevant information, specifically a letter from the applicant’s father indicating that the applicant’s mother was very ill. The applicant submits that the fact that the Officer’s decision refers only to her mother being ill in 2003 suggests that the Officer failed to consider this letter and by extension the fact that it would be unusual hardship for the applicant to leave Canada when her mother is in poor health.
[6] Moreover, in the H & C submissions, dated August 17, 2005, the applicant’s counsel did not present the mother’s illness as a significant factor to be considered and simply stated that “In the past, she has had to look after her mother who was sick. Her parents who are advanced in age do need her in Canada to occasionally render such services.” (Applicant’s Record, p. 74). Based on this submission, I do not believe the letter from the applicant’s father is of such importance that the Officer’s failure to mention it specifically in her notes constitutes an error.
[7] It is well-established that an immigration officer need not summarize all the evidence or refer to every piece of evidence (Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317, (F.C.A.); Florea v. Minister of Employment and Immigration, [1993] F.C.J. No. 598 (QL) (F.C.A.)); however, the more important the evidence that is not mentioned specifically the more willing a court may be to infer from the silence that the decision-maker made an erroneous finding of fact (Cepeda-Gutierrez v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1425 (QL)).
[8] I am not persuaded that the Officer made an erroneous finding of fact in this case. The Officer’s notes indicate that the applicant quit her employment as a factory worker to care for her mother. The Officer was clearly aware of the fact that the applicant’s mother was in poor health.
[9] The applicant also submits that the Officer failed to consider that the applicant has five members of her immediate family in Ottawa because the Officer stated the “the applicant’s parents and brother are actually residing in Ottawa”. The applicant submits that had the Officer taken into account the fact that five members of the applicant’s immediate family lived in Ottawa she would have found that severing those ties in Canada would constitute unusual and undeserved hardship.
[10] I cannot agree with this submission. The Officer’s decision clearly indicates that the applicant has four brothers in Canada. Whether her brothers live in Ottawa or elsewhere in Canada is not sufficient to change the Officer’s analysis with respect to whether severing ties with her family members in Canada would constitute unusual and undeserved hardship. Moreover, as noted by the respondent there was conflicting evidence in the record as to the number of the applicant’s siblings living in Ottawa (the Supplementary Information H&C form states that the applicant has two brothers in Markham and does not indicate any brothers as living in Ottawa, Applicant’s record at page 78).
[11] The applicant also challenged the Officer’s decision on the ground that the Officer erred in the risk assessment portion of the decision. The applicant submits that the Board applied the wrong standard in this portion of the assessment.
[12] A risk assessment in an H&C must be assessed according to the standard of whether the risk factors amount to unusual, undeserved or disproportionate hardship and not according to the higher standard in a Pre-Removal Risk Assessment (Ramirez v. Minister of Citizenship and Immigration, 2006 FC 1404, Pinter v. Minister of Citizenship and Immigration, 2005 FC 296).
[13] It is clear from the Officer’s statement that “I therefore conclude that the applicant has failed to establish that she would personally face a risk to her life or a risk to the security of her person if she were to return to the Philippines” that she applied the wrong standard. This error is not, in my view, determinative since the Officer had found that the applicant had not established that she faced any risk. This is evidenced from the Officer’s statement that “The applicant has provided no information to indicate if there any (sic) threats made against her as a result of her bearing witness to this act, or even if there were criminal charges pending against the bishop…”
[14] The applicant submits that the Refugee Board decision includes several references to threats received by the applicant. In an H&C application, the burden is on the applicant to satisfy the decision-maker that there would be unusual and undeserved or disproportionate hardship to obtain a permanent resident visa from outside Canada. The applicant did not provide any evidence in her H&C application to show she faced a risk in the Philippines. Therefore, it was not unreasonable for the Officer to find that the applicant faced no risk.
JUDGMENT
This application for judicial review is dismissed. No question for certification was submitted.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5182-06
STYLE OF CAUSE: Celiaflor GALLARDO v. M.C.I.
PLACE OF HEARING: OTTAWA, Ontario
REASONS FOR JUDGMENT: TEITELBAUM D.J.
APPEARANCES:
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Mr. Russell Kaplan
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Ms. Jennifer Francis
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SOLICITORS OF RECORD:
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Russel Kaplan Barrister and Solicitor 240 Catherine Street, Suite 300 OTTAWA K2P 2G8
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John H. Sims, Q.C., Deputy Attorney General of Canada
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