Gonzalez v. Canada (Minister of Citizenship and Immigration), 2015 FC 382

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: March 12, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 382;(2015), 477 F.T.R. 203 (FC)

Gonzalez v. Can. (M.C.I.) (2015), 477 F.T.R. 203 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.066

Angela Maria Mejia Gonzalez (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8039-13; 2015 FC 382)

Indexed As: Gonzalez v. Canada (Minister of Citizenship and Immigration)

Federal Court

Mosley, J.

March 26, 2015.

Summary:

The applicant applied for judicial review of a decision of a Senior Immigration Officer which rejected her application for permanent residence on humanitarian and compassionate grounds.

The Federal Court allowed the application.

Aliens - Topic 4

Definitions and general principles - Children - [See Aliens - Topic 1206 ].

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - The applicant was a citizen of Colombia - Her husband was a citizen of Mexico - The applicant entered Canada on December 31, 2009, and filed a claim for refugee protection - Her husband entered Canada on January 13, 2011 - His claim for refugee protection was joined to that of the applicant - On January 6, 2012, the applicant gave birth to a daughter in Canada - The refugee claims of the applicant and her husband were denied - They applied for permanent residence on humanitarian and compassionate (H&C) grounds - A Senior Immigration Officer rejected the application - The applicant applied for judicial review of the rejection of her H&C application - The Federal Court allowed the application - The Officer erred in assessing hardship - The Officer misunderstood the operation of s. 25(1.3) of the Immigration and Refugee Protection Act - Due to her error, she did not seriously consider the evidence which could establish a link between the applicant and the risks she raised - By discounting the applicant's past experiences with the Colombian Revolutionary Armed Forces (FARC), and her husband's experiences with criminal gangs, the Officer could not reasonably assess whether the adverse conditions in Colombia and Mexico would affect the applicant or her child directly and personally - The Officer treated the FARC and criminal gangs as background threats to every citizen of Colombia and Mexico - She did not ask whether the applicant would suffer undue, undeserved or disproportionate hardship if she were to return with her young daughter to a country where she had already been targeted by the FARC, or to a country where her husband had already been harassed and assaulted by criminals - The Officer's error of statutory interpretation also precluded a reasonable assessment of the best interests of the child - See paragraphs 67 to 77.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The applicant applied for judicial review of a decision of a Senior Immigration Officer which rejected her application for permanent residence on humanitarian and compassionate grounds - The applicant's counsel argued that the Officer applied the wrong legal test for hardship under s. 25(1) of the Immigration and Refugee Protection Act - According to him, that was a pure error of law which the Federal Court had long reviewed on the standard of correctness - The Federal Court concluded that the standard of correctness applied to the Officer's choice of legal test - The parties did not dispute that the standard of reasonableness applied to the Officer's application of any legal test to the facts before her - See paragraphs 23 to 35.

Cases Noticed:

B.L. v. Canada (Minister of Citizenship and Immigration) (2012), 408 F.T.R. 253; 2012 FC 538, refd to. [para. 24].

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 459 N.R. 367; 2014 FCA 113, consd. [para. 25].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 25].

Zambrano et al. v. Canada (Minister of Citizenship and Immigration) (2008), 326 F.T.R. 174; 2008 FC 481, refd to. [para. 26].

Ramsawak v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 706; 2009 FC 636, refd to. [para. 26].

Leobrera v. Canada (Minister of Citizenship and Immigration) (2010), 369 F.T.R. 178; 2010 FC 587, refd to. [para. 26].

Toussaint v. Canada (Minister of Citizenship and Immigration) (2011), 417 N.R. 356; 2011 FCA 146, folld. [para. 27].

Diabate v. Canada (Minister of Citizenship and Immigration) (2013), 427 F.T.R. 87; 2013 FC 129, refd to. [para. 28].

Vuktilaj v. Canada (Minister of Citizenship and Immigration) (2014), 449 F.T.R. 8; 2014 FC 188, refd to. [para. 29].

Lemus et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 310; 2014 FCA 114, refd to. [para. 30].

Charles v. Canada (Minister of Citizenship and Immigration) (2014), 461 F.T.R. 12; 2014 FC 772, refd to. [para. 30].

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2013), 437 F.T.R. 120; 2013 FC 802, refd to. [para. 31].

Lemus et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 639; 2012 FC 1274, refd to. [para. 33].

Shah v. Canada (Minister of Citizenship and Immigration) (2011), 399 F.T.R. 146; 2011 FC 1269, refd to. [para. 37].

Westmore v. Canada (Minister of Citizenship and Immigration) (2012), 417 F.T.R. 88; 2012 FC 1023, refd to. [para. 41].

Chekroun v. Canada (Minister of Citizenship and Immigration) (2013), 436 F.T.R. 1; 2013 FC 737, refd to. [para. 41].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 44].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 45].

Pathmanathan v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 192; 2013 FC 353, refd to. [para. 45].

Lalane v. Canada (Minister of Citizenship and Immigration) (2009), 338 F.T.R. 224; 2009 FC 6, refd to. [para. 46].

Piard et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 64; 2013 FC 170, refd to. [para. 46].

Berthoumieux v. Canada (Minister of Citizenship and Immigration) (2013), 443 F.T.R. 285; 2013 FC 1200, refd to. [para. 46].

Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C. 635; 318 N.R. 300; 2004 FCA 38, refd to. [para. 50].

Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; 297 N.R. 187; 2002 FCA 475, refd to. [para. 53].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 75].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1.3) [para. 11].

Counsel:

Anthony Navaneelan, for the applicant;

Martin Anderson, for the respondent.

Solicitors of Record:

Mamann, Sandaluk and Kingwell LLP, Migration Law Chambers, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on March 12, 2015, at Toronto, Ontario, before Mosley, J., of the Federal Court, who delivered the following decision on March 26, 2015.