CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Humanitarian and Compassionate Considerations |
Melchor v. Canada (Minister of Citizenship and Immigration)
IMM-1492-04
2004 FC 1327, Gauthier J.
27/9/04
8 pp.
Judicial review of decision of immigration officer refusing application for exemption enabling applicants to apply for permanent residence from within Canada on humanitarian and compassionate grounds (H&C application)--Applicants citizens of Mexico living together as same-sex couple for three years before coming to Canada in July 2001 to claim refugee status on basis of fear of persecution based on sexual orientation--H&C application, application for Pre-Removal Risk Assessment (PRRA) refused by same officer--Applicants filing two applications for leave and judicial review in respect of refusals--Alleging breach of duty of fairness when immigration officer failed to ask for updated information despite fact application 14 months old--Court not satisfied affidavits submitted in support of allegation sufficient to establish that as a rule, request for updated information sent in every file in Vancouver--Actions of officer not creating legitimate expectation--Applicants bear burden of supplying all documentation necessary to support application--Officer not erring in rendering decision without seeking further information from applicants--Concept of hardship in H&C application much more extensive than risk of persecution, risk to life, to one's security under Immigration and Refugee Protection Act, ss. 96, 97 which are assessed in context of PRRA--Life in Mexico "difficult" for homosexuals--PRRA decision indicating situation in Mexico may not amount to risk under ss. 96, 97 because internal flight alternative, state protection available against actual mistreatment--But officer not addressing subtle difference between what she had to evaluate in H&C application compared to what she had done in reviewing PRRA--Should have assessed difficulties applicants would face, for purpose of H&C application-- Situation applicants will face upon return crucial factor in assessing H&C application--Decision in that respect not reasonable, should be set aside--Application allowed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 97.