Date: 20001212
Docket: IMM-6196-99
BETWEEN:
HAZEL FLORENE RAMESSAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
FACTS
[1] This is an application for judicial review of Immigration Officer David Schembri's decision, dated October 21, 1999, denying the applicant's application to apply for landing from within Canada based on humanitarian and compassionate considerations, pursuant to section 114(2) of theImmigration Act, R.S.C. 1985, c. I-2.
Immigration History
[2] The applicant, Hazel Ramessar is a 50 year old citizen of Guyana. She arrived in Canada on August 7, 1985 in order to accompany her daughter Shaundell to the Shriner's Hospital in Montreal for treatment of an improperly healed leg fracture.
[3] In March 1986, the applicant applied for refugee status, based on her fear of her then-husband (whom she states had abused her when they were together in Guyana) and her fear of persecution by the persons who opposed her ex-husband's political activities. On October 10, 1992, her refugee claim was held to have no credible basis.
[4] On October 19, 1992, a deportation order was issued and a warrant for removal followed on March 30, 1998.
[5] Pursuant to section 114(2) of the Immigration Act, the applicant applied for landing in Canada on humanitarian and compassionate grounds in January 1999.
[6] On November 15, 1999, CIC sent the applicant a letter advising her that her immigration interview was set for December 17, 1999. She was also sent a Request for Information form explaining what information she should bring to the interview. Importantly, this form noted at page 3 that, "at present you are under a removal order and may be subject to detention. Please ensure that you are able to post bond if required."
[7] On December 17, 1999, the applicant was interviewed by Immigration Officer David Schembri. Immediately following the interview, she was arrested by two removals officers. She was released on bond on December 21, 1999.
[8] On December 21, 1999, Mr. Schembri notified the applicant's counsel that the applicant's application for landing had been refused and that her file was being transferred to the Greater Toronto Enforcement Centre for removal arrangements.
[9] The applicant then filed an application for leave and for judicial review on December 22, 1999. Leave was granted by Mr. Justice MacKay on September 8, 2000, and a hearing date was set for December 7, 2000.
Family History & Situation
[10] At the time she came to Canada, the applicant left behind in Guyana a husband (whom she states abused her and from whom she was divorced in 1995) and five children (aged ten months, two, three, ten and one who is deceased). Her husband was also apparently involved in a political movement and she claims that this put her in danger in Guyana. Nevertheless, her refugee claim was denied in October 1992.
[11] She had two daughters in Canada with Mr. Ronald Philadelphia: Keisha Philadelphia (ten years old) and Dionne Philadelphia (nine years old). Mr. Philadelphia originally claimed that he was still married to a Ms. Blair, whom he married in 1983, and that this had prevented him from marrying the applicant. However, it later emerged that he is actually still married to another woman whom he married in 1993 and whom he sponsored to come to Canada in 1997.
[12] The applicant's Canadian daughter Dionne Philadelphia has Down's Syndrome and requires special care and attention. The applicant is her primary caregiver.
[13] At present, the applicant has four immediate relatives and five grandchildren in Canada: her daughters Keisha and Dionne who are Canadian citizens, her daughter Shaundell Ramessar, twenty-four (illegal immigrant), who has five children; and her uncle Ronald Jarard, 58, who states he is a Canadian citizen.
ISSUES
[14] The applicant argues that:
| 1. The immigration officer based his decision on errors of fact; |
| 2. The immigration officer failed to follow the principles of fairness in making his decision, as his decision was influenced by irrelevant considerations, he ignored relevant considerations, and he failed to provide the applicant with an opportunity to respond to his concerns; and |
| 3. The officer's decision is unreasonable in the circumstances of the case. |
[15] The Respondent raises the further issue of the credibility of the applicant's evidence.
ANALYSIS
Errors of Fact1
[16] The applicant is questioning Mr. Schembri's findings that Mr. Philadelphia had a major role in the care and support of his daughters Keisha and Dionne, and that "it would be more beneficial for the children to live with their father in Canada."
[17] The applicant argues that Mr. Philadelphia has never taken care of Dionne on his own, that he cannot take care of his daughters as he lives in a one bedroom apartment, and that his work schedule would make it impossible to provide them with adequate care. The applicant points out that Mr. Schembri did not ask Mr. Philadelphia whether or not he could care for the children on his own without the assistance of the applicant.
[18] The respondent submits that the decision of the immigration officer was reasonably based on several considerations, including the fact that Mr. Philadelphia is a loving father who sees his children regularly and can care for them; that Mr. Philadelphia is gainfully employed and is a citizen of Canada; that the care for Down's Syndrome children is superior in Canada as compared with the care available in Guyana; that the applicant has been dependent on social assistance for much of the period that she has been in Canada and has moved more than ten times in ten years; that for two and a half years while in Canada, the applicant and her children have lived in shelters; and that no one presented any compelling reason to explain why Mr. Philadelphia could not care for the children.
[19] The respondent states that the applicant and Mr. Philadelphia provided evidence that lead to the conclusions reached, and that they did not state that the applicant accompanies the children when they visit Mr. Philadelphia every other weekend.
[20] Here we are dealing with review of a factual decision made by the immigration officer. The Court must be hesitant in interfering with such findings. I am of the view that the officer's findings are not unreasonable. The officer's decision reflects his view that, given the circumstances of the case, the children would be better off staying in Canada and being cared for here than going to Guyana with their mother. This could be based on the reasonable beliefs that Canada has a better social safety net for the support of Dionne and that they have a loving relationship with their father, who has cared for them in the past. There is evidence to show that the father has a strong relationship with his daughters and that he has been involved with their care, both material and parental. Therefore, I do not find the officer's findings unreasonable.
Regarding Administrative Fairness
[21] The applicant submits that Mr. Schembri was influenced by irrelevant considerations in making the humanitarian and compassionate ("H & C") decision. For example, the applicant's counsel claims that the officer inferred that the applicant was a bad mother, as she and her children had moved many times, they had lived in a shelter for two and a half years and the applicant was a long-term welfare case, leading to the conclusion that her establishment in Canada was "questionable". The officer also doubted that the applicant could have taken care of her grandchildren during the time she lived in a shelter. The applicant's counsel points out that the officer should have known that the applicant could not have obtained a work permit after her application for refugee status was refused, thus explaining her need to live in a shelter.
[22] The applicant's counsel also submits that the officer should have asked further questions, and that if he had, he would have discovered that the applicant's daughter, Shaundell, was also living in the shelter for a time and that, at other times, she brought her children to the shelter to be taken care of by their grandmother.
[23] The respondent submits that all of the factors considered by the immigration officer were important considerations relating to the best interests of the children. The respondent argues that the officer was weighing factors in order to assess the care the children received from the applicant vis-à-vis that they could receive in the custody of their father. The respondent states that the officer was correct in his observation that the applicant's submissions were often vague and unsubstantiated and that her reliance on welfare is relevant to the question of the applicant's establishment in Canada.
[24] The applicant submits that Mr. Schembri did not take relevant factors into consideration when making his decision. Counsel argues that the officer did not properly assess the applicant's role in caring for Keisha and Dionne and her grandchildren. The applicant notes that Mrs. Ramessar's daughter Shaundell went through a crisis (she had been raped), and that the applicant helped her take care of her children. Counsel also states that Children's Aid has now become involved with Shaundell's children, given her inability to care for them, and that the agency has stated that Shaundell will be allowed to take back her younger son if the applicant continues to reside with her and to assist her.2
[25] The respondent submits that the onus was on the applicant to show why her removal from Canada would cause undue hardship, and that it is no answer for the applicant to now claim that she was not asked about how she cared for her grandchildren.
[26] The applicant submits that Mr. Schembri failed to make sufficient inquiries into the situation of the applicant and her children, relying instead on his own assumptions about her situation.
[27] Counsel cites the Baker decision and Campbell J.'s decision in Park v. MCI, IMM-3675-98, June 8, 1999, (F.C.T.D.), in support of the proposition that the Immigration Manual Guidelines have force in cases such as the present one. The directives of the IE-9 Guidelines state:
| Although officers are not expected to delve into areas which are not presented during examination or interviews, they should attempt to clarify possible humanitarian grounds and public policy considerations even if they are not well articulated. |
and
| Others may warrant consideration because of their personal circumstances in relation to current laws and practices in their country of origin. |
and the directives of the IP-5 Guidelines state:
| Inform applicant when you are relying on information they did not supply (extrinsic information) and give them an opportunity to respond to it. |
| If you require more information, request it. |
[28] The applicant also submits that Mr. Schembri ignored the following evidence:
| - Mr. Ron Philadelphia's statement that "it would be very inhumane to remove her from this country, as my kids would suffer undue hardship, she has been a very good and loving mother to our kids..." |
| - The November 1998 statement by Claire Silva, Director of the Parenting Class at Shirley Street Public School, which stated that the Applicant provided Ms. Silva with assistance and "has been a good role model for other parents. She's a loving mother and caring person to everyone." |
[29] The applicant submits that Mr. Schembri made assumptions about several issues and failed in his duty to follow up on these assumptions and allow the applicant to respond to them. The applicant suggests that Mr. Schembri:
| - Doubted that the applicant could have played a role in the care of her grandchildren since she lived in a shelter for two and a half years (failing to find out that the applicant's daughter also lived in the shelter for a time and at other times brought her children to the shelter); |
| - Did not conduct an adequate inquiry into the applicant's statement that she continues to fear her ex-husband by either asking the applicant for more information or examining the CIC file which contains the entire record of her examination under oath concerning her 1987 refugee claim; |
| - Did not ask the applicant whether or not she could obtain a signed letter of offer of employment, to replace the unsigned letter (written on paper lacking letterhead) provided by Ms. Bell. |
| - Did not ask the applicant how she provides for her daughter Dionne's educational and psycho-social needs. |
[30] The respondent submits that the onus is on the applicant in such cases to provide evidence that removal from Canada will provide undue hardship, and that she cannot simply claim that she was not asked for such evidence.
[31] The respondent argues that the concerns that the officer had involved the sufficiency of the evidence provided to him. Particularly, in regards to the offer of employment, the respondent states that the officer gave cogent reasons for giving it little weight.
[32] In regard to the applicant's allegation that the officer failed to assess the applicant's fear relating to her ex-husband in Guyana, the respondent argues that this fear was not advanced with any vigour. The respondent states that the applicant did not make any statement alluding to potential political enemies in Guyana. Significantly, the respondent points out that the applicant's refugee claim had been determined to not have a credible basis.
[33] In response to the applicant's reliance on the Immigration Manual, the respondent cites the Federal Court of Appeal decision in Mohammed v. Canada (MEI), [1989] 2 F.C. 363, wherein the Court held that policy is not enforceable by the public.
[34] In my view, the applicant makes some fair points, especially given the role that the applicant appears to play as the primary caregiver of Dionne, and an important part of her grandchildren's lives. However, given the high level of deference accorded in these types of decisions, and on the whole of the argument, I believe that the decision of the immigration officer was a reasonable one.
[35] It should be borne in mind that the onus was on the applicant to provide evidence to the officer that her removal from Canada would cause undue hardship to her family. The officer considered the living standard experienced by the children while living with their mother and the fact that they have a loving, employed father here who is a Canadian citizen. While it may seem a bit exaggerated for the officer to conclude that their father provides for most of their material needs at present, that does not render the decision unreasonable. Even if Mr. Philadelphia has not taken care of the children on his own, there is evidence that he has more means than does the applicant to provide a home to and care for his children.
The applicant submits that the decision of Immigration Officer Schembri was unreasonable
[36] The applicant argues that in light of the Baker decision, the standard of review of an immigration officer's decision on an H & C application is reasonableness simpliciter. The applicant cites IE-9 Guidelines that were still in effect at the time of the applicant's H & C application. The applicant notes that officers are advised to consider societal interests, family interests, and the circumstances of all family members (making special reference to the children and the impact the decision will have on them).
[37] Given the lack of pressing need to remove the applicant from Canada, the applicant submits at paragraph 70 of her further memorandum of argument that, "once Officer Schembri had determined that the children's primary caregiver was their mother, the Applicant, and that it would be in the best interests of the children to remain in Canada due to the superior educational facilities for Dionne who has Down's Syndrome and who is flourishing in her special education class in Canada, the only reasonable conclusion he could have made was that the Applicant's request should be accepted. To suggest that it would be in the children's best interests to remain in Canada but to be deprived of their primary care-giver is not only unreasonable but cruel and inhumane."
[38] The respondent reasserts, for the reasons given supporting the officer's factual findings, that the decision of the officer was reasonable. Further, the respondent argues that the applicant has failed to address why her children could not remain in Canada with their father.
[39] In my view, the officer's decision was a reasonable one. The purpose of an H & C application is to allow people in the applicant's position to make application for permanent residence from within Canada. The officer in this case has looked at all the factors involved and determined that undue hardship would not ensue. What may ensue can be described as within the range of the normal hardships suffered by all of those who are removed from Canada.
[40] The applicant has the option of allowing her children to remain in Canada with their father, who appears to be in a position to become their primary caregiver. She also can make application for permanent residence in Canada from outside of the country, as nothing decided now precludes such application being made.
[41] While I have some concerns that perhaps the inquiry should have gone further regarding the applicant's roles as a caregiver for her grandchildren and supporter for her daughter Shaundell, in addition to the specifics of the role played by Mr. Philadelphia in caring for his daughters (especially his daughter Dionne), the onus rested on the applicant to provide such information. The decision of the immigration officer is not unreasonable on the totality of the circumstances of this case.
[42] The application should be dismissed.
[43] The applicant raised the following question for certification:
| Can a decision to refuse the humanitarian and compassionate application for landing of an applicant who is acknowledged by the decision-maker to be the primary caregiver of young children, be considered a reasonable decision, if the decision-maker determines that it is in the best interest of the minor children to remain in Canada? |
[44] In my view, the suggested question does not raise a question of general importance. Thus, it will not be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 12, 2000
__________________
1 Note that there had been an issue regarding Mr. Philadelphia's marital status, relating to his claim to that he intended to marry the applicant. The applicant now concedes that Mr. Philadelphia was indeed married to a second woman whom he sponsored for landing in July 1997. It appears that he also remains married to his first wife, Maureen Blair, whom he claims to have married in 1983.
2 Affidavit of Shaundell Ramessar, pp. 100-101 of the application record.
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