Date: 20100721
Docket: IMM-2917-09
Citation: 2010 FC 773
Toronto, Ontario, July 21, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
NESLYN CORVETTE DURRANT
MONTSICA ZEAVECIA DURRANT
MOSRAN
MOZARRO DURRANT
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants’
application for permanent residence from within Canada
on humanitarian and compassionate grounds was based upon a number of factors,
including their establishment and family ties in Canada
and the best interests of a child affected by the application. There was also
a significant risk aspect to the application relating to ongoing threats faced
by the family from a violent criminal about to be released from prison in St.
Vincent.
[2]
The H&C
application was assessed by the same Officer who decided the family’s
application for a Pre-removal Risk Assessment. That decision was also
negative, with the PRRA Officer finding that adequate state protection was
available to the family in St.
Vincent.
[3]
While not consenting
to the granting of the application for judicial review, counsel for the
respondent concedes that in assessing the risk component of the family’s
H&C application, the Officer committed the same error as was identified by
the Federal Court of Appeal in its recent decision in Hinzman v. Canada
(Minister of Citizenship and Immigration), 2010 FCA 177. That is, insofar
as the risk component of the application was concerned, “the Officer’s analysis
is really nothing more than a risk assessment which stops short at the
availability of state protection …”: Hinzman at para. 27.
[4]
No consideration was
given by the Officer to “public policy considerations and humanitarian grounds”
as they related to the question of risk: Hinzman at para. 26. This is
an error. The question on an H&C application is not whether adequate state
protection is available to the applicants in their country of origin, but
rather whether, having regard to all of the applicants’ individual personal
circumstances, they would face unusual, undeserved or disproportionate hardship
if returned home.
[5]
Consequently, the
application for judicial review is allowed. No question arises for
certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different Officer for re-determination in accordance with these reasons; and
2.
No serious question of general importance is certified.
“Anne Mactavish”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2917-09
STYLE OF CAUSE: NESLYN CORVETTE
DURRANT, MONTSICA ZEAVECIA
DURRANT, MOSRAN MOZARRO DURRANT v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 21, 2010
REASONS FOR
JUDGMENT
AND JUDGMENT: Mactavish
J.
DATED: July 21, 2010
APPEARANCES:
Solomon Orjiwuru
|
FOR THE APPLICANT
|
Ian Hicks
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
SOLOMON ORJIWURU
Barrister and Solicitor
Toronto, Ontario
|
FOR THE APPLICANT
|
MYLES J. KIRVAN
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|