Date: 20080409
Docket: IMM-4219-08
Citation: 2009 FC 362
Ottawa,
Ontario, April 9, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
HARDAT RAMOTAR,
SEELOCHANIE RAMOTAR,
and DAVENDRA RAMOTAR,
by his litigation guardian,
HARDAT RAMOTAR
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by an Immigration Officer
dated August 21, 2008, denying the applicants’ application for permanent
residence on humanitarian and compassionate grounds (H&C) pursuant to
section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (IRPA).
FACTS
[2]
The
applicants are a husband, wife and their minor son. They are citizens of Guyana. They entered
Canada as visitors
along with their daughter on August 20, 2002 and made a refugee claim
approximately a month later based on attacks against them and their business.
The Refugee Protection Division (RPD) of the Immigration and Refugee Board
rejected the applicants’ refugee claims on March 23, 2003 on the basis that the
attacks against them were not politically motivated and the risk did not
persist. The applicants did not leave Canada.
[3]
The
applicants’ filed an H&C application in March 2006 and a Pre-Removal Risk
Assessment (PRRA) in July 2008. The adult applicants’ daughter has since
married a Canadian citizen and obtained permanent residence sponsored by her
spouse as a member of the family class, and is therefore not included in this
application.
[4]
The
H&C and PRRA applicants were heard by the same PRRA officer and were both
rejected in August 2008. The applicants brought a motion for a stay of removal
concerning these negative decisions. Mr. Justice Russell granted the stay
motion concerning the H&C decision and dismissed the stay motion with
regard to the PRRA decision on October 8, 2008.
Decision under review
[5]
The
PRRA officer found that the applicants’ personal circumstances did not
establish that the hardship of being refused the H&C exemption would cause
them unusual and undeserved or disproportionate hardship. The PRRA officer
found:
a.
The risks
alleged by the applicant were not personalized and state protection was
available. The applicants stated that they feared crime, violence and racial
tension and feared that they would be targeted as returnees. The PRRA officer
stated that “everyone in Guyana is subject to these
conditions” and the risk to the applicants did not meet the level of hardship
warranting an H&C exemption (p. 2b);
b.
The
applicants were not established in Canada
“beyond the normal establishment that one would expect the applicants to have
achieved in the circumstances” (p. 2b). The PRRA officer acknowledged that the
adult applicants were employed; that the applicants attended a Hindu temple and
volunteered for certain organizations; and had provided reference letters from
friends; but found that these facts did not go beyond the ordinary level of
establishment. The PRRA officer also acknowledged that the applicants had
purchased a home in Canada but stated that the house was
purchased when the applicants’ immigration status was not legal or was
undecided and they were aware that they could be removed from Canada;
c.
The PRRA
officer acknowledged that, in addition to the adult applicants’ daughter having
established permanent residence in Canada, the applicants had extended family
in Canada including the female applicant’s mother and sister, both Canadian
citizens; the adult male applicant’s sister, a Canadian citizen; and a number
of aunts, uncles, nephews, nieces and cousins. However, the PRRA officer found
that there were no obstacles to the applicants applying as immigrants under the
family class program and that family reunification, while a goal of the
immigration system, was not the purpose of an H&C exemption. The PRRA
officer also noted that the male applicant’s extended family resides in Guyana and could provide support to
the applicants (p. 2c);
d.
The
applicants’ prolonged stay in Canada was not due to circumstances
beyond their control. The conditional departure order was issued when the
applicants’ refugee claim was rejected on March 23, 2003 and the applicants
have remained in Canada for another six years of their own will (p. 2c); and
e.
The best
interests of the minor child did not require that he remain in Canada. The child, Davendra, was 9
years old when the applicants came to Canada
and is now 15 years old. The PRRA officer found that as Davendra had lived in
Guyana for a major part of his young life, attended school there, speakes the
language and is familiar with the customs, he would not have significant
difficulty re-adapting to life there, particularly given his ability to adapt
to life in Canada. The PRRA officer stated that the minor applicant would have
his parents to assist him in this transition (p. 2c).
[6]
For
these reasons, the PRRA officer rejected the applicants’ H&C application.
ISSUES
[7]
The
applicant submits that the PRRA officer erred in the following five ways:
a.
finding
that there were no obstacles to the applicants returning as members of the
family class;
b.
conflating
the PRRA test with the H&C test regarding risk and associated hardship;
c.
finding
that the applicants’ establishment in Canada
was merely normal and “expected”;
d.
characterizing
the H&C test for hardship as simply “undeserved,” misconstruing evidence
and rendering an unreasonable decision with regard to the length of the
applicants’ stay in Canada and their establishment; and
e.
failing to
take into account the best interests of the minor applicant.
[8]
The
third and fourth issues listed above both relate to the PRRA officer’s
assessment of the applicants’ establishment in Canada. I will
therefore consider them as one issue, i.e. whether the PRRA officer’s findings
with respect to the applicants’ establishment were reasonable.
STANDARD OF REVIEW
[9]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of [deference] to be accorded
with regard to a particular category of question.”
[10]
In Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada established
that reasonableness is the appropriate standard of review for H&C
application decisions. The Court stated at paragraph 62:
¶ 62 …
I conclude that considerable deference should be accorded to immigration
officers exercising the powers conferred by the legislation, given the
fact-specific nature of the inquiry, its role within the statutory scheme as an
exception, the fact that the decision-maker is the Minister, and the
considerable discretion evidenced by the statutory language. Yet the absence of
a privative clause, the explicit contemplation of judicial review by the
Federal Court – Trial Division and the Federal Court of Appeal in certain
circumstances, and the individual rather than polycentric nature of the
decision, also suggest that the standard should not be as deferential as
“patent unreasonableness”. I conclude, weighing all these factors, that the
appropriate standard of review is reasonableness simpliciter.
[Emphasis added]
[11]
In
reviewing the PRRA officer’s decision using a standard of reasonableness, the
Court will consider "the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” (Dunsmuir at paragraph 47).
[12]
Where
the applicant has submitted that the PRRA officer erred in law in applying the
wrong test, the appropriate standard of review is correctness.
ANALYSIS
Fundamental principles
for assessing an H&C decision
[13]
Fundamental
principles in assessing an H&C application were well enunciated by Mr.
Justice Michel Shore in Lee v. Canada (Minister of Citizenship
and Immigration, [2008] F.C.J. No. 470 at paragraphs 1 and 2:
¶ 1 It must be emphasized that
there is nothing about the Applicant’s situation that suggests that it fits
into a special category of cases where a positive decision might be made. The
Applicants are simply would-be immigrants whose humanitarian and compassionate
(H&C) application is primarily based on the existence of minor children and
the fact they have been in Canada for a few years. If this were
the standard upon which H&C applications had to be approved, virtually no
applications could be refused. It would also create a positive incentive for
foreign nationals to completely ignore regular immigration procedures. …
¶ 2 In essence, positive H&C
decisions are for circumstances sufficiently disproportionate or unjust, such,
that the persons concerned should be allowed to apply for landing from within Canada, instead of returning home
and joining a long queue in which many others have been waiting patiently. …
[14]
Accordingly,
the fact that applicants have been in Canada for a number of years is not a
basis for allowing applicants to apply for landing from within Canada on an
H&C basis, instead of returning home and joining “a long queue in which
many others have been waiting patiently”.
[15]
Mr.
Justice Denis Pelletier (as he then was) in Irimie v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1906 held to trigger
“hardship” there must be something other than that which is inherent in being
asked to leave Canada after having been in Canada for a period of time. Leaving
one’s family and friends and employment and residence in Canada is not
enough to justify hardship. The applicants must show “unusual hardship”, more
than what would be experienced by others who are being asked to leave Canada
after their legal rights to remain in Canada have expired. Mr.
Justice Pelletier held as follows:
¶12 If one then turns to the
comments about unusual or undeserved which appear in the Manual, one concludes
that unusual and undeserved is in relation to others who are being asked to
leave Canada. It would seem to follow that the hardship which would trigger the
exercise of discretion on humanitarian and compassionate grounds should be
something other than that which is inherent in being asked to leave after one
has been in place for a period of time.
[16]
In
Serda v. Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 425 Mr. Justice Yves de Montigny held at paragraph 31:
¶ 31 Finally, the Applicants have
argued that conditions in Argentina are dismal and not good for
raising children. They cited statistics from the documentation, which were also
considered by the H&C Officer, to show that Canada is a more desirable place to live in
general. But the fact that Canada is a more desirable place to live is not
determinative on an H&C application … if it were otherwise, the huge majority
of people living illegally in Canada would have to be granted permanent
resident status for Humanitarian and Compassionate reasons. This is certainly
not what Parliament intended in adopting section 25 of the Immigration and
Refugee Protection Act.
Accordingly, the fact that the applicants
have better conditions in Canada then in Guyana does not constitute H&C
hardship grounds when being asked to leave Canada.
[17]
Finally,
Justice de Montigny held at paragraph 23:
¶ 23 … A failed refugee claimant is
certainly entitled to use all the legal remedies at his or her disposal, but he
or she must do so knowing full well that the removal will be more painful if it
eventually comes to it. …
[18]
Accordingly,
a failed refugee claimant who does not leave Canada for a number of years, as
the applicants did not, do so knowing their removal will be more painful when
the time comes. The applicants overstayed their legal entitlement to remain in Canada. The fact
that they have spent a number of years in Canada, does not
entitle them to an H&C exemption from having to apply from outside of
Canada for permanent residence in Canada.
Issue
No. 1: Did the PRRA officer incorrectly find that the applicants’ could apply
from abroad for permanent resident status under the family class without any
“apparent obstacles”?
[19]
The
applicants are currently the subject of an application by their daughter to
sponsor them as members of the family class. This sponsorship application was
filed over 1 year ago, and acknowledged by the respondent on April 24, 2008.
The respondent advised the daughter that sponsorship applications for parents
“are experiencing longer processing times”, i.e. do not expect an answer soon. The
PRRA officer stated in his decision (at p. 2c of the Application Record):
It is understandable that the
applicant[s] would want to remain in Canada with their extended family
considering they have been together since they last travelled to
Canada…However, I note the purpose of H&C discretion is to allow
flexibility to approve deserving cases not anticipated in the legislation. I
have to look to the possibility of reunification through an existing program
such as the family class program which exists for cases such as the one before
me. I find there are no apparent obstacles that would impede an overseas
sponsorship.
[20]
The
applicants submit that this statement is erroneous because they would require
an Authorization to Return to Canada (ARC) pursuant to section 52 of IRPA,
which provides that a where a removal order has been enforced, the foreign
national cannot return to Canada without authorization. The applicants further
submit that ARCs are not automatically granted to members of the family class
in every case and the officer was thus incorrect in concluding that “no
apparent obstacles” preclude the applicants’ from being approved as family
class members applying from abroad.
[21]
The
applicants relies on a number of cases to support their submission that an
incorrect assumption that a claimant can return to return to Canada by way of
another application is sufficient to set aside an H&C decision: Arulraj
v. Canada (MCI), 2006 FC 529; Malkzai v. Canada (MCI), 2004 FC 1099;
Shchegolevich v. Canada (MCI) 2008 FC 527; Raposo v. MCI, 2005 FC
118. In the first three of these cases, the relevant issue was the best
interests of the children and the hardship caused by the separation of a child
from a parent who was being removed from Canada. In these
cases, the H&C officers found that the hardship to the claimants was
limited because the separation from the parent was only temporary. The facts
in Raposo were similar, except that the case involved the separation of
children from their grandparents. Had there been a chance that the separation
from the parent would be lengthy or permanent, it was clear that the H&C
officers would have found the separation adversely affected the best interests
of the child.
[22]
Here,
the PRRA officer found, in considering the applicants’ family ties, that the
hardship of separation from their extended family in Canada would not amount to
unusual, undeserved or disproportionate hardship and that the applicants’ also
had extended family in Guyana to help and support them. Moreover, while
considering the best interest of the child, the PRRA officer found that the minor
applicant would be able to readjust to life in Guyana because his
parents would be with him to offer love and support. Thus, unlike in the cases
cited by the applicant, the PRRA officer’s finding did not hinge in this case
on an assumption that the applicants would certainly be able to return as
members of the family class. There is no indication that, if the PRRA officer
thought the applicants may not be able to return, he would find the requisite
hardship had been established. In fact, the decision quite clearly states that
the hardships that would be faced by the applicants upon removal are not at the
level that warrants an H&C exemption. For this reason, the PRRA officer’s
statement that the applicants could apply from overseas for family class status
without any “apparent obstacles” is not an error that warrants setting aside
the decision.
[23]
Moreover,
I agree with the respondent that the statutory consequences of failing to
comply with an enforceable removal order cannot be considered “hardship” warranting
an H&C exemption. The purpose of s. 52 of IRPA is to provide individuals
under a removal order with a strong incentive to comply. Individuals who
remain in Canada following a
deportation order face the risk of having to apply for an ARC if they wish to
return to Canada. This is
not unusual, underserved or disproportionate hardship.
Issue No. 2: Did the
PRRA officer err in assessing the applicants’ claims relating to risk?
[24]
The
applicants submit that the PRRA officer erred by applying the wrong test in
assessing the applicant’s risk and “hardship”. Specifically, the applicants
submit that the PRRA officer’s finding that the applicants had not established
a personalized risk and “hardship” demonstrates that the officer assessed the
risk on a PRRA standard, rather than an H&C standard.
[25]
The
PRRA officer stated (at p. 2b of the Application Record):
The applicants state that they fear
crime, violence and racial tension in Guyana.
They fear to be targeted as returnees returning to Guyana. However, the applicants do not
demonstrate how these incidents of crime and violence will personally affect
them. A further assessment of current country conditions from impartial and
well-known sources indicates that everyone in Guyana is subject to these risks and it is not
specific to the applicants. The evidence does not establish that the
applicants are personally at risk in Guyana.
The evidence establishes that state protection is available for the
applicants.
The applicants submit that generalized
risk may be sufficient to establish “hardship”, and therefore that a lack of
evidence of personalized risk is not dispositive. They state that s. 25 of
IRPA does not contain the same requirement of a personalized risk for
“hardship” that s. 113 requires for a PRRA application. They submit that the
PRRA officer should have considered the general risk to them of exposure to
violent crime if returned to Guyana. The jurisprudence is not
clear on this proposition.
[26]
In
Barrak v. Canada (MCI), 2008 FC 962, however, Mr. Justice de Montigny
found at paragraph 32-34:
¶32 While
the officer was entitled to rely on the same facts for the PRRA and the H&C assessments, she was required to apply the test of unusual and
undeserved or disproportional hardship to those facts, a lower threshold than
the test of risk to life or cruel and unusual punishment relevant to a PRRA
decision…
¶34…The
officer may well have dealt with the main applicant's fear of arrest, of
torture, of being killed or beaten, or with the religious intolerance towards
Christian Maronites. But she did not explain why these fears fall short of
amounting to unusual and undeserved or disproportionate hardship, even if they
do not rise to the threshold of personalized risk to the applicants. There being no certainty that the result of
her analysis would have been the same had she applied her mind to the proper
test, the file must be returned for a new determination.
[27]
Likewise,
in Mooker, Mr. Justice Beaudry found at paragraph 19”
¶19 The
line of cases relied upon by the applicants (Ramirez and Mooker,
above; Dharamraj v. Canada (Minister of Citizenship
and Immigration), [2006] F.C.J. No. 853,
2006 FC 674; Pinter v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 366,
2005 FC 296) imposes
upon H&C Officers the requirement that the generalized risk
of violence, or risks flowing from discrimination, be considered according to
the appropriate test. It does not go so far as to require the Officer to
conclude that discrimination and a risk of generalized
violence always constitute undue, undeserved or disproportionate hardship.
[28]
The
applicants also point to the 2008 travel advisory for Guyana provided by
the Department of Foreign Affairs, which states (Application Record, p. 538):
Returning Guyanese and foreigners are
favourite targets for criminals...travellers should avoid carrying large
amounts of cash.
The respondent submits that this is a
general risk to those who appear affluent.
[29]
The
applicants also submit that, contrary to the statements of the PRRA officer,
H&C applicants are not required to show that state protection is not
available in order to establish hardship sufficient to warrant an H&C
exemption. In Pacia v. Canada (MCI), 2008
FC 804, 78 Imm. L.R. (3d) 274, Mr. Justice Mosley stated at paragraph 13:
¶13 …The
Officer accepted the applicant's account of a long-standing dispute in her
community and threats of harm. The finding that protection was available to the
applicant does not address the question whether she would encounter undue
hardship should she be required to avail herself of the state's shelter.
[30]
The
respondent states that the PRRA officer’s statement that he would, for the
purposes of the H&C application, “consider the applicants’ risk allegation
in the broader context of their degree of hardship” (p. 2b) demonstrates that
the PRRA officer was aware of the appropriate standard for assessing risk in an
H&C application.
[31]
All
Indo-Guyanese face the same threat of crime upon their return from Canada to Guyana.
Accordingly, it was reasonably open to the immigration officer to decide that
the applicants would not face “unusual or disproportionate hardship” compared
to all Indo-Guyanese sent home from Canada after a failed refugee
claim. An H&C finding otherwise, would “open the floodgates” as submitted
by the respondent, in that all Indo-Guyanese would overstay their legal status
in Canada, and file an H&C application on the basis that they face a
likelihood of “hardship” if returned to their home country due to the
prevalence of crime against the Indo-Guyanese in Guyana.
Issue
No. 3: Were the PRRA officer’s findings relating to establishment in Canada reasonable?
[32]
The
applicants submit that they have an exceptionally high degree of establishment
in Canada and that the
PRRA officer’s finding that their establishment was “nothing beyond the normal
establishment that one would expect” was unreasonable. They submit that this
finding ignores the stable, long-term employment of the adult applicants; their
extended family in Canada; their community involvement; and their son’s
integration into school and the community.
[33]
The
respondents submit that the applicants’ situation is “a mundane and relatively
common scenario” and that remaining economically or academically productive in Canada does not
render having to return to Guyana undue, undeserved or disproportionate
hardship. I agree. I do not find that maintaining employment and integrating
into the community over a period of six years constitutes an unusually high
degree of establishment. There is nothing in the applicants circumstances
which necessitates that the applicants be found to fit “into the special
category of cases” where an H&C is warranted: Lee v. Canada (MCI), 2008
FC 368. While the applicants have certainly integrated into the community and
have remained economically stable, it was reasonably open to the PRRA officer
to find that this was a normal level of establishment that did not warrant an
H&C exemption.
[34]
The
applicants also submit that the PRRA officer considered the applicants’
establishment only in relation to whether any hardship caused by removal would
be “undeserved.” As evidence of this, they point to the PRRA officer’s
statement that the applicants remained in Canada by choice
after their failed refugee claim and that they purchased a home while under a removal
order.
[35]
I
find that there is no indication that the officer decided the application based
on whether the applicants “deserved” to stay in Canada, as the
applicants allege. In considering the prolonged stay in Canada of an
H&C applicant, it is acceptable for an immigration officer to consider
whether all or part of that stay was by choice. It is also appropriate to find
that applicants cannot benefit from time lapsed while they elected to pursue
PRRA and H&C applications: Gonzalez v. Canada (MCI) 2009 FC 81 at
paragraph 29. It was open to the PRRA officer to note, correctly, that the
applicants’ home was purchased while they were subject to a removal order.
The test of “unusual and undeserved, or disproportionate hardship” was
correctly stated in the decision and these findings do not establish that the
PRRA officer erred or applied the wrong test.
Issue No. 4: Did the
PRRA officer fail to adequately consider the best interests of the child?
[36]
The
applicants submit that the PRRA officer failed to be alive and attentive to the
best interests of the minor applicant. The PRRA officer determined that the
best interests of the minor applicant would not be adversely affected because
he was familiar with Guyana and would have the support of his
parents. The applicants submit that this finding does not apply the correct
test:
The officer here does not determine the best
interests of Davendra, nor does he purport to do so. Rather, he is merely
determining what is adequate for him. While the officer was not required to
determine the application solely on the basis of the best interests of the
child, he was required at least to identify what is best for him, and then
weigh this against other considerations. (Applicant’s Memorandum of Fact and
Law, p. 25)
[37]
With
respect, the applicants misstate the standard. The relevant issue is not
whether remaining in Canada is the best possible alternative for the
minor applicant, but whether his best interests would be adversely affected by
removal. In Vasquez v. Canada, 2005 FC 91, 268 F.T.R. 122, Mr. Justice
Russell stated at paragraphs 41-44:
¶41 What the
Applicants are really saying in this case is that the children would obviously
be better off in Canada than in Mexico or Honduras and, because they would be
better off, Canada's international Convention obligations dictate that factor
be given paramountcy in an H&C Decision that involves both parents and
children.
¶42 I
do not think that law, logic or established authority dictates the result urged
upon the Court by the Applicants.
¶43 On
the facts of this case, there is nothing to suggest that the children would be
at risk or could not successfully re-establish themselves in Mexico or Honduras. The fact that the
children might be better off in Canada in terms of general comfort and future opportunities
cannot, in my view, be conclusive in an H&C Decision that is intended to
assess undue hardship.
¶44 I am
of the view that the guidance of the Federal Court of Appeal in Legault v.
Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358
(QL), 2002 FCA 125, at
para. 12 remains applicable to this case:
In short, the
immigration officer must be "alert, alive and sensitive" (Baker,
supra, at paragraph 75) to the interests of the children, but once she has well
identified and defined this factor, it is up to her to determine what weight,
in her view, it must be given in the circumstances. The presence of children
... does not call for a certain result.
[38]
The
applicants’ statement that the minor applicant would be “plunged into violence
and educational uncertainty” is not supported by any evidence.
An H&C “hardship”
criteria not considered
[39]
There
is another H&C hardship criteria which warrants consideration. It is not
the best interests of a minor child. It is not that the applicants have been in
Canada for a number
of years. It is not that the applicants have extended family in Canada, have good
jobs in Canada and have bought a house in Canada. It is not
that the economic and crime conditions in Guyana constitute
an undeserved or disproportionate hardship. The hardship consideration which
should be examined by an H&C officer is the daughter’s sponsorship of the
applicants. The applicants have been sponsored by their daughter for permanent
residence status in Canada. This sponsorship application has been
outstanding for one year, and the respondent has indicated that there are
longer processing times for sponsorship applications of parents being
experienced in the Mississauga office of the respondent than for other
sponsorship applications. (The respondent advised the daughter of this fact in
April 2008).
[40]
It
may be an “unusual, undeserved or disproportionate hardship” for the applicants
to return to Guyana pending
processing of the sponsorship application by the daughter due to the delay of
the respondent’s Mississauga office caused by the lack of bureaucratic
resources. In other words, it may be a “disproportionate hardship” for the
applicants to give up their house, give up their jobs, give up their Canadian
community and resettle in Guyana, all for a period of time which may be a
matter of months, or possibly one or two years, while the respondent’s
bureaucracy processes their application. The respondent can quickly and easily determine,
on a “paper screening basis”, whether the sponsorship application will likely be
approved, and if on a “paper screening” it is likely that the sponsorship
application will be approved, then the H&C officer may decide that it is an
“unusual, undeserved and disproportionate hardship” for the applicants to have
to uproot themselves from Canada only to return to Canada again soon
thereafter.
[41]
In
Benjamin v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 750 Mr. Justice Konrad
von Finckenstein (as he then was) stated, in obiter, on a judicial
review of a H&C decision that he could see no benefit in removing the
applicant to Nigeria, while his application sponsored by his wife was being
considered, only to bring him back to Canada in an expedited fashion should the
application be successful. Justice von Finckenstein held at paragraph 18:
Such a procedure totally fails to take
into account the pain, dislocation and emotional toil entailed in any removal.
The Respondent should keep the aforementioned factors in mind before attempting
a removal while the Applicant’s “spouse in Canada application” is pending.
[42]
The
same rationale applies to the sponsorship of the applicant by their daughter.
Perhaps this is a consideration for a removal officer who is being asked to
defer removal. Perhaps it is a legitimate consideration for an H&C officer.
In any event, it is important that the right hand of the respondent know what
the left hand is doing. Since this issue has come before an H&C officer for
decision, it is incumbent upon the H&C officer to take into account the
status and likelihood of success of the daughter’s sponsorship application of
the applicant to ensure that the respondent does not impose an unnecessary
hardship on the applicants by deporting them one month only to tell the
applicants they can come back to Canada as permanent residents a few months
later.
[43]
For
this reason, this application will be allowed and the matter remitted to
another immigration officer for redetermination with a direction from the Court
that the immigration officer determine the status and likelihood of success, on
a paper-screening basis, of the sponsorship application for the applicants to
become permanent residents.
Conclusion
[44]
Accordingly,
the likelihood of being a victim of crime in Guyana by itself, is not a “hardship”
for the purpose of an H&C application unless it is combined, as it is in
the case of the applicants, with a timely sponsorship by the daughter, which,
on a quick “paper screen”, the respondent could determine whether the
applicants will probably be legally entitled to permanent residence status in
Canada. In such a case, it may be “unusual and undeserved or disproportionate
hardship” for the applicants to be returned to Guyana, required to resettle in Guyana with the real
possibility of being victimized by criminals, only then to be told after one or
two more years that they can return to Canada as permanent
residents. That disruption, caused by understandable bureaucratic delays in the
processing of the sponsorship application, could be found by the immigration
officer to constitute “unusual, underserved or disproportionate hardship” for
the purpose of their H&C application. The overlay of the sponsorship
application, with a paper screen analysis by the respondent as to its
likelihood of success, is what separates the applicants’ situation from other
Indo-Guyenese with an H&C application who have to return to Guyana after losing
their refugee claim and PRRA.
No certified question
[45]
Both
parties advised the Court that they do not consider that this case raises a
serious question which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application for judicial review is allowed;
2.
the
H&C decision dated August 21, 2008 is set aside; and
3.
this
matter is referred to another H&C officer for redetermination with the
direction that the H&C officer determine the status and likelihood of
success, on a paper-screening basis, of the sponsorship application for the
applicants to become permanent residents.
“Michael
A. Kelen”
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