Date: 20090409
Docket: IMM-4691-08
Citation: 2009 FC 364
Ottawa, Ontario, April 9, 2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
PINKY LOURICE MARK
ADAINA THERESA TENISHA THOMAS
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), of a decision by a delegate of the Minister of Citizenship and Immigration Canada,
a Pre-removal Risk Assessment (PRAA) Officer, dated August 26, 2008, whereby
the Applicants’ application for permanent residence based on humanitarian and
compassionate grounds was refused.
BACKGROUND FACTS
[2]
Pinky Lourice Mark and her minor daughter (the Applicants),
are citizens of Grenada. They
entered Canada July 24, 2001 as
temporary residents, having left Grenada due to an abusive relationship with the principle applicant’s boyfriend
and boyfriend’s father.
[3]
On June
29, 2004, pursuant to s. 44 of the Act, a Report on Inadmissibility was written
against the principle applicant for entering Canada without first obtaining the necessary immigrant visa. A departure
order was issued.
[4]
Also on June 29, 2004, the Applicants made
a claim for refugee protection, the claim being refused November 1, 2004, on
the basis that the Applicants were not convention refugees or persons in need
of protection, as state protection from domestic violence was available in Grenada. Leave to judicially review this
decision was denied in June 2005.
[5]
The principle applicant was then served with a
PRAA application on August 26, 2006, which was rejected in January 2007. She
successfully sought judicial review of that decision.
[6]
In February 2007, the principle applicant was
served with a direction to report for removal, was denied a deferral, but
successfully obtained a stay until July 2007 to allow her daughter to complete
the academic year. The principle applicant’s daughter has severe learning
difficulties, requiring her to follow an individual education plan. She has
completed all her schooling to date in Canada.
[7]
In February 2008, the principle applicant submitted
a humanitarian and compassionate grounds application (H&C application) for permanent residence, which was denied in August 2008.
[8]
A new departure order was issued for November
14, 2008, with the Applicants’ application for deferral of removal denied
November 5, 2008, and application to stay the removal denied November 13, 2008.
The principle applicant was
then granted a statutory stay of removal until after a trial commencing
December 17, 2008, in which she was to appear as a witness against an
ex-boyfriend who assaulted her.
[9]
The Officer found the Applicants would not
suffer unusual, undeserved, or disproportionate hardship on return to Grenada. The Officer considered the Applicants’
establishment and work history in Canada, family ties in Canada, the best
interests of the principle applicant’s daughter to remain in Canada considering
her learning disabilities and the services available via the Canadian education
system, the risk of domestic violence in Grenada previously addressed by the
Refugee Protection Division at the Applicants’ refugee hearing and in the Applicants’
PRAA, and the challenges in finding a residence in Grenada.
ISSUES
[10]
This application raises the following issues:
a)
Did the Officer err in relying on extrinsic
evidence that was not disclosed to the Applicants;
b)
Did the Officer err in her analysis of risk and
consideration of evidence on state protection for victims of domestic violence
in Grenada; and
c)
Did the Officer err by not giving the Applicants
the opportunity to update their file?
ANALYSIS
(a) Did the officer err in relying on extrinsic evidence
that was not disclosed to the Applicants?
[11]
The Applicants contend that the Officer erred by
relying on a 2005 United Nations article, publicly available on the United
Nations Website, without having first notified the Applicants so the Applicants
could provide a response to the article. Although the article in question was
on general country conditions, it was used by the Officer to counter the Applicants’
specific submissions that they would be homeless in Grenada because the principle applicant’s mother’s house had been destroyed
by hurricane Ivan in 2004.
[12]
The Respondent submits that publicly
available internet documents on general country conditions are not extrinsic
evidence requiring disclosure by an officer prior to making a decision.
[13]
For the Respondent, country condition documents
that come from public sources are not extrinsic evidence: Latifi v. Canada
(MCI), [2006] F.C.J. No. 1739, 2006 FC 1389. While this may be true as a
general statement, in the present case, I disagree with the Respondent for the
following reasons:
[14]
First, contrary to the Respondent’s view that
the article was used simply to show the efforts made in Grenada to develop
housing since the hurricane, a fair reading of the decision under the heading
“Ties or residence in Grenada” shows that, in context, the Officer
relied on the UN article to counter the Applicants’ submission that they would
be homeless upon returning to Grenada:
Prior to her
arrival in Canada the applicant
had moved out of her ex common-law’s house to avoid the physical and mental
abuse inflicted by him and his parents. She moved into her mother’s house. The
applicant states that the house has now been destroyed by Hurricane Ivan. Documentary
evidence indicates that houses are being rebuilt in Grenada. Various initiatives were introduced to assist the victims of
hurricane Ivan. According to an article titled “Grenada Rebuilds After the
Hurricane” and published by the UN Chronicle the immediate post-hurricane
response saw the deployment of a UN disaster assessment and coordination team
to Grenada. A number of priority recovery and development projects were
implemented including shelter restoration.
[15]
This was a crucial part of the Applicants’
H&C application and it was entirely speculative for the Officer to use this
article to disregard the Applicants’ submission that they would have no place
to stay upon return to Grenada because the principle applicant’s mother’s house
had been destroyed. As the Applicants’ counsel points out, it is worth noting
that the same article mentions that, out of the 10, 000 houses needed to be
rebuilt, “only 23 had been rebuilt with another 50 under reconstruction,
leaving several thousands of people still in temporary shelters or deplorable
conditions, dependant on the assistance of public aid.”
[16]
Further, with regard to the argument that the
article was publicly available and therefore did not need to be disclosed, I
would mention that there are thousands of publications released by the UN every
year and that there was no way for the Applicants to be aware that an outdated
publication would play an integral role in assessing their fears of
homelessness and the hardship flowing from it. This is particularly acute in an
H&C application where the emphasis is not solely, as it is the case for a
PRRA, on country conditions, as an H&C application depends on several
factors.
[17]
The Respondent relied heavily on Latifi,
supra, for the proposition that there was no need to disclose this article. I
note that in that case, the officer’s determinations of hardship were based,
inter alia, on the lack of any connection between the country conditions
and the personalized hardship faced by the applicant. This is not the situation
in the present case. The availability of shelter was a crucial
issue and therefore, contrary to Latifi, supra, there was a strong
connection between the country conditions and the situation of the Applicants.
[18]
I find that the Officer did breach the duty of
fairness owed to the Applicants by relying on an outdated archived article
without providing the Applicants with an opportunity to refute this
evidence.
CONCLUSION
[19]
The application for judicial review is therefore
allowed, the decision of the PRAA Officer is set aside and the matter is
referred back to a different officer for re-determination. Because of this
finding I do not need to answer the other issues raised in this application.
There is no question for certification.
JUDGMENT
The application for judicial
review is allowed. The decision of the PRAA Officer is set aside and the matter
is referred back to a different officer for re-determination.
“Danièle Tremblay-Lamer”
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