|
Federal Court
|
|
Cour fédérale
|
Date: 20090924
Docket: IMM-1532-09
Citation: 2009
FC 964
Ottawa, Ontario,
September 24, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
BALWAAN CHAND
CAMEL CHAND
CAYNOR CHAND
JAVIER CHAND
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Balwaan
Chand, his wife and two children fled Guyana
in order to seek refuge here. They were the victims of a home invasion, there
were two incidents in nearby villages where more than a score were murdered,
crime is widespread and they may be targeted more than others because of their
Indo-Guyanese ethnicity and relative wealth. Although they were found to be
credible, their refugee claim was dismissed and their pre-removal risk
assessment was negative.
[2]
They
applied for permanent residence from within Canada on humanitarian and compassionate (H&C)
grounds. This is an exception to the Regulations which require applicants to apply
from outside Canada. However, pursuant to s. 25
of the Immigration and Refugee Protection Act the Minister may exempt
applicants from any requirement on H&C grounds, and must take the best
interests of children directly affected into consideration. Their application
was denied. This is the judicial review thereof.
[3]
The Chands
submit that there were three reviewable errors. The best interests of the
children (the two born in Guyana and the one subsequently born in Canada) were
not properly taken into account; the psychological report by a Dr. Pilowski
with respect to both the children and their parents was either ignored,
dismissed or considered on irrelevant grounds and the Officer assessed their
likely situation should they return to Guyana on the basis of risk, rather than
hardship.
[4]
Although
it is quite understandable in the circumstances that the Chands would prefer to
remain in Canada and while there is no reason to believe that they would not
make a positive contribution to our society, I cannot find that the Officer’s
decision that there would be no unusual, undeserved or disproportionate
hardship if the Chands were to apply for a permanent resident visa from outside
Canada to be unreasonable. Their Canadian-born child is a citizen and, of
course, is not subject to a removal order. Nor do I find that the Officer was
not, to use the words of Madam Justice L’Heureux-Dubé in Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817, “alert, alive and sensitive” to the best interests of all
three children.
[5]
The Chands
have been here two years. Their elder two children began their schooling in Guyana. The infant child’s best
interests are obviously to remain with his parents.
[6]
In
considering the best interests of the children, the Officer not only took into
account Dr. Pilowski’s opinion but also country conditions. He accepted that
both the children and the parents might suffer trauma if returned to Guyana and are acutely afraid about
their future. However, the point the officer made, which was quite reasonable,
is that there are a great many victims of crime in Guyana and if, as country reports indicate,
abuses are rampant in the schools, the Chands would not find themselves in an
unusual situation. They should not be in a better position because they left Guyana, while others had to stay
behind. As stated in Ramatar v. Canada (Minister of Citizenship and
Immigration),
2009 FC 362,[2009] F.C.J. No. 472, it is not enough to be a likely victim of
generalized crime. There must be something more.
[7]
The
Officer whose decision is in question also carried out the pre-removal risk
assessment. Counsel submits that while the PRRA is determined by risk, the
issue in an H&C application is hardship. While there may well be a risk
factor, the risk need not be as elevated as one which would justify a
favourable PRRA. There is ample authority for that proposition in the abstract.
Mr. Justice de Montigny clearly explained the distinction in Ramirez v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1404, 304 F.T.R. 136 at paragraph 41 and following.
[8]
In this
case the Officer did balance establishment in Canada against hardship in Guyana, not risk. While another
officer might have come to a different conclusion on the same facts, the
standard of review is reasonableness. There may be more than one reasonable
decision. This decision was not unreasonable, and the Supreme Court has warned
against the tendency to substitute one’s opinion for that of the decision maker
(Canada (Director of Investigation and Research, Competition Act) v. Southam
Inc., [1997] 1 S.C.R. 748 at para. 80).
ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There is
no serious question of general importance to certify.
“Sean Harrington”
Email this Content