Date: 20091103
Docket: IMM-1044-09
Citation: 2009 FC 1125
Ottawa, Ontario, November 3,
2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PREMNAUTH PREMNAUTH
NALENE PREMNAUTH, and
ANDENA PREMNAUTH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the negative decision of an Immigration Officer (Officer), dated February 6,
2009 (Decision), which refused the Applicants’ application for permanent
residence within Canada on humanitarian or compassionate grounds pursuant to
section 25(1) of the Act.
BACKGROUND
[2]
The
Applicants are a husband and wife, and their daughter. They are citizens of Guyana. They came
to Canada from Guyana and claimed
refugee status in 2002. Their claim was based on attacks and threats
experienced by Premnauth, the Principal Applicant, in the course of his work.
An oral hearing took place before the Refugee Protection Division (RPD) on
April 28, 2004. The RPD rendered a negative decision on June 18, 2004, finding
that state protection was available to the Applicants in Guyana. The Applicants
say they did not file an application for leave and judicial review of the RPD
decision because their counsel at the time did not advise them of this
possibility. The Applicants retained the same counsel to file an H&C
application in 2004, which was not filed until 2007.
[3]
In
2007, the Applicants filed a PRRA application with different counsel. This
application was refused on January 21, 2009, and their application for leave
and judicial review is in progress in Court File IMM-1039-09.
[4]
The
Applicants then retained their current counsel and filed further submissions
and evidence pertaining to their 2007 H&C application. The Applicants’
H&C application was based on their establishment in Canada and the hardship
they would experience if returned to Guyana. The H&C
application was rejected on February 9, 2009.
DECISION UNDER REVIEW
[5]
The
negative H&C Decision determined that the Applicants would not suffer
unusual and undeserved or disproportionate hardship if they returned to Guyana to file
their application for permanent residence.
[6]
The
Officer in this instance is the same officer who considered the Applicants’
PRRA application. The Officer distinguishes between the H&C application and
the PRRA application by determining that the Applicants’ risk in a section
25(1) application is considered in the context of hardship.
[7]
The
Officer accepts the Applicants’ account that Premnauth, the Principal
Applicant, was a truck driver who was assaulted by criminals when he refused to
follow their orders to deliver a package. When he went to report this incident
at the local police station, he found bandits shooting at the police. Premnauth
returned to the police station to report the incident, but was informed by the
police that they were unable to investigate due to their limited means. The
Applicant later received numerous threatening phone calls.
[8]
In
addition to the story recounted by the Applicant, the Officer considered the country
conditions in Guyana. The Officer
noted that crime, corruption, and racial tensions are rampant in Guyana. However, she
found that the Applicants had not proven this risk to be personal.
[9]
The
Officer conducted independent research into the country conditions of Guyana and found
that the government had adopted numerous measures to combat crime and
corruption.
[10]
The
Officer recognized that the Applicants have maintained steady employment in Canada. They have
been financially successful and have established their own business. The
Officer noted the Applicants’ financial independence but found that “the
applicants have received due process in the refugee program and therefore a
measure of establishment and integration is expected.” The Officer found that
the Applicants had not shown that they could not achieve similar financial
success upon returning to Guyana.
[11]
The
Officer determined that the risk of loss of assets is common to all who are in Canada without
permanent resident status. Furthermore, the Applicants assumed this risk when
they chose to buy assets prior to obtaining status.
[12]
The
Officer was not unconvinced that the Applicants’ stay in Canada was due to
“circumstances beyond their control,” since they could have left Canada after
the denial of their 2004 refugee claim.
[13]
The
Officer acknowledged the letters of support provided by the Applicant’s family
and friends. She also noted the existence of close family in Canada, including
the Female Applicant’s mother who depends on the Applicants for transportation
and support.
[14]
The
Officer found that the Applicants had already left family and friends when
leaving Guyana. Consequently,
they had “already experienced the emotions surrounding familial separation.”
[15]
The
Officer recognized that the Applicants had made many friends in Canada, but was
not convinced that similar relationships could not be established in Guyana. As such,
she did not believe that the Applicants would experience unusual and undeserved
or disproportionate hardship by severing their community and employment ties in
Canada.
ISSUES
[16]
The
Applicant submits the following issues on this application:
1.
Whether
the Officer incorrectly conflated the legal tests for PRRA and H&C
applications, and so ignored evidence of risk and associated hardship;
2.
Whether
the Officer rendered an unreasonable determination and breached natural justice
with respect to the hardship to Nalene Premnauth’s mother;
3.
Whether
the Officer failed to assess the Applicants’ establishment or, alternatively,
unreasonably characterized the Applicants’ establishment as insufficient;
4.
Whether
the Officer rendered an unreasonable decision and applied the wrong legal test
by rejecting the hardship of the Applicants as being “not beyond their
control.”
STATUTORY PROVISIONS
[17]
The following provision of the Act is applicable in these
proceedings:
|
Humanitarian and compassionate
considerations
25. (1)
The Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or on request of a foreign national outside
Canada, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
Séjour pour motif
d’ordre humanitaire
25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit
de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa
propre initiative ou sur demande d’un étranger se trouvant hors du Canada,
étudier le cas de cet étranger et peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger
— compte tenu de l’intérêt supérieur de l’enfant directement touché — ou
l’intérêt public le justifient.
|
STANDARD OF REVIEW
[18]
In Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, the Supreme Court of Canada recognized that,
although the reasonableness simpliciter and patent unreasonableness standards
are theoretically different, "the analytical problems that arise in trying
to apply the different standards undercut any conceptual usefulness created by
the inherently greater flexibility of having multiple standards of review"
(Dunsmuir at paragraph 44). Consequently, the
Supreme Court of Canada held that the two reasonableness standards should be
collapsed into a single form of "reasonableness" review.
[19]
The
Supreme Court of Canada in Dunsmuir also held that
the standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[20]
The
question of whether an officer applied the correct test in assessing risk in an
H&C application is a question of law, and is reviewable on the standard of
correctness: Zambrano v. Canada (Minister of Citizenship and Immigration),
2008 FC 481. Accordingly,
when deciding whether the Officer conflated the legal tests for the PRRA and
H&C applications, the appropriate standard of review is correctness.
[21]
In
reviewing the Officer’s application of the legal test to the facts of the
present case, the proper standard is reasonableness. See Dunsmuir at paragraph 164.
[22]
A
standard of correctness is the appropriate standard for the review of issues involving
procedural fairness and natural justice. See Lak v. Canada Minister of Citizenship and Immigration, 2007 FC 350 at paragraphs 5 and 6. As such, in
considering whether the Officer breached procedural fairness in her consideration
of the hardship experienced by the Applicants’ mother, the appropriate standard
is one of correctness.
[23]
The
last two issues of this case will be examined on a standard of reasonableness,
as they are discretionary decisions based on the particular facts of the case: Dunsmuir
at paragraph 51. Accordingly, a standard of reasonableness is appropriate in
considering whether the Officer erred in determining the Applicants’
establishment in Canada, and in considering whether or not the
Applicants’ hardship was beyond their control.
[24]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] 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. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARGUMENTS
The Applicants
[25]
The
Applicants submit that the Officer incorrectly fused the legal tests for the
PRRA and the H&C applications. This resulted in an insufficient
consideration of the Applicants’ risk and related hardship. The Applicants say
they established an evidential basis for both an individual and a generalized
risk, and both of these risks must be assessed for a reasonable H&C result.
The Applicants’ individual risk is based on the past assaults and threats
experienced by the Principal Applicant and the continued threats to him. The
Applicants’ general risk is demonstrated by the Applicants’ fear of the volume
of crime in Guyana. This risk
is exacerbated by racial tensions.
General risk
[26]
The
Officer failed to consider the general risk the Applicants would face upon
their return to Guyana. Instead, the Officer demanded that this risk
be individualized as required by a PRRA. The Applicants contend that exposure
to generalized risk may fulfill the requirements for an exemption under 25(1).
The Officer erred by failing to adequately assess this risk. While poor country
conditions may not be a determinative factor in an H&C application, they
may still be a relevant factor to consider. See Mooker v. Canada (Minister of
Citizenship and Immigration), 2008 FC 518.
[27]
The
Officer acknowledged that “crime and corruption is rampant in Guyana.” Consequently,
the Applicants submit the Officer should have considered whether exposure to
rampant crime constitutes an unusual and undeserved or disproportionate
hardship.
Individualized
risk
[28]
The Applicants’ fear
of returning to Guyana is based on the ongoing threats they
face. The Officer dismissed this risk because of a recognition that Guyana has implemented initiatives to reduce crime.
[29]
The Applicants
contend that a finding of state protection was not sufficient to counter the
hardship they would face upon return to Guyana. The Officer erred by denying the
H&C application without considering whether the Applicants’ fear constitutes
an unusual and undeserved or disproportionate hardship.
[30]
The Applicants rely
on Pacia v. Canada (Minister of Citizenship and Immigration), 2008 FC
804, which determined that a finding of state protection does not absolve an officer
of the duty to determine whether an applicant faces unusual and undeserved or
disproportionate hardship. In the case at hand, the Officer made a finding of
state protection and ended the analysis at this point. Based on Pacia, this
constitutes a legal error.
State
Protection
[31]
The Officer’s finding
of state protection did not address the Applicants’ individualized risk. The
Applicants contend that state protection is a “function of the risk feared” and
must be applied to their personalized risk. R.M.P v. Canada (Minister of Citizenship and Immigration), 2009 FC 83 at paragraph 21) (Pech)
determined that in the context of the threat faced by an applicant, “no amount
of police protection may be able to stop this Colonel from his fanatical and
psychopathic pursuit of the applicant” (Pech at paragraph 32). Accordingly, the Officer must undertake an
examination of the extent to which the available protection will actually
reduce the risk of harm, and hence hardship, to the Applicants.
[32]
The
Officer’s determination of state protection was made without regard to the
totality of the evidence. For instance, the Officer cited and relied on the
United States Department of State Report for Guyana for 2007 which concluded
that police corruption, human rights abuses, and unlawful killing by the police
remain significant problems in Guyana. The Applicants submit that the Officer
ignored their evidence of risk and associated hardship and focused instead on
the few pieces of evidence that supported her conclusion.
Breach of
procedural fairness and natural justice
[33]
In
determining an H&C application, an officer must consider not only an applicant’s
hardship, but also the hardship that may arise for any other affected person. See,
for example, Malekzai v. Canada Minister of Citizenship and Immigration,
2004 FC 1099 and Fernandez v. Canada Minister of Citizenship and Immigration,
2005 FC 899. Moreover, the IP 5 — Immigrant Applications in
Canada made on Humanitarian or Compassionate Grounds Manual (IP5
Guidelines) states
at section 12.4 that an H&C officer ought to consider the “impact on family
members…if the applicant is removed.”
[34]
The
Applicants provided evidence that both they and their extended family would
experience serious hardship upon their departure due to emotional and social
inter-dependence. Specifically, the Applicants were concerned about seeing
their mother, a Canadian citizen with numerous illnesses, on a regular basis.
[35]
The
Officer erred by improperly relying on the Applicants’ previous separation from
family in Guyana to mitigate
the impact of this new separation. It was an error to determine that the
Applicants’ previous separation from their family in Guyana would
minimize the hardships experienced by the Applicants in separating from their
Canadian family. This finding was based on the erroneous presumption that the
nature and importance of the Applicants’ relationships in Guyana are equal to
those in Canada.
[36]
Similar
reasoning has been rejected by the Federal Court in Ebonka v. Canada
Minister of Citizenship and Immigration, 2009 FC 80. In Ebonka, the
officer discounted the hardship created by the separation of the applicant from
his wife in Canada because he had previously been separated from his children
and his mother in Nigeria. At paragraph 25 of this decision, the Court
found as follows:
The officer’s reliance on the applicant’s
separation from these children that he barely knows, and from his mother, a
relationship about which there is no evidence on the record, as the basis for
his finding that the separation from his wife would not pose unusual hardship
was not reasonable, and shows that the officer did not give regard to the
particular circumstances of the applicant.
The Applicants submit that the improper
reasoning used in the Ebonka case is similar to the Officer’s reasoning
in this case.
Credibility
[37]
The
Principal Applicant provided an unchallenged affidavit that explained the care that
the Applicants provide for their mother. The Applicants submit that without
this care she would be forced to move into a nursing home. Nevertheless, the
Officer concluded that insufficient evidence had been presented that the
Applicants’ mother required the Applicants’ assistance to care for her.
[38]
The
Applicants contend that the Officer’s finding of “insufficient evidence” in
this instance was a finding of credibility. The Officer’s conclusion had no
evidentiary basis and was contradicted by their evidence. The Applicants
contend that an interview was required because credibility was determined to be
a central issue in this case. As such, the Officer’s failure to provide an
interview constituted a breach of procedural fairness and natural justice. See,
for example, Shafi v. Canada Minister of Citizenship and Immigration,
2005 FC 714 and Khan v. University of Ottawa (1997), 34 O.R. (3d) 535.
No ability to
return
[39]
The
Applicants submit that the Officer’s Decision was made on the assumption that
they would be permitted to return to Canada. However, they are
subject to deportation orders and they say they will not be allowed to return
to Canada. The Applicants cite and rely on paragraph 64 of Malekzai in which
Justice O’Keefe held that: “where the officer’s justification for refusing an
application is grounded in the possibility of certain events, those events must
not merely be illusory.” The Applicants contend that the possibility of their returning
to Canada is illusory,
and is not realistic on the evidence before the Officer.
[40]
Even
if they are allowed to return, the Applicants submit that the Officer acted
unreasonably in forcing them to leave Canada. The Applicants contend that it is
futile to remove them from Canada only to return them if their application
is approved. Such a procedure “fails to take into account the pain, dislocation
and emotional toil entailed in any removal” (Benjamin v. Canada (Minister of
Citizenship and Immigration), 2006 FC 582).
Improper
assessment of the Applicants’ establishment
[41]
The
Applicants submit that they meet the establishment criteria set out in the IP5
Guidelines. They say they demonstrated a high degree of establishment,
including employment, the presence of close family, and financial
establishment. Regardless, the Officer found their establishment to be
insufficient.
[42]
The
Applicants rely on Jamrich v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 804, in which an officer
unreasonably minimized the establishment factor. The Applicants compare the
facts of Jamrich to their own circumstances and contend that their
establishment is at least equal to, if not greater than, that established in Jamrich.
Incorrect
consideration
[43]
The
Officer erred in rejecting the Applicants’ hardships by determining that they
were not undeserved. The Officer focused on the Applicants’ decision to enter
and remain in Canada to dismiss their establishment in Canada as
illegitimate.
[44]
The
Officer committed an error in dismissing the Applicants’ hardship as being
justifiable because it was not “undeserved.” Even if the hardship was not
“undeserved,” it could still be “disproportionate.”
[45]
Moreover,
an officer must still consider establishment even where it is acquired without
status. See, for instance, Laban v. Canada Minister of Citizenship and
Immigration, 2008 FC 661. The Officer erroneously focused on whether or
not the hardship to the Applicants was “deserved,” and consequently ignored
evidence that supported a positive finding.
[46]
The
Applicants also say that the Officer’s assessment of the Applicants deserving
the hardship ignores the fact that they came to Canada due to
factors beyond their control, namely, the threats they were experiencing in Guyana. The
Applicants then remained in Canada because of these ongoing threats, as well as
to care for their ailing mother.
The Respondent
[47]
The
Respondent says that the Officer’s assessment of the H&C application
included a proper examination of the Applicants’ risk. The risk in this
instance was considered in the context of the amount of hardship it would
cause.
[48]
The
Applicants did not address hardship in their written H&C submissions, but included
instead a portion of the Principal Applicant’s affidavit. Consequently, the
evidence before the Officer did not demonstrate why the Applicants’ alleged risks
met the threshold of being unusual and undeserved or disproportionate.
[49]
It
is the Applicants’ onus to establish the facts on which their claim rests, and
an Officer need not make determinations on anything beyond the material
provided by an applicant. See, for example, Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38 at paragraphs 8-9, Oyinloye v.
Canada (Minister of Citizenship and Immigration, 2007
FC 582 at
paragraphs 12-13, and Raji v. Canada (Minister of Citizenship and
Immigration), 2007 FC 653.
Generalized
risk
[50]
The
Officer noted the Applicants’ submission of a common fear shared by people of
East Indian descent in Guyana. However, she was not satisfied that the
risks alleged by the Applicants were personalized. The Federal Court has held
that the allegations of risk made within an H&C application must relate to
a risk that is personal to an applicant: Lalane v. Canada (Minister of Citizenship
and Immigration, 2009 FC 6 at paragraphs 1, 38 and Rahman v. Canada
(Minister of Citizenship and Immigration), 2009 FC 138 at paragraph 39. It was
the Applicants’ burden to establish the link between the evidence of risk and
their personal situation.
[51]
The
Federal Court determined in Ramotar v. Canada (Minister of
Citizenship and Immigration), 2009 FC 362, that a personalized risk is
necessary in the instance of Indo-Guyanese returning to Guyana:
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…Guyana.
[52]
The
Applicants failed to establish the link necessary to demonstrate a personalized
risk based on the high crime rate, corruption and ethnic tensions that exist in
Guyana.
Individualized
risk
[53]
In
her assessment, the Officer considered the Applicants’ circumstances, including
the Principal Applicant’s assault, the police’s inability to investigate, and
the threatening phone calls.
[54]
The
Applicants presented the Officer with risk allegations from the Principal
Applicant’s PIF, but made no submission as to why their risk constituted
unusual and undeserved or disproportionate hardship. It is the Applicants’ onus
to establish the correlation between their risk and hardship.
State
Protection
[55]
The
Respondent also submits that the Officer was correct in her consideration of
state protection. In fact, it was the Applicants who raised the concern of
state protection. The Applicants did so by submitting that their fear was based
on a lack of police and government protection. The Officer’s consideration of state
protection was reasonable because it mitigated the Applicants’ alleged
hardship.
[56]
The
Officer noted the existing efforts to mitigate crime and corruption in Guyana. In her
assessment, the Officer found sufficient evidence to support a finding of
adequate state protection. The Officer was correct in her approach to this
assessment - adequacy is the appropriate threshold to consider for state
protection. See Mendez v. Canada (Minister of Citizenship and Immigration),
2008 FC 584 at paragraph 23, Flores v. Canada (Minister of Citizenship and
Immigration), 2008 FC 723 at paragraphs 10-11, and Carillo v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 94.
Hardship to
mother-in-law
[57]
The
Respondent submits that the Officer considered the hardship to the Principal Applicant’s
mother-in-law. The Officer noted that the Applicants supply transportation for
their mother to appointments and errands. However, the Applicants did not show
that their mother would be unable to arrange alternate transportation.
No
credibility determination
[58]
The
Officer’s finding of insufficient evidence regarding the mother-in-law’s
hardship did not constitute a negative assessment of the Applicants’
credibility. As was determined in Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067 at paragraphs 16, 21-27, the
assessment of sufficiency of evidence and credibility are distinct and
separate. Accordingly, assigning weight to evidence should not be mistaken for
an assessment of credibility.
[59]
The
Applicants did not provide sufficient indication or evidence as to why their
mother would experience hardship. According to Ferguson at paragraph
27, “[i]f there is no corroboration, then it may be unnecessary to assess its
credibility as its weight will not meet the legal burden of proving the fact on
the balance of probabilities.” In such situations, a decision maker is not
making a credibility assessment of the person giving the evidence, but is
simply finding that the evidence itself does not have sufficient probative
value (Ferguson at paragraph
27).
Reasonable
assessment of establishment
[60]
The
Officer conducted a thorough assessment of the Applicants’ evidence of their
establishment in Canada and determined that their degree of
establishment did not reach the threshold to justify a statutory exemption.
[61]
The
Applicants feel that they have met all the issues in the establishment
component of an H&C application. However, this does not entitle them to a
positive outcome. Establishment is just one of the factors to be considered in
an H&C assessment. As long as the Officer sufficiently considered all
factors relevant to an H&C application, it is not the Court’s role to
interfere with the weight the Officer chose to assign to these factors: Legault
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at
paragraph 11.
[62]
In
this case, the Officer properly weighed the establishment factor along with the
other factors necessary to make a reasonable decision.
Reasons are
not beyond their control
[63]
The
Officer did not err in her consideration of the Applicants’ control of their
circumstances. The Respondent cites and relies on paragraph 5.21 of IP5 Guidelines
which states that “positive consideration may be warranted when the applicant
has been in Canada for a significant period of time due to circumstances beyond
the applicant’s control.” According to the Guidelines, circumstances beyond an applicant’s
control can combine with a significant degree of establishment in Canada to result in
a favourable H&C decision. However, this is a high threshold to meet.
[64]
The
Applicants have been in Canada since 2004, despite a finding that they would
not be at risk upon return to Guyana. Accordingly, the Officer identified
properly that the Applicants chose to remain in Canada.
[65]
Moreover,
the Federal Court has determined that applicants who establish themselves while
remaining illegally in Canada for numerous years have a heavier onus to prove
that they should be given exceptional relief: Chau v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 107 at paragraphs 16-17. The Applicants face this
heightened onus due to their illegal presence in Canada.
ANALYSIS
[66]
The
Applicants have raised many issues in an attempt to demonstrate that the
Decision is unreasonable and that the H&C process was procedurally unfair.
In the end, the grounds they raise depend upon a particular reading of the
Decision that, in my view, is not supported by close inspection and a
consideration of the reasons as a whole.
Incorrectly
Conflating Tests for PRRA and H&C
[67]
The
Applicants assert that exposure to generalized risk can be a hardship even if
it might exclude the Applicants under section 96 and 97. I agree. However, the
Officer does not neglect to consider whether generalized risk is an unusual and
undeserved or disproportionate hardship for the Applicants. She merely says
that the evidence submitted by counsel for the Applicants “does not satisfy me
that the risks are personal.” This occurs in a context where the Officer is
examining “their personal circumstances and the evidence before [her] to
determine if the risk justifies an exemption under humanitarian and
compassionate considerations.”
[68]
The
personal circumstances of the Applicants (and the risks they have faced in the
past) are addressed in detail. The Officer is merely saying that the additional
evidence adduced by counsel deals with “general country conditions.” The
hardships that the Applicants will face as a result of these general conditions
are not ignored or discounted. Rather, the Officer is simply characterizing the
evidence for the purpose of deciding whether those general hardships can
“amount to unusual and undeserved or disproportionate hardship” for the
Applicants.
[69]
The
Officer also goes into considerable detail about what the Applicants have faced
in the past and acknowledges their evidence that “people of East Indian decent
live in constant fear for their lives from the Indo Guyanese.” The Officer does
not ignore or discount these factors in considering hardship, or because state
protection exists. What is more, the Officer goes into detail that indicates she
considered the effectiveness of state protection, an issue that was also
examined in the Applicants’ refugee and PRRA claims.
[70]
I
see nothing in the Decision to suggest that the Officer has conflated the tests
and has not fully considered the personal circumstances of the Applicants in
the context of the general risks and hardships faced by people of East Indian decent
in Guyana.
Unreasonable
Determination vs. Breach of Natural Justice
[71]
The
Applicants argue that their previous separation from family in Guyana does not
mean that they will not suffer hardship if they leave Canada. This
concern grows out of the Officer’s comment that “[w]hile I acknowledge the
applicants have family in Canada, I note that they left family and friends when
they decided to flee Guyana and come to Canada. As such, I find the
applicants have already experienced the emotions surrounding familial
separation.”
[72]
I
do not read this as saying that previous separation from family in Guyana means that
there will not be hardship on leaving Canada. The Officer fully acknowledges
the hardship the Applicants will face on leaving Canada, but points
out that they have faced family separation before and have shown that they can cope
with it.
[73]
It
is also clear from a reading of the Decision as a whole that the Officer does
not make a credibility finding. In particular, the Applicants point to the
uncontradicted affidavit from Premnauth stating that the Applicants provide
regular care and companionship to Nalene’s mother and that the mother depends
on them for this care, failing which she will likely have to move into a
nursing home.
[74]
The
affidavit in question provides the following evidence:
My wife’s mother, Parbattie Ramootar,
sixty (66) years old, is also a Canadian citizen. She lives close to us in
Scarborough and is dependent on us in many ways. As a diabetic we drive her to
her many doctor’s appointments and to purchase her medications. We also take
her to run her errands such as taking her grocery shopping. If we were made to
leave Canada, I verily believe that my
mother-in-law would have to move to a nursing home, which our family can not
afford. In addition, because she is so close to my wife, there will be a great
degree of emotional hardship between the families if our separation is effected
by CBSA. My mother in law is getting older and if we are removed from this
country, I don’t think that we will ever be able to come back to see her if her
health worsens and she passes away.
[75]
The
Officer addresses this evidence as follows:
The principal applicant states that the
mother-in-law is dependent upon him and his wife in that they drive her to
doctor’s appointments and to purchase medications. However, I note the
applicants have provided insufficient evidence to establish that the principal
applicant’s mother-in-law could not attend her appointments and purchase her
medication in a different manner.
[76]
The
Officer also addressed the emotional aspects of separation.
[77]
As
the Respondent points out, this Court has outlined a principled approach to the
issue of credibility versus sufficiency of evidence. See Ferguson at
paragraphs 16, 21-27.
[78]
In
his affidavit, the Principal Applicant presented evidence of what he believes
and thinks will happen to his mother-in-law. Those beliefs are never questioned
by the Officer. They are subjective states of mind that the Officer does not
doubt. But subjective opinions are not enough. The Officer also requires the
evidence to demonstrate whether the Principal Applicant’s beliefs can be
objectively verified. The credibility of the Principal Applicant is not
questioned. The Officer simply points out that there is insufficient objective
evidence on the situation of the mother to demonstrate the full extent of the
dependency.
[79]
In
my view, no credibility finding was made in this case. The concern was
sufficiency of evidence. No interview was required and there was no breach of
procedural fairness.
Ability to
Return to Canada
[80]
The
Applicants complain that the Officer based her Decision upon a conclusion that
the Applicants could apply to return to Canada from Guyana, and the evidence
demonstrated that this is not a realistic possibility for the Applicants.
[81]
In
their submissions to the Officer, the Applicants pointed out that it was their
view that they would not qualify for permanent residence under the Act.
[82]
They
also pointed out that the mother is dependent upon them. Their point is that it
would be highly unlikely that they would be allowed to return to visit the
mother because they will be barred for life as persons subject to deportation
orders unless they are able to obtain an Authorization to Return from the
Minister pursuant to section 52 of the Act.
[83]
The
Applicants now say that the possibility of their returning to Canada is
illusory, and they point the Court to a line of cases where the Court has found
a reviewable error because of certain assumptions that Officers have made about
the right to return. See Maleksai v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1099; Arulraj v. Canada
(Minister of Citizenship and Immigration), 2006 FC 529; Shchegolevich v.
Canada (Minister of
Citizenship and Immigration) 2008 FC 527; and Raposo v. Canada
(Minister of Citizenship and Immigration), 2005 FC 118.
[84]
I
have reviewed the cases carefully and it seems to me that the Officer in this
case did not make the same kind of finding that underlies such decisions. For
example, in Malekzai, Justice O’Keefe dealt with a situation where “the
H&C Officer did not take into consideration the potential inadmissibility
of the applicant when assessing the best interest of the applicant’s
Canadian-born child.”
[85]
In
the present case, the equivalent dependent would be the Applicant’s mother. But
in relation to the mother, the Applicants’ ability to return was not an issue
because the Officer found that there was insufficient evidence to support the
dependency and, in particular, “to establish that the principal applicant’s
mother-in-law could not attend her appointments and purchase her medication in
a different manner.”
[86]
This
is not a case where the Officer based her Decision upon an assumption that the
Applicants would be able to get back into Canada to look
after their mother.
[87]
The
Applicants also urged the Officer to consider their view that, if sent back to
Guyana, they would not be able to return to Canada because they
cannot qualify under any program that will lead to permanent residence.
[88]
However,
the Applicants do not seem to be aware that an H&C exemption does not grant
them permanent residence. The Officer was simply deciding whether the
Applicants should apply in the usual way outside of Canada, or whether they
should be allowed to apply from within Canada. The Officer
was not called upon to decide whether they will qualify or not for permanent
residence.
[89]
I
see nothing in the Decision to suggest that the Officer assumed that the Applicants
could return to Canada, either permanently or temporarily. She merely found
that they should apply in the usual way.
Establishment
Issues
[90]
It
is clear that the Officer considered all aspects of the Applicants’
establishment in Canada and found that she was “not satisfied that
their establishment is to such a degree that if compelled to apply in the
normal manner it would result in their experiencing unusual and undeserved or
disproportionate hardship.”
[91]
Essentially,
on this point, I have to agree with the Respondent that the Applicants are
really asking the Court to reweigh the evidence and reach a different
conclusion from the Officer that is favourable to them. That is not the role of
the Court on review.
[92]
I
do not think it was inappropriate for the Officer to take into account the fact
that the Applicants chose to stay in Canada: “[t]he Applicants could have left
after their refugee claim was denied in June 2004, almost five years ago.” The
Applicants may well have had good reasons for staying in Canada, but this
does not mean that they remained in Canada due to circumstances beyond their
control.
Conclusions
[93]
I
can see that the situation the Applicants find themselves in is very difficult
because of what they face in Guyana and because of their establishment and
family situation in Canada. I can also see that it is possible to take issue
and disagree with the Officer’s conclusions. It seems to me that a decision in
favour of the Applicants would have been reasonable. However, I cannot say that
the Officer’s Decision was incorrect or unreasonable. I have carefully reviewed
the concerns and issues raised, and although I have great sympathy for the
Applicants, I cannot say that the Decision falls outside the range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
Judge
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