Date: 20110207
Docket: IMM-2473-10
Citation: 2011 FC 135
Ottawa, Ontario, February 7, 2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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KEISHA MOLEICA PAUL
KALANJI ATONIO PAUL
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision dated March 16, 2010 refusing
an application for permanent residency from within Canada on humanitarian and
compassionate grounds pursuant to section 25 of the Immigration and Refugee
Protection Act, SC 2001,
c 27 (the Act). The application for humanitarian and compassionate relief
(H&C application) was refused by the Immigration Officer (the Officer).
Factual Background
[2]
The
principal applicant, Ms. Keisha Moleica Paul, is a 30-year
old citizen of Saint Vincent and the Grenadines (Saint
Vincent). The minor applicant, Kalanji Atonio Paul, is the nine-year old son of Ms. Paul. Ms. Paul has one
other child, a two-year old daughter who was
born in Canada.
[3]
From
2000 to 2002, Ms. Paul was involved in a relationship with Mr. Desbert Scott,
the minor applicant’s father. The relationship became violent and Ms. Paul was
abused both emotionally and physically.
[4]
After
a particularly violent incident in May 2002 which left her hospitalized, Ms.
Paul decided to leave Mr. Scott. She left her son with a family member and went
into hiding in the village of Canouan. Ms. Paul arrived in Canada on June 11,
2002.
[5]
Four
years later, the minor applicant joined his mother in Canada in June
2006. On July 24, 2006, the applicants filed a refugee claim on the basis of
the abuse by Mr. Scott.
[6]
On
October 10, 2008, the Immigration and Refugee Board (the Board) rejected the
refugee claim on the basis that the principal applicant had not availed herself
of state protection and had not demonstrated that she could not have remained
in Canouan. The Board found that Ms. Paul had been abused by Mr. Scott.
[7]
On
May 27, 2009, the applicants filed their H&C application. They requested a
Pre-Removal Risk Assessment (PRRA) on August 27, 2009 and made additional
submissions regarding risk on September 14, 2009.
The Impugned Decision
[8]
On
March 16, 2010, the Officer rejected both the PRRA and the H&C application.
The Officer rejected the H&C application, finding that it would not cause
the applicants unusual, undeserved or disproportionate hardship to apply for
permanent residency from outside of Canada.
[9]
The
Officer adopted the Board’s finding that the principal applicant had been
abused by Mr. Scott. The Officer further adopted the Board’s findings that
state protection was available and that Ms. Paul had not explained why she
could not remain in Canouan and thus escape Mr. Scott’s abuse.
[10]
The
Officer considered the applicants’ establishment in Canada, noting that
Ms. Paul had been here for eight years and her son for four years. The Officer
noted that Ms. Paul’s son is attending school in Canada and that Ms.
Paul had successfully completed French classes.
[11]
The
Officer found that Ms. Paul had failed to demonstrate steady employment during
her eight years in Canada and also failed to demonstrate financial
independence. The Officer considered the best interests of both of Ms. Paul’s
children, that is, the minor applicant and the Canadian child.
[12]
The
Officer also observed that Ms. Paul’s son spent the first five years of his
life in Saint Vincent and still has family in Saint Vincent. With respect to
the Canadian child’s relationship with her father - who is also a Canadian
citizen - the Officer concluded that the applicants had failed to establish
that the child had an ongoing relationship with her father. The Officer also
found that there was insufficient evidence to establish that Ms. Paul was
receiving child support payments from the child’s father.
Removal Order
[13]
At
the time of the Officer’s decision, the applicants were subject to a removal
order. Immigration authorities were notified when the H&C application was
refused, and a warrant of arrest was issued against the applicants because they
failed to appear to their removal.
Relevant legislation
[14]
Subsection
25(1) of the Immigration and Refugee Protection Act reads as follows:
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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.
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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.
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Standard of Review
[15]
The
applicants argue, inter alia, that the Officer applied the incorrect
test in assessing their H&C application. In Montivero v Canada
(Minister of Citizenship and Immigration), 2008 FC
720 [2008] FCJ No 907, at para 6, this Court determined that the test
applied to an H&C application is reviewable on a correctness standard:
[6] My colleague Justice
Eleanor R. Dawson recently determined that the selection of the appropriate
test in the context of an H&C application should be assessed by the Court
on a correctness standard: Zambrano v. Canada (Minister of
Citizenship and Immigration), 2008 FC
481, [2008]
F.C.J. No. 601. In coming to this conclusion, she noted the
importance of holding Officers to the tests prescribed by Parliament. This
aptly describes a central role of the Court in its exercise of judicial review
and I agree that the correctness standard should be applied here.
[16]
As
for the standard of review applicable to decisions on H&C applications, the
Court determined that the applicable standard is reasonableness (see Kisana
v Canada (Minister of
Citizenship and Immigration) 2009 FCA
189, [2009]
FCJ No 713, at para 18. Thus, the Court is not concerned with whether
the Officer’s decision was correct, but rather “whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”(Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190, at para 47).
Analysis
Merits of the
application – “clean hands” issue
[17]
Prior
to examining the merits of the application for judicial review, the Court must
first consider whether the applicants have come to the Court with unclean hands
as a result of the warrant for the principal applicant’s arrest.
[18]
At
the hearing before this Court, a new piece of evidence was filed by counsel for
the applicants - with the consent of counsel for the respondent - confirming
that the principal applicant presented herself voluntarily at a Canada Border
Services Agency’s office on January 24, 2011 and was released for removal
process. The removal order has been issued and indicates that the removal from Canada is scheduled
for February 27, 2011. The principal applicant requested that the Court examine
the merits of the application for judicial review in light of this additional
evidence.
[19]
The
issue as to whether an arrest warrant for failure to comply with a removal
order can constitute unclean hands on the part of an applicant was addressed in
Wong
v Canada (Minister of Citizenship and Immigration) 2010 FC 569,
[2010]
FCJ No 668)
[20]
Although
the clean hands doctrine can give rise to situations in which the Court will
decline to hear the merits of an application, the Court is of the view that the
facts of this case are not analogous to the facts in Wong and can
therefore be distinguished.
[21]
In
Wong, the applicant was avoiding immigration authorities and went into
hiding after he was ordered to leave Canada. Mr. Wong had been
personally served with a notice requiring him to attend a meeting with
immigration authorities and, following his failure to attend that meeting,
several phone calls to him remained unanswered.
[22]
In
the case at bar, there is no evidence that the applicants have gone into hiding
or that the authorities unsuccessfully attempted to contact Ms. Paul. There is
no evidence on record to suggest that Ms. Paul and her son have excluded themselves
from the immigration system in the same manner as the applicant in Wong.
[23]
Also,
the Court notes that Wong dealt with an applicant whose refugee claims
were denied on the basis of credibility, whereas the present applicants were
found to be credible.
[24]
This
is not to say that the conduct of Ms. Paul is blameless. Ms. Paul is clearly
guilty of misconduct. This misconduct was admitted by her counsel but the fact
that Ms. Paul’s misconduct was repaired, albeit lately – one day before the
hearing on judicial review – was also emphasized.
[25]
Hence,
after considering and balancing all of the above factors, the Court concludes
that it should exercise its discretion in Ms. Paul’s favour. The Court will
therefore consider the merits of the application for judicial review.
Issues
[26]
The
applicants have raised four issues in their submissions: whether the Officer
applied the incorrect test in assessing their application, whether the Officer
erred in making credibility findings without providing the applicants with a
chance to respond, whether the Officer ignored relevant documentary evidence,
and whether the Officer properly assessed the best interests of the children.
Analysis
[27]
The
Court is of the opinion that the Officer applied the incorrect test in
assessing the H&C application.
[28]
The
applicants claim that, as a result of the abuse by Mr. Scott, they would be
subject to unusual, undeserved or disproportionate hardship if they are forced
to apply for permanent resident status from Saint Vincent. In
assessing this claim, the Officer adopted several of the Board’s findings:
[…] Comme la SPR, je ne remets pas en
doute les allégations de la requérante voulant qu’elle ait été victime de
violence conjugale. Toutefois, je constate qu’elle ne soumet pas avec sa DRP
d’éléments de preuve à l’appui des risques invoqués.
Dans la présente demande, l’absence de
preuve au dossier démontrant que les autorités de son pays ne lui offrent pas
de recours pour assurer sa sécurité et que sa vie serait toujours menacée après
près de huit ans passés au Canada est pris en considération de même que les
remarques qui suivent. Je note que la requérante affirme dans ses soumissions
avoir trouvé refuge à Canouan, un endroit où son ex-conjoint ne l’a pas
retrouvée: « As I was hiding in Canouan. I made sure that he could not find me, finally I managed to
leave Saint-Vincent for Canada on the 11th of June
2002 ». Ainsi
donc, selon les dires de la requérante, son ex-conjoint ne l’a pas retrouvée à [sic]
endroit. Or, la requérante n’explique pas pourquoi, elle n’est pas restée
Canouan alors qu’elle y avait trouvé refuge. […]
(Tribunal Record, p. 5)
[29]
Although
it was certainly open to the Officer to adopt the Board’s findings about the
risk to the applicants, the Officer was still required to assess that risk on
the threshold applicable to H&C applications: that of unusual, undeserved
or disproportionate hardship. The Officer did not apply the facts of the
application to this threshold, but rather looked at whether the applicants had
established that they would be subject to personal risk on their return.
[30]
The
Officer set out the correct test for assessing an H&C application at the
outset of the reasons and again in the conclusion. However, the Court is not
satisfied that the Officer actually applied this test.
[31]
Recognizing
that the applicants are failed refugee claimants, the Officer correctly
assessed the risk they would face if they are returned to Saint Vincent. The Officer
was entitled to adopt the Board’s findings about risk, in particular about the
availability of state protection and about the principal applicant’s time in
Canouan.
[32]
However,
the Officer failed to assess whether that risk resulted in unusual, undeserved
or disproportionate hardship. The reasoning in Ramsawak v Canada (Minister of
Citizenship and Immigration), 2009 FC 636, [2009] FCJ No 1387, at paras 26
and 27, applies to the case at bar:
[26] This Court has emphasized, in a number of cases,
the importance of assessing an H&C claim through the lens of
"hardship", as distinct from that of "risk" applied in
relation to a PRRA: see, for example, Uddin v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.
No. 460; Serda v. Canada
(Minister of Citizenship and Immigration), 2006 FC 356;
Sha'er v. Canada (Minister of
Citizenship and Immigration), 2007 FC 231;
Pinter v. Canada (Minister of
Citizenship and Immigration), 2005 FC 296;
Ramirez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1404.
[27] The mere fact that the officer
stated the proper test at the outset of his reasons does not indicate, of
course, that the officer properly assessed the evidence. To come to the
contrary conclusion would be to privilege form over substance. Of course, there
is nothing wrong with an officer relying on the same set of factual findings in
assessing an H&C and a PRRA application, provided these facts are analysed
through the proper prism relevant to each application. This is precisely where
the officer went wrong: he appears to have parroted the findings made in his
PRRA decision, which was released the same day.
[33]
In
the case at bar, the Officer committed the same error. The Officer seems to
have conflated the H&C application with the PRRA. Indeed, the Officer found
that the applicants had failed to demonstrate hardship because of the availability
of state protection and because Ms. Paul could return to Canouan, where she took
refuge before coming to Canada. Those conclusions are mirrored in the Officer’s
reasons for refusing their PRRA.
[34]
The
Officer correctly considered the risk, which remains relevant in assessing the
H&C application (Ramsawak). However, the Court finds that the Officer
failed to go beyond the issue of risk and consider whether that risk gives rise
to unusual, undeserved or disproportionate hardship. The section entitled
“Risque personnalisé de retour pour la requérante” is telling. Although, it could be
argued that the title is not fatal, it reveals nonetheless the lens through
which the Officer assessed the evidence i.e., “risk” instead of “hardship”.
[35]
The
Court finds that the Officer applied the incorrect legal test in assessing the
H&C application. The Officer’s failure to examine hardship in assessing the
H&C application is thus an error that warrants this Court’s intervention. Having
decided in favour of the applicant with respect to this argument, there is no
need to address the other arguments.
[36]
The
application for judicial review will be allowed. No question was proposed for
certification and there is none in this case.
JUDGMENT
THIS COURT ADJUDGES
that:
1.
The
application for judicial review is allowed;
2.
The
Officer’s decision is set aside;
3.
The
matter is referred back to be determined by a different Officer; and
4.
No
question of general importance is certified.
“Richard
Boivin”
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