Date: 20110201
Docket: IMM-3466-10
Citation: 2011 FC 110
Ottawa, Ontario, February 1, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ESTARDAI BEHARRY
JONATHAN NEVILLE BEHARRY
MOHANI BUDHAN
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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]
Estardai Beharry and
her two children based their application for permanent residence on
humanitarian
and compassionate grounds on several factors. These included the best interests
of the children, and the hardship that Ms. Beharry and the children would face
if they were compelled to return to Guyana.
[2]
The family’s H&C
application was rejected by a PRRA Officer, who found that they had not
established that they would face unusual, undeserved or disproportionate
hardship if they were required to return to Guyana
in order to apply for permanent residence. For the reasons that follow, I am
of the view that this decision was unreasonable.
Background
[3]
Ms. Beharry and her
family fled Guyana after being subjected to a brutal home
invasion, during which Ms. Beharry was beaten and raped in front of her two
young children. Her injuries were sufficiently severe as to require her
hospitalization for several days after the attack. The family sought refugee
protection on their arrival in Canada. While the Refugee Protection Division
of the Immigration and Refugee Board accepted that the attack on Ms. Beharry
and her family had occurred, it found that adequate state protection was
available to the family in Guyana.
The
Officer’s Analysis of the Best Interests of the Children
[4]
Ms. Beharry’s
daughter was 16 years old and her son was 12 at the time that the family’s
H&C application was assessed. The children had been in Canada since 2002, and by all accounts were doing very well in
school.
[5]
The family’s various
H&C submissions described the on-going trauma that the children have
suffered as a result of having witnessed the vicious attack on their mother,
and the children’s fear of returning to the country where the attack occurred.
The submissions also described the ways in which the children had adapted to
the Canadian school system, and how they would suffer from being separated from
family and friends in Canada.
[6]
The Officer
determined that requiring the children to return to a country where English is
spoken, in the company of their mother, would not negatively affect their best
interests.
[7]
In coming to this
conclusion, the Officer acknowledged that “the children will be upset and
disappointed in having to return to Guyana”, but reiterated that the children would
be cared for by their mother. The Officer also recognized that the children
would be returning to an environment “with different economic and social
aspects”. However, in the Officer’s view, this was not “an exceptional
situation” or “unusual circumstance to justify a positive exemption”. The
Officer also found that there was insufficient evidence to show that the
children would not have access to basic amenities in Guyana.
[8]
The Officer also
discussed the fact that the children could remain in contact with family
members by telephone, finding that insufficient evidence had been provided to
show that the separation of the children from their family in Canada “will result in unusual, undeserved or disproportionate
hardship”.
[9]
The Officer concluded
the analysis of the children’s best interests by stating that it had not been
shown that requiring that family to return to Guyana
“would have a significant negative impact to [the] children that would amount
to unusual and undeserved or disproportionate hardship”.
[10]
There are several
problems with the Officer’s analysis.
[11]
The first is the test
or tests that the Officer appears to have used in assessing the children’s best
interests. At various points in the analysis the Officer discusses the best
interests of the children in terms of whether the children would suffer
“unusual and undeserved and disproportionate hardship” if they were required to
return to Guyana. However, the unusual, undeserved, or
disproportionate hardship test has no place in the best interests of the child
analysis: see Arulraj v. Canada (MCI), 2006 FC 529, [2006] F.C.J. No.
672 (QL) and Hawthorne v. Canada (MCI), 2002 FCA 475, 297 N.R. 187, at
para. 9.
[12]
I am mindful that the
mere use of the words “unusual, undeserved or disproportionate hardship” in a
‘best interests of the child’ analysis does not automatically render an H&C
decision unreasonable. It will be sufficient if it is clear from a reading of
the decision as a whole that the Officer applied the correct test and conducted
a proper analysis: Segura v. Canada (MCI), 2009 FC 894, [2009] F.C.J.
No. 1116 (QL), at para. 29.
[13]
It is not at all
clear that the Officer applied the correct test in this case. In addition to
the repeated use of the term “unusual and undeserved or disproportionate
hardship” in the Officer’s analysis of the best interests of the children, the
Officer also looked at the situation of the children to see if they were in “an
exceptional situation” or “unusual circumstance to justify a positive
exemption”. Neither of these tests is appropriate in a ‘best interests of the
child’ analysis.
[14]
As the Federal Court
of Appeal observed in Hawthorne, immigration officers are presumed to
know that living in Canada can afford many opportunities to a child
that may not be available in the child’s country of origin. The task of the
officer is thus to assess the degree of hardship that is likely to result from
the removal of the child from Canada, and then to balance that hardship against
other factors that might mitigate the consequences of removal: see also Ruiz
v. Canada (Minister of Citizenship and Immigration), 2009 FC 1175, [2009]
F.C.J. No. 1474, at para. 31.
[15]
In other words, the
Officer had to determine whether the children’s best interests, “when weighed
against the other relevant factors, justified an exemption on H&C grounds
so as to allow them to enter Canada”: Kisana v. Canada (MCI), 2009 FCA
189, at para. 38. That is not what happened here.
[16]
I am also concerned
about the failure of the Officer to appreciate or address the family’s
submissions with respect to the impact that returning to Guyana would have for the children’s psychological well-being. The
Officer does refer to the family’s submission that it would be “traumatizing”
for the children to have to return to Guyana. However, the Officer seems to
understand this trauma to relate to need for the children to get used to a new
school system, and to leave their accomplishments in Canada behind.
[17]
The family’s H&C
submissions clearly identified the impact that witnessing the attack on their
mother has had on the children, and their fear of returning to the country
where the attack occurred as factors affecting the children’s best interests.
Nowhere in the analysis does the Officer even mention this concern, let alone
address it. The failure to address such an important factor further renders the
analysis unreasonable.
[18]
In light of my
conclusion on this issue, it is not necessary to address the other issues
raised by the applicants.
Conclusion
[19]
For these reasons,
the application for judicial review is allowed.
Certification
[20]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This application for
judicial review is allowed, and the matter is remitted to a different Officer
for re-determination; and
2.
No serious question
of general importance is certified.
“Anne
Mactavish”
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