Date: 20110408
Docket: IMM-3941-10
Citation: 2011 FC 441
Ottawa, Ontario, April 8,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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PARMANAND RAMAISCHRAND,
SALOME RAMAISCHRAND,
SASKIA SANDYA RAMAISCHRAND
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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]
Mr.
Ramaischrand and his family seek judicial review of a negative decision made on
June 22, 2010 by an Immigration Officer of Citizenship and Immigration Canada. The
Officer found that the applicants’ circumstances did not warrant an exemption
from the requirement to apply for permanent residence from outside of Canada. For the
reasons that follow, this application is dismissed.
[2]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).
BACKGROUND
[3]
Mr.
Ramaischrand, his wife and daughter are from Guyana and came to Canada as visitors
in 2002. They sought refugee protection in July 2003 and their claim was
refused in October 2004. An application to this Court for judicial review of
the Refugee Protection Division’s negative decision was dismissed in July 2005.
They filed their application for permanent residence on humanitarian and
compassionate (“H&C”) grounds in November 2005. The family has relatives
here, the adults are both employed and involved in the community and their
child is in school. Mr. Ramaischrand has three daughters from a previous
relationship who continue to reside in Guyana.
DECISION UNDER REVIEW:
[4]
After
considering the applicants’ relationships, the level of their establishment in
Canada, the difficulties that would arise for the applicant child if returned
to Guyana and the struggle in re-establishing themselves financially in their
home country, the Officer concluded that separation from friends and family is
a result of becoming a resident in another country, that the applicant child
could transition into academic life in Guyana with the support of her parents
and that she and Mr. Ramaischrand would benefit from being re-united with his
three daughters (the applicant child’s half-sisters). The Officer found that
there was no evidence to suggest the child’s welfare would be compromised or
that the applicants could not, with time, re-establish themselves in the
Guyanese community. The Officer also held that they would not be personally
affected by levels of crime in Guyana.
ISSUES:
[5]
As
framed by the parties, the issues are whether the Officer erred:
1. in concluding that the serious
criminal activity in Guyana did not amount to unusual and
undeserved or disproportionate hardship;
2. in analyzing establishment;
3. in failing to obtain a risk
assessment;
4. in considering the best
interests of the child.
ANALYSIS
Standard of
Review
[6]
As
noted by Justice Robert Mainville, as he then was, in Medina v. Canada (Minister of
Citizenship and Immigration), 2010 FC 504 at paragraph 23:
In
judicial review proceedings concerning discretionary decisions of administrative
bodies, the standard to apply is usually one of reasonableness: "[w]here
the question is one of fact, discretion or
policy, deference will usually apply automatically (Mossop,
[1993] 1 S.C.R. 554
at pp. 599-600; Dr. Q, [2003] 1 S.C.R. 226 at
para. 29; Suresh, [2002] 1 S.C.R. 3 at
paras. 29-30)": Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
at para. 53 (Emphasis added).
The reasonableness standard applies here: Ahmad v. Canada (Minister of Citizenship and Immigration), 2008 FC 646, at
paras. 10 to 13.
Did the
Officer err in concluding that the serious criminal activity in Guyana did not
amount to unusual and undeserved or disproportionate hardship?
[7]
H&C
applications must present a particular risk that is personalized to the
applicant: Lalane v. Canada (Minister of
Citizenship and Immigration), 2009 FC 6 at paras. 1 and 38. The
applicant is charged with the burden of demonstrating such risk. In the case at
bar, the following answer was provided on the H&C application in response
to the question, What excessive hardship will you suffer if you have to
submit your application at a visa office outside Canada as required
by law?
I have no place to live if I have to go
back. I will have to get a job and this will be difficult. We lost our
business and to start another would not be feasable [sic] and all the crime
against business in the country it will be too dangerous. I will have to start
life all over and this will create a lot of hardship for me and my family. The
situation is worse off now than before.
[8]
This
is the only reference made to crime in the entire record. The applicants have
alleged that the Officer failed to consider the “country condition
documentation which confirms the lack of police protection and lawlessness”. However,
no such documentation is included in the record. It was only in their
application for judicial review that the applicants included evidence of this
kind. Instead, the H&C application focused on establishment and the best
interests of the child. As such, and based on the lack of evidence, it cannot
be said that the Officer erred in concluding that the applicants would not face
unusual and undeserved or disproportionate hardship by reason of the crime
levels in Guyana.
[9]
Even
if generalized risk could be proven, this is not enough to succeed in an
H&C claim: Paul v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1300 at para. 8. As noted by Justice Shore in Lalane,
above, at para. 38, there must be a link between evidence supporting
generalized risk and that of personalized risk. Otherwise, “every H&C
application made by a national of a country with problems would have to be
assessed positively, regardless of the individual's personal situation, and
this is not the aim and objective of an H&C application”. The Officer therefore
reasonably concluded that the applicants did not establish that their
circumstances indicate personal risk.
Did the Officer err in
analyzing establishment?
[10]
The
applicants refer to Amer v. Canada (Minister of
Citizenship and Immigration), 2009 FC 713, 81 Imm. L.R. (3d) 278,
relying on Jamrich v. Canada (Minister of Citizenship and Immigration),
2003 FCT 804 (F.C.T.D.), and Raudales v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 385, for the proposition that
the Officer failed to consider the degree of the applicants’ establishment in Canada. In those
cases, the Officer made a determination regarding establishment without
analyzing the applicant’s particular circumstances. Those decisions can be
distinguished from the instant case. Here the Officer clearly examined the
applicants’ employment, volunteer background, educational and vocational
training, as well as their efforts with various community groups. As such, the
Officer carefully reviewed the significant evidence of establishment of this
particular family: Singh v. Canada, 2009 FC 1062 at para. 11. No error
was made.
Did the Officer err in failing
to obtain a risk assessment?
[11]
The
applicants maintain that because a risk was alleged, the Officer disregarded Citizenship
and Immigration Canada’s Guidelines and Procedures (“Guidelines”) in not
sending their file for a separate pre-removal risk assessment. Such Guidelines
do not have the force of law and are not binding on officers: Legault v.
Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 at para. 20.
[12]
The
facts of this case are not similar to those considered by the Court in John
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 85, relied upon by the applicants
in support of the proposition that the Officer ought to have taken the guidelines into
consideration. In John, the factors that engaged the relevant guidelines
in that case were clearly set out in the application. That was not done here. The
applicants alleged hardship with respect to finding work and re-integrating
into the Guyanese community. They did not advance any personalized risk to
their safety. Thus, there was no need for the Officer to obtain a risk
assessment.
Did the Officer err in
considering the best interests of the child?
[13]
The
Officer thoroughly considered the best interests of the applicant child as well
as the best interests of the principal applicants’ daughters in Guyana. The Officer
acknowledged the difficulty in transitioning back to life in Guyana but noted
the applicant child would have the continued support of her parents if returned
to Guyana. She would
also have the opportunity to know her three half-sisters who still reside
there. Although it was recognized that the principal applicant would be “better
able” to provide financial assistance to his daughters in Guyana by working in
Canada, the Officer found there was insufficient evidence to suggest he could
not continue to provide support to them upon return. His daughters would also
benefit from his physical presence.
[14]
The
applicants rely on Owusu v. Canada, 2003 FCT 94, aff’d 2004 FCA 38, [2004] 2 F.C.R. 635; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and De
Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436,
asserting that the Officer failed to meaningfully consider the best interests
of the child in light of international human rights instruments, namely that
the child would be at risk if she were to return to Guyana. However, as
previously noted, the applicants have failed to demonstrate that the child
would be at a particularized risk of danger. Indeed, their only reference to
crime was in one small paragraph located in a supplementary information form.
[15]
Furthermore,
in Owusu, although the Officer had failed to consider the best interests
of the child, the application was dismissed by the Federal Court because Mr.
Owusu failed to provide any evidence to support his best interests of
the child claim. The Federal Court of Appeal upheld that finding and specified at
para. 5 that “an applicant has the burden of adducing proof of any claim on
which the H&C application relies. Hence, if an applicant provides no
evidence to support the claim, the officer may conclude that it is baseless”. The same
applies here. If the applicants expected the Officer to consider the impact of
crime in Guyana on the
applicants, they should have included that evidence in the record.
[16]
The
applicants’ reliance on E.B. v. Canada (Minister of
Citizenship and Immigration), 2011 FC 110 is also misplaced. In that
case, the applicant children had suffered trauma from seeing a vicious attack
on their mother in Guyana and from their fear of returning to that
country. The officer failed to take into consideration the impact of a return
on their psychological well-being. There is no evidence of a comparable nature
in this case.
[17]
The
Officer reasonably concluded that there was insufficient evidence to
demonstrate the applicant child’s welfare would be compromised if returned to
her country of origin, accompanied by her parents who would be in a position to
provide her with the necessary support and love to integrate into that
community.
[18]
No
serious questions of general importance were proposed.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application for
judicial review is dismissed. No questions are certified.
“Richard
G. Mosley”
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