Date: 20110627
Docket: IMM-6626-10
Citation: 2011
FC 779
Ottawa, Ontario, June 27, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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MANSUR MANGRU
CARLEEN NADIRA HERNANDEZ
NICHOLAS MANGRU
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act), for judicial review of a
decision of a pre-removal risk assessment officer (the officer), dated October
13, 2010, wherein the officer refused the applicants’ application under
subsection 25(1) of the Act to have their application for permanent residence
processed from within Canada on humanitarian and compassionate (H&C)
grounds.
[2]
The applicants request that the decision be set aside and the
claim remitted for redetermination by a different officer.
Background
[3]
Mansur
Mangru (the principal applicant) and his wife, Carleen Nadira Hernandez, are
citizens of Guyana of Indo-Guyanese ethnicity who arrived in Canada in 1999 and claimed
refugee protection in 2001.
[4]
The
applicants were accompanied by their one year old son at the time. They have
since had another son and daughter in Canada.
[5]
The
applicants’ refugee claims were denied in 2003. They submitted an application
for permanent residence on H&C grounds in March 2005.
Officer’s Decision
[6]
The
officer declined to exercise her discretion under subsection 25(1) of the Act for
the following reasons.
[7]
The
officer noted that the applicants fear ethnic violence in Guyana and that the
principal applicant had been threatened in Guyana by
Afro-Guyanese men. The officer also acknowledged the beating of the female
applicant’s step-brother and the murder of her father. The officer considered
the documentary evidence on crime and violence in Guyana and found
that while crime remains an issue, the government has declared crime a top
priority and taken measures towards improvement. The officer concluded that the
applicants would not face unusual, undeserved or disproportionate hardship.
[8]
The
officer then assessed the applicants’ level of establishment and integration
into the community. She favourably considered the applicants’ employment
history as well as their community involvement, volunteer work at their church
and their charitable contributions. Further, the officer favourably noted that
the applicants had housed a relative suffering from developmental issues. The
officer noted the applicants’ good civil record and acknowledged letters of
support from friends, family and community members. The officer recognized that
the applicants purchased a home but found that they did so while under a
removal order. The officer found that the applicants’ prolonged stay in Canada of over ten
years has been within their control and she concluded that the requirement to
sell their home and sever ties to the community did not amount to unusual,
undeserved or disproportionate hardship.
[9]
The
officer also assessed the best interests of the children. She acknowledged that
the applicants have three children, two of which are Canadian citizens. The
officer found that with respect to the Canadian born children, the applicants
have an aunt and uncle and cousins in Canada and it would be the applicants’
decision whether the children remain in Canada or leave
with their parents. The officer noted the older children’s school records and
their desire to remain in Canada. The officer found that it would be a
hardship for the children to start a new life in Guyana as they have
little connection to that country. However, she found that the basic amenities
would be provided for and the government is responsive to children’s rights and
welfare. She also found that they have been exposed to Guyanese culture through
their family and that they have a grandmother and aunts who can help with
adjustment to life in Guyana. The officer concluded that relocating to Guyana would not
have a negative impact on the children that would amount to unusual, undeserved
or disproportionate hardship.
Issues
[10]
The
parties agree that the standard of review for the findings of an officer
deciding an H&C application involve determinations of mixed fact and law
and are generally reviewed on the reasonableness standard.
[11]
The
applicants submitted the following additional issues for consideration:
1. Did the officer err
in law in her assessment of the best interests of the applicants’ children by
relying on the so called “option” of the applicants to leave the children in Canada with their
family members or leave Canada with the children and by applying the
wrong standard?
2. Did the officer err
in law in her assessment of the hardship the applicants would face if removed
to Guyana? More specifically,
is the decision inconsistent with the documentary evidence presented?
3. Did the officer err
in law in her assessment of the establishment of the applicants?
4. Ought the decision
be set aside due to the principle of comity given that there is no significant
difference between this decision and the previous one that was set aside?
Applicants’ Written Submissions
[12]
The
applicants argue that the officer erred in her assessment of the best interests
of the applicants’ children because she failed to properly assess the impact
that removal from Canada would have on these children and relied instead on the
“option” to leave the children in Canada with their family
members. They further submit that the officer erred in law in applying the
unusual, undeserved and disproportionate hardship test while assessing the best
interests of the children.
[13]
The
applicants also contend that the officer erred in her assessment of the
hardship they would face if removed to Guyana and that
this assessment is not consistent with the documentary evidence regarding
ethnic divisions and ethnic conflict in Guyana. They argue
that the officer did not consider the issue of extortion or the potential for
abduction of the children.
[14]
Further,
the applicants submit that the officer failed to make a reasoned assessment
regarding the applicants’ establishment. The officer did not balance the
positive considerations of establishment. In addition, the applicants argue
that their establishment was not completely within their control as found by
the officer. Citizenship and Immigration Canada took more than five years to
decide the H&C application and in that time, the applicants reasonably
continued to establish themselves.
[15]
Finally,
the applicants submit that the Court must give weight to the decision of Madam
Justice Elizabeth Heneghan in the judicial review of the first H&C
decision, as the second decision is so similar that it cannot be distinguished.
Respondent’s Written Submissions
[16]
The
respondent emphasizes that the best interests of the children are not
determinative of an H&C application and should be weighed against the other
factors. The respondent argues that the officer in this case was alert, alive
and sensitive to the interests of the children. The officer was aware that the
children would be removed with their parents and she engaged in a detailed
analysis of the effect on the children of returning to Guyana. This
analysis included consideration of the protection of their right in Guyana and the
situation of crime. The respondent also submits that although the officer used
the words “unusual and undeserved or disproportionate hardship”, this does not
demonstrate that she applied the wrong test since the substance of the analysis
was correct.
[17]
The
respondent argues that the officer reasonably assessed the degree of the
applicants’ establishment in Canada. This included noting the applicants’ employment and the
development of family and personal relationships. However, the officer
reasonably found that these factors do not amount to undue, undeserved or
disproportionate hardship not anticipated by the Act. This is particularly
true, according to the respondent, because the applicants’ establishment in Canada was a result of their
prolonged stay which was completely within their control.
[18]
Further,
the respondent submits that the officer’s conclusions on risk were reasonable.
There was extensive evidence before the officer to allow her to conclude that
despite the problem of crime in Guyana, the applicants would have recourse to the
police and state. The documentary evidence did not show that Indo-Guyanese were
disproportionately the victims of crime and the applicants did not show that
the violence faced by their family members was ethnically motivated. It was
open to the officer to conclude that the applicants would face only a
generalized situation of crime.
[19]
Finally,
the respondent submits that the first and second H&C decisions are in fact
distinct and that this Court should independently consider the applications and
render its own decision.
Analysis and Decision
[20]
Issue
1
Did the officer err in law
in her assessment of the best interests of the applicants’ children by relying
on the so called “option” of the applicants to leave the children in Canada
with their family members or leave Canada with the
children and by applying the wrong standard?
I agree with the respondent
that the second H&C decision is distinguishable from the first and should
be assessed separately.
[21]
That
said, for the following reasons, I find that the officer’s assessment of the
best interests of the children in the H&C decision before me was
inadequate.
[22]
Primarily,
the error in the officer’s decision is the application of the wrong test in
both form and substance to the analysis of the best interests of the children.
[23]
The
officer found that while the children would experience hardship in starting a
new life in Guyana, this did
not rise to the level of unusual and undeserved or disproportionate hardship.
[24]
However,
the Federal Court of Appeal and this Court have held that it is an error in law
to incorporate such a threshold in the analysis of the best interests of the
children. Mr. Justice Robert Barnes held in Arulraj v Canada (Minister of
Citizenship and Immigration), 2006 FC 529 at paragraph 14 that:
There is simply no legal basis for
incorporating a burden of irreparable harm into the consideration of the best
interests of the children. There is nothing in the applicable Guidelines
(Inland Processing 5, H & C Applications (IP5 Guidelines)) to support such
an approach, at least insofar as the interests of children are to be taken into
account. The similar terms found in the IP5 Guidelines of "unusual",
"undeserved" or "disproportionate" are used in the context of
considering an applicant's H & C interests in staying in Canada and not having to apply for
landing from abroad. It is an error to incorporate such threshold standards
into the exercise of that aspect of the H & C discretion which requires
that the interests of the children be weighed. This point is made in Hawthorne v. Canada (Minister of Citizenship
& Immigration)
(2002), [2003] 2 F.C. 555, 2002 FCA 475 (Fed. C.A.) at para. 9 where Justice Robert Décary
said "that the concept of 'undeserved hardship' is ill-suited when
assessing the hardship on innocent children. Children will rarely, if ever, be
deserving of any hardship".
[25]
Further,
it is clear that the officer not only described the test for analyzing the best
interests of the children incorrectly, but, in fact, assessed their interests
as such.
[26]
The
officer did not provide a full assessment of the effect on the children of
being removed from Canada to Guyana. Rather, she minimized the impact on the
children indicating that the government protects the rights of children in Guyana and their
basic needs would be met.
[27]
While
the respondent is correct to note that the best interests of the children is
one factor to be weighed against the others in assessing H&C
considerations, this did not occur in the decision before me. As the Federal
Court of Appeal held in Hawthorne v Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, in all but rare cases, the
best interests of the children favour non-removal. This factor is then weighed
against the other factors such as public policy considerations. The officer’s
application of the unusual, undeserved of disproportionate hardship threshold
permeates her analysis of the best interests of the children and results in an
inappropriate conclusion implying that the best interests of the children
favour the removal of the applicants. This conclusion led to an omission of any
weighing of the interests of the children against the other factors favouring
removal.
[28]
The
application of the wrong test in form and substance to the analysis of the best
interests of the children was an
incorrect and unreasonable exercise of the officer's discretion.
[29]
I
would therefore allow the application for judicial review and remit the matter
to a different officer for redetermination.
[30]
Because of my finding on this
issue, I need not deal with the remaining issues.
[31]
Neither party wished to submit a
proposed serious question of general importance for my consideration for
certification.
JUDGMENT
[32]
IT IS
ORDERED that the
application for judicial review is allowed and the matter is referred to a
different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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25. (1) The Minister must, on
request of a foreign national in Canada who is inadmissible or who does not
meet the requirements of this Act, and may, 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 obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
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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,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger;
il peut lui octroyer le statut de résident permanent ou lever tout ou partie
des critères et obligations applicables, s’il estime que des considérations
d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de
l’intérêt supérieur de l’enfant directement touché.
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