Date: 20110809
Docket: IMM-7721-10
Citation: 2011 FC 981
Ontario, Ottawa, August 9, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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KRISTY MELINDA PEARSON
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Applicant
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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, S.C. 2001, c. 27 (Act) for judicial
review of the decision of a Pre-Removal Risk Assessment officer (Officer) of
Citizenship and Immigration Canada (CIC), dated 1 November 2010 (Decision),
which refused the Applicant’s application for permanent residence within Canada
based on humanitarian and compassionate (H&C) grounds.
BACKGROUND
[2]
The
Applicant is a citizen of Australia. She came to Canada as a visitor on 3 November 2006 and began
living with a man with whom she had been having a long-distance relationship
and who is now her common-law spouse. Since her arrival in Canada, the couple has had two
children: Samuel, born August 2007; and Jackson, born November 2008. On 26
January 2010, CIC issued to her an exclusion order, as the Applicant had
remained in Canada for a period longer
than was authorized. On 12 February 2010, the Applicant filed an H&C
application and, on 27 August 2010, an application for a Pre-Removal Risk
Assessment (PRRA).
[3]
The
Applicant alleges that for 21 years prior to her arrival in Canada, she had been subject
to abuse at the hands of her former spouse, Steven Carkeek. They met in 1985.
Within a week, they had moved to a new city within Australia. Shortly thereafter, when Steven began abusing
alcohol and drugs, the Applicant threatened to leave him, at which point he
became enraged and punched a wall. However, as he did not physically abuse her,
the Applicant stayed in the relationship. From then on, the relationship became
cyclical: Steven would abuse the Applicant, physically, sexually or both; she
would leave him or call the police, who would come and arrest him; in time, he
would be released and would return to the Applicant’s home, either to live or
to visit; and the cycle would begin again. During the course of their
relationship, they had four children.
[4]
The
Applicant and her children moved house multiple times in an effort to escape
Steven. Each time, he would find them. The Applicant would call the police.
Steven would be charged and sometimes subjected to an apprehended violence (or
restraining) order, which he routinely ignored. The Applicant estimates that
she called the police approximately 30-40 times. On one such occasion, Steven
assaulted seven police officers and was sent to a maximum security institution.
Upon his release he sought out the Applicant, who had been relocated to another
city to protect her safety and that of her children. He physically and sexually
assaulted her over a period of two days. Court proceedings ensued. The
Applicant appeared as a witness and arrangements were made for her and her
children to join a witness protection program. After Steven was cleared of all
charges, the Applicant claims that she “lost faith in the system” and refused
to participate in the witness protection program. In time, Steven introduced
one of their sons to drugs, and the Applicant reported Steven to the police. He
was charged with drug trafficking and, as part of the investigation, the police
uncovered a “huge” drug trafficking ring. The Applicant asserts that those
involved in the ring now want to kill her.
[5]
In
2005, the Applicant became involved in a long-distance relationship with a
Canadian citizen. In 2006, she fled Australia, travelled to Canada and continued that
relationship. Her four children remained in Australia, the youngest of whom was born in 1992.
The Applicant’s parents, ten siblings and four eldest children currently reside
in Australia.
[6]
On
12 February 2010, the Applicant filed an H&C application based on the
following factors: hardship or sanctions that she would suffer upon return to Australia; her establishment in Canada; the best interests of
her children; and personal/familial ties that would create a hardship if
severed. On 1 November 2010, the Officer released her Decision on that
application. The Officer found that the Applicant had not adduced sufficient
evidence to demonstrate that her personal circumstances, both individually and
cumulatively, were “such that the hardships of not being granted the requested
exemption would be unusual and undeserved or disproportionate, and not
anticipated by the legislation.” On this basis, the application was refused.
This is the Decision under review.
DECISION UNDER REVIEW
[7]
The
Officer noted that a positive H&C decision is an exceptional response to a
particular set of circumstances. The Applicant bears the onus of satisfying the
decision-maker that, by virtue of her personal circumstances, including the
best interests of any child directly affected by the Decision, the hardship of
having to obtain a permanent resident visa from outside Canada would be unusual
and undeserved, or disproportionate. The Officer distinguished these two kinds
of hardship. Unusual and undeserved hardship is a hardship not anticipated by
the Act or Regulations, typically resulting from circumstances beyond an
applicant’s control. Disproportionate hardship is a lower threshold than
“unusual and undeserved” and is hardship that would have a disproportionate
impact on an applicant due to personal circumstances.
[8]
The
Officer also noted that the risk factors cited by the Applicant were the same
ones cited in her PRRA application. However, the H&C assessment involves a
lower threshold of risk than a PRRA assessment. A PRRA assesses persecution:
threat to life; danger of torture; or risk of cruel and unusual treatment or
punishment. An H&C assesses risk and/or non-risk factors in deciding
whether requiring an applicant to obtain a permanent resident visa from outside
Canada would amount to unusual
and undeserved or disproportionate hardship.
[9]
The
Officer found that, if returned to Australia, the Applicant would have state protection and
“avenues of redress” such that she would not suffer unusual and undeserved or
disproportionate hardship. Australia is a parliamentary democracy, in effective control of its
territory and having in place a functioning security force. Although according
to the US DOS Report for 2009 violence against women remains a problem, it is
prohibited by laws that are enforced and there are highly organized and
effective women’s rights organizations at federal, state and local levels. An
Amnesty International report from 2009 stated that government action includes
the establishment of the National Council to Reduce Violence Against Women and
Their Children.
[10]
With
respect to establishment, the Officer found that, although the Applicant had
achieved a level of establishment, she had not “integrated into Canadian
society to the extent that her departure would cause unusual and undeserved, or
disproportionate hardship.” She was financially supported by her husband and
not employed outside the home nor had she been active within social or cultural
communities. Although she has a relationship with her spouse, the Applicant
does not indicate how long they have known each other. Therefore, the evidence
does not show that “severing these ties” would constitute unusual and
undeserved, or disproportionate hardship.
[11]
With
respect to the best interests of the Applicant’s children, the Officer notes
that the youngest two, although Canadian citizens, are also Australian citizens
by virtue of their mother’s citizenship. Although it is in their best interests
to remain with both parents, there is no evidence to suggest that the
Applicant’s spouse could not accompany her to Australia. The application lacks detail regarding
the children’s day-to-day involvement in the community and the nature of
Samuel’s medical treatment and speech therapy. However, the Officer notes that,
in Australia, there is free public
schooling as well as universal medical treatment and pharmaceuticals. Should
the children move to Australia their adjustment should
be minimal and would not amount to unusual and undeserved, or disproportionate
hardship.
[12]
The
Officer concluded that, with the support of her parents, siblings and grown
children, the Applicant could re-establish herself in Australia. Doing so may cause
hardship; however, the evidence does not indicate that it would amount to
unusual and undeserved, or disproportionate hardship, which is the threshold
required to trigger an exercise of discretion on H&C grounds.
ISSUES
[13]
The
Applicant raises the following issues:
i.
Whether
the Officer’s Decision was reasonable;
ii.
Whether
the Officer applied the wrong test in assessing risk as part of the H&C
analysis; and
iii.
Whether
the Officer applied the wrong test in assessing the best interests of the
children.
STATUTORY PROVISIONS
[14]
The
following provisions of the Act are applicable in these proceedings:
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Humanitarian
and compassionate considerations — request of foreign national
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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Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
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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STANDARD OF REVIEW
[15]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9, held that a 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.
[16]
A
humanitarian and compassionate decision is discretionary and dependent on the
facts. The appropriate standard is reasonableness. See Rodriguez
Zambrano v Canada (Minister of Citizenship
and Immigration),
2008 FC 481 [Rodriguez Zambrano] at paragraph 31.
[17]
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.” See Dunsmuir, above, at paragraph 47; and Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only 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.”
[18]
The
second and third issues concern the correctness of the test applied in the
Officer’s assessment of risk and best interest of the children. These are
questions of law, which attract the correctness standard. See Rodriguez
Zambrano, above, at paragraph 30; Osegueda Garcia v Canada (Minister of
Citizenship and Immigration), 2010 FC 677 at paragraph 7; and Khosa,
above, at paragraph 44.
ARGUMENTS
The Applicant
The Decision Was Not
Reasonable
Danger to
the Applicant in Australia
[19]
The
Applicant argues that the Decision is unreasonable, primarily because it
ignores relevant evidence. For example, the Officer does not address in any way
the danger that the Applicant faces as a result of her assistance to Australian
police in uncovering a major drug ring. The Applicant believes that these
people want to kill her and will do so if she returns to Australia.
Assessment
of Establishment
[20]
The
Officer erred in her assessment of the Applicant’s degree of establishment. The
Applicant came to Canada as a victim of domestic
abuse suffering from Post-Traumatic Stress Disorder. Justice Russel Zinn of
this Court, in Ranji v Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FC 521 at paragraphs 19-21, states that section 25 of
the Act requires a tribunal to assess establishment in the context of an
applicant’s personal circumstances. In the instant case, the Officer failed to
do so. When the Applicant’s personal circumstances are considered, her level of
establishment was significant. She has a close and loving relationship with her
common-law husband and two children, which is a strong indicator of her
establishment in Canada. The Officer erred in
disregarding the Applicant’s unique challenges.
Best Interests of the
Children
[21]
Also,
the Officer did not appropriately consider the fact that the Applicant’s spouse
relies on her ability to manage the home, care for the children and provide him
with the physical and emotional support he needs as a disabled person.
Moreover, the children both have special needs. Both are on the autism spectrum
and both suffer from seizures. The Applicant asserts that there is “no way”
that the Applicant’s spouse will be able to care for himself and the children
if she were to return to Australia.
[22]
Further,
it is not an option for the children to return to Australia with the Applicant. Her
former spouse has a history of tracing her whereabouts, physically and sexually
abusing her and disregarding restraining orders. It would be dangerous to introduce
children, especially those requiring ongoing medical treatment and speech
therapy, into such a situation. The Decision concludes that Australia has
adequate medical care to meet the children’s needs, but it is unlikely that the
Applicant will be unable to access it on a regular basis if she is not able to
maintain a stable and secure home environment due to what is likely to be
recurring violence perpetrated by her former spouse.
[23]
Justice
Claire L’Heureux-Dubé, in Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No 39 [Baker]
(QL) at paragraph 75, identified the treatment that a tribunal must give a
child’s best interests. She said:
[F]or the exercise of the discretion to fall within the standard
of reasonableness, the decision-maker should consider children's best interests
as an important factor, give them substantial weight, and be alert, alive and
sensitive to them. That is not to say that children's best interests must
always outweigh other considerations, or that there will not be other reasons
for denying an H & C claim even when children's interests are given this
consideration. However, where the interests of children are minimized, in a
manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s
guidelines, the decision will be unreasonable.
[24]
The
Applicant argues that the Officer’s analysis of the best interests of Samuel
and Jackson does not meet the criteria set out in Baker. The Officer
failed to consider how the disability of the Applicant’s current spouse would
affect his ability to care for these children alone in Canada and how the violent and
persistent behaviour of the Applicant’s former spouse would affect her ability
to care for them alone in Australia.
[25]
The
Applicant further submits that the Officer applied the wrong test in assessing
the children’s best interests. In Arulraj v Canada (Minister of Citizenship
and Immigration), 2006 FC 529, at paragraph 14, Justice Robert Barnes held
that it is a reviewable error to assess the best interest of a child using
tests of unusual, undeserved or disproportionate hardship in the assessment of
a child’s hardship. He stated:
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 and Immigration) [2003] 2 FC 555, 2002 FCA 475 (FCA) 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”.
[26]
However,
it is clear from the Decision that the Officer committed such as error. She
observed:
I
have considered the best interests of all of these children, along with the
personal circumstances of this applicant…. I find that the applicant has not
established that the general consequences of relocating and resettling back to
her home country would have a negative impact on the children which would
amount to unusual and undeserved, or disproportionate hardship.
[27]
The
Court of Appeal in Hawthorne v Canada (Minister of Citizenship and
Immigration), 2002 FCA 475, observed that what is required when conducting
a best interests of the child analysis in an H&C context is an assessment
of the benefit the children would receive if their parent was not removed, in
conjunction with an assessment of the hardship the children would face if their
parent was removed or if the children were to return with that parent. As
addressed above, the Officer failed to consider properly the best interests of
the children and thereby committed a reviewable error.
Test When Assessing
Hardship
[28]
Finally,
the Applicant argues that the Officer failed to assess whether the
circumstances facing the Applicant upon her return to Australia amounted to undue
hardship, even if it did not amount to a risk of persecution or cruel and
unusual punishment. The Officer erred by terminating her analysis after
considering the availability of state protection and an internal flight
alternative. Although she distinguished between the assessment of risk in an
H&C and in a PRRA and acknowledged that different tests should be applied,
her analysis is identical in both assessments and is limited to the assertion
that Australia can provide the Applicant with adequate protection because it is
a democratic state. This analysis fails to assess the effectiveness of the
authorities’ efforts to provide the Applicant with protection. The Applicant
provided ample evidence regarding the futility of attempts to protect her from
her former spouse. Although the Officer accepted the Applicant’s evidence as
reliable and credible, she appears to disregard this evidence in her analysis
of state protection. This renders the Decision unreasonable.
The Respondent
The Decision
Was Reasonable
[29]
The
Respondent submits that the Applicant simply disagrees with the outcome of the application,
which provides no basis for the Court’s intervention. The decision made by an
officer on an H&C application is highly discretionary. An officer’s
decision not to grant an exemption under s. 25(1) takes away no right from an
individual. The onus is on the applicant to adduce evidence concerning the
relevant factors to show that the hardship that would result from a refusal of
the application meets the unusual and undeserved or disproportionate threshold.
[30]
On
the instant case, the Decision was reasonable and based on a thorough review of
the evidentiary record. The Officer applied the proper test in assessing the
hardship and the risk that the Applicant would face with respect to her former
spouse were she to return to Australia and then weighed them against all other factors. Similarly,
she properly assessed the Applicant’s establishment, bearing in mind that the
Applicant had no right to remain in Canada but did so in circumstances not beyond her
control.
[31]
With
respect to the best interests of the children, the Officer properly assessed
them. The Supreme Court of Canada in Baker, above, and the Federal Court of Appeal in Legault
v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 at paragraphs 11-12, clearly
state that these interests do not outweigh all other factors. Provided the
tribunal has adequately assessed this factor, the role of the Court on judicial
review is not to re-examine the weight assigned these interests.
ANALYSIS
[32]
While
I cannot agree with all of the grounds raised by the Applicant (for example, I
do not think the analysis of establishment falls outside the Dunsmuir
range), I am of the view that this Decision is unreasonable and incorrect in
ways that require it to be returned for reconsideration.
[33]
To
begin with, I agree with the Applicant that the Officer commits a legal error
by assuming that the Applicant has to establish that the impact on the children
of her removal and/or reestablishment in Australia would have to amount to usual and undeserved,
or disproportionate hardship:
I
find that the Applicant has not established that the general consequences of
relocating and resettling back to her home country would have a negative impact
on the children which would amount to unusual and undeserved, or
disproportionate hardship.
[34]
Justice
Barnes has dealt with this issue in Arulraj, above, at paragraph 14:
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 and Immigration) [2003] 2 FC 555, 2002 FCA 475 (FCA) 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”.
[35]
The
correct approach to assessing or weighing the best interests of children in
this context is set out in Baker at paragraph 75 and Hawthorne at paragraph 31ff.
[36]
In
addition to this legal error, there are aspects of the Decision that suggest
that the Officer has overlooked the realities of the Applicant’s situation in a
way that renders it unreasonable.
[37]
There
are, generally speaking, adequate protections in Australia for women who are victims of domestic
abuse. However, the evidence in the present case suggests to me that, in the
Applicant’s special circumstances—namely, her former spouse’s extreme behaviour
and his utter disregard for the law—the available state protections have
consistently failed her in the long term. Persistent police and legal
intervention, while well-meaning, has not been successful in containing this
man and in protecting the Applicant from him. The only real protection from his
behaviour is geography.
[38]
The
police in Australia consistently responded
to the Applicant’s requests for help on the 30-40 occasions when she called
them. However, the state protection provided was effective only in the
short-term because the Applicant’s former spouse has refused to abide by
state-imposed sanctions such as restraining orders. State protection need not
be perfect to be adequate, as Justice Carolyn Layden-Stevenson observed in Resulaj
v Canada (Minister of Citizenship and Immigration), 2006 FC 269 at
paragraph 20, but in assessing risk and hardship in this case, the Officer has
neglected to take into account the realities of the situation and whether,
notwithstanding Australia’s state protection apparatus, the Applicant’s
situation is so unusual that she is facing a high degree of risk
notwithstanding the efforts of the state to protect her. In other words, the
reasons stop short at adequate state protection for women and fail to consider
the Applicant’s actual circumstances and the real risk she faces given the
determination of her former spouse to harm her notwithstanding the best efforts
of the state.
[39]
I am
also concerned with how the finding of state protection will impact on the best
interests of the Applicant’s Canadian-born children, Samuel and Jackson, whom
the Officer suggests can accompany the Applicant back to Australia.
[40]
As
can be seen from Document 5, which is the affidavit of the Officer who heard
the H&C application, the Officer did have before her documentary evidence
regarding the health and developmental problems facing these children. The 9
September 2010 letter from Dr. Shih (page 99 of the Applicant’s Record) is
important. Dr. Shih is the boys’ physician. The letter states that Samuel has
behavioural problems, speech problems, developmental delay and “most likely”
Attention Deficit Hyperactivity Disorder. The Officer states in paragraph 8 of
her affidavit that the 9 September 2010 letter from Dr. Shih does not mention
that the children have been diagnosed with autism and that it does not mention
the treatment they are receiving. This is accurate. However, Dr. Shih’s letter
makes it clear that Samuel has problems that require the support and care of
both parents and, even then, the burden of care will be onerous. Also, the 29
July 2010 letter from the Reach Early Intervention Program indicates that the
development of both boys is being monitored by a resource consultant and
support is provided at home. While not a detailed account of the boys’
treatment, I believe this letter indicates that they are being screened and
monitored and receiving regular support for the problems that have been
identified thus far.
[41]
Despite
the absence of a detailed treatment plan, it is clear that these children
require regular access to medical and speech therapy facilities on an ongoing
basis. The Applicant requires a permanent address and a secure, stable home
life in order to accompany her children to these appointments and to care for
them properly. The actions of her former spouse made her past life in Australia chaotic, and she coped
with that chaos by pulling up stakes and moving. She moved about a dozen times
to increasingly smaller and more remote communities, where treatment of the
sort required by these boys is likely unavailable. If she returns to Australia,
she is likely to again be faced with threats and physical and sexual abuse at
the hands of her former spouse—a man who is unhinged enough to break into her
house by climbing through the ceiling—and, in my view, one cannot reasonably
expect her to cope with that while, at the same time, continuing to maintain a
secure home and a regular schedule of medical and therapeutic appointments for
her children. This is so even if her current spouse was to accompany her back
to Australia. In my view, the
problems that await her back in Australia and the impact that they will have on the best
interests of the children are not addressed by the Officer in a realistic or
reasonable way.
[42]
The
Officer suggests that the Applicant’s current spouse could return to Australia with the Applicant and
the children. However, as the Applicant’s Record indicates, he fell off a truck
in the course of his employment and injured his arm and right side and
re-injured his back. The Officer never addresses this point nor does she
address the impact that the spouse’s incapacity will have on his ability to
care for these children, either alone here in Canada or with the Applicant in Australia, where the pressures of
life will be greater.
[43]
In
my view, the Decision has at best minimized the best interests of the children
within the meaning of Baker and, at worst, failed reasonably to address
the impact that living in Australia with their mother, in greater proximity to
her former spouse, will have on them.
[44]
In
conclusion, I do not think that this Decision addresses the evidence in a
realistic way. The Officer knows the language to use as a framework for her Decision
but she overlooks, in my view, important evidentiary and contextual factors
that should have been taken into account when considering whether the Applicant
faced the required degree of hardship. In addition, her approach to analyzing
the best interests of the two children was not only unreasonable in the ways
described but also incorrect.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application is allowed. The Decision is quashed and set aside and the matter is
returned for reconsideration by a different officer.
2.
There
is no question for certification.
“James Russell”
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