Docket: IMM-7131-10
Citation: 2011 FC 1110
Ottawa, Ontario, September 27,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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GALENE ANESTA CAINE
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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 for judicial review of a decision of an Immigration Officer
(Officer), dated November 9, 2010. The Officer denied an application for
permanent residence on humanitarian and compassionate (H&C) grounds under
section 25(1) of the Immigration and Refugee Protection Act, RS 2001, c
27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicant, Galene Anesta Caine, is a citizen of St. Vincent and the
Grenadines
(St. Vincent). On March 1, 1997, she arrived in Canada at 17 years
old. She left St. Vincent because she was raped repeatedly by her Aunt’s
husband and had not received any assistance from family members or the authorities.
She has never made a refugee claim and asserts that she was unaware of that
process.
[4]
In
2007, the Applicant was admitted to a battered women’s shelter where she was
advised to make an application for H&C grounds. She made the application
without any assistance and was refused in November 2007.
[5]
Since
coming to Canada, the Applicant has had three daughters: Ashanti in September
2002, Shardae in November 2005, and Shaniyah in March 2010. These children
live with the Applicant and she is their primary caregiver.
II. Decision
[6]
The
Officer considered the best interests of the children and found the Applicant
had failed to establish that bringing the children with her to St. Vincent would cause
them disproportionate hardship. The Officer acknowledged that the children
might enjoy better education, health care and socialization in Canada as
compared to St.
Vincent.
There was, however, no evidence of any legal obstacles for the children to
reside in St. Vincent with their mother. Basic amenities could be provided in
that country and the children would retain Canadian citizenship. The Officer
was not satisfied that the abuse experienced by the Applicant as a child would
be encountered by her children should they be returned to St. Vincent.
[7]
In
addition, the Officer recognized the Applicant’s desire for Shardae to maintain
contact with her father, a Landed Immigrant in Canada. While if
returned to St. Vincent with her mother Shardae could not have contact with her
father in person, she could nonetheless visit him at vacation time or stay in
contact by telephone or internet. The Officer further noted that there was
limited documentary evidence of the access arrangements in place for Shardae
and Shaniyah with their father.
[8]
The
Officer commented on the Applicant’s efforts to socially integrate and
establish herself in Canada for thirteen years, including her letter
of employment, registration in a literacy course and volunteer work. While the
Applicant would have no means of survival in St. Vincent and the labour market
was not ideal, she had overcome the difficulties of re-establishing herself
when originally coming to Canada and finding employment. This spoke to her
ability to adapt to, and handle, difficult situations. There were also family
members, such as her grandfather and siblings that could provide assistance.
The Officer was ultimately not satisfied that “the difficulties relating to the
best interest of her children, the length of time she has spent in Canada and
personal circumstances in and of themselves, are sufficient to justify an
exemption under humanitarian and compassionate considerations.”
III. Issues
[9]
This
application raises the following issues:
(a) Was the Officer’s assessment of
the best interests of the child reasonable?
(b) Was the Officer’s consideration
of the Applicant’s past hardships reasonable?
(c) Was
it reasonable for the Officer to conclude that despite the Applicant’s
establishment in Canada she could be returned St. Vincent?
IV. Standard
of Review
[10]
Humanitarian
and compassionate decisions are reviewed on a standard of reasonableness (see Ahmad
v Canada (Minister of
Citizenship and Immigration), 2008 FC 646, 2008 CarswellNat 1565
at para 11). Reasonableness is “concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process” as well as “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 S.C.R. 190 at para 47).
[11]
This
Court has also recognized that the highly discretionary element of H&C
decisions require significant deference to the decision-maker and a wider scope
of possible outcomes (see Inneh v Canada (Minister of
Citizenship and Immigration), 2009 FC 108, 2009 CarswellNat 239
at para 13).
V. Analysis
Issue
A: Best Interests of the Children
[12]
The
Applicant submits that the Officer’s decision was unreasonable because it
failed to be alert, alive and sensitive to the interests of the Applicant’s
children as prescribed by Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, 1999 CarswellNat 1124 at para 75. She goes as far as to
suggest that there was only a mention of the Baker guidelines and no
accompanying analysis. The Applicant claims that as Canadian citizens the
children have an absolute right to basic education and health care in the
country.
[13]
As
the Respondent contends, however, the Officer did undertake the necessary best
interests of the child inquiry. The Officer looked at potential differences in
education, health care and lifestyle that the children would face in St. Vincent, as they
were young and likely to go to that country in the care of their mother. The
Officer also assessed the potential loss of personal contact between the second
child and her father. This evidence was weighed against continued access to
basic amenities in St. Vincent, retention of Canadian Citizenship and a variety
of other means available to maintain contact with the father in Canada, who is not
the primary caregiver and has no clearly established access arrangements with
the Applicant to see Shardae.
[14]
Although
the best interests of the child are an important factor that must be given
substantial weight (Baker, above), they are not determinative (Legault
v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, 2002 CarswellNat 746 at
para 12). Moreover, the hardship experienced in denying H&C grounds must
be unusual and undeserved or disproportionate. The Officer’s role is to
determine the likely degree of hardship caused to the child of the parent’s
removal and balance that hardship together with other factors (Hawthorne v
Canada (Minister of Citizenship and Immigration), 2002 FCA 475, 2002
CarswellNat 3444 at para 6). Simply because the children are Canadian born
does not mean the Applicant should be granted exceptional relief without having
demonstrated that she would suffer undue hardship if required to apply from
abroad in the normal course (Charles v Canada (Minister of Citizenship and Immigration),
2008 FC 1345, 2008 CarswellNat 4629).
[15]
I
am satisfied that it was open to the Officer in exercising discretion to
conclude that although there were negative effects for the children, these
would not amount to disproportionate hardship.
Issue
B: Consideration of Past Hardships
[16]
The
Applicant claims that the Officer did not properly consider her past
hardships. This includes returning her to a country where she was raped as a
child. It is also suggested that the Officer did not give credence to her
concerns that her children might experience the same mistreatment.
[17]
The
Applicants rely on the decision in Perez Arias v Canada (Minister of
Citizenship and Immigration), 2011 FC 757, 2011 CarswellNat 2361). In
that case, however, I find that there was no broad proposition related to
psychological hardship caused by rape, flight and general insecurity in the
home country as the Applicants suggest. The Perez application for
judicial review was granted because the Officer failed to consider the
individuals’ psychological assessments based on their particular experiences of
activism and subsequent persecution involving rape.
[18]
As
the Respondent’s makes clear, the Officer noted she sympathized with the abuse
the Applicant experienced but there was no evidence the same hardships would
inevitably be encountered by her children. This was a reasonable conclusion.
Although the Applicant was not represented during her H&C application and
there was an obligation on the Officer to clarify possible humanitarian grounds
even if they are not well articulated (see Baker, above, at para 16),
the onus remains on the applicant to establish those grounds (see Bacha v Canada (Minister of
Citizenship and Immigration), 2008 FC 1382, 2008 CarswellNat 5456).
Issue
C: Establishment in Canada
[19]
The
Applicant further submits that the Officer failed to properly assess her
establishment in Canada as a relevant policy ground. She relies on the
determination in Knyasko v Canada (Minister of Citizenship and Immigration),
2006 FC 844, 2006 CarswellNat 1890 at paras 6-7 that an officer should have
considered the individuals’ ties to Canada favourable to their application, not
solely their ability to resettle in the country of origin.
[20]
The
Respondent does not dispute that establishment in Canada is a relevant factor
in H&C applications, but highlights that it need not be determinative (see Lupsa
v Canada (Minister of Citizenship and Immigration), 2009 FC 1054, 2009
CarswellNat 5128). The Officer considered the Applicant’s situation in Canada and her
efforts to establish herself over a 13 year period in this case; including
securing employment, volunteering and seeking education. It was nonetheless
possible for the Officer to conclude that she could seek out employment in St.
Vincent, just as she had done in Canada, and her removal would
not amount to unusual, undeserved or disproportionate hardship. The Respondent
notes that the Applicant has not set out any particular factors that were not
considered by the Officer relevant to her establishment in Canada. It should
also be noted that this Court has been reluctant to reward individuals for time
accumulated in Canada without a legal right to remain in the country and absent
circumstances beyond their control (Mann v Canada (Minister of
Citizenship and Immigration), 2009 FC 126, 2009 CarswellNat 289 at
paras 12-14).
[21]
It
was reasonable for the Officer to conclude that despite the Applicant’s efforts
to establish herself in Canada, she had not met the necessary criteria
for the H&C application.
VI. Conclusion
[22]
It
was reasonable for the Officer to conclude that the Applicant did not qualify
for the H&C exemption. The Officer properly considered and assigned weight
to the best interests of the children, the Applicant’s past hardships and her
establishment in Canada.
[23]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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