Docket: IMM-1725-11
Citation: 2011 FC 1286
Ottawa, Ontario, November 9, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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JAI PRASHAD and PORBATI PRASHAD
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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, S.C. 2001, c. 27 (Act) for judicial review of the Officer’s
Pre-Removal Risk Assessment decision, dated 8 February 2011 (Decision). In the
Decision, the Officer refused the Applicants’ application to be granted a
permanent resident visa on humanitarian and compassionate (H&C) grounds
under subsection 25(1) of the Act.
BACKGROUND
[2]
The Male
Applicant, Jai Prashad, and his wife, Porbati Prashad, (Female Applicant), are
Indo-Guyanese citizens of Guyana. They are 51 and 48 years
old, respectively. The Applicants both have family members living in Canada who are Canadian citizens or
permanent residents. The Male Applicant has one sister who has been a Canadian
citizen since 2009. The Female Applicant has two sisters and two brothers in Canada; all are Canadian citizens.
The Female Applicant’s mother and biological daughter, who was adopted by the
Female Applicant’s mother at an early age, also live in Canada as citizens.
[3]
The
Applicants currently live in Canada with the Female Applicant’s mother,
sister, brother-in-law, niece, and four nephews. The Applicants’ niece is seven
years old and their nephews are eleven, thirteen, fifteen, and eighteen years
old.
[4]
The
Applicants entered Canada on 2 August 2000 and filed an
application for permanent residence on H&C grounds. That application was
refused on 3 February 2003. On 13 February 2003, the Applicants claimed refugee
protection. This claim was heard by the RPD in 2004 and refused on 25 November
2004. A removal order against them became effective on that date. The
Applicants applied for permanent residence again, also on H&C grounds. This
second H&C application was denied on 20 September 2006.
[5]
The
Applicants’ daughter, who moved to Canada
with them in 2000 and is a permanent resident, submitted an application to
sponsor her parents as permanent residents (Sponsorship Application). This
application was received by the Respondent on 2 October 2008.
[6]
The
Applicants applied for permanent residence on H&C grounds a third time by
application dated 23 April 2007 (H&C Application). The Applicants also
applied for a PRRA on 27 September 2011. Having been subject to a removal order
since their refugee claim was denied in 2004, they were scheduled for removal
on 22 April 2011. The Officer refused their PRRA application on 5 February
2011. The same Officer refused their H&C Application on 8 February 2011.
[7]
On 19
April 2011, Justice James O’Reilly stayed the Applicants’ removal, pending the
outcome of their application for judicial review.
DECISION UNDER REVIEW
[8]
The
Officer rejected the Applicants’ H&C application in a refusal letter with
reasons dated 8 February 2011. She found that returning to Guyana would not present unusual and
undeserved or disproportionate hardship for the Applicants.
[9]
The
Officer examined: hardships or sanctions upon return to Guyana; family or personal ties that
would create hardship if severed; the Applicants’ degree of establishment in Canada; establishment, ties or
residency in any other country; and return to country of nationality.
Hardships or
Sanctions Upon Return to Guyana
[10]
The
Officer found that the Applicants will have to abandon their family, friends,
home and jobs in Canada which they have worked ten
years to achieve. She noted that when the Applicants left Guyana, they left the Male
Applicant’s mother and their friends behind and sold their business. She noted that
they left everything behind in order to make a life in Canada where they had never lived before. She
found that they had displayed determination and adaptability while in Canada. The Officer concluded that
the evidence did not, however, show that the Applicants could not re-establish
themselves on their return to Guyana. Though re-establishing
themselves would be difficult, it would not amount to unusual, undeserved, or
disproportionate hardship.
[11]
The
Officer also reviewed the Applicants’ assertions that they were scared to
return to Guyana because they would be subject
to violence and harm. She noted that, although the Male Applicant had said at
their hearing before the RPD in 2004 that there were killings and rapes in Guyana, he had also said that the violence
was in a town adjacent to the town where the Applicants lived. The Officer also
noted that the 2004 RPD panel had found that adequate state protection was
available in Guyana. She concluded that the
Applicants had failed to show how or why they would be specifically targeted or
individually at risk of serious harm in Guyana.
[12]
The
Officer also considered country evidence on Guyana. She found that Guyana is a multi-party democracy with an
independent judiciary. She also determined that, though the police in Guyana
were often subject to budgetary constraints and there may be issues with their
independence, adequate state protection in Guyana existed and it would not be a hardship
for the Applicants to access that protection.
Family or
Personal Ties That Would Create Hardship if Severed
[13]
The
Officer found that the letters of support from the Applicants family, friends
and employers indicated that the Applicants have built and maintained
relationships in their community in Canada.
She noted that the letters from family members expressed the view that the
Applicants would be targeted on their return because they would be perceived as
wealthy. She concluded, however, that there was no evidence to support these
assertions and that the Applicants would be able to access state protection.
[14]
The
Officer referred to a letter from Norma Reid, a teacher who had taught the
Applicants’ nephew, Reon Singh (Reon), in 2007. In that letter, written in 2007
when Reon was 14, Ms. Reid said he would not have done as well in school if the
Female Applicant had not been there to help. The Officer found that the letter
was written when the Applicants lived with Reon and his family, nearly three
years before she considered the H&C application. She said the Applicants
had since moved and had not provided updated submissions as to whether they
continue to help their niece and nephews.
[15]
The
Officer also noted that the Applicants’ daughter and her spouse, as well as the
Female Applicant’s sister and her husband, had completed separate Application
to Sponsor and Undertaking forms on behalf of the Applicants. The Officer held
that while it would be a hardship for the Applicants to continue their
relationship with their Canadian family members from Guyana, the evidence did not indicate that severing
these relationships would constitute an unusual and undeserved or
disproportionate hardship.
Degree of
Establishment in Canada
[16]
The
Applicants presented evidence to indicate that they had established themselves
in Canada since they arrived in August
2000. The Officer noted that they have received due process in the refugee
protection system. She found that a measure of establishment is to be expected
when applicants spend a significant amount of time in Canada. Although it was unclear to the Officer
how the Applicants had supported themselves between 2000 and 2003, she found
that they had both been continuously employed from 2004 to the present with the
Male Applicant having been employed since February 2003. She also noted that
submissions showed that they owned two vehicles, had purchased property, and had
savings of approximately $60,000.
[17]
The
Officer concluded that, while leaving Canada
after nearly ten years may be difficult, the Applicants’ prolonged stay in Canada had been within their
control. She quoted from Serda v Canada (Minister of Citizenship and
Immigration)
2006 FC 356, at paragraph 21, in which Justice Yves de Montigny held that
It would obviously defeat the purpose of the Act if the longer an
applicant was to live illegally in Canada, the better his or her chances were
to be allowed to stay permanently, even though he or she would not otherwise
qualify as a refugee or permanent resident.
[18]
The
Officer said that because they knew they could be required to leave and apply
outside of Canada, the Applicants could not now
say that the hardship they would face on leaving would be unusual and
undeserved or disproportionate. The evidence did not show that the Applicants
have become established in Canada to such an extent that
severing their ties here would amount to an unusual and undeserved, or
disproportionate hardship.
Establishment,
Ties or Residency in Any Other Country
[19]
The
Officer found that the Applicants had resided as citizens in Guyana prior to
coming to Canada. She noted that they had some
education and that they had operated their own grocery stores in Guyana for ten years.
[20]
The
Officer found that the Applicants would not have difficulty readjusting to
Guyanese society and culture. She also found that the Applicants had been
independent and self-sufficient in the past and had a network of relatives and
friends in Guyana who could assist with their
reintegration there.
Return to Country of Nationality
[21]
The
Officer found that it was feasible for the Applicants to return to Guyana. There were no medical
impediments to their return. Further, the Applicants had learned transferable
skills while in Canada which would allow them to
pursue employment on their return to Guyana.
The Officer noted that there are anti-discrimination measures in place in Guyana. Further, she said that
evidence before her showed an increase in old-aged pensions, that programs were
in place to pay pensioners’ water rates, and that a program to provide free
spectacles to senior citizens was in place.
Conclusion
[22]
The
Officer concluded that, while Canada may be a more desirable place to live than
Guyana, this was not determinative
of the H&C application. The H&C process is not designed to eliminate
hardship, but rather to provide relief from unusual, undeserved, or
disproportionate hardship. In the Applicants’ case, the hardship from removal
was neither unanticipated nor beyond their control because they have been
subject to a removal order since 2004. The Officer said she has considered all
the issues presented by the Applicants and that the evidence before her did not
show that returning to Guyana would cause unusual and
undeserved or disproportionate hardship for them.
RELEVANT LEGISLATION
[23]
The
following provisions of the Act are applicable in this proceeding:
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11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document may be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
…
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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11.
(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
…
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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ISSUES
[24]
The
Applicants raise the following issues:
a.
Whether the
Officer failed to consider the pending parental sponsorship application;
b.
Whether the
Officer failed to address the best interests of the Applicants’ niece and
nephews;
c.
Whether the
Officer made improper inferences as to the Applicants’ ability to establish
themselves in Guyana;
d.
Whether the
Office ignored evidence;
e.
Whether the
Officer applied the wrong legal test for an H&C application.
STANDARD OF REVIEW
[25]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
SCJ 9, held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a 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.
[26]
In Baker
v Canada (Minister of Citizenship and
Immigration),
[1999] SCJ No. 39, the Supreme Court of Canada held that the appropriate standard
of review for an H&C exemption is reasonableness. Further, in Mikhno v Canada (Minister of Citizenship and
Immigration)
2010 FC 386, Justice John O’Keefe held that a heavy burden rests on the
Applicants to satisfy the Court that a decision under section 25 requires the
intervention of the Court. The standard of review on the first four issues in
this case is reasonableness.
[27]
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.”
[28]
In Herman
v Canada (Minister of Citizenship and
Immigration)
2010 FC 629, Justice Paul Crampton held at paragraph 12 that the Standard of
Review on the question of whether an officer applied the correct test in
assessing an H&C application was correctness. Justice Michael Kelen made a
similar finding in Ebonka v Canada (Minister of Citizenship and Immigration)
2009 FC 80 at paragraph 16, as did Justice Michel Beaudry in Mooker v Canada
(Minister of Citizenship and Immigration) 2008 FC 518 at paragraph 15. The
standard of review on the fifth issue in this case is correctness.
[29]
As the
Supreme Court of Canada held in Dunsmuir, above, at paragraph 50
When applying the correctness standard, a reviewing court will not
show deference to the decision maker's reasoning process; it will rather
undertake its own analysis of the question. The analysis will bring the court
to decide whether it agrees with the determination of the decision maker; if
not, the court will substitute its own view and provide the correct answer.
From the outset, the court must ask whether the tribunal's decision was
correct.
ARGUMENTS
The Applicants
The Officer Failed to Consider
the Pending Parental Sponsorship Application
[30]
The Applicants
argue that the Officer erred when she failed to consider the Sponsorship Application
filed by their daughter and son-in-law. They say that, while the Officer did
mention this application in the Decision, she failed to consider the hardship that
would result from the Applicants being returned to Guyana if the sponsorship application is
approved. Approval of their Sponsorship Application, after they had been
removed from Canada, would mean that they would
have to uproot themselves from Guyana and return to Canada, which would result in lost time and
money.
[31]
The
Applicants say that the pending application was before the Officer when she
made the Decision. Though the Respondent only confirmed receipt of the Sponsorship
Application in February 2009 – after the Applicants’ H&C application had
been in process for nearly two years – the Applicants say that it was in the
FOSS at that time. The Officer effectively had constructive notice of the
pending application. Further, the Applicants say that evidence of the harm that
a failure to consider the pending application would cause was before the
Officer in the submissions they made in November 2010 in support of their H&C
application. Rather than looking at the hardship that this temporary removal
would cause, the Officer unreasonably focused on their ability to adapt to life
in Guyana.
[32]
The
Applicants rely on Ramotar v Canada (Minister of Citizenship and Immigration) 2009 FC 362 [Ramotar]
to support their argument. They say that an officer must take into consideration
the status and likelihood of success of an applicant’s outstanding sponsorship
application. This is to ensure that the Respondent does not impose unnecessary
hardship on applicants by deporting them, only to tell them they can come back
to Canada as permanent residents a
short time later.
[33]
In Ramotar,
Justice Kelen considered whether it was an error for an H&C officer to
ignore the hardship that will result from removal if return occurs shortly
thereafter on the approval of a sponsorship application.
[34]
The
Applicants say that their case is on all fours with Ramotar, so the
result should be the same.
The Officer Failed
to Adequately Address the Best Interests of the Children
[35]
The
Applicants argue that the Decision was also unreasonable because the Officer
failed to take into account the best interests of their niece and nephews. They
say she based her conclusion as to the best interests of these children on
erroneous facts. They rely on Justice Michael Shore’s summary of the duty to
consider the best interests of affected children in Diakité v Canada
(Minister of Citizenship and Immigration) 2009 FC 165 at paragraphs 2 and
3.
[36]
In her Decision,
the Officer said that the Applicants no longer live with their extended family
and that there were no updated submissions as to whether they continue to help
with their niece and nephews. The Applicants say this is factually wrong
because they have not moved and continue to live with their extended family.
They note that in the November 2010 submissions they said that
they
have considerable equity in the two properties which they own. One of which is
an investment property and on the other they are presently erecting a new
residential building.
They must be living with their
extended family because the residential property they own is being put to other
uses.
[37]
The
Applicants also say that the Officer failed to consider evidence of the impact
their removal would have on their niece and nephews. They point to the letter from
their nephew, in which he writes that “My auntie and uncle love me a lot, they
always think of me and bring things home for me when they come home from work.”
This letter was before the Officer, so she erred when she did not consider it.
[38]
The
Applicants further say that, though these are not their own biological
children, the direction in subsection 25(1) of the Act to “[take] into account
the best interests of a child directly affected” is broad enough to capture
nieces and nephews. They rely on Momcilovic v Canada (Minister of Citizenship and
Immigration)
2005 FC 79 where Justice O’Keefe said at paragraph 45 that
A
plain reading of subsection 25(1) indicates that subsection 25(1) is broader
than the best interests of a parent’s own child. The section does not use
wording such as “child of the marriage” or “the applicant’s child”. It refers
to the best interests of a “child directly affected”.
[39]
The Applicants’ niece and
nephews will be directly affected by their removal, so it was a reviewable
error for the Officer not to be alert, alive or sensitive to their best
interests.
The Officer Made Improper Inferences as
to the Applicants’ Ability to Establish Themselves in Guyana
[40]
The
Applicants say that the Officer made a number of incorrect inferences as to
their ability to re-establish themselves in Guyana. These inferences were unreasonable
because they were not based on the factual record and failed to consider
important facts and circumstances.
[41]
The
Applicants note that the Officer concluded that, since they left everything in Guyana to come to Canada, they can
do the same and return to Guyana. However, there are
significant differences between the Applicants’ move to Canada and any relocation back to Guyana. Most importantly, they would
not be travelling back with their daughter who is now a permanent resident of Canada, though they initially
arrived with her.
[42]
The
Applicants also say that, when they arrived in Canada, they encountered a supportive family
and were taken into a home with their extended family. They enjoyed the support
of their extended family while they searched for jobs in Canada. They will not have this
safety net if they are forced to return to Guyana. The only family member who still lives
in Guyana is the Male Applicant’s mother, who is in the process of being
sponsored to Canada by her daughter.
[43]
The
Applicants say they will have no home in Guyana while they seek employment and will have
no financial, physical and emotional support. Though the Officer found that
they could re-integrate into Guyanese society because they had “a network of
relatives and friends who could assist with their reintegration into Guyana,” there is simply no evidence
that a network of family and friends exists to assist them in the way the
Officer suggests.
[44]
The
Applicants note that the Officer, in concluding that they would have a support
network to return to, relied on a letter from an Edward V and another letter
from a Hasrajie Ramojah, both residents of Guyana. The Applicants say that neither of
these letters shows the author is a friend of theirs. They say that the
Officer’s inference that they will have a support network from these two
letters is unreasonable.
[45]
The
Applicants also question the Officer’s reliance on the availability of old-age pensions
and programs for senior-citizens in Guyana.
They note that they are young and have not paid in to any pension scheme in Guyana while they have been in Canada. For the Officer to rely on
these programs was unreasonable.
The Officer Employed the Wrong Legal Test
for an H&C Application by Focusing on Risk Instead of Hardship
[46]
The same
Officer rejected both the Applicants’ PRRA application and their H&C
application. The Applicants say that, when the Officer reviewed the RPD’s
Decision in their claim from 2004, she committed an error. The Applicants also note
that she reviewed materials indicating that: Guyana was a democracy; that there was an
independent judicial system; that there is a police force in which public
confidence is low; and that there was a mechanism to report police corruption
and misconduct. Though these considerations are clearly relevant within an RPD
hearing and within a PRRA, they inappropriately informed the Officer’s
assessment of the hardship or sanctions the Applicants face if they are
returned to Guyana. They note that in Ramirez
v Canada (Minister of Citizenship and
Immigration) 2006
FC 1404, Justice de Montigny said at paragraph 48 that
[When]
deciding a PRRA, immigration officers are conducting a risk assessment. While
it is true that H&C applications may also raise “risk factors,” that does
not change the fact that an H&C application is about assessing hardship.
That an application may involve issues of risk does not convert the application
into a second risk analysis. Rather, other issues, like the best interests of
the children, and risk factors, are to be assessed as parts, or subsets, of
this global hardship analysis.
[47]
The
Applicants also say that hardship upon return to Guyana involves consideration of:
where the Applicants will live; how they will support themselves; crime rates;
racial tensions; employment possibilities; general living conditions; the fact
that relocation to Guyana will likely only be temporary; and, most
significantly, the effect of their relocation on them and their family members.
Rather than looking at the broader issue of hardship in the context of all
these factors, the Officer focussed on the risk to the Applicants and the
availability of state protection.
[48]
The
Applicants further say that the Officer did not appreciate the unusual
closeness their family has. They note that with eleven family members living
under the same roof, they have a degree of closeness that is unusual in Canada. Separation would constitute
unusual hardship because they are unusually close to one another.
The Respondent
[49]
The
Respondent says that the Applicants are simply asking the Court to reweigh the
facts and evidence considered by the Officer in her Decision. The Supreme Court
of Canada in Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1, held at paragraph
38 that
The court’s task, if called upon to review the Minister’s
decision, is to determine whether the Minister has exercised her
decision-making power within the constraints imposed by Parliament’s
legislation and the Constitution. If the Minister has considered the appropriate
factors in conformity with these constraints, the court must uphold her
decision. It cannot set it aside even if it would have weighed the factors
differently and arrived at a different conclusion.
[50]
The
Respondent also says that H&C decisions are discretionary and guarantee no
particular outcome. The Officer’s Decision should not be subject to review
because she exercised her discretion reasonably and within the parameters of
procedural fairness.
The Officer’s Analysis
of the Best Interests of the Child was Reasonable
[51]
The
Respondent says that little evidence was adduced by the Applicants on the best
interests of their niece and nephews. The only evidence provided was two brief
letters, one from their nephew’s middle school teacher written in 2007 and one
from their nephew, written in 2010. The Respondent notes that Justice Eleanor
Dawson said in Ahmad v Canada (Minister of Citizenship and Immigration) 2008 FC 646 at paragraphs 37
and 38 that
In my view, this submission is
not consistent with the fact that it is the applicants who had the burden of
specifying that their application was based, at least in part, upon the best
interests of the children and the burden of adducing proof of any claim on
which their humanitarian and compassionate application was based. It was
incumbent upon the applicants to raise, and support with evidence, any specific
issue a family member would face that was said to give rise not just to
hardship, but to hardship which is unusual and undeserved or disproportionate.
Because the applicants failed to
directly raise the best interests of the children as a basis of their
humanitarian and compassionate application, and because they failed to raise
any specific factors relating to the children, I find no error in the officer's
treatment of the best interests of the children.
[52]
The
Applicants also failed to mention any hardship that may result to their niece
and nephews. The Officer considered all the evidence put forth by the
Applicants regarding the best interests of the children and made a reasonable
decision.
[53]
The
Respondent also reminds the Court that the best interests of the child do not
mandate a specific result. As the Federal Court of Appeal held in Legault v Canada (Minister of Citizenship and
Immigration) 2002
FCA 125 at paragraph 12,
The presence of children, contrary to the conclusion of Justice
Nadon, does not call for a certain result. It is not because the interests of
the children favour the fact that a parent residing illegally in Canada should
remain in Canada (which, as justly stated by
Justice Nadon, will generally be the case), that the Minister must exercise his
discretion in favour of said parent. Parliament has not decided, as of yet,
that the presence of children in Canada constitutes in itself an impediment to any “refoulement” of a
parent illegally residing in Canada
In this case, the Officer did
what she was required to do: she determined the likely hardship that the
Applicants’ niece and nephews would experience and balanced it against the
other considerations in the H&C application.
The Officer Applied the Correct Test
[54]
The
Respondent also says that the Officer applied the proper test when assessing
risk. The Officer could not have been more clear that she was aware of the
different tests to be used in RPD decisions, PRRAs and H&C applications.
The Respondent points out that the Officer’s reasons contain numerous
references to the proper threshold and how she was aware that this was a
different assessment from that under sections 96 or 97 of the Act.
The Officer Reasonably
Considered Establishment
[55]
The
Officer properly considered establishment in Canada in her analysis of hardship. Her reasons
identified the factors referred to by the Applicants and she reasonably
determined that the level of establishment in Canada would not cause an unusual and
undeserved or disproportionate hardship if they were removed. The Officer
looked at their work experience, integration into the community, duration of
time in Canada, and financial assets in Canada.
[56]
The
Respondent also says that establishment in Canada is only one of the factors to be
considered and balanced by H&C officers. This Court has repeatedly held
that the mere fact applicants have taken the risk of establishing themselves to
some extent in Canada, while their immigration status remains uncertain, and
knowing that they could be required to leave at anytime, does not give rise to
unusual and undeserved or disproportionate hardship. As Justice Denis Pelletier
held in Irimie v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 1906 at
paragraph 26
I return to my observation that the evidence suggests that
the applicants would be a welcome addition to the Canadian community.
Unfortunately, that is not the test. To make it the test is to make the H&C
process an ex post facto screening device which supplants the screening process
contained in the Immigration Act and Regulations. This would encourage gambling
on refugee claims in the belief that if someone can stay in Canada long enough
to demonstrate that they are the kind of persons Canada wants, they will be
allowed to stay. The H&C process is not designed to eliminate hardship; it
is designed to provide relief from unusual, undeserved or disproportionate
hardship. There is no doubt that the refusal of the applicants’ H&C
application will cause hardship but, given the circumstances of the applicants’
presence in Canada and the state of the record,
it is not unusual, undeserved or disproportionate hardship.
The Officer Reasonably
Considered the Parental Sponsorship Application
[57]
Finally,
the Respondent says that the Applicants have not shown a reviewable error in
the Officer’s consideration of their return to Guyana while waiting for their daughter’s
parental sponsorship application to be processed. The Applicants have provided
insufficient evidence to demonstrate undue hardship. The fact that they will
experience hardship from having to move twice, if the sponsorship is approved,
does not mean that they meet the threshold for an H&C exemption. Even if it
does cause hardship, the Officer explicitly considered the pending sponsorship
application before making her Decision.
The Applicants’
Further Memorandum
[58]
The
Applicants say that the Officer ignored evidence in assessing hardship. They
point to a number of articles they submitted which they say show that, as
Indo-Guyanese people, they are at increased risk of violence if they are
returned to Guyana. They say that the Officer’s
conclusion that these articles do not concern people similarly situated to them
was unreasonable. The events in the articles are about events which occurred
near to where they lived, so the Officer’s conclusion was unreasonable. They
also say it was unreasonable for the Officer to expect that they would be
personally named in the articles, when they had been in Canada for ten years and the
articles were written during that period.
ANALYSIS
[59]
The
Applicants have raised a variety of grounds for reviewable error. The Court
does not accept all of them. It is apparent from a reading of the Decision that
the Officer did not apply the wrong test or incorrectly assessed hardship when
assessing risk. She is careful to consistently distinguish between risk and
hardship and, in my view, there is no indication that risk became the test on
particular points.
[60]
However,
I believe that the Decision contains several reviewable errors that require the
matter be returned for reconsideration.
[61]
First
of all, I agree with the Applicants that the Officer failed to consider the
hardship that could result as a consequence of the outstanding Sponsorship Application.
[62]
It
is true that the Officer referred to the Sponsorship Application in the
reasons, but the issue was glossed over and there is no meaningful analysis of
the hardship that could arise if the Applicants were removed only to be invited
to return a short time later. Counsel made clear and extensive submissions on
this point to the Officer, and it was obviously an important issue for her to consider.
Instead of addressing these submissions, the Officer emphasized the Applicants’
adaptability to Guyana and, in my view, neglected to deal with the
hardship issue that arises from the parental sponsorship.
[63]
I
understand that the pending sponsorship applications present a very difficult
issue for officers to assess in this context. Respondent’s counsel advises the Court
that it is not possible to predict the timing of such an application. This may
be so, but it places the Applicants in an equally difficult position. They have
no way of ascertaining when the Sponsorship Application will be decided. They did
all they could in this case: they informed the Officer of the length of time it
had been pending and invited the Officer to consider that there were no
impediments to a positive sponsorship decision.
[64]
The
fact that timing may be difficult to assess in this context does not remove a
pending sponsorship application as an important factor when assessing hardship.
The problem is undoubtedly caused by complex bureaucratic considerations. However,
the solution is entirely in the Respondent’s hands. In my view, it is not
sufficient for the Respondent to say, in effect, that because timing is
uncertain, a pending sponsorship application can be left out of account, or
carry little weight, when hardship is being assessed. We are dealing with real
people and massive disruption to their lives which may be entirely unnecessary
if a positive sponsorship decision is forthcoming. The Court has wrestled with
this problem before.
[65]
In
Ramotar, above, Justice Kelen provided significant guidance as to how
this issue should be addressed at paragraphs 40 to 43:
It
may be an “unusual, undeserved or disproportionate hardship” for the applicants
to return to Guyana pending processing of the sponsorship
application by the daughter due to the delay of the respondent's Mississauga office caused by the lack of
bureaucratic resources. In other words, it may be a “disproportionate hardship”
for the applicants to give up their house, give up their jobs, give up their
Canadian community and resettle in Guyana, all for a period of time which may
be a matter of months, or possibly one or two years, while the respondent’s
bureaucracy processes their application. The respondent can quickly and easily
determine, on a “paper screening basis”, whether the sponsorship application
will likely be approved, and if on a “paper screening” it is likely that the
sponsorship application will be approved, then the H&C Officer may decide
that it is an “unusual, undeserved and disproportionate hardship” for the
applicants to have to uproot themselves from Canada only to return to Canada
again soon thereafter.
In Benjamin v. Canada (Minister
of Citizenship and Immigration), [2006] F.C.J. No. 750, Mr. Justice Konrad von
Finckenstein (as he then was) stated, in obiter, on a judicial review of
a H&C decision that he could see no benefit in removing the applicant to
Nigeria, while his application sponsored by his wife was being considered, only
to bring him back to Canada in an expedited fashion should the application be
successful. Justice von Finckenstein held at paragraph 18:
Such a
procedure totally fails to take into account the pain, dislocation and
emotional toil entailed in any removal. The Respondent should keep the
aforementioned factors in mind before attempting a removal while the Applicant’s
“spouse in Canada application” is pending.
The same rationale applies to the sponsorship
of the applicant by their daughter. Perhaps this is a consideration for a
removal Officer who is being asked to defer removal. Perhaps it is a legitimate
consideration for an H&C Officer. In any event, it is important that the
right hand of the respondent know what the left hand is doing. Since this issue
has come before an H&C Officer for decision, it is incumbent upon the
H&C Officer to take into account the status and likelihood of success of
the daughter’s sponsorship application of the applicant to ensure that the
respondent does not impose an unnecessary hardship on the applicants by
deporting them one month only to tell the applicants they can come back to
Canada as permanent residents a few months later.
For this reason, this application will be
allowed and the matter remitted to another immigration Officer for
redetermination with a direction from the Court that the immigration Officer
determine the status and likelihood of success, on a paper-screening basis, of
the sponsorship application for the applicants to become permanent residents.
[66]
The
present case appears to me to present issues similar to those in Ramotar
and Justice Kelen’s judgment in that case.
[67]
Even
if I do not accept Justice Kelen’s solution to the problem, I still have to say
that, on the facts of the present case, I do not think that this issue was
reasonably dealt with. It is simply conflated with adaptability issues and then
tagged with a general conclusion. The end result is that the Applicants and the
Court cannot really determine how this important factor was taken into account
and why the Officer did not believe it would contribute to a sufficient level
of hardship to support an H&C exemption in this case.
[68]
It
is also my view that the Officer committed reviewable errors in her assessment
of the Applicants’ ability to re-establish themselves in Guyana. One of the
reasons why the Officer concluded that the Applicants would not “have
difficulties readjusting to Guyanees society and culture” is that they “have a
network of relatives and friends who could assist with their reintegration in Guyana.” There was
no cogent evidence before the Officer of any such network, and no evidence upon
which such an inference could be reasonably based. The Officer appears to be
making inappropriate use of comments related to how the Applicants know about
the risks they face in Guyana. In the past there is an indication that
they have received news through relatives and friends, but we do not know where
these people are situated and we do not know anything about their closeness to
the Applicants or the kind of support they might be able, or willing, to
provide. The only relative remaining in Guyana is the Male
Applicant’s mother, and there was no evidence of her situation. There was also
a letter from a former neighbour, but no indication that he was a friend. These
two people do not constitute anything that could be called a network and the Officer’s
inference and/or conclusion is unreasonable. It is not possible to say if the Officer’s
Decision would have been different if this unreasonable error had not occurred.
The availability of relatives and friends seems to me to be a highly material
point to the Officer who refers to it. This unreasonable mistake shows the need
for reconsideration in this case.
[69]
I
also believe that the Officer made a serious mistake of fact that leads her
into an unreasonable assessment of the best interests of the children. The Officer
drew inferences and concluded that the Applicants are no longer living at the
same address and interacting with their niece and nephews. However, the
Applicants stated clearly on the record (p. 311 of the CTR) that they are at
the same address and the Officer did not question them on this issue. There is
evidence of the Applicants playing an important role in the children’s lives
and that, although the extended family has bought property, the Applicants
continue to interact with the children in a way that required a full assessment
by the Officer.
[70]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
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