Date:
20070531
Docket:
IMM-5150-06
Citation: 2007 FC 577
[ENGLISH
TRANSLATION]
Ottawa, Ontario,
May 31, 2007
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
DOROTY
PAYEN
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
This is an
application for judicial review of a decision of a Pre-Removal Risk Assessment
Officer (the Officer), dated August 29, 2006, determining that there were no
humanitarian and compassionate considerations to grant an exemption from the
obligation to obtain a permanent resident visa before coming to Canada
(“H&C application”).
THE FACTS
[1]
Dorothy
Payen, the applicant, is a citizen of Haiti. On March 17, 2000, she arrived in
Canada. On June 1, 2000, she filed a claim for refugee status and the claim was
denied on March 25, 2002. On December 6, 2000, she gave birth to a daughter, Dania
Donalita Joseph, in Ottawa.
[2]
She
applied for a Pre-Removal Risk Assessment and a PRRA officer determined that
she would not be at risk if she were to return to Haiti.
[3]
On
August 28, 2003, the applicant did not show up for a meeting with an
immigration officer and, accordingly, Citizenship and Immigration Canada (CIC) issued
a warrant for her arrest. The warrant was executed in January 2004 and the applicant
was detained for about one month.
[4]
On
March 4, 2004, she gave birth to a son, Donavann Payen Azelin, in Laval.
[5]
The
applicant filed an H&C application. On August 29, 2006, a negative decision
was made on this application, finding that the information filed in support of
the application did not establish that there would be unusual, undeserved, or
disproportionate hardship if she were to file her application from outside the
country. With respect to the best interests of the child, the Officer
determined:
[translation]
Although a situation like this is not ideal for
these children, the applicant did not establish that their development would be
seriously compromised if she were to return to Haiti to file an application for
permanent residence, or that a situation would affect their best interest to
the point that an exemption would be justified, considering all the evidence of
the case.
[6]
It
is established in the jurisprudence that the standard of review that applies to
H&C applications is that of reasonableness simpliciter, Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (F.C.A.),
and Jovanovic
v. Canada (Minister of Citizenship and Immigration), 2006 FC 116.
[7]
Reasonableness
simpliciter is also the standard of review that applies to the issue of
whether an immigration officer adequately considered the best interest of the
child. In Hawthorne v. Canada (Minister of Citizenship and Immigration),
[2003] 2 F.C. 555 Evans J. states the following:
[31] Counsel agreed that, under the legal test
established by Baker and Legault for reviewing officers’ exercise
of discretion, the refusal to grant Ms. Hawthorne’s H & C application could
be set aside as unreasonable if the officer had been “dismissive” of Suzette’s
best interests. On the other hand, if the decision maker had been “alert, alive
and sensitive” to them (Baker, at paragraph 75), the decision could not
be characterized as unreasonable.
[8]
In
Baker, above, the Supreme Court of Canada established that the best
interest of the child is an important factor that must be given considerable
weight and that a decision-maker must be “alert, alive and sensitive” to that
interest.
[9]
The
Federal Court of Appeal, in Legault v. Canada (Minister of Citizenship and
Immigration), [2002] 4 F.C. 358 (F.C.A.), stated that a decision-maker
must identify and define the best interest of the child so that it can be given
the appropriate weight in the circumstances of the case.
[10]
The
applicant submits that there was no evidence in the record to indicate that her
mother or her sisters would be disposed to take care of her children temporarily
while she returned to Haiti to file her H&C application. She states that
she does not have close family ties and that, without evidence, it was unreasonable
for the officer to suppose that a family member would accept the responsibility
of caring for the children. I share this opinion.
[11]
Although
it is established in the jurisprudence that it is the applicant’s
responsibility to provide evidence in support of an H&C application (Owusu
v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 158 (F.C.A.),
the fact remains that the Officer cannot draw conclusions based on pure
speculation. It was therefore unreasonable for the Officer to presume that the
applicant’s family members would be disposed to take care of the children
during the absence of their only parent.
[12]
Although
the officer was not required to do so, he was open to request further evidence (Kim
v. Canada, 2004 FC 1713). This issue was so important to the analysis of
the children’s best interests, that it was unreasonable to state without
sufficient evidence that their development would not be seriously compromised
if their mother were to leave for Haiti.
[13]
I
note that the jurisprudence clearly establishes that an officer does not assess
the best interest of the child in a vacuum, as was done in this case. On this
point, Décary J. stated in Hawthorne v. Canada, above, at paragraph 5:
[5] The officer does not
assess the best interests of the child in a vacuum. The officer may be presumed
to know that living in Canada can offer a child many opportunities and that, as
a general rule, a child living in Canada with her parent is better off than a
child living in Canada without her parent. The inquiry of the officer, it seems
to me, is predicated on the premise, which need not be stated in the reasons,
that the officer will end up finding, absent exceptional circumstances, that
the “child’s best interests” factor will play in favour of the non-removal of
the parent. In addition to what I would describe as this implicit premise, the
officer has before her a file wherein specific reasons are alleged by a parent,
by a child or, as in this case, by both, as to why non-removal of the parent is
in the best interests of the child.
[14]
Moreover,
there was no analysis of the most important factors involving the child’s best
interests that must be assessed to establish the “hardship” that the child will
suffer, such as social and educational adjustment, emotional support, and the financial
repercussions of the parent’s departure (Hawthorne, above).
[15]
In
my opinion, the Officer was not “alert, alive and sensitive” to the best interests
of the applicant’s children and did not carry out a balanced assessment that
took into account all the relevant evidence. This error was determinative to the
point that it is not necessary to review the applicant’s other submissions.
[16]
Accordingly,
the decision is set aside, and the matter referred back for redetermination by
a different officer.
JUDGMENT
[17]
The
decision is set aside, and the matter referred back for redetermination by a
different officer.
“Danièle
Tremblay-Lamer”
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