Date: 20080918
Docket: IMM-1218-08
Citation: 2008 FC 1048
Toronto, Ontario,
September
18, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
DIONYSIA ALEXANDER
NICHOLI ALEXANDER
CRAIG COE
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
At
the conclusion of the hearing of this application for judicial review, I
indicated that I would be allowing the application and quashing the decision
under review. These are my brief reasons for so doing.
[2]
This
is an application for judicial review of a pre-removal risk assessment (PRRA)
officer’s decision dated January 30, 2008, refusing to grant the Applicant’s
application for permanent residence based on humanitarian and compassionate
(H&C) grounds.
[3]
The
principal applicant in this matter, Ms. Dionysia Alexander, is a citizen of St. Lucia. She is the
mother and designated representative of the minor applicants, Nicholi Alexander
and Craig Coe, both of whom were born in St. Lucia.
[4]
Ms.
Alexander entered Canada in 1999. In 2001, she married Mr. Marvin Henry,
a landed immigrant, with whom she has two children who are not party to this
application.
[5]
Ms.
Alexander’s initial request to be permitted, on H&C grounds, to file an
inland application for permanent residence, was approved on January 29, 2003.
That request was supported by a sponsorship undertaking from her husband.
[6]
The
next year, after Ms. Alexander left her husband, allegedly on account of
domestic abuse, she took steps to inform Citizenship and Immigration Canada
that she had severed relations with her would-be sponsor, and that she wished
to add her son Craig Coe to her application for permanent residence.
[7]
Citizenship
and Immigration Canada subsequently advised Ms. Alexander, in a letter dated
November 3, 2004, that it had become aware that she and her family were in
receipt of welfare, and that permanent residence could not be granted unless
she were self-supporting. She was requested to submit proof of employment upon
starting work. Also, various documents were requested in relation to the
request to add her son Craig Coe to the application.
[8]
This
request for information was reiterated by letter dated February 3rd
2005, and again by letter dated May 3rd 2005, the latter stating
that a decision would be made on the existing file if no new information were
received within 30 days.
[9]
In
response, Parkdale Community Legal Services, on behalf of Ms. Alexander, wrote
a letter to Citizenship and Immigration Canada dated June 1, 2005, explaining
that Ms. Alexander was unable to work due to family hardship and medical
conditions. The letter requested that her permanent residence application be
evaluated with reference to section 13.10 of the IP-5 Guidelines, which directs
immigration officers to be sensitive to situations of spousal abuse.
[10]
Less
than a week later, Ms. Alexander was notified by Citizenship and Immigration
Canada that that her application for permanent residence had been refused in
accordance with subsection 39 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 on grounds of inadmissibility for financial reasons. That
decision was subsequently quashed by this Court, with the consent of both
parties. In fact, the Order of Justice Hughes which issued April 4, 2006 in
this regard was drafted by the Respondent and approved by the Applicant.
[11]
Subsequently,
Ms. Alexander filed submissions through her then-counsel in support of her
H&C application. The H&C grounds invoked by Ms. Alexander included her
special circumstances as a victim of domestic violence, the best interests of
her children, her degree of establishment in Canada, and the
various hardships she would face in St. Lucia.
[12]
The
H&C exemption from the requirements of section 39 of the Act was denied in
the decision under review. In that decision the officer writes:
The 2006 judicial review of
the applicant’s previously refused H&C decision resulted in a Federal Court
Order for the applicant’s H&C factors to be weighed against her
inadmissibility under Section 39 of the Act. However, in this assessment of
the application, I do not find that the applicant’s H&C factors meet the
test of unusual and undeserved or disproportionate hardship, so as to allow her
application for permanent residence to be processed in Canada. As her application for permanent
residence will not be processed in Canada,
her inadmissibility under Section 39 of the Act need not be assessed in this
application. (emphasis added)
[13]
In
spite of the submissions of counsel for the Respondent, I can only conclude that
the officer failed to comply with the Order of Justice Hughes. Specifically,
the officer failed to comply with paragraph 4 of his Order which reads as
follows:
The Applicant’s humanitarian
and compassionate factors will be weighed against the finding of
inadmissibility pursuant to section 39 of the Immigration and Refugee
Protection Act to determine whether the application for permanent residence
may be granted in accordance with section 25 of the Immigration and Refugee
Protection Act.
[14]
Accordingly,
the decision of the officer cannot stand and must be remitted back for redetermination
by an officer other than the officer, whose decision was set aside by Justice
Hughes, and the officer, whose decision I have set aside.
[15]
The
officer assigned to make the redetermination is specifically directed to comply
with the Order of Justice Hughes which issued April 4, 2006.
[16]
Neither
party proposed any question for certification and there is no question certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
This
application for judicial review is allowed;
2.
No
question is certified; and
3.
The
Applicants’ application is remitted back for redetermination in accordance with
the Order of Justice Hughes by an officer other than the officer whose decision
was set aside by Justice Hughes in his Order which was issued on April 4, 2006
and the officer whose decision is set aside by this Order.
“Russel W. Zinn”
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