Date:
20130114
Docket:
IMM-3017-12
Citation:
2013 FC 29
Ottawa, Ontario,
January 14, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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SURIJPAUL JAGERNAUTH
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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
I. Overview
[1]
In
2003, Mr Surijpaul Jagernauth fled to Canada from Guyana on a false passport
after being robbed and assaulted. He believes he was targeted because he was
regarded as comparatively well-off, given that all of his immediate family
members live in and are citizens of Canada.
[2]
Mr
Jagernauth applied for refugee protection but was turned down because his claim
was not based on any of the grounds recognized in the Refugee Convention. Further,
his fear was based on a generalized threat of being a victim of crime, not a
personalized risk. He also applied for a pre-removal risk assessment (PRRA) and
an exemption based on humanitarian and compassionate grounds (H&C). An
immigration officer dismissed both of those applications, too.
[3]
In
this application for judicial review, Mr Jagernauth challenges the H&C
decision, arguing that the officer made a number of errors and arrived at an
unreasonable conclusion. He also contends that the officer treated him
unfairly. He asks me to quash the officer’s decision and order another officer
to reconsider his application.
[4]
I
agree that the officer made errors that rendered his conclusion unreasonable. I
must, therefore, allow this application for judicial review. In light of my
conclusion, I need not deal with Mr Jagernauth’s argument on unfairness.
II. The officer’s
decision
[5]
The
officer found that a number of factors should be weighed in Mr Jagernauth’s
favour, some more heavily than others:
• violent
crime is a serious problem in Guyana, especially for those perceived to be
wealthy, including persons who have lived abroad; however, this is not a
personalized risk and state protection is available;
• ethnic
tensions exist between the Afro-Guyanese and the Indo-Guyanese, although these
have abated in recent years;
• Mr
Jagernauth has a good employment record in Canada, and has integrated into the
community; and
• Mr
Jagernauth’s family in Canada relies on him, but they would manage without him,
as they did when the family was separated from 1996 to 2003.
[6]
The
officer accepted that leaving Canada would be difficult for Mr Jagernauth. On
the other hand, his extended family could assist him in integrating back into
life in Guyana.
[7]
The
only negative factor in Mr Jagernauth’s application was his use of a false
passport to enter Canada in 2003. The officer considered this factor
“significant”.
[8]
Overall,
the officer concluded that the evidence was insufficient to demonstrate that Mr
Jagernauth’s removal from Canada would cause undue, undeserved and
disproportionate hardship.
III. Was the officer’s
conclusion unreasonable?
[9]
Mr
Jagernauth points to a number of problems with the officer’s decision:
[10]
First,
the officer accepted that Mr Jagernauth had been the victim of several violent
crimes, yet concluded that returning to Guyana would not cause him hardship
because state protection is available.
[11]
Second,
the officer concluded that Mr Jagernauth’s extended family could assist him on
his return, but there was no evidence of other family members remaining in Guyana.
[12]
Third,
the officer concluded that Mr Jagernauth’s parents lived independently without
his assistance from 1996 to 2003. However, there was evidence that his father’s
health has declined significantly since then and that another separation would
be stressful for him.
[13]
Fourth,
the officer exaggerated the significance of Mr Jagernauth’s reliance on a false
passport to escape mistreatment in Guyana. Refugee claimants are often forced
to use irregular travel documents; no negative inference should have been drawn
from that (Rasheed v Canada (Minister of Citizenship and
Immigration), 2004 FC 587).
[14]
I
agree with Mr Jagernauth that the officer erred in each of these areas, which
led to an unreasonable conclusion. I will deal with each of Mr Jagernauth’s
concerns.
[15]
The
officer found that Mr Jagernauth had been victimized before and would probably
be targeted again. At the same time, since state protection is available,
returning to Guyana would cause him little hardship. There are two problems
with this analysis. The first is the officer’s conclusion that the probability
of being a victim of crime does not amount to a hardship. The second is that
the officer imported the conclusion on state protection from the PRRA decision.
While that may not in itself be impermissible, the PRRA decision recognized
that the police did not respond adequately when Mr Jagernauth reported crimes
to them. While the PRRA decision went on to mention that Guyana is a democracy and has a civilian police force, it also acknowledged that crime
rates are high and the police are perceived to be corrupt.
[16]
The
Minister cited to me cases where the Court has concluded that an applicant
generally must show more than just a generalized risk of criminality on an
H&C: Paul v Canada (Minister of Citizenship and Immigration),
2009 FC 1300; Ramotar v Canada (Minister of Citizenship and
Immigration), 2009 FC 362; and Chand v Canada (Minister of
Citizenship and Immigration), 2009 FC 964. However, these cases do not
state that a risk of being victimized cannot be considered a hardship. For
example, Justice Judith Snider explicitly stated in Paul that “a
generalized risk can lead to a determination that a person would suffer
unusual, undeserved or disproportionate hardship” (at para 8, emphasis in
original). In addition, Mr Jagernauth has shown something more – that he has
already been victimized and that state protection was not forthcoming. In my
view, the officer failed to consider the potential hardship to Mr Jagernauth
arising from criminality.
[17]
In
his written narrative, Mr Jagernauth mentioned that he visited his aunts in Georgetown in 1999. His immigration file also indicated that he lived with an aunt in Guyana in 2001. However, more recent evidence in the record showed that he no longer has
any close relatives in Guyana. The officer did not take account of that
evidence.
[18]
The
officer referred to a doctor’s note that mentions Mr Jagernauth’s father’s
history of heart disease. But the note also mentions that the father had an
angioplasty in 2002, so it is not accurate to say that Mr Jagernauth’s parents
managed well without him from 1996 to 2003. It was only in 2002 that the
father’s dependency on the family became an issue. Mr Jagernauth arrived in Canada the following year and has been the principal provider of assistance and support
since then. In my view, the officer failed to take account of the hardship on
the family if Mr Jagernauth were removed.
[19]
Mr
Jagernauth explained that he tried to immigrate to Canada by regular means but
was turned down twice. He had not been able to accompany the rest of the family
because he was beyond the age of a “dependent child” at the time they emigrated.
Therefore, feeling endangered in Guyana, he resorted to the use of a false
passport to escape. This Court has acknowledged that refugee claimants
sometimes have to rely on false documents and that this fact is a “peripheral”
matter (Rasheed, at para 18). Of course, the weight, if any, to be given
to this piece of evidence will vary. Here, Mr Jagernauth’s claim to have been
the victim of serious violent crimes was accepted on his refugee claim, in his
PRRA, and even by the H&C officer. In these circumstances, while it was
open to the officer to consider it a negative factor, it is not clear why its
significance was so great as to eclipse the several positive factors in Mr
Jagernauth’s favour.
[20]
Taking
these issues as a whole, I find that the officer’s decision was unreasonable as
it falls outside the range of defensible outcomes based on the facts and the
law.
IV. Conclusion and
Disposition
[21]
In
my view, the officer reached an unreasonable conclusion in light of the
evidence. I must, therefore, allow this application for judicial review and
order another officer to reconsider Mr Jagernauth’s application. Counsel for Mr
Jagernauth requested that I issue directions to the Minister along the
following lines:
(i) Mr
Jagernauth should be allowed to return to Canada pending the redetermination of
his H&C application, or
(ii) that
the H&C should be reassessed within 60 days and, if approved in principle,
Mr Jagernauth should be allowed to return to Canada pending the secondary phase
of processing.
[22]
The
Minister objects to my issuing any specific directions, noting that directions
should be issued only in rare cases: Rafuse v Canada (Pension
Appeals Board), 2002 FCA 31, at para 14.
Further, directions should not be
given where the matter in dispute is essentially factual. While the Federal
Court of Appeal in Rafuse was dealing with a direction that amounted to
a directed verdict, I accept that directions that effectively predetermine the
outcome of a matter referred back to a decision-maker for reconsideration
should be issued sparingly. For that reason, I will not issue the proposed direction
(i). As for direction (ii), I will also decline to issue it. Mr Jagernauth will
have another opportunity to make submissions on his H&C, and can provide
information about his current difficulties in Guyana and request permission to
return to Canada. While I would not impose a deadline on the reconsideration of
Mr Jagernauth’s application, I am prepared to direct that a review of his
application be expedited.
[23]
Neither
party proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to another
officer for reconsideration on an expedited basis.
2.
No
question of general importance is stated.
“James W. O’Reilly”
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