Docket: IMM-1858-14
Citation:
2014 FC 1228
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 17, 2014
Present: The Honourable Mr. Justice Harrington
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BETWEEN:
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KADE DIARRA
FELICITE MARIAM THEA
MAURICE MAMADI THEA
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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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JUDGMENT AND REASONS
[1]
Ms. Diarra, the principal applicant, is a citizen
of the Republic of Guinea. She arrived in Canada in April 2009. A few weeks later,
she gave birth to her daughter Jeannette. Over the following months, her
children Maurice and Félicité each came to join her. The principal applicant and
the children then made a refugee claim. The Refugee Protection Division rejected
their request on the ground of Ms. Diarra’s lack of credibility. Their pre-removal
risk assessment was also rejected.
[2]
This is the judicial review of the decision of
an immigration officer dismissing the applicants’ application for permanent
residence, in Canada, for humanitarian and compassionate considerations.
[3]
Paragraph 25(1) of the Immigration and
Refugee Protection Act allows a person who does not meet the eligibility
criteria to make an application for permanent residence from inside Canada if
she can demonstrate that she will face unusual and undeserved or disproportionate
hardship if it is required that the request be made outside Canada. This is an
exceptional measure.
[4]
If Ms. Diarra had no children, it goes without
saying that this Court would have no hesitation to dismiss this application. However,
the humanitarian and compassionate considerations must be directed to the
principal applicant’s two daughters: Félicité, 13 years old, born in the United
States and Jeannette, 5 years old, born in Canada. Neither of them can be sent
to Guinea. What kind of life would Félicité lead if she were sent back to the United
States without her mother? And what kind of life would Jeannette lead if she
lived in Canada without her mother?
[5]
The principal applicant raised her fear of the threat
of female circumcision for her two daughters if they were in Guinea with her. The
decision-maker recognized the possibility, but minimized the seriousness of it,
at least in part, on the ground of Ms. Diarra’s lack of credibility. She is Muslim.
She alleges that her father is a radical imam. She married a Christian man. This
marriage causes great difficulties within the family.
[6]
Nevertheless, the uncontradicted evidence of the
conditions in the country indicates that more than 90% of women are victims of
female circumcision. Although it is forbidden, female circumcision is practiced
both in Muslim and Christian communities across the country.
[7]
Ms. Diarra is faced with an impossible
choice—either she returns to Guinea and leaves her children in Canada and the United
States, or she brings them with her to Guinea where her daughters risk female
circumcision and where the three children would have trouble integrating into a
culture that they do not know. It would be reasonable to conclude, on a balance
of probabilities, that Félicité and Jeannette would be victims of female
genital mutilation if they accompanied their mother to Guinea.
[8]
A recent decision regarding an application for
permanent residence for humanitarian and compassionate considerations is that
of Justice Diner in Bautista v Canada (Citizenship and Immigration),
2014 FC 1008. He points out at paragraph 22:
Regarding parental “choice”, it was simply
never a credible possibility that this single mother would abandon her daughter
in Canada, no more than any responsible parent would abandon their child
thousands of miles away.
[9]
He also quoted case law supporting the position that
“the child’s best interests was remaining with the
primary caregiver”, see para 24. In this case, Ms. Diarra is the primary caregiver. The children’s father still lives
in Guinea.
[10]
In his decision, the immigration officer refers
to the Mission Report prepared by the French, Belgian and Swiss
governments. He points out that: [translation]
"… according to a recent report consulted, health
experts have noted a decrease in the prevalence rate of female genital
mutilation in the last few years.” However, the same report notes that:
[translation]
According to a demographic and health survey
conducted in 2005, the prevalence rate of female
genital mutilation (FGM) is of 96% in Guinea. Without a more recent
study, no new figures are available.
[11]
In the circumstances, the analysis of the best interest
of the children directly affected was not done in accordance with paragraph 25(1)
of the Immigration and Refugee Protection Act. The decision was not reasonable.
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