Docket:
IMM-13106-12
Citation: 2014 FC 267
Toronto, Ontario, March 19,
2014
PRESENT: The Honourable Madam Justice Mactavish
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BETWEEN:
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MIRYAM PUENTES PERDOMO
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ELIANA PENA PUENTES
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LIDA PENA PUENTES
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SEBASTIAN PENA PUENTES
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Miryam Puentes Perdomo, together with her two
daughters and her grandson Sebastian, seek judicial review of the decision of a
Senior Immigration Officer refusing their application for permanent residence
from within Canada on humanitarian and compassionate (H&C) grounds.
[2]
The applicants submit that the Immigration
Officer erred in the treatment accorded to Sebastian’s best interests. The
Officer further erred, the applicants say, in assessing the hardship that would
be faced by the adult applicants in the event that they were required to return
to Colombia.
[3]
For the reasons that follow, the applicants have
not persuaded me that the Officer’s decision was unreasonable. As a result, the
application for judicial review will be dismissed.
The
Assessment of Sebastian’s Best Interests
[4]
When Sebastian was approximately two years old,
he witnessed the murder of his parents at the hands of the Fuerzas Armadas
Revolucionarias De Colombia (FARC) members. The applicants submit that although
the Officer acknowledged that this would have been traumatic for Sebastian, no
real consideration was given to his best interests, in particular, how these
interests could be served by his return to Colombia. Instead, the applicants
say that the Officer erred by looking at Sebastian’s interests through the lens
of unusual, undeserved or disproportionate hardship.
[5]
The H&C submissions provided by the applicants
with respect to Sebastian’s best interests were minimal. The only reference to
Sebastian’s interests in the applicants’ submission letter was the bald
assertion that “the children” (including Sebastian) feared Ms. Puentes
Perdomo’s abusive husband, who was living in Colombia. Included in the package
of documents submitted with the H&C application were two letters from a
play therapist who had been working with Sebastian, helping him overcome the
trauma of his parents’ murder. No submissions were made by the applicants as to
the significance of this evidence.
[6]
Notwithstanding the limited submissions provided
with respect to Sebastian’s best interests, the Officer reviewed what evidence
there was with respect to the child, specifically considering the effect that
removal from Canada would have on him, in light of this evidence.
[7]
The Officer accepted that returning to Colombia may be upsetting for Sebastian, given that this was where his parents were killed
and where his abusive grandfather lives. The Officer found, however, that the
upset experienced by the child would be mitigated by the continued emotional
support of his grandmother and his aunts, and by the stable home environment
that they could provide for him, far away from the place where the violence
occurred. The Officer also noted that there was little evidence in the record
to suggest that Sebastian would be unable to continue to receive mental health
treatment in Colombia.
[8]
Nowhere in the officer’s analysis of the best
interest of the child does the term “unusual, undeserved or disproportionate
hardship” appear. The phrase is used in the paragraph of the decision that sets
out the Officer’s overall conclusion with respect to the applicants’ H&C
application. However, when the decision is considered as a whole, I am
satisfied that the Officer had due regard for Sebastian’s best interests,
explaining in an intelligible fashion why they did not outweigh other factors
in the case. No error has been demonstrated in this regard.
The Hardship to
the Adult Applicants
[9]
The applicants also say that the Officer erred
in concluding that the difficulties that they would face if they were required
to return to Colombia did not amount to unusual, undeserved or disproportionate
hardship.
[10]
The applicants further submit that it was
unreasonable for the Officer to conclude that any emotional difficulties that they
might suffer by returning to Colombia could be addressed by their relocation to
Bogotá, some eight or nine hours from their hometown. In addition, it was also
unreasonable for the Officer to find that the hardship that the family would encounter
in relocating to Bogotá would be no greater than that experienced by similarly-situated
individuals attempting to re-settle in a country.
[11]
In support of these contentions, the applicants
point to a letter from Ms. Puentes Perdomo’s mental health counsellor which was
written before her refugee claim was rejected by the Immigration and Refugee
Board (IRB). According to her counsellor, Ms. Puentes Perdomo’s trauma could only
be cured by a favourable answer to her refugee claim. The applicants say that
this evidence was central to their case, with the result that it was therefore
incumbent on the Officer to specifically address it and indicate why it was not
accepted.
[12]
The risk faced by the applicants in Colombia at the hands of the FARC had already been addressed by the IRB, which found that
the family had a viable Internal Flight Alternative (IFA) in Bogotá. A
Pre-removal Risk Assessment subsequently determined that the applicants also
had access to adequate state protection, insofar as their risk of domestic
violence was concerned. For his part, the H&C Officer quite properly
addressed the issue of the applicants’ fear of returning to Colombia through the lens of hardship.
[13]
The Officer accepted that it would be
emotionally difficult for the applicants to return to the place where they had
lost their loved ones in a violent attack and where an abusive family member
still lives. However, the Officer also found that there was little documentary
evidence to show that they could not relocate to Bogotá, where they could
access services, including mental health services for women and children who
have been victims of abuse or trauma.
[14]
The Officer’s comment that the hardship that the
applicants would experience in relocating to Bogotá would be no greater than
that experienced by similarly-situated individuals attempting to re-settle in a
country was clearly made in the context of their ability to find housing and
employment, and no error has been identified in this regard.
[15]
The Officer specifically considered the letter
provided by Ms. Puentes Perdomo’s counsellor regarding her emotional condition.
Weighing this against other evidence in the record, including the apparent
availability of mental health treatment in Colombia for victims of trauma, the
Officer concluded that the difficulties that the applicants would face if they
were required to return to Colombia did not constitute unusual, undeserved or
disproportionate hardship. While the applicants may not agree with this
finding, they have not persuaded me that it was unreasonable.
Conclusion
[16]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the case does not raise a
question for certification.
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