Date: 20100211
Docket: IMM-795-09
Citation: 2010 FC 128
Ottawa, Ontario, February 11, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
DIANA
SHERYL JN CHARLES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Ms. Diana Jn Charles failed in her efforts to
gain refugee protection in Canada after she fled St. Lucia in 1997. She claims to have been sexually assaulted and threatened
there. A panel of the Immigration and Refugee Board denied her claim. She then
made an application for humanitarian and compassionate relief and it, too, was
denied.
[2]
Ms. Jn Charles argues that the officer who
evaluated her humanitarian and compassionate application (H&C) erred in
numerous ways, including failing to take adequate account of the best interests
of her Canadian-born child, Arshell, who is now 11 years old. She asks me to
order a re-evaluation of her application by a different officer.
[3]
I agree with Ms. Jn Charles that the officer
erred in his analysis of the best interests of her daughter and will grant this
application for judicial review on that basis. It is unnecessary, therefore, to
address the other issues she raised.
II.
Analysis
1.
The Officer’s Decision
[4]
The Officer analyzed a variety of factors
relevant to Ms. Jn Charles’ application – her alleged risk on return to St.
Lucia; the degree of her establishment in Canada; and the best interests of Arshell. Relevant to Arshell’s best
interests is the fact that she is the only child of a single parent. She
visited St. Lucia once when she
was little. She has a learning disability and requires special educational
resources, which are available to her in Canada. The officer considered educational opportunities for Arshell in St. Lucia, particularly the International School, which is accredited in Canada. The officer concluded that
Arshell’s best interests would not be jeopardized if she went to St. Lucia with her mother.
2.
Did the Officer Err?
[5]
I can overturn the officer’s decision only if I
find that it was unreasonable.
[6]
In my view, under the circumstances, the officer
was obliged to consider whether Arshell would have access to appropriate
educational opportunities in St. Lucia. The officer accepted that Arshell had special education needs but
did not consider the impact that removing her from the support she receives in Canada would have on her. As mentioned,
the officer did explore the possibility of Arshell attending the International School where she could
maintain equivalency with the Canadian education system. The officer retrieved that
information from the internet and did not provide Ms. Jn Charles a copy of it.
Accordingly, Ms. Jn Charles did not have a chance to comment on whether the International School might offer the kinds of programming that Arshell requires. Nor did
she have the opportunity to point out to the officer that the International School is a private
institution, both with strict admissibility requirements and tuition fees
exceeding $5,000 per year, which she could not afford.
[7]
Further, the officer had a duty to consider the
other potential effects that removal from Canada might have on Arshell, such as the social, emotional and
developmental upheaval that would accompany her separation from the safe and
nourishing environment in which she lives in Canada.
III.
Conclusion and Disposition
[8]
Overall, I find that the officer failed to be
sufficiently alert, alive and sensitive to Arshell’s best interests and, as a
result, rendered an unreasonable decision on Ms. Jn Charles’s H&C
application. Accordingly, I must allow this application for judicial review and
order a re-evaluation of her application by another officer. 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;
2.
A
re-evaluation of her application by another officer is ordered;
3.
No
question of general importance is stated.
“James
W. O’Reilly”
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