Date:
20120730
Docket:
IMM-8600-11
Citation:
2012 FC 939
Ottawa, Ontario, July 30, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SUSAN MERLENE COUDOUGAN
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant, Susan Merlene Coudougan, seeks judicial review of a decision to deny
her permanent residence status on humanitarian and compassionate (H&C)
grounds under section 25(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA). This hearing was held at the same time as that of her
judicial review application related to a negative Pre-Removal Risk Assessment
(PRRA) (Court File # IMM-8599-11).
I. Background
[2]
The
Applicant is a citizen of St. Vincent and the Grenadines (St. Vincent). She
initially brought a claim for refugee protection in Canada in 2006 based on
violence committed by her former partner and the father of her three eldest
children, Gus Robertson. Her claim was denied, as was a subsequent PRRA. She
was removed to St. Vincent in December 2009.
[3]
The
Applicant claims that on her return she was attacked by family members of Mr. Robertson.
She arrived in Canada again on October 5, 2011. She applied for a PRRA to be
considered along with her pending H&C application that was initially filed
prior to her removal from Canada in 2008. Both applications were denied by the
same Senior Immigration Officer (the Officer). The Applicant now asks
this Court to review the H&C decision.
II. H&C
Determination
[4]
Considering
the Applicant’s establishment in Canada, the Officer noted emails from friends
that she maintained contact with following her return to St. Vincent. The
Officer nonetheless found that the Applicant provided “little information about
the hardship experienced after leaving her Canadian employment and her Canadian
friends in December 2009” and could give little consideration to her overall
degree of establishment.
[5]
As
for the hardships of living in St. Vincent, the Officer noted that there is
little information to suggest that high rent, lower incomes and certain living
conditions facing the Applicant created hardship disproportionate to that faced
by others in the country.
[6]
The
Officer also directed attention to the best interests of the Applicant’s
Canadian-born two year old son, Jallon, and his medical condition requiring
surgery. The importance of the procedure was recognized by the Officer, but it
was also noted there was “little information before me indicating that Jallon’s
medical condition will require long term follow-up which would require the
applicant to remain in Canada long term.” The Officer also gave little weight
to Jallon’s adverse skin reaction and the Applicant’s lack of confidence in the
medical system, since this would apply to all residents of St. Vincent. The
lack of support from Jallon’s father was given positive consideration. The
Officer did, however, recognize the benefits of the Applicant living in St. Vincent with her three eldest children.
[7]
The
final factor considered by the Officer was the risk associated with her return
to St. Vincent. The Officer referenced the findings on the PRRA and
stated the Applicant “presents little information to demonstrate the hardship
she will face from living in the same country as the family of her former
common law husband and of her former common law husband once he returns to
SVG.” While there could be some hardship as the Applicant may run into her
former common law partner or his family, this would subject her to
psychological hardship and support services are available in St. Vincent. The
hardship would not be disproportionate to that experienced by others in similar
situations.
III. Issue
[8]
This
application is concerned with the reasonableness of the Officer’s
determination.
IV. Standard
of Review
[9]
As
is evident, H&C determinations are deserving of deference and reviewed
according to the reasonableness standard (see for example Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2009] FCJ no 713 at
para 18). This Court will consider whether the determination demonstrates the
existence of justification, transparency and intelligibility or, to put it
another way, falls within the range of possible, acceptable outcomes (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[10]
The
Applicant takes issue with the Officer’s consideration of risk factors due to
reliance placed on PRRA findings that state protection would be available to
her. She insists that the Officer failed to conduct an independent assessment
of the physical hardship of availing herself of that protection in St. Vincent as required under the broader and lower threshold of an H&C application.
[11]
I
am not convinced that the Applicant’s position reflects the decision as
rendered by the Officer. Despite the reference to PRRA findings, attention was
given to the overarching consideration in H&C applications of
disproportionate hardship to the Applicant. This is clear in the passages
devoted to risk in the Officer’s decision where it was noted:
In the context of the PRRA application, I found that
adequate state protection would be reasonably forthcoming to the applicant if
she made reasonable efforts to avail herself of it. I found the applicant did
not demonstrate a serious possibility of persecution as defined in section 96
of IRPA. In addition, the applicant did not satisfy me, on substantial grounds,
that she faces risk of torture under 97(1)(a) or is personally at risk of cruel
and unusual treatment or punishment, or at risk to life under 97(1)(b).
As the risk presented by the applicant this on
application is the same risk presented in her PRRA application, these findings
are directly relevant and have bearing on the applicant’s H&C application.
I am cognisant that, while the H&C analysis involves similar facts to those
considered in the PRRA, these facts must be examined in light of the lower
threshold applicable to H&C decisions, of whether the risk factors amount to
unusual, undeserved or disproportionate hardship.
[12]
Not
only was the Officer aware of the distinction between the two applications and
the need to focus on the degree of hardship in the H&C context, but
proceeded to conduct that specific analysis in subsequent paragraphs. The
Officer continued:
The applicant presents little information to
demonstrate the hardship she will face from living in the same country as the
family of her former common law husband and of her former common law husband once
he returns to SVG.
I acknowledge that some hardship may occur for the
applicant by moving to Grenada [sic] where her former common law partner’s
family continues to reside as she may run into them in the course of her day to
day activities. She may also occasionally run into her former common law
partner when he returns to SVG. This may subject the applicant to psychological
hardship. However, social and psychological support services are available in
SVG as evidenced by the 2000 USDOS Human Rights report that was included with
the applicant’s H&C submissions. I find I do not have sufficient
information before me to find the hardship faced by the applicant would be
disproportionate to the hardship experienced by others in similar situations.
[13]
The
Officer’s primary concern was the lack of specific evidence identifying the
degree of hardship the Applicant would encounter under the circumstances. Reference
was, however, still made to the issues of running into her former partner and
family members as well as possible psychological hardship. Since the Officer
considered state protection from the perspective of disproportionate hardship,
the approach is justified, transparent and intelligible (for similar reasoning
see Youkhanna v Canada (Minister of Citizenship and Immigration), 2008
FC 187, [2008] FCJ no 239 at para 4).
[14]
Regarding
the Applicant’s suggestion that particular pieces of evidence were ignored in
the Officer’s assessment of hardship, I note that much of that material was
specifically addressed in the context of the PRRA. As the Respondent contends,
it appears that essentially the same evidence of the risk of violence and
concerns associated with police response were relied on for the H&C
application as in the PRRA.
[15]
The
Officer devoted sufficient attention to the degree of hardship facing the
Applicant when considering the risk factors, despite using the state protection
findings from the PRRA as the initial starting point. I stress that the onus
remains on the Applicant to demonstrate how the situation would impose particular
hardships (see for example Ahmad v Canada (Minister of Citizenship and
Immigration), 2008 FC 646, [2008] FCJ no 814 at para 37).
VI. Conclusion
[16]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
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