Date: 20120605
Docket: IMM-7317-11
Citation: 2012 FC 690
Ottawa, Ontario, June 5,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SYLVIA MAY MARTIN
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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
[1]
The
Applicant, Sylvia May Martin, contests the rejection of her application for
permanent residence on humanitarian and compassionate (H&C) grounds under
section 25(1) of the Immigration and Refugee Protection Act, SC 2001, c
27.
I. Background
[2]
A
citizen of Jamaica, the
Applicant has lived in Canada since January 1992. She is the mother of
three Canadian born children aged 15, 16 and 18 years old.
[3]
This
is her second H&C application. The first was rejected in 2005, while the
most recent, the subject of this application for judicial review, was rejected
in 2011.
[4]
In
making a negative determination, the Immigration Officer (Officer) found that
there was no objective evidence to support contentions that the Applicant was
abused by her former partner and he had vowed to kill her. In addition, there
was insufficient objective evidence that the Applicant had provided clear and
convincing evidence that state protection would be unavailable to her in Jamaica. As the
Officer concluded, “[t]he applicant provides virtually no details of the
alleged abuse, her attempts in seeking state protection or the alleged
continued threat to her from her former partner.”
[5]
The
Officer further noted that the Applicant provided “minimal detail” as to her
establishment in Canada. There was no employment listed until 1999. No
letters or documents from her volunteer work were provided since 2009. While
there was information that the Applicant relied on financial support from the
father of her children and from the Church, the Officer noted that no details
of this financial support were provided. Despite the submissions of
Applicant’s counsel that she is the primary caregiver, there was insufficient
objective evidence that this was so from a financial perspective.
[6]
The
best interests of the Applicant’s children were considered with reference to
letters from them requesting that their mother remain in Canada. The
Officer recognized it would be difficult for the children and the important
role of a mother in this context. Nevertheless, it was noted that the children
have their father, two half-sisters and three aunts in Canada. The
Officer found that they would not “be bereft of financial resources or familial
love and support should their mother return to Jamaica and apply
for permanent residence in the usual way.”
[7]
The
Officer ultimately concluded: “I am not of the opinion that the hardship of
having to obtain a permanent resident visa from outside Canada would be unusual
and undeserved or disproportionate and in this regard I am not of the opinion
that granting the requested exemption is justified on humanitarian and
compassionate grounds.”
II. Issue
[8]
The
issue before the Court is whether the Officer erred in considering the best
interests of the Applicant’s children.
III. Standard of Review
[9]
H&C
determinations are to be afforded deference and reviewed on a standard of
reasonableness (see Garas v Canada (Minister of Citizenship and Immigration),
2010 FC 1247, [2010] FCJ no 1559 at para 22; Ahmad v Canada (Minister of
Citizenship and Immigration), 2008 FC 646, 2008 CarswellNat 1565
at para 11; Inneh v Canada (Minister of Citizenship and Immigration),
2009 FC 108, 2009 CarswellNat 239 at para 13).
[10]
For
a determination to be reasonable, it would demonstrate the existence of
justification, transparency and intelligibility or, to put it another way, fall
within the range of acceptable outcomes (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
IV. Analysis
[11]
The
Applicant asserts that the Officer erred in not being alert, alive and
sensitive to the best interests of her children (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 CarswellNat 1124 at para 75).
She disputes the Officer’s reference to her records that she resides with the
children’s father but they are not cohabitating and relies on him for financial
support. This suggests there is a bond between the children and their father
that is not supported by their letters.
[12]
She
further contests the suggestion that her children would not “be bereft of
financial resources or familial love and support should their mother return to
Jamaica and apply for permanent residence in the usual way” because they have
their father, half-sisters and aunts in Canada. She
receives infrequent child support payments from the children’s father and there
was no evidence that other family members would be capable of meeting their
needs. The conclusion that her removal would not cause hardship was therefore
unreasonable.
[13]
Although
I recognize that there is a requirement to be alert, alive and sensitive to the
best interests of the child where applicable, I fail to see how the issue was
not adequately addressed by the Officer in the present case.
[14]
I
must agree with the Respondent that the Applicant’s issue is primarily with the
weight assigned to the various aspects of the best interests of the children. The
Officer considered the letters from the children asking that their mother not
be removed because it would be difficult for them. It expressly acknowledged
the important role of their mother. At the same time, this was balanced
against the presence of family members in Canada to ensure
that they would not be “bereft of financial resources and familial support
should their mother return to Jamaica.”
[15]
That
approach was reasonable under the circumstances. While the best interests of
the child are an important factor to be given substantial weight in assessing
the degree of hardship, they need not be determinative (Legault v Canada
(Minister of Citizenship and Immigration), 2002 FCA 125, 2002 CarswellNat
746; Hawthorne v Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, 2002 CarswellNat 3444
at para 6).
[16]
As
the Federal Court of Appeal recently confirmed in Kisana v Canada (Minister
of Citizenship and Immigration), 2009 FCA 189, [2009] FCJ no 713 at para
24, the Court has no role in reweighing factors in this regards as “[i]t will
more often than not be in the best interests of the child to reside with his or
her parents in Canada, but this is but one factor that must be weighted
together with all relevant factors.”
[17]
Moreover,
conflicting evidence as to the exact nature of the Applicant’s living and
financial arrangements with respect to the children’s father does not undermine
the Officer’s broader conclusion. There was a sufficient evidentiary basis to
reasonably conclude that the children would not be bereft of support in Canada,
as family members were in the picture to varying degrees, should their mother
be returned to Jamaica to pursue a permanent residence application
through the normal course.
[18]
In
general, the Officer was concerned that the Applicant failed to provide
sufficient information along with her application on H&C grounds to
establish hardship that would be unusual, undeserved or disproportionate. Evidence
of the best interests of the children as presented was not sufficient to
overcome these concerns.
V. Conclusion
[19]
Since
the Officer’s consideration of the best interests of the children was
reasonable, the 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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