Date: 20120601
Docket: IMM-7573-11
Citation: 2012 FC 675
Toronto, Ontario, June 1,
2012
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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KRISHNA AUROBINDO WILLIAM
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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]
This
is an application for judicial review pursuant to section 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a
decision of an Immigration Officer [the Officer] dated August 31, 2011 in which
the Officer denied the applicant’s request for permanent residence from within
Canada based on humanitarian and compassionate [H&C] grounds.
BACKGROUND
FACTS
[2]
The
applicant Krishna Aurobindo William is a citizen of St. Lucia born on June
2, 1986. He arrived in Canada on September 4, 2004 with a student visa.
At the time of his arrival, he was 18 years old and was accompanied by his
legal guardian, Narcisse Francis [Francis], who was a pastor.
[3]
Francis
had been the applicant’s guardian for some time before they came to Canada. During that
time, both in St. Lucia and after coming to Canada, he abused
the applicant both physically and sexually. Francis was charged with assault on
October 25, 2004; he pled guilty on December 10, 2004 and received an absolute
discharge. Around the same time, the applicant told the Church about the abuse
and that Francis was gay. Francis returned to St. Lucia in disgrace.
[4]
The
applicant made a refugee claim on November 30, 2004, alleging that he fears
retribution from Francis and his family; a removal order was issued against him
on the same day. His claim was refused on January 11, 2006; the Board
determined that the applicant had used the fact of the assault to fabricate a
refugee claim. His application for judicial review of the Board’s decision was
dismissed on April 24, 2006.
[5]
The
applicant subsequently made the H&C application. He also applied for a
Pre-Removal Risk Assessment [PRRA]. The PRRA was refused on August 26, 2011 and
the H&C on August 31, 2011.
[6]
The
applicant initially sought to challenge both the H&C decision and the PRRA
in this application for judicial review. Pursuant to the Order of my colleague
Justice Campbell dated December 14, 2011, the application was amended to
challenge only the H&C decision. The Order also stayed the applicant’s
removal from Canada pending the
resolution of this application.
THE DECISION UNDER
REVIEW
[7]
The
Officer reviewed the evidence of the applicant’s establishment in Canada, and found
that it weighed in favour of a positive decision. However, the Officer noted
that this establishment, for the most part, took place after the removal order
was issued, and that the applicant therefore established himself in Canada knowing that
his status was uncertain.
[8]
The
Officer considered the applicant’s ties to St. Lucia and noted
that he has three sisters currently living there. The Officer found that the
applicant had not demonstrated that he would be unable to find work or housing
if he returned to St. Lucia. The Officer also considered the applicant’s
common-law spouse in Canada, but noted that the two began their
relationship knowing that the applicant was subject to a removal order and that
they could be separated for a period of time.
[9]
The
Officer acknowledged that it would be in the interest of the applicant’s
Canadian child to grant the application. However, he also found that the
child’s primary caregiver was his mother, and that the applicant had not shown
that the child’s needs would not be met if he was removed from Canada. The Officer
also found insufficient evidence that the applicant could not care for his son
in St.
Lucia
if the parents decided that the child should go with his father.
[10]
Finally,
the Officer considered the risk of retribution by Francis or his family. While
he acknowledged the police report describing attacks against the applicant’s
family in 2008, the Officer relied on the Board’s decision in the refugee
claim, as well as evidence that there was adequate state protection if there
really was a threat to the applicant.
[11]
The
Officer therefore found that there was insufficient evidence to establish
unusual and undeserved or disproportionate hardship.
[12]
H&C
applications are reviewable on the reasonableness standard (see Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360 at para
18).
IS THE DECISION REASONABLE?
[13]
The
applicant submits that the decision is unreasonable and that the Officer failed
to consider his establishment in Canada or the best interests of
his son. I disagree. In particular, he argues that the Officer applied the
incorrect test in assessing the risk on his return, citing a number of cases
about the different risk analyses required in H&C and PRRA applications.
[14]
I
disagree. The Officer considered the evidence the applicant provided and
acknowledged that both his establishment in Canada and his Canadian son weighed in favour of
granting the application, but ultimately concluded that there was insufficient
evidence that the applicant’s removal would result in hardship. Although the
applicant disagrees with this conclusion, he has not pointed to any specific
evidence or information that was not considered.
[15]
Neither
has he demonstrated that the assessment of risk is flawed. The Officer’s
decision clearly demonstrates that she was aware of and applied the appropriate
test: “Risk factors within an H&C application are not determined with the
thresholds, standards, or criteria of a Pre-removal Risk Assessment. Rather,
when risk is cited as a factor in an H&C application, it is more broadly
evaluated in the context of the applicant’s degree of hardship.” I note as well
that the risk alleged is the same as that in his refugee claim and PRRA, so the
Officer cannot be faulted for considering the Board’s decision in her
assessment. I am therefore satisfied that the Officer did not commit a
reviewable error in assessing the applicant’s risk.
[16]
The
application for judicial review is therefore denied.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed.
“Danièle Tremblay-Lamer”
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