Date: 20090203
Docket: IMM-2738-07
Citation: 2009 FC 96
Montréal, Quebec, February 3, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
RASHEENA ALLEYNE
VANDRA ALLEYNE
KLEIN ALLEYNE
ANDRE ALLEYNE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of
a pre-removal risk assessment (PRRA) officer, dated May 15, 2007, refusing the
applicants’ third application for permanent residence on humanitarian and
compassionate (H&C) grounds wherein the officer found that there were
insufficient H&C considerations to warrant exempting the applicants
from the requirement that they apply for permanent residence outside of Canada.
II. The Facts
[2]
The
principal applicant, Rasheena Alleyne and three of her children, Vandra, Klein
and Andre (the applicant-children), all citizens of Trinidad, entered Canada on December
25, 1993, on visitors’ visas.
[3]
The
principal applicant has three other children who are not parties to this
application. Of the three non-applicant children, one, Sadiq Jan, a mother of
four children is already a permanent resident, and the other two, Tracy
Alleyne, a mother of two Canadian-born children, and Sommar Alleyne received
positive H&C decisions, while the applicant and the applicant-children
received negative H&C decisions.
III. Reasons Alleged in the
H&C Application
[4]
The
reasons alleged in support of the H&C application can be summarized as
follows:
a.
The
applicants fear harassment and discrimination if removed from Canada because of
their mixed race;
b.
The
applicants have no family ties in Trinidad;
c.
The
principal applicant was physically abused by her separated spouse, the applicant‑children’s
father;
d.
The
principal applicant’s former mother-in-law has threatened to have her arrested
if she returns to Trinidad;
e.
The
principal applicant’s former father-in-law is well connected and she fears he
will try to use his influence to harm her;
f.
The
applicants have lived in Canada for 15 years and have become well
established.
IV. The
Impugned H&C Decision
[5]
The
officer concluded that the risks and hardships alleged by the applicants are insufficient
to establish unusual, undeserved or disproportionate hardship should they have
to apply for permanent residence from outside of Canada. To arrive
at this conclusion, the PRRA officer made findings that can be summarized as
follows:
- The
risks and fear alleged by the principal applicant, namely, of harm to her from
her former father-in-law, of arrest initiated by her former mother-in-law, of
harassment and discrimination from the community due to the family’s mixed
race, do not amount to unusual and undeserved or disproportionate hardship;
- The
principal applicant having lived away from Trinidad for 15 years and having
been separated from her spouse since February 1, 1997, the circumstances have
changed since then so that risks feared have become with time insufficient
evidence to establish hardship;
- The
country documentation shows that police corruption has been a problem related
to illegal drugs and other illicit activities, but that mechanisms exist for
complaints against police officers. The documentation shows also the existence
of laws against racism and racial motivated crimes;
- The
concept of risk is forward looking and the principal applicant has provided
insufficient evidence that she would face a personalized risk should she return
to Trinidad;
- Having
been subject off a removal order since 2001, the applicants had a reasonable
expectation they would be allowed to remain in Canada permanently.
As a consequence, they assumed the risk of establishing themselves in Canada while fully
aware that their immigration status was more than uncertain;
- The
applicants have established themselves to a certain degree, but not to the
degree that it would be unusual, undeserved or disproportionate hardship to ask
that they apply for permanent residence from outside of Canada;
- There
is insufficient evidence to establish the applicants would not be able to adapt
to living in Trinidad as well as they have adapted to living in Canada;
- The
evidence does not establish that the relocation and resettlement in the home
country would have a significant negative impact on the grandchildren that
could amount to unusual, undeserved or disproportionate hardship.
V. Issues
[6]
The
applicants raise several issues that can be rephrased as follows:
Did
the officer err in refusing the application considering all of the
circumstances?
VI. Analysis
Standard of Review
[7]
The
present case involves the application of law to a situation of fact only. The
appropriate standard of review here is therefore reasonableness. The question
at issue falls within the expertise of the PRRA officer and as a result
deference is owed and the Court should not intervene unless the PRRA officer’s
decision does not fall “within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir v. New
Brunswick, 2008 SCC 9, at para. 47).
Did
the Officer Err in Refusing the Application Considering All of the
Circumstances?
[8]
The
applicants point out that Tracy and Sommar brought one application in April of
2004 on the same grounds for all the family members. Their application was
successful while the present applicants’ request followed a different avenue.
The applicant-children are younger than Tracy and Sommar who have spent more of
their lives in Canada, and are more likely entrenched and rooted in
Canadian culture.
[9]
The
applicants submit that the PRRA officer completely ignored the issue of
disparity and inconsistency by failing to mention in the reasons for decision
that the applications of Tracy and Sommar were accepted. Also, the applicants
submit that the officer erred by not analysing the hardship the separation that
would result from these opposite findings would cause.
[10]
The
applicants have not cited any authority to support the proposition that a
positive disposition of the H&C application of one family member should
translate into a positive disposition for a different family member. The Court
notes that this argument has been made in the refugee context and has
consistently been rejected by the Federal Court (Bakary v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1111, at para. 10).
[11]
The
officer did not err by failing to mention the positive H&C decisions of
Tracy and Sommar. H&C decisions are fact-specific to the particular
applicant. The rejection of this argument is based on two main factors: first,
refugee applications are to be determined on a case-by-case basis; and second, the
other decision could be incorrect (Bakary, above; Aoutlev v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 183 (QL),
at para. 26; and Cortes v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. No. 323 (QL), at para. 10).
[12]
Just
as a refugee determination must be done on a case-by-case basis, this is even
more so in an H&C determination. Additionally and since the applicants have
not provided the positive H&C reasons for the other family member, their
arguments is without evidentiary foundation and the Court is unable to compare
the two situations.
[13]
The
Court cannot ignore though that Tracy’s affidavit indicates
she is the mother of young children born in Canada, which is a
factor inexistent in the applicants’ request.
[14]
The
applicants cite the “Inland Processing Manual IP5”, Yu
v. Canada, [2006] F.C.J. No. 1217 (QL) and Baker v. Canada,
[1999] 2 S.C.R. 817, in support of one of the most important principles
that ought to favour a positive determination of an H&C determination, that
is family reunification and the best interests of the applicants.
[15]
The
applicants rely on the following facts in their pretensions that the officer’s
decision was unreasonable:
a.
They
have lived in Canada for 15
years;
b.
The
applicant-children will be ousted from the home and employment they have
established in Canada;
c.
The
applicant-children have absolutely no ties, roots or employment in Trinidad;
d.
The
applicant-children, Klein and Vandra, have been successful in building solid
careers in their particular fields and are highly recommended by their
employers;
e.
The
principal applicant is close to all of her children and grandchildren;
f.
The
applicants are hard-working, law-abiding, and dedicated to their employment and
family in Canada.
[16]
As
noted by the PRRA officer, there are no minor applicants here. All of the
principal applicant’s children are adults. The only children who may be
impacted by this decision are the principal applicant’s grandchildren; the
officer discussed the impact on them of the removal of their grandmother and
determined it constituted insufficient H&C grounds.
[17]
The
respondent submits that the applicants are asking the Court to reweigh the
factors the officer considered, which is not this Court’s role. In their
submissions, the applicants simply repeat the grounds of their H&C
application. Other than alleging that the positive determinations of Tracy’s and
Sommar’s applications should have been considered, the applicants do not point
to specific errors in the officer’s analysis or his decision-making process.
Other than the H&C decisions of Tracy and Sommar, the applicants do not
suggest any evidence that was overlooked.
[18]
The
Court has reviewed the H&C application, the reasons for decision, and the
submissions on judicial review and noted that the reasons for the decision are
accurate and reasonably well founded. The PRRA officer was correct when he
stated that the personal risk alleged by the principal applicant risk is
forward-looking an he accurately noted that the principal applicant has been
separated from her abusive former husband, who still
lives in Canada, for over 10 years.
[19]
A
prolonged stay that has led to establishment is one consideration amongst others,
but more so if the circumstances leading to the prolonged stay are outside of
the applicants’ control. These are not the circumstances of the applicants
here.
[20]
The
applicants decided to establish themselves in Canada without
having any assurance that their various requests would be granted. Their
prolonged stay appears to be the consequence of their own actions: their
initial H&C application was rejected on December 3, 1999, and a removal
order was issued for them on July 12, 2001; on January 28, 2004, they were
determined not to be convention refugees; on June 7, 2006, their PRRA
application was rejected; and on November 30, 2006, their second H&C
application was rejected and followed with an application for leave of that
decision to the Federal Court, but this recourse was discontinued upon the
parties’ agreement to have their H&C application re-considered by a
different officer; and finally on May 15, 2007, the applicants’ third H&C application
was dismissed, and is the subject of the present judicial review.
[21]
Under
the circumstances, it cannot be said that they had nothing to do with their
prolonged stay. They assumed the risk of these lengthy procedures and of their
establishment in the meantime; unfortunately, they must now assume the
consequence.
[22]
In
his decision, the PRRA officer stated and applied the correct legal test:
unusual, undeserved or disproportionate hardship; accurately recited the
applicants’ submissions; and thoroughly analyzed the H&C considerations
brought forth. However, the applicants failed to convince this Court that the
impugned decision is unreasonable.
[23]
In
brief, the impugned decision falls within a range of possible and acceptable
outcomes which are defensible in respect of the facts and the law, and
therefore deserves deference from this Court. For these reasons, this Court
concludes that the PRRA officer did not commit a reviewable error and that his
decision is reasonable. Therefore, the judicial review application will be
dismissed.
[24]
The
Court agrees with the parties that there is no serious question of general
importance to certify.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application is
dismissed.
“Maurice
E. Lagacé”
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