|
Federal Court
|
|
Cour fédérale
|
Date: 20090512
Docket: IMM-4869-08
Citation: 2009 FC 489
Ottawa, Ontario, May 12, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
OLGA
MARIA GONZALEZ MACHADO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C., 2001, c. 27 (the Act) of the decision of
an Immigration Officer (the Officer) dated August 14, 2008, concluding that the
Applicant would not suffer disproportionate hardship should she be forced to
apply for a permanent residence visa from outside of Canada, thus denying her
request for exemption based on humanitarian and compassionate (H&C) grounds
under section 25 of the Act.
Issues
Did the
Officer err law in rejecting the H&C application and determining that there
would be no excessive and undue hardship involved for the Applicant if she were
to return to Ecuador?
Factual Background
[2]
The
Applicant is a 75 year old woman who is a citizen of the state of Ecuador. She is
childless, has never married and has never worked outside the family
home.
[3]
After
her mother’s death in 1985 and having no revenue of her own, the Applicant lived
with her older brother, Vidal.
[4]
In
1995, the Applicant’s niece Maria Nunez separated from her spouse and in the
years that followed, the Applicant acted as nanny for her two and then three
young children. In 2005, Maria Nunez came to Canada as a permanent
resident with her children.
[5]
In
February 2005, when the Applicant was leaving church in Ecuador, she saw
several young men who are members of a gang called the Latin Kings who were
attempting to force a young woman into a vehicle. By reflex, the Applicant
screamed, which alerted the neighbours to call the police.
[6]
The
police arrived and arrested one of the gang members. Following this incident,
the gang painted threats on the Applicant’s house, killed her dog and
threatened to kill her as vengeance for her intervention.
[7]
The
Applicant did not feel safe asking for local protection so she accepted her
niece’s offer to come to Canada to join her. The Applicant obtained a visitor
visa and arrived in Canada in on May 8, 2005. Since her arrival, the
Applicant has lived with her niece’s family, continuing to act as nanny to the
children.
[8]
In
May 2006, after having obtained one visa extension, the Applicant’s second
request was denied.
[9]
The
Applicant applied for refugee protection in June 2006. On January 25, 2007, the
Immigration and Refugee Board (the Board) concluded that although her story
could be believed, the Applicant had failed to rebut the presumption of state
protection since she did not file any complaint to the authorities.
[10]
On
May 10, 2007, the Federal Court denied her application for leave and for
judicial review.
[11]
On
November 14, 2007, the Applicant applied for permanent residence based on the
following humanitarian and compassionate grounds (H&C):
a. She has no
place to live and no source of revenue in Ecuador. Her 90 year
old brother is very ill and no longer able to provide her with shelter and
support. In fact, the Applicant has since learned that her brother passed away
on October 8, 2008.
b. She has never
worked in her country and she depended on her brother. She will now have to become
a beggar in order to survive.
c. This
situation is beyond the Applicant’s control. The Board pointed out that this
justifies the qualification of her situation as a humanitarian and compassionate
application.
d. The Applicant’s
niece kindly welcomed her into her home in Canada and she is
willing to continue this arrangement. The Applicant has developed a bond with
her niece’s children during the years that she has been their nanny.
e. The Applicant
continues to fear violent reprisals from the criminal gang who threatened her
with death and the Board has confirmed the likelihood of the alleged facts and
threats. She is too old and frail, and will become homeless and penniless.
[12]
The
Applicant had applied for a pre-removal risk assessment (PRRA), which was also
denied on August 14, 2008. The Officer concluded that the Applicant did not
demonstrate that she was at risk should she return to Ecuador because state
protection was available to her.
[13]
She
did not contest the PRRA negative decision.
[14]
The
Applicant’s removal was initially scheduled for December 29, 2008, but a stay
was granted by this Court on December 22, 2008.
[15]
While dismissing the Applicant's
claim, the Immigration and Refugee Board (IRB) noted that the age and the
loneliness of the applicant demonstrate that it was faced with a humanitarian
case which was not of its province.
[16]
The
Officer accepted that the age factor was important but was not satisfied that
the applicant had developed sufficient financial, social and cultural ties to Canada, excluding those to her
niece and great nephews.
[17]
He
also stated that the separation of the children and their great aunt would be
difficult and it would be in their best interest (especially the young one
being four and half years) that she remains with them in Canada.
[18]
The
Court agrees with the defendant that the officer committed a reviewable error
by not making any reference to negative factors that might outweigh the age
element, the personal situation of the applicant, the best interest of the
children and the difficulty to seek protection in her country.
[19]
No
certified questions for certification were proposed and none arise in this
case.
JUDGMENT
THIS COURT
ORDERS that
1. The
application for judicial review is granted and the matter is returned for
re-determination by another Officer. No question is certified.
“Michel
Beaudry”
Email this Content