[2]
After having
carefully reviewed the record and considered the parties’ oral and written
submissions, I have come to the conclusion that this application ought to be
granted. Here are my reasons for so concluding.
BACKGROUND
[3]
The
principal applicant, Mr. Arjune Ramsawak, arrived in Canada on March 29, 2001 under the authority of
a valid visitor’s visa. He was joined a few days later, on April 6, by his
wife and three children.
[4]
The
principal applicant belongs to the Indo-Guyanese minority. He has also been
affiliated with the People’s Progressive Party (“PPP”), in a country he claims
is “racially divided” and whose political parties reflect the polarization of
the two principal ethnic groups, namely the Indo- and Afro-Guyanese.
[5]
On June
19, 2001, the applicants filed a claim for refugee status, on the basis that
they fear for their safety in their country. A hearing was held before the
Refugee Protection Division on March 20, 2003, and a negative decision was
issued on April 11, 2003.
[6]
An
application for H&C consideration was made to the Minister, under s. 25(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27(the “IRPA”),
in June 2003; it was rejected on January 18, 2005. In February 2006, the
principal applicant’s eldest child married a Canadian citizen. He became a
permanent resident on July 30, 2007, and has since submitted a sponsorship
application on behalf of his siblings and parents.
[7]
A second
H&C application was received by Citizenship and Immigration Canada on
October 1, 2007. This one included only the parents and two younger children,
who were 18 and 21 years old at the time, respectively. The applicants
submitted a Pre-Removal Risk Assessment (“PRRA”) application on April 8, 2008.
[8]
The current
application for judicial review is with respect to the second H&C
application, which was considered by the officer concurrently with the PRRA
application.
THE IMPUGNED DECISION
[9]
After
setting out the requirements for a successful H&C application, the officer
first determined that there was no need to consider the best interests of the
principal applicant’s children, given that they were both over 18 years of age
at the time of the application.
[10]
The
officer then considered the allegations of personalized risk, noting that the
dependent applicants based their risk of return on that of the principal
applicant. This risk included a risk to his daughter of targeted sexual
assault, based on her ethnicity. The officer thereafter examined the evidence
submitted by the applicants, including a doctor’s note describing injuries
sustained by the principal applicant in Guyana and a letter indicating his membership
in the PPP. Despite that evidence, the officer concluded that objective
sources did not support a finding that membership in the PPP posed a significant
risk of persecution or violence.
[11]
The
officer acknowledged that racial tension existed in Guyana, though it was not endorsed by state
authorities. Moreover, efforts were being made to curb discrimination and
social discord. It was also recognized that violence against women continued
to be a problem in Guyana. Nonetheless, the officer
concluded:
…I find that the applicants
have not satisfied me that they are personally targeted or at risk of violence
or persecution. I find that the problems they cite are general in nature and
the applicants have not satisfied me that the problems are specifically related
to them. Moreover, they have not satisfied me that there is no protection
available to them in their home country. Though human rights conditions in Guyana are not ideal, I am not
satisfied that the applicants are personally at risk of persecution.
ISSUES
[12]
The
applicants have raised three issues in their oral and written submissions:
a.
Did the
officer err in law in refusing to consider “the best interests of the child”
because the main applicant’s children were over 18 years at the time of the
decision?
b.
Did the
officer err in law by applying the wrong criteria for assessing the H&C
application, referring to personalized risk rather than hardship?
c.
Are the
reasons deficient in that they fail to disclose the basis for the decision?
ANALYSIS
[13]
The first
two issues raised by the applicants are clearly of a legal nature. The first
one relates to the proper interpretation to be given to the concept of a “child”
in the analysis required by the Supreme Court of Canada in assessing the “best
interests of the child”. The second one bears upon the proper test to apply in
an application under s. 25(1) of IRPA. These legal issues, however, are
clearly intertwined with the factual matrix in which they arise; moreover, they
pertain to the interpretation of the very statute empowering the officers to
make their determinations, and it is to be assumed that the officers will have
acquired a particular familiarity with the IRPA as a result of applying
it in the normal course of their duties. For those reasons, I am of the view
that the applicable standard of review in examining the first two questions
ought to be the “reasonableness” standard.
- The best interests of the
child
[14]
The
applicants claim that, even though the principal applicant’s children were over
18 years of age at the time of the decision, the officer had a duty to consider
their best interests. They note that the younger applicants, despite being over
18, remained dependents of their parents, according to the definition of a
“dependent child” found at s. 2 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (“Regulations”).
[15]
The
respondents vigorously oppose that argument, stressing that Deevin Randy and
Annalisa Nirmala were adults, and not minors, at the time the second H&C
decision was rendered. As a result, they were not “children” within the
meaning of the concept of “the best interests of the child” analysis as set out
in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, and in
international law. According to the respondent, the applicants erroneously
equate the definition of “dependent” as set out in the Regulations with
the definition of a “child”. The respondent submits that individuals are
considered children if they are minors, under the age of 18. Indeed, the
United Nations Convention on the Rights of the Child, whose values
should “help inform the contextual approach to statutory interpretation and
judicial review” (Baker, at par. 70), states in its Article 1:
For the purposes of the
present Convention, a child means every human being below the age of eighteen
years unless under the law applicable to the child, majority is attained
earlier.
[16]
Even if
Deevin Randy and Annalisa Nirmala could not be considered children under either
national or international law, according to the respondent, this would not
affect their status as “dependents” for the purposes of their inclusion on
their father’s application. The definition of “dependent child” set out in the
Regulations provides that a child can be considered a dependent if he or
she is less that 22 years of age and not a spouse or common-law partner. The Regulations
further provide that someone over the age of 22 can satisfy the definition of
“dependent child” if he or she continues to be enrolled in full-time studies
until the application for permanent residence is decided. While parents may
include their adult children who meet the requirements for “dependency” on
their H&C application, this does not render an “adult” a “child” such that
a “best interest of the child” assessment is required.
[17]
All of
these arguments put forward by the respondent were recently canvassed by my
colleague Justice Mandamin in the case of Yoo v. Canada (Minister of Citizenship and
Immigration),
2009 FC 343. Noting that Mr. Justice Gibson had already decided that adult age
children were entitled to receive the benefit of “the best interests of the
child” analysis in Naredo v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 1250, Mr. Justice Mandamin felt compelled to apply the same
reasoning on the basis of judicial comity. I would also add, for the sake of
completeness, that Justice MacKay followed the Naredo decision in Swartz
v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 268, [2002] F.C.J. No. 340.
[18]
While I
may have some misgivings about these decisions, I find that it would be most
inappropriate to unsettle the state of the law. With the exception of one
contrary decision relied upon by the respondent, which itself was rendered in
the context of a motion for a stay of removal (Hunte v. Canada (Minister of Citizenship and
Immigration),
IMM-3538-03), there appears to be no conflicting case law on this issue. Nor
can it be said that relevant statutory authority or binding jurisprudence has
been overlooked in coming to that conclusion. As a result, I am prepared to
accept that the mere fact a “child” is over 18 should not automatically relieve
an officer from considering his or her “best interests” along the lines
suggested in Baker.
[19]
That being
said, the assessment of the best interests of the children must take into
account the relevant facts of each case. The best interests of a two year-old
infant, for example, will most certainly differ from those of a grown up young
adult of 21. For example, it is clear from a reading of Mme Justice
L’Heureux-Dubé’s decision in Baker that what she had in mind were the
interests of minor children (see, for example, paras. 71 and 73, where she
refers to the UN Convention on the Rights of the Child and to the
importance and attention that ought to be given to children and “childhood”).
[20]
Similarly,
if one is to look at the hardship that a negative decision would impose upon
the children of an H&C claimant, the autonomy of these children or,
conversely, their state of dependency upon their parents, must be a relevant
factor. In that respect, it is interesting to note that Justice MacKay came to
the conclusion that the 19 year-old child of the applicant was still a “child”
for the purposes of the Baker analysis because he was still a dependent
and was not authorized to work or to continue his studies in Canada. Similarly, Justice Mandamin
considered that the adult sons of the applicant were deserving of a best
interest of the child analysis because they were financially dependent on their
father as they were pursuing their education.
[21]
In the
present case, both younger applicants had, at the time of the application,
regular or full-time jobs. According to the applicant’s record, they have both
attained high school diplomas and are both permanently employed. They were
clearly not in the same dependency relationship with their parents as the children
considered in previous cases.
[22]
However, there
is more. Far from being dismissive, the officer did consider the submissions
regarding the applicant’s two youngest children. Despite stating that Deevin
Randy and Annalisa Nirmala would “not be considered under the factor Best
Interests of the Children” by virtue of their age, the officer nonetheless
considered their circumstances in the analysis of establishment and hardship.
Under the heading “Links to Canadian Society”, the PRRA officer writes:
Deevin Randy and Annalisa
Nirmala completed their education in Canada,
though they began their studies in their home country. The two young
applicants are both young adults and with their educational level, could
potentially find work in their home country as they have done in Canada. They have not shown that
they have any language barriers, or other significant obstacles, that would
prevent them from being employed in their home country. Though they have spent
some of their developmental years in Canada,
I do not find that the link created for them provides excessive difficulties in
returning to their home country.
[23]
This
analysis, it seems to me, cannot be characterized as being dismissive of their
best interests. Of course, it is not cast the same way it would have been if
they were still dependent on their parents, irrespective of their age. Because
they are now self-sufficient, the impact of a negative H&C decision is not
assessed indirectly, in terms of the consequences that might befall them as a
result of their parents having to move back to Guyana; more appropriately, the officer
looks at their prospects from their own perspective, with a view to determining
their likelihood of integrating and finding jobs in their country of origin. This
does not strike me as being antithetical or contrary to the best interests of
the child analysis developed in Baker; it is rather a more apposite way
to be “alert, alive and sensitive” to their needs and interests in light of
their particular circumstances. Accordingly, I am of the view that the officer
did not fail to appreciate and assess the factors relevant to the two youngest
applicants, despite the fact that he did not undertake a separate analysis
under the rubric of the “best interests of the children”.
- The risk assessment
[24]
The
applicants contend that the officer conflated the risk assessment that he made
in his H&C decision with the risk assessment that he made in his PRRA
decision, and did not use the appropriate threshold of “unusual, undeserved or
disproportionate” in the H&C decision. According to the applicants, the
generalized risk identified by the officer would certainly cause hardship.
[25]
The
respondent, in turn, submits that the Officer prefaces his analysis by stating
explicitly that in “… an application for exemption on humanitarian and compassionate
grounds, the risks presented by the applicants must be assessed in the context
of the applicant’s degree of hardship”. The mere use of the terms
“personalized risk” by the officer is not fatal to the decision, argues the
respondent, and his decision should not be subject to microscopic examination.
[26]
This Court
has emphasized, in a number of cases, the importance of assessing an H&C
claim through the lens of “hardship”, as distinct from that of “risk” applied
in relation to a PRRA: see, for example, Uddin v. Canada (Minister of
Citizenship and Immigration), [2003] .C.J. No. 460; Serda v. Canada
(Minister of Citizenship and Immigration), 2006 FC 356; Sha’er v. Canada
(Minister of Citizenship and Immigration), 2007 FC 231; Pinter v. Canada
(Minister of Citizenship and Immigration), 2005 FC 296; Ramirez v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1404.
[27]
The mere
fact that the officer stated the proper test at the outset of his reasons does
not indicate, of course, that the officer properly assessed the evidence. To
come to the contrary conclusion would be to privilege form over substance. Of
course, there is nothing wrong with an officer relying on the same set of
factual findings in assessing an H&C and a PRRA application, provided these
facts are analysed through the proper prism relevant to each application. This
is precisely where the officer went wrong: he appears to have parroted the
findings made in his PRRA decision, which was released the same day.
[28]
Again,
personalized risk is not an irrelevant consideration in an H&C application;
but an officer has an obligation, in this context, to look beyond risk to other
indicators of hardship, where they are present. In this case, the officer
makes no reference whatsoever to hardship. Indeed, the section itself is
titled “Allegations of Personalized Risk”. The officer accepted that there was
evidence in the record of racial tensions as well as “problems” with crime and
violence against women in Guyana. Nonetheless, the officer
was not satisfied that the applicants were “personally targeted or at risk of
violence or persecution”, given the problems cited “are general in nature”.
Yet, nowhere does the officer assess why the applicants would not face hardship
as a result of this situation, even if generalized.
[29]
After
having found that the applicants are not personally targeted or at risk of
violence or persecution, the officer concludes:
Therefore, I do not find that
the evidence submitted by the applicant supports the allegations that the
applicants face a personalized risk which, if they return to their home
country, would cause the applicants to face unusual, undeserved, or
disproportionate hardship to apply for permanent residency outside of Canada. I therefore attribute very
little weight to this element.
[30]
It is not
entirely clear to me what this is supposed to mean. It can be interpreted,
however, as if personalized risk is a precondition for a finding of unusual,
undeserved, or disproportionate hardship. At the very least, this excerpt reveals
some confusion between the concepts of risk and hardship, and falls far short
of the analysis that is required in the context of an H&C application. For
that reason, I have come to the conclusion that the decision does not come
within the range of “possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, at para. 47).
- Sufficiency
of reasons
[31]
Having
found in favour of the applicants with respect to the second argument, there is
no need to address the other arguments. However, to the extent that these
reasons could provide guidance to the officer who will be tasked with assessing
this H&C application afresh, I shall add the following remarks.
[32]
The
applicants contended that the officer made “crucial errors” in considering
their degree of establishment in Canada by allegedly overlooking the fact that
they had purchased a house and erroneously finding that they still have family
in Guyana (when, in fact, those relatives have since left the country). I
agree with the respondent that these findings were of no consequence. First,
the officer acknowledged that the applicants had “acquired” their own
apartment. Second, even if the officer erred in stating they had family in Guyana, this was not a determinative
factor in the decision.
[33]
As for the
adequacy of the reasons, it is clear from the officer’s reasons why the H&C
application was rejected: there was insufficient evidence of personalized risk,
and there was not enough evidence of a degree of establishment warranting the
exercise of the Minister’s discretion under s. 25(1) of IRPA. Although
the argument is directed towards the lack of explanation as to why the
applicants would not suffer undue hardship if forced to return to Guyana, it has already been dealt
with under the heading of “risk assessment” and is therefore redundant.
Otherwise, I agree with the respondent’s assertion that the officer’s notes are
sufficiently clear, precise and intelligible for the applicants to know why
their request has failed.
[34]
For all
the above reasons, this application for judicial review is granted, and the
matter is sent back for reconsideration by a different officer. No questions
for certification have been proposed by counsel, and I agree that none arises
on this record.
ORDER
THIS COURT ORDERS that this application for judicial
review be granted, and the officer’s decision of September 26, 2008 be set
aside. The matter is remitted for redetermination by a different officer.
"Yves
de Montigny"
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