Date: 20070103
Docket: IMM-7669-05
Citation: 2007 FC 5
Ottawa, Ontario, January 3,
2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ZELMA VANESSA ALLEN AND
JAIME LEE CHARLES
Applicants
and
THE
MINISTER OF CITIZESNHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction and
background
[1]
Zelma
Vanessa Allen and her daughter Jaime Lee Charles, both citizens of Guyana, are
the applicants in this judicial review application which seeks to set aside the
November 30, 2005 decision of Immigration Officer Lloyd (the I.O.) who denied
their application for permanent residence in Canada based on humanitarian and
compassionate grounds as provided for in section 25 of the Immigration and
Refugee Protection Act, (the Act) which reads:
|
Immigration
and Refugee Protection Act
2001,
c. 27
Humanitarian
and compassionate considerations
25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
Provincial
criteria
(2)
The Minister may not grant permanent resident status to a foreign national
referred to in subsection 9(1) if the foreign national does not meet the
province’s selection criteria applicable to that foreign national.
|
Immigration
et la protection des réfugiés, Loi sur l'
2001,
ch. 27
Séjour
pour motif d’ordre humanitaire
25.
(1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui
ne se conforme pas à la présente loi, et peut, de sa propre initiative,
étudier le cas de cet étranger et peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger
— compte tenu de l’intérêt supérieur de l’enfant directement touché — ou
l’intérêt public le justifient.
Critères
provinciaux
(2)
Le statut ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1)
qui ne répond pas aux critères de sélection de la province en cause qui lui
sont applicables.
|
[2] Zelma Allen and her daughter Jaime
first arrived in Canada in June of 1998 as visitors on visas valid for
six months.
[3] They came to visit Zelma Allen’s
mother who is now a Canadian citizen having entered Canada in 1983 and
landed in 1992. They also came to visit Zelma Allen’s brother and sister who are
also Canadian citizens, being landed in Canada in 1993
after sponsorship.
[4] The applicants overstayed their
visas and made a refugee claim in March of 1999 based on spousal and child
abuse. These claims were rejected by the Refugee Division in May of 2000 with
leave to apply for judicial review refused by this court on September 1, 2000.
Departure orders had been issued against them in June of 1999 which became
enforceable in May of 2000.
[5] Zelma Allen has been working in Canada since January
2001 on work permits valid for a year and renewed yearly since. Jaime has been
attending school on a student permit renewed yearly.
[6] The H&C application which the
court is concerned with was filed in June 2002; family ties, established within
Canada and the best
interests of Jaime were the main factors advanced. The application was coupled
with an allegation of risk of return to Guyana based on the
likely abuse from Zelma Allen’s common-law spouse.
[7] Submissions in support of the application
were received from the applicants’ counsel in June 2002 with additional
submissions filed in June 2003 on account of the coming into force of the Immigration
and Refugee Protection Act. Further submissions in support of the
application were received on July 15, 2005.
[8] As indicated, the H&C
application was coupled with risk factors. The Immigration Officer asked for a
risk assessment from a colleague in the Pre-Removal Risk Assessment Unit. That
opinion was received by the Immigration Officer in October 2005 after copies
had been sent to Zelma Allen and her counsel for comment by the Risk Assessment
Officer. No comments were received.
[9] Counsel for the applicants argued
the Immigration Officer erred by making unreasonable assessments in respect of
both Zelma Allen and her daughter Jaime. He relied on certain passages from
Justice Evans’ concurring reasons in the result in the Federal Court of
Appeal’s decision in Hawthorne v. Canada (Minister of Citizenship and
Immigration) 2002 FCA 475. The majority reasons were issued by Justice
Décary concurred in by Justice Rothstein, as he then was.
[10] Hawthorne, above, is a pre-IRPA
case based on subsection 114(2) of the Immigration Act of 1976 pursuant
to which the Governor-in-Council authorized the Minister of Citizenship and
Immigration “to exempt any person from any regulation made under
subsection 1 or otherwise facilitate the admission of any person where the
Minister is satisfied that the person should be exempt from that regulation
or that the person’s admission should be facilitated owing to the existence of
compassionate or humanitarian considerations.”
[11] In support of the exercise of this
discretion by Immigration Officers, the delegates of the Minister, ministerial
guidelines were issued and are found in the Immigration Manual published by
Citizenship and Immigration Canada which Justice Evans described in his reasons
at paragraph 30 as being “instructions issued by the Minister to Immigration
Officers in order to structure the exercise of their statutory discretion under
subsection 114(2) and to advise potential applicants of what they may have to
prove in order to obtain a favourable decision on an H&C application.”,
adding, “Although the Manual is not a legislative document in the formal sense,
its provisions form a sufficiently important part of the normative framework
within which H&C decisions are made that the provision most relevant to
this appeal can usefully be reproduced here.”
[12] Justice Evans then went on to cite
certain provisions from the Manual including the following extract under
paragraph 6.1 headed “What is meant by ‘Humanitarian and Compassionate
Grounds?’” including the following:
§
“Subsection R 2.1
provides the flexibility to approve deserving cases for processing within Canada, the circumstances of which were not anticipated in the
legislation.”
§
“Applicants bear the
onus of satisfying the decision-maker that their personal circumstances are
such that the hardship of having to obtain an immigration visa from outside of Canada in the normal manner would be (i) unusual and undeserving
or (ii) disproportionate. Applicants may present whatever facts they feel are
relevant.”
§
“The following
definitions are not meant as “hard and fast” rules; rather, they are an attempt
to provide guidance to decision-makers when they exercise their discretion in
determining whether sufficient H&C considerations exist to warrant the
requested exemption from Article 9(1) of the Act” [which provides that
every immigrant or visitor, subject to some exceptions, shall make an
application for and obtain a visa before that person appears at a port of entry
in Canada].
§
Unusual and
Undeserved hardship is the hardship (of having to apply for an immigration visa
outside of Canada) that the applicant would face should
be, in most cases, unusual. In other words, a hardship not anticipated by the Act
or the Regulations; and the hardship (of having to apply for an
immigration visa from outside of Canada), that the applicant would face should
be, in most cases, the result of circumstances beyond the person’s control
§
Disproportionate
hardship is described in the following way: “humanitarian and compassionate
grounds may exist in cases that would not meet the “unusual and undeserved”
criteria but where the hardship (of having to apply for an immigration visa
from outside of Canada) would have a disproportionate impact on
the applicant due to his or her personal circumstances.”
[13] Justice Evans also referred to section
8.5 of the Manual headed ‘Separation of Parents and Dependent Children (outside
the family class)’ the text of which reads:
The
removal of a status-less individual from Canada may have an impact in relation to family
members who do have the legal right to remain (i.e. permanent residents or
Canadian citizens). The geographic separation of family members could create a
hardship that may warrant a positive H&C decision … in evaluating such
cases, you should balance the different and important interests at stake: … the
circumstances of all the family members, with particular attention given to the
interests and situation of the status-less individual’s children.
[14] Two other pre-IRPA cases bear
heavily on the proper considerations and approach to be given to H&C
applications involving minor children. They are the Supreme Court of Canada’s
decision in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 and
the Federal Court of Appeal’s decision in Legault v. Canada (Minister of
Citizenship and Immigration) [2002] 4 F.C. 358 a judgment authored by
Justice Décary.
[15] At paragraph 73 of her reasons, Justice
L’Heureux-Dubé, in Baker, above, wrote as follows:
73
The above factors indicate that emphasis on the rights, interests, and needs of
children and special attention to childhood are important values that should be
considered in reasonably interpreting the "humanitarian" and
"compassionate" considerations that guide the exercise of the
discretion. I conclude that because the reasons for this decision do not
indicate that it was made in a manner which was alive, attentive, or sensitive
to the interests of Ms. Baker's children, and did not consider them as an
important factor in making the decision, it was an unreasonable exercise of the
power conferred by the legislation, and must, therefore, be overturned. In
addition, the reasons for decision failed to give sufficient weight or consideration
to the hardship that a return to Jamaica might cause Ms. Baker, given the fact
that she had been in Canada for 12 years, was ill and might not be able to
obtain treatment in Jamaica, and would necessarily be separated from at least
some of her children. [Emphasis mine]
[16] Justice L’Heureux-Dubé concluded at
paragraph 75 that the appeal should be allowed because the decision was
unreasonable. The Immigration Officer, in the case before her, minimized or
diminished the interests of children and did not consider the children’s best
interests as an important factor, did not give those interests substantial
weight, and was not alert, alive and sensitive to them. She cautioned however
that “this is not to say that children’s best interests must always outweigh
other considerations, or that there will not be other reasons for denying an
H&C claim even when children’s interests are given this consideration.”
[17] The following paragraphs from Justice
Evans’ concurring reasons in Hawthorne, above, relied upon by counsel for the
applicants, were:
32
It was also common ground that an officer cannot demonstrate that she has been
"alert, alive and sensitive" to the best interests of an affected
child simply by stating in the reasons for decision that she has taken into
account the interests of a child of an H & C applicant (Legault, at para.
13). Rather, the interests of the child must be "well identified and
defined" (Legault, at para. 12) and "examined ... with a great deal
of attention" (Legault, at para. 30). For, as the Supreme Court has made
clear, the best interests of the child are "an important factor" and
must be given "substantial weight" (Baker, at para. 75) in the
exercise of discretion under subsection 114(2).
40
These arguments do not persuade me that the Applications Judge erred in finding
that the officer failed to give the careful consideration to the best interests
of Suzette that is required by law. As Baker and the Guidelines indicate, it
is certainly necessary for the decision-maker to consider the seriousness of
the harm that a parent's removal is likely to cause to a child. However, unless
the decision-maker considers the degree of harm in the context of the best
interests of the child, she is likely to be diverted from her duty to be
"alert, alive and sensitive" to this important factor in the exercise
of discretion. The danger of subsuming a consideration of the child's best
interests in an assessment of the degree of hardship likely to be caused by a
negative decision is well illustrated by the immigration officer's responses to
two submissions respecting Suzette that were made to her.
41
First, the submissions made to the immigration officer on behalf of Ms.
Hawthorne emphasized that her removal would be very detrimental to the best
interests of Suzette who might feel that she had no effective choice but to
return to Jamaica with her mother. The officer found that this would not be
a major hardship warranting a positive exercise of discretion, because Suzette
had lived in Jamaica for nearly all her life, having been in Canada for less than a year. However, if the
officer had started by identifying the best interests of Suzette, now a
permanent resident, as being able to continue to live in Canada, the removal of
Ms. Hawthorne could only reasonably have been regarded as highly detrimental to
Suzette's best interests if she was thereby effectively compelled to return to
Jamaica with her mother. A best interests analysis makes Suzette's present life
in Canada the relevant point of comparison, not her previous residence in
Jamaica: see Koud v.
Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1237, 2001
FCT 856 at para. 18.
42
Second, it was submitted to the officer that, given the closeness of their
relationship and the material and emotional support that Ms. Hawthorne has
provided to Suzette as she has adjusted to her new social and educational
environments in Canada, it would be contrary to the best
interests of Suzette to deprive her of her mother's presence. The officer's
response was that it would not be a major hardship for Suzette to remain in Canada without her mother, since she had been
separated from Ms. Hawthorne for the seven years before she came to Canada in 1999.
43
Again, by failing adequately to identify and define the best interests of
Suzette at the time of the decision, the officer compared the seriousness of
her mother's removal with the previous period of separation. The relevant
comparison is with the crucial part that her mother plays in her life in
Canada, and the effect on her best interests of having to live in a new country
without either her mother or other relatives who could assume her absent
mother's role in the way that her grandmothers had done in Jamaica when Ms.
Hawthorne came to Canada.
44
The officer's
treatment of these issues satisfies me that she was not "alert, alive and sensitive"
to Suzette's best interests. The officer assessed the degree of harm that Ms.
Hawthorne's removal would cause to Suzette by considering Suzette's life
circumstances before she became a permanent resident in Canada, and not by reference to the damage to her present best
interests. Cases on the best interests of the child in custody disputes (Young
v. Young, [1993] 4 S.C.R. 3, and P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, for
example), as well as the various provisions of the Convention on the Rights of
the Child, provide indirect guidance on the range of considerations that
constitute the best interests of the child in the context of H & C
applications.
[Emphasis
mine]
[18] According to the applicants, the I.O.
erred in assessing Jaime’s best interests as a child and Zelma Allen’s
circumstances as Jaime’s mother and a daughter to Veronica Allen by not following
the approach set out by Justice Evans in Hawthorne, above.
[19] Counsel for the applicants suggested
the objective behind Justice Evans’ approach is to ensure the assessment does
not minimize the best interests of a child or of a parent by focusing the
analysis on a proper point of departure, that is, the current situation of the
individuals involved in Canada rather than looking at the situation of those
persons in their country of origin or residence. Only in this way, counsel for
the applicants suggests, a proper assessment will be made which scrutinizes the
hardship which will occur if the person is removed from Canada in the event the
H&C application is denied.
[20] Counsel for the applicants pointed to
the following passages in the I.O.’s decision to illustrate his point the
I.O.’s perspective was flawed by choosing a point of departure which emphasized
the past life of the applicants in Guyana rather than their current situation
in Canada thereby leading to a
failure to properly assess their current harm upon removal. The I.O. stated:
§
“I note that Ms.
Allen was employed prior to her entry into Canada
and had leave from her employment to come to visit family in Canada. I considered that Ms. Allen attended school in Guyana and
did take a course of Computer Programming in Guyana…it should also be noted
that this is not an unique situation, Ms. Allen left her home and employment to
come to Canada…it is also noted that she lived in St. Lucia for a period of
time, which shows that she has the ability to adjust to change.”
§
“I have carefully
considered the parental relationship between Ms. Zelma Allen and Ms. Gwendoline
Allen…I note that Ms. Gwendoline Allen entered Canada in November 1983 and
remained here until she was granted permanent resident status in February 1992
at the Mississauga backlog office. Then she later obtained
Canadian citizenship on February 26, 1996…I note that Ms. Charles and Ms. Allen
resides with her mother and have since they entered Canada; that Ms. Gwendoline Allen and Ms. Zelma Allen have
purchased a home together in Mississauga, Ontario. I am not discounting
either’s family ties in Canada; however, the removal of an individual
without status from Canada may have an impact on family members who
do have the legal right to remain, also, there is insufficient evidence
provided of a strong level of inter-dependency. I note that Ms. Allen did not
enter Canada until she was an adult; her mother departed Guyana in 1983, choosing to leave her daughter behind.”
§
“I have considered
that Ms. Charles has been attending school in Canada
but I note that prior to her entry into Canada she also was in school in Guyana. I note that Guyana provides the same educational needs to
children of free education to the end of high school and if post secondary
education is needed, similarly to Canada, the parent will have to pay.”
§
“I believe it may be
difficult for Ms. Charles to return to Guyana, more so than when she first came
to Canada, as she had spent most of her
educational time in school in Canada. She will have established friends
here that may be difficult for her to leave. However it remains that the
decision to uproot her daughter was Ms. Allen’s and it could be anticipated
that as both were under removal orders that their time in Canada may be temporary. I note that Ms. Charles will be
returning to a country where the language spoken, written and read is English; Guyana is a democratic country and offers similar educational
opportunities to the children. Parents decide what is best for their children
and at times children are compelled to go with their parents notwithstanding
the difficulties they may experience.”
§
“Ms. Allen and Ms.
Charles may experience some difficulties in re-establishing/readjusting life to
life in Guyana; however, Ms. Allen has spent her formative years in Guyana, worked there and was educated there. As previously stated
with Ms. Allen’s assistance, Ms. Charles’ adjustment to life in Guyana may be difficult but I am not satisfied that it would be
insurmountable. While the conditions in Guyana may not be ideal, there is no persuasive
evidence to indicate the subjects would be subject to any conditions not
experienced by the population in general if returned to Guyana. As such, I grant little weight to the costs and
disruption that they may experience.”
[21] Under the criteria relating to the
hardship of having to obtain a permanent residence visa from outside Canada
being unusual and undeserved or disproportionate, counsel for applicants
further argued the I.O. erred by only considering hardship and ignoring other
factors such as family ties, establishment and Jaime’s best interests.
Furthermore, the I.O. was diverted from rendering a proper analysis by taking into
account irrelevant factors such as casting blame on Gwendoline Allen for coming
to Canada in 1983 without her
daughter. Finally, it is argued by the applicants the I.O. failed to engage
into a proper individual analysis of risk by referring to the experience of the
general population in Guyana.
Analysis
(a) Standard of
review
[22] Baker,
above, established the standard of reasonableness simpliciter as the applicable
standard of review in connection with an Immigration Officer’s assessment of an
application for permanent residence to Canada based on humanitarian and
compassionate grounds. In that case, Justice L’Heuruex-Dubé adopted what
Justice Iacobucci had described as an unreasonable decision in Canada
(Director of Investigation and Research) v. Southam Inc. [1997] 1
S.C.R. 748 as follows:
56.
… An unreasonable decision is one that, in the main, is not supported by any
reasons that can stand up to a somewhat probing examination. Accordingly, a
court reviewing a conclusion on the reasonableness standard must look to see
whether any reasons support it. The defect, if there is one, could presumably
be in the evidentiary foundation itself or in the logical process by which
conclusions are sought to be drawn from it….
[23] In Law
Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247, Justice
Iacobucci further explained what the reasonableness standard required of a
reviewing court expanding on what he had written in Southam, above,
stating that his words “signals that the reasonableness standard requires a
reviewing court to stay close to the reasons given by the tribunal and “look to
see” whether any of those reasons adequately support the decision. Curial
deference involves respectful attention, though not submission, to those
reasons.”
[24] Justice
Iacobucci then contrasted the standard of reasonableness to that of reviewing a
decision for correctness concluding, “When deciding whether an administrative
action was unreasonable, a court should not at any point ask itself what the
correct decision would have been.” He further stated “Applying the standard of
reasonableness gives effect to the legislative intention that a specialized
body will have the primary responsibility of deciding the issue according to
its own processes and for its own reasons. The standard of reasonableness does
not imply that a decision-maker is merely afforded a “margin of error around
what the court believes is the correct result.”
[25] Justice
Iacobucci further wrote at paragraph 51 of Ryan, above:
51 There
is a further reason that courts testing for unreasonableness must avoid asking
the question of whether the decision is correct. Unlike a review for
correctness, there will often be no single right answer to the questions that
are under review against the standard of reasonableness. For example, when a
decision must be taken according to a set of objectives that exist in tension
with each other, there may be no particular trade-off that is superior to all
others. Even if there could be, notionally, a single best answer, it is not the
court's role to seek this out when deciding if the decision was unreasonable.
[26] He then
contrasted the reasonableness standard from the most deferential standard of
patent unreasonableness, and on this point, concluded “a decision may be
unreasonable without being patently unreasonable when the defect in the
decision is less obvious and might only be discovered after “significant
searching and testing” explaining “the defect may require a detailed exposition
to show that there are no lines of reasoning supporting the decision which
could reasonably lead that tribunal to reach the decision it did.”
[27] Justice
Iacobucci in Law Society of New Brunswick, above, asked how will a
reviewing court know whether a decision is reasonable given that it may not
first inquire into its correctness? The answer is that a reviewing court must
look to the reasons given by the tribunal. He then concluded at paragraphs 55
and 56 as follows:
55
A decision will be unreasonable only if there is no line of analysis within the
given reasons that could reasonably lead the tribunal from the evidence before
it to the conclusion at which it arrived. If any of the reasons that are
sufficient to support the conclusion are tenable in the sense that they can
stand up to a somewhat probing examination, then the decision will not be
unreasonable and a reviewing court must not interfere (see Southam, at para.
56). This means that a decision may satisfy the reasonableness standard if it
is supported by a tenable explanation even if this explanation is not one that
the reviewing court finds compelling (see Southam, at para. 79).
56
This does not mean that every element of the reasoning given must independently
pass a test for reasonableness. The question is rather whether the reasons,
taken as a whole, are tenable as support for the decision. At all times, a
court applying a standard of reasonableness must assess the basic adequacy of a
reasoned decision remembering that the issue under review does not compel one
specific result. Moreover, a reviewing court should not seize on one or more
mistakes or elements of the decision which do not affect the decision as a
whole.
(b)
Conclusions
[28] Applying the reasonableness
standard to the I.O. decision, I conclude that this judicial review application
must be dismissed for the following reasons noting, at the very start, the
onus, on an application for an H&C exemption, is on the applicant (see Owusu
v. Canada (MCI) 2003 FCT 94) and further observing what Justice Décary
said at paragraph 5 of Hawthorne:
5
The officer does not assess the best interests of the child in a vacuum. The
officer may be presumed to know that living in Canada can offer a child many opportunities
and that, as a general rule, a child living in Canada with her parent is better
off than a child living in Canada without her parent. The inquiry of the
officer, it seems to me, is predicated on the premise, which need not be stated
in the reasons, that the officer will end up finding, absent exceptional
circumstances, that the "child's best interests" factor will play in
favour of the non-removal of the parent. In addition to what I would
describe as this implicit premise, the officer has before her a file wherein
specific reasons are alleged by a parent, by a child or, as in this case, by
both, as to why non-removal of the parent is in the best interests of the
child. These specific reasons must, of course, be carefully examined by the
officer. [Emphasis mine]
[29] First, I cannot
accept counsel for the applicants’ submission the I.O. erred in the way the
best interests of the child analysis was approached in Jaime’s case. It must
be remembered while Justices Décary and Rothstein agreed with Justice Evans the
appeal before them should be dismissed, those Justices reached their conclusion
based on different grounds from his. Specifically at paragraph 3 of this
reasons, Justice Décary agreed with counsel for the Minister “that to insist as
a matter of law that an Immigration Officer spell out expressly that she had
considered the best interests of the child before examining the degree of
hardship to which the child would be subject, is to elevate form above
substance.” He added the following at paragraph 7 of his reasons:
7
The administrative burden facing officers in humanitarian and compassionate
assessments - as is illustrated by section 8.5 of Chapter IP 5 of the
Immigration Manual reproduced at para. 30 of my colleague's reasons - is
demanding enough without adding to it formal requirements as to the words to
be used or the approach to be followed in their description and analysis of the
relevant facts and factors. When this Court in Legault stated at paragraph 12
that the best interests of the child must be "well identified and
defined", it was not attempting to impose a magic formula to be used by
immigration officers in the exercise of their discretion. [Emphasis mine]
[30] Furthermore,
Justice Décary expanded his view the content of “the best interests of the
child”, how that determination is made and what the term “hardship” implies. I
quote paragraphs 4, 6 and 9 of his reasons:
4
The "best interests of the child" are determined by considering
the benefit to the child of the parent's non-removal from Canada as well as the
hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should
she wish to accompany her parent abroad. Such benefits and hardship are two
sides of the same coin, the coin being the best interests of the child.
6
To simply require that the officer determine whether the child's best interests
favour non-removal is somewhat artificial - such a finding will be a given in
all but a very few, unusual cases. For all practical purposes, the officer's
task is to determine, in the circumstances of each case, the likely degree of
hardship to the child caused by the removal of the parent and to weigh this
degree of hardship together with other factors, including public policy
considerations, that militate in favour of or against the removal of the parent.
9
Fourth, "hardship" is not a term of art. As noted in section 6.1 of
Chapter IP 5 of the Immigration Manual (reproduced at para. 30 of my
colleague's reasons), the administrative definition of "unusual and
undeserved hardship" and "disproportionate hardship" in the
Manual are "not meant as 'hard and fast' rules" and are, rather,
"an attempt to provide guidance to decision makers when they exercise
their discretion". It is obvious, for example, that the concept of
"undeserved hardship" is ill-suited when assessing the hardship on
innocent children. Children will rarely, if ever, be deserving of any hardship.
[Emphasis mine]
[31] The best
interests of the child analysis for Jaime and the H&C analysis for her
mother must be put in a proper context. The scenario faced by the I.O. was not
one where Zelma Allen would be separated from her daughter because one of them
had a legal right to remain in Canada but the other did not. The fact-situation confronted by
the I.O. was one where both of them were subject to removal orders. The cases
relied upon by counsel for the applicants are distinguishable because they
involved situations where the parent or caregiver would, if removed, be
separated from a child who had the right to remain in Canada.
[32] Third, in the
context of the removal of the applicants to Guyana, the I.O. determined it was in Jaime’s
best interests to be with her mother who was her primary caregiver and who
would provide support to her. The I.O. did not consider it in Jaime’s best
interests that she be separated from her mother pending an overseas application
for permanent residence to Canada. This finding of the I.O. was not seriously contested by
counsel for the applicants although I do note from Zelma Allen’s affidavit in
support of the judicial review application Jaime is also taken care of by her
grandmother. This does not detract from the I.O. finding her mother was the
primary caregiver.
[33] Similarly, in
this context and reading the I.O.’s reasons as a whole against the cautionary
comment made by Justice Décary about there being no magic formulas I reached
the conclusion the I.O.’s approach to his consideration of hardship did not
minimize the H&C analysis for either Jaime or her mother. It is true there
were references by the I.O. to life in Guyana before they came to Canada but as I see it,
these references did not distort the hardship analysis by ignoring their
current situation in Canada. It is clear from a
reading of the I.O.’s extensive rationale and reasons, the I.O. was sensitive
to the applicants’ current situation in Canada and was not dismissive of that situation.
[34] Fourth, I find
no merit in counsel for the applicants’ argument the I.O. only considered
hardship on removal, that the I.O. ignored Jaime’s relationship with her
grandmother, that he breached the guidelines by not considering family members
and that he should have asked for more information through an interview.
Furthermore, I cannot fault the I.O.’s reasoning with respect to the risk of
return on account of Jaime’s father who lives in Guyana. The I.O.’s reasons took into account
that situation as well as available State protection.
[35] Fifth, I cannot
conclude the I.O. ignored the country condition evidence in Guyana by not specifically
mentioning some difficulties in the educational system or some difficulties
women may have in obtaining employment. It is noteworthy the principal
applicant did not advance, in her affidavit, these specific difficulties should
she return to Guyana.
[36] Sixth, counsel
for the applicants misinterprets the I.O.’s reference to the experience of the
general population in Guyana. That comment by the
I.O. does not detract from his conclusion the applicants were not at personal
risk on return to Guyana.
[37] Seventh, I am
not prepared to set aside the I.O.’s decision because of the use of the word
“insurmountable” in the phrase describing Jaime’s adjustment to life in Guyana acknowledging it would
be difficult but not “insurmountable”. I am satisfied reading the decision as
a whole, the I.O. applied the correct test of undue and undeserved or
disproportionate hardship.
[38] Finally, in her
affidavit in support, Zelma Allen states she should have been granted an
interview. This point was not pressed on the court by her counsel. It is
clear from Baker, above fairness does not require an interview.
JUDGMENT
This application for judicial review is
dismissed. No certified question was proposed.
“François
Lemieux”
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