Date: 20080729
Docket: IMM-4308-07
Citation: 2008 FC 925
Ottawa, Ontario, July 29, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
DEREK SHAMIN ALIE, CAMILLE
FAZELLA NARAINE,
KEVIN ROMANO ALIE and STACEY LIANNA ALIE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
I
am satisfied that the decision here under review must be set aside because the officer,
when considering the best interests of the Canadian born child of the adult Applicants,
failed to properly focus her analysis on the needs of that child; her analysis
was focused on the benefit or harm to the family if they were removed from
Canada.
BACKGROUND
[2]
The
Applicants are a family of four, all citizens of Guyana. In
addition to the two teenage children, these parents also have a young child,
Sarah, who was born in Canada in April 2006. The present matter arises
out of a decision denying the Applicants permanent residency in Canada on a
humanitarian and compassionate basis under the Immigration and Refugee
Protection Act, S.C. 2001, c.27.
[3]
The
Applicants seek judicial review of the decision of the officer on the basis
that it was unreasonable. It is alleged that the officer ignored material
evidence in regard to the risk that would be faced by the Applicants in
returning to Guyana where they
would be assumed to have wealth and thus be targeted, and in the officer’s
assessment of their establishment in Canada. Secondly, it is
alleged that the officer’s assessment of the best interests of the children was
unreasonable as it failed to consider the family support and social connections
the older children had in Canada and the lack thereof in Guyana.
ANALYSIS
[4]
Despite
the able argument of Applicants’ counsel that the officer ignored relevant
evidence with respect to the risk in returning to Guyana and in her
consideration of the Applicants’ establishment in Canada, the position
submitted by the Respondent is correct: the officer cannot be faulted for
failing to consider factors or evidence that was not before her.
[5]
The
application before the officer was prepared and filed by the Applicants without
the assistance of a consultant or a lawyer. No doubt the Applicants did the
best they could, however, the application and the material filed with it is
woefully inadequate to establish any of the risk or establishment
considerations now urged by the Applicants. Aside from the statement of the
Applicants that they would face a risk of being targeted if they returned to Guyana, no evidence
was submitted to support this assertion. As to establishment, the Applicants
submitted information that showed they were established in Canada, but
submitted no evidence nor made any submission that leaving Canada would cause
them undue, disproportionate or undeserved hardship. It is not the task of the
officer assessing an application to engage in speculation, surmise and
inference when the information provided is very basic. In such cases, as here,
the officer cannot be faulted for the conclusions she reached which were
reasonable on the basis of the evidence and submissions before her.
[6]
The
same may be said of the Applicants’ complaints regarding the officer’s analysis
of the best interest of the children. The Applicants urged the Court to find
that the officer had failed to consider factors such as the societal bonds the
two Applicant children (aged 18 and 19) have with their friends in the
neighbourhood, the family bonds they have with their grandparents, aunts and
other family members in Canada, and the absence of any family members in Guyana. Unfortunately,
aside from the bare statement in the application that these children have
graduated from high school and did well, and that one wishes to pursue higher
education, and one wishes to continue his soccer referee activities, and there
are family in Canada and none in Guyana, there was no evidence submitted to the
officer nor submissions made to her of the sort now urged upon the Court by the
Applicants.
[7]
I
agree with the observation of Justice Dawson in Ahmed v. Canada (Minister of
Citizenship and Immigration), 2008 FC 646, that “it was incumbent upon the
applicants to raise, and support with evidence, any specific issue a family
member would face that was said to give rise not just to hardship, but to hardship
which is unusual and undeserved or disproportionate”. In this case, the
Applicants failed this requirement and the decision of the officer cannot be
faulted for that failure.
[8]
Nonetheless,
I am going to allow this application because, in my view, the officer erred in her
consideration of the best interests of the Canadian born child. When considering
her best interests the officer stated as follows:
As for Sarah, she is only one
year old and has not started education yet. In this regard, I have considered
the best interest of the Canadian born child by considering the benefit and
hardship to the family if they have to return to Guyana with or without Sarah. I do not find it
would amount to unusual and undeserved or disproportionate hardship to the
family to return to Guyana to justify an exemption under
the humanitarian and compassionate considerations. (emphasis added)
[9]
In
my view, the officer committed an error of law in her analysis of the best
interests of the Canadian born child, Sarah. The proper focus of those
considerations must be on the child herself. In this case, the officer failed
to focus on the child and the hardship the removal of her family, with or
without her, would have on her. Instead the officer focused her analysis on the
hardship to the family if they were removed from Canada, with or
without the child.
[10]
Given
this error, the decision cannot stand. A proper consideration of the best
interests of this child is required before the Applicants may be removed from Canada.
[11]
Neither
party proposed a question for certification and no question will be certified.
[12]
Accordingly
this application for judicial review is allowed because the officer failed to
conduct a proper inquiry with regards to the interests of the Canadian born child.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application is allowed, the decision is set aside and the matter referred back
to a different officer for re-determination.
2. No question is certified.
“Russel
W. Zinn”
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