Ottawa, Ontario, March 19, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review by Seokumari Samaroo challenging a decision by an Immigration Officer which refused her Humanitarian and Compassionate (H & C) application for permanent residence.
Procedural Background
[2] Ms. Samaroo came to Canada from Guyana in 1997. She followed her mother and six brothers and sisters, all of whom had entered Canada as landed immigrants in 1991. Initially, Ms. Samaroo had remained in Guyana because she was needed there to care for her ailing father and because she was living in a common-law relationship. After the death of her father and the break-up of her common-law relationship, Ms. Samaroo briefly lived alone in Guyana. During that interval she alleged that she was victimized on two occasions by criminals. In the result she came to Canada as a visitor in late 1997. After her visitor status expired on September 19, 1998 (after one extension) she remained here without lawful status.
[3] Because she had no lawful immigration status in Canada, Ms. Samaroo became subject to a removal order. At that point she applied for a Pre-Removal Risk Assessment (PRRA) but because she missed a mandatory filing deadline she was not entitled to a statutory stay of removal. Nevertheless, she successfully applied for a judicial stay while her PRRA application and a collateral H & C application went forward. It appears from the record that Ms. Samaroo’s PRRA application was denied in 2004 but her H & C application was not resolved until January 18, 2006. That decision was also unfavourable and it is from that decision that Ms. Samaroo brings this application. In the meantime she has remained in Canada under the protection of a stay order issued by this Court on May 29, 2006.
The H & C Application and Decision
[4] Ms. Samaroo’s H & C application was submitted in 2004. She claimed relief under s. 25(1) of the Immigration Refugee and Protection Act, S.C. 2001, c.27 (IRPA) on the grounds of unusual, undeserved or disproportionate hardship. Specifically, she relied upon the extent of her family relationships, her establishment in Canada and the absence of any remaining connections to Guyana. Her counsel noted in the application that Ms. Samaroo had unselfishly remained in Guyana as a result of a family decision that she should assist her ailing father while the remaining members of the family came to Canada under the sponsorship of a Canadian sister. After the break-up of her common-law relationship, Ms. Samaroo was then living in a secluded part of Guyana. She was twice victimized by criminals who may have believed her to be a person of some wealth. Feeling vulnerable, she came to Canada to join her family with whom she had very close ties. It was further submitted that Ms. Samaroo had no remaining establishment in Guyana, no prospects for employment there and no place to live. She would also be returning to a situation of personal risk as a likely target of criminal elements.
[5] Ms. Samaroo also relied upon her 7-year presence in Canada and the fact that she had always been self-sufficient while living here. She had found some employment in Canada and had continuing prospects for work with her sister. She also had a history of volunteering and had provided considerable personal assistance to her family.
[6] The H & C decision is documented in departmental computer notes. That decision makes note of Ms. Samaroo’s immigration history including her failed PRRA application in 2004. It also references her fear of further criminal victimization in Guyana and the absence of employment or family support in that country. Consideration is given to her establishment in Canada and to the issue of family separation. The Officer also notes the results of a risk opinion which had been completed in 2005 as a part of the H & C process. Her treatment of this evidence is set out in the following passage:
On 30 June 2005, a negative risk opinion was rendered by a Pre-Removal Risk Assessment Officer. The Applicant and Counsel rebutted this decision however, on 27 July 2005. After reviewing the application and accompanying submissions was of the same opinion and rendered that the Applicant would not face a personal risk to life or a risk to the security of the person if returned to Guyana. I have reviewed the PRRA Officer’s decision and am of the opinion that all the evidence presented by the Applicant and Counsel was adequately considered. I further note, that I have also reviewed the documentation provided from “World Vision Canada/overseas-based Guyanese terrorised, robbed providing country profile, in recent submission dated 24 October 2005. As the risk opinion appears reasonable I am satisfied that the Applicant would not face a personal risk to life or a risk to security if she were required to return to Guyana.
[7] While apparently accepting Ms. Samaroo’s evidence of Canadian employment both as a Nanny and as a waitress, the H & C Officer notes the absence of independent verification of income levels. She also references Ms. Samaroo’s volunteering history and the letters of reference submitted in support of her application. The Officer’s decision concludes with the following analysis:
There is insufficient evidence to satisfy me that the Applicant has been successfully established in Canada to a degree where she would suffer unusual, underserved or disproportionate hardship should she be required to leave Canada to make application for permanent residence in the normal manner. I acknowledge that the Applicant has both Canadian citizen and permanent resident siblings and a mother in Canada and another sibling in the United States. The Applicant further states that she does not have any immediate family members or a home to return to in Guyana. The Applicant and her counsel stated that Seokumari’s sister and her husband submitted a family sponsorship application in the late 1980’s for her entire family, namely her mother, father, sisters and brothers. The application was approved. During the sponsorship application process it was decided by the entire family, the Applicant included, that it would be more beneficial if she was to remain in Guyana. This decision was made because her father was ill and needed someone to help care for him and if her mother did not like living in Canada she could return. During the sponsorship processing in September 1989, the Applicant’s father passed away. When the Applicant’s family immigrated to Canada in August 1991 the Applicant was residing with her common-law spouse, Daveanand Ram at 287 Success Housing Scheme, East Coast, Demarara, Guyana for the period of August 1989 to September 1997. Based on the information provided by the Applicant, she made the decision not be included in the family sponsorship and that she was involved in a common-law relationship for a number of years prior to and after her family migrated to Canada. On 19 September 1997, the Applicant came to
visit her family Canada as a visitor which was 6 years after her family had immigrated. The Applicant and her family may have a close relationship however, I note that the Applicant has resided on her own for 6 years from 1991 to 1997, therefore another separation should not cause the Applicant or her family longterm emotional or physical harm should she be required to make her permanent resident application from overseas. I acknowledge that it is always more desirable to be close to parents and siblings however the absence of a family is not a sufficient factor to substantiate that the Applicant would suffer unusual, underserved or disproportionate hardship. In Guyana, prior to the Applicant coming to Canada, she stated that she supported herself as she was employed in a factory and was self employed as a seamstress. Given the Applicant’s skills, knowledge and experience acquired in Canada and in Guyana she should not encounter unusual, undeserved or disproportionate hardship in rebuilding her life in Guyana. I acknowledge that the Applicant has resided in Canada for 8 of her 48 years, however she has resided for the majority of her years in Guyana. It is reasonable to believe that during her 40 years in Guyana that she would have developed and continues to have both friends and acquaintances. Having considered all the information and evidence in its totality and based on the foregoing rational, I am not satisfied that the Applicant would encounter unusual, undeserved or disproportionate hardship should she return to her country or origin to apply for permanent residence. I therefore was unable to find that the Applicant had sufficient humanitarian and compassionate factors to warrant an exemption of A25 – case refused – DK – 17 January 2006.
Issues
[8] (a) What is the appropriate standard of review?
(b) Did the Board commit any reviewable errors in arriving at its decision to dismiss Ms. Samaroo’s H & C application?
Analysis
[9] A number of arguments were advanced on behalf of Ms. Samaroo to challenge the H & C decision. All of those arguments were essentially concerned with the H & C Officer’s treatment of evidence in arriving at her findings and conclusions. The nature of the issues raised in this case bring it within the standard of review analysis in Baker v. Canada ((Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 where the Court held at para. 62:
62 These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather [page858] than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[10] It was argued on behalf of Ms. Samaroo that the Officer fettered her discretion by focussing exclusively on the “negative” evidence or by being unfairly selective in her analysis of the evidence. I do not accept this argument. The Officer’s decision clearly acknowledges all of the material facts, favourable and otherwise, before concluding that Ms. Samaroo’s claim failed to meet the burden for obtaining H & C relief.
[11] Ms. Samaroo takes issue with the Officer’s finding that she had “resided on her own for six years from 1991 to 1997”. She asserts that this is an incorrect finding because she was living with her common-law spouse through that time. However, when viewed in context, the Officer’s observation is clearly connected to the issue of her separation from her family and not to her marital situation. This is verified by an earlier recognition in the decision that Ms. Samaroo was living in a common-law relationship between 1989 and 1997.
[12] It was also contended that the H & C Officer erred by saying that Ms. Samaroo had made the decision to remain behind in Guyana when, in fact, this was a family decision. This point is only dealt with in a very general way in the decision and the Officer’s treatment of it is not obviously in error. Indeed, the Officer does note that this decision to stay behind was made by the “entire family”; but in any event, this is an immaterial issue of no probative significance in the context of the H & C assessment.
[13] Ms. Samaroo’s concern that the Officer inappropriately discounted the fact of her Canadian employment by focussing on the absence of corroboration for her earnings is also misplaced. There is nothing in the decision to suggest that the Officer did not accept the fact of Ms. Samaroo’s employment. Rather, her concern was based on her inability to verify the full extent of that employment because of the absence of supporting documentation.
[14] Ms. Samaroo also challenged the Officer’s conclusions that she would not likely suffer long term emotional or physical harm by returning to Guyana and that she would likely be employable there. She also takes issue with the Officer’s view that she would still have friends and acquaintances in Guyana after 40 years of domicile there. These conclusions are said to be unsupported by evidence and inconsistent with some of the evidence. In essence, Ms. Samaroo says that these are matters of conjecture. The evidence which supposedly contradicted the above conclusions was identified as Ms. Samaroo’s contrary opinions as expressed in the submissions made on her behalf to the H & C Officer. In contrast to the Officer’s conclusions, Ms. Samaroo had opined in her own submissions that she would suffer emotionally by returning to Guyana, that she was unemployable and that she had no viable support network there. Notwithstanding Ms. Samaroo’s beliefs about her capacity to make her way in Guyana, it is important to note that she offered no evidence to support those opinions. In the absence of medical or employment evidence it was reasonable for the Officer to conclude that, because Ms. Samaroo had gotten by in Guyana for several years in the absence of her family, she would continue to be able to do so if she returned. The Officer’s conclusion that Ms. Samaroo would still have a network of supporting friends and acquaintances after 40 years of living in Guyana is a simple common sense observation. If the situation were otherwise it was open to Ms. Samaroo to put that evidence forward and, indeed, she carried the burden for establishing a factual basis for the claim to H & C relief. This point is made by Justice Frederick Gibson in Owusu v. Canada (MCI), 2003 FCT 94, [2003] F.C.J. No. 139 at para. 11:
[11] The onus on an application for humanitarian or compassionate relief lies with the applicant. In Prasad v. Canada (Minister of Citizenship and Immigration), in the context of judicial review of a visa officer decision, Justice Muldoon wrote at paragraph 7:
The onus is on the applicant to satisfy the visa officer fully of all the positive ingredients in the applicant's application. It is not for the visa officer to wait and to offer the applicant a second, or several opportunities to satisfy the visa officer on necessary points which the applicant may have overlooked.
In Patel v. Canada (Minister of Citizenship and Immigration), Justice Heald, once again in the context of judicial review of a visa officer's decision, but dealing with the issue of humanitarian or compassionate grounds, wrote at paragraph 9:
The applicant submits that he is entitled to have all relevant evidence considered on a humanitarian and compassionate application. I agree with that submission. However, the onus in this respect lies with the applicant. It is his responsibility to bring to the visa officer's attention any evidence relevant to humanitarian and compassionate considerations.
[15] It was also argued that the Officer paid insufficient attention to the fact that Ms. Samaroo would be the only remaining member of her family in Guyana and that, on that point, the Department’s Inland Processing Manual (IP-5) was ignored. The particular guideline relied upon by Ms. Samaroo indicates that the offshore isolation of a de facto family member (a person who is not within the family class) is a factor to be considered in the exercise of the H & C discretion. A review of the Manual, however, indicates that the issue of family isolation is merely one of many factors that the H & C Officer is advised to consider. I do not accept that the Officer has an obligation to specifically identify each and every consideration for the exercise of the H & C discretion set out in the Departmental Inland Processing Manual. Here the Officer’s decision expressly acknowledges the fact that Ms. Samaroo’s family were all residents of Canada and that she would have no remaining family ties in Guyana. The Officer went on to conclude that this fact was not sufficient to establish an unusual, undeserved or disproportionate hardship. Notwithstanding Ms. Samaroo’s disagreement, this was a reasonable conclusion to draw.
[16] One of the primary submissions made by Ms. Samaroo concerned the H & C Officer’s treatment of the risk opinion which had been commissioned as part of the H & C assessment. Ms. Samaroo’s counsel strenuously argued that the Officer conducting the risk assessment failed to consider a late submission by Ms. Samaroo in response to the preliminary risk opinion. Ms. Samaroo’s rebuttal submission was sent several days after the stipulated deadline and it is apparent that the Risk Assessment Officer did not see it before the risk opinion was finalized. It is equally clear, however, that the H & C Officer did review Ms. Samaroo’s rebuttal of the risk opinion. The notes indicate that the H & C Officer conducted an independent assessment of the evidence bearing on risk and found the risk opinion to be reasonable. In my view, nothing turns on the fact that the H & C Officer may have wrongly believed that the Risk Assessment Officer had considered Ms. Samaroo’s late rebuttal. That is so because the H & C Officer did review that submission and quite reasonably found it to have insufficient weight to alter the risk opinion.
[17] The arguments advanced by Ms. Samaroo to challenge the H & C decision in this case are, in essence, an invitation to the Court to reweigh the evidence and to exercise a judicial discretion in substitution for that of the H & C Officer. That is not the role of the Court. Although, the hardship faced by Ms. Samaroo upon a return to Guyana is regrettable, that factor alone is not a basis for obtaining H & C relief. To my mind, the circumstances of this case fall squarely within the reasons given by Justice Denis Pelletier in Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206, [2000] F.C.J. No. 1906 (T.D.) where he held at paragraph 26 as follows:
The H & C process is not designed to eliminate hardship; it is designed to provide relief from unusual, undeserved or disproportionate hardship. There is no doubt that the refusal of the applicant’s H & C application will cause hardship but, given the circumstances of the applicant’s presence in Canada and the state of the record, it is not unusual, undeserved or disproportionate hardship. Whatever standard of review one applies to the H & C officer’s decision, it meets the standard. The application for judicial review must therefore be dismissed.
[18] For the reasons noted above this application is dismissed. Neither party proposed a certified question and no question of general importance arises.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1912-06
STYLE OF CAUSE: SEOKUMARI SAMAROO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATON
Respondent
DATE OF HEARING: February 27, 2007
REASONS FOR JUDGMENT
APPEARANCES:
Stella Iriah Anaele For the Applicant
SOLICITORS OF RECORD:
Stella Iriah Anaele
Barrister & Solicitor
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent