Date: 20040928
Docket: IMM-4895-03
Citation: 2004 FC 1328
OTTAWA, ONTARIO, THIS 28TH DAY OF SEPTEMBER, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MIKHAIL ANASCHENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Mikhail Anaschenko, a citizen of Russia, arrived in Canada in 1998 and claimed refugee status based on an alleged fear of persecution due to his Jewish ethnicity. After this claim failed, he applied, on January 26, 2001, to remain in Canada as a permanent resident on humanitarian and compassionate ("H & C") grounds. As the application evolved and submissions were made, the principal grounds on which his H & C application was based were the risk of anti-semitic persecution he would face upon return to Russia and the best interests of his biological son, Alexander, born September 2, 2001.
[2] By decision dated June 4, 2003, J.A. Hogan (the "H & C Officer") found that there were insufficient H & C grounds to warrant exempting the Applicant from the visa requirements under section 11(1) of the Immigration and Refugee Protection Act ("IRPA"). The Applicant seeks judicial review of that decision.
Issues
[3] This application raises the following issues:
1. Did the H & C officer fail to consider the best interests of Alexander?
2. Was the risk assessment carried out as part of the review process perverse or unreasonable in that it failed to properly consider the evidence of persecution against Jews in Russia?
For the reasons that follow, I have concluded that there is no reviewable error in the decision of the H & C Officer and that this application must fail.
Analysis
Issue #1: Best interests of Alexander
[4] Alexander lives with his mother from whom the Applicant has been separated since before Alexander's birth. The Applicant claims that the H & C officer failed to consider the best interests of Alexander as required by law. He argues that the Federal Court of Appeal decision in Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 establishes that, absent exceptional circumstances, the best interests of the child will be served by the non-removal of the parent. Here, he submits, the H & C Officer concluded, without any analysis of the evidence before him, that "I am not satisfied that there is a bond between the subject and this child such that a separation would cause an excessive hardship".
[5] In effect, the Applicant argues that the H & C Officer should always decide in favour of a parent claimant, unless the H & C Officer finds that there are "exceptional circumstances" that warrant the removal of a claimant - such as abuse of the child by the claimant. This position is unsupportable. First, I note that the Applicant has selectively used the words of Justice Décary in Hawthorne,supra. The Applicant was quoting from paragraph 5 of that decision which states as follows:
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 with her parent can offer a child many opportunities and that, as a general rule, a child living in Canada is better off that 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.
[6] This should not be read, as suggested by the Applicant, to mean that the best interests of the child should be considered above all other factors. Justice Décary places this passage in context in the following paragraph 6 of the decision which states:
To simply require that the officer determine whether the child's best interests favour non-removal is somewhat artificial - such a finding will be 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.
[7] As applied to the facts of this case, from Hawthorne and other jurisprudence (including Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125; Owusu v. Canada (Minister of Citizenship and Immigration) 2004 FCA 38), I understand the following:
· the H & C Officer must be "alert, alive and sensitive" to Alexander's best interests;
· in doing so, the H & C Officer must determine the likely degree of hardship on Alexander caused by the removal of the Applicant; in this assessment, the focus is on Alexander and not on the parent;
· the H & C Officer must weigh this factor along with all other factors in assessing the application; that is, the best interests of Alexander constitute one factor to be considered along with all others.
[8] It is important to state that an applicant bears the burden of adducing proof of any claim on which the H & C application relies. This includes presenting persuasive evidence to the H & C Officer related to the best interests of the child. The duty to consider the child's best interests only arises when it is "sufficiently clear from the material submitted to the decision-maker that an application relies on this factor" (Owusu, supra, at para. 5).
[9] In this case, the Applicant made some limited submissions related to Alexander.
Reference to Alexander was contained in written submissions from the Applicant as follows:
I have a son in Canada. . . . I do not want to leave him fatherless. . . My son needs my help and support. My son and my estranged wife receive financial support from me.
My son and I would face excessive hardship if I applied outside Canada because I could not bear to be separated from him. I see Alexander regularly. It would be an excessive hardship to be separated from him. Furthermore, there is no certainty that I would see him again. I love my son and want to be a good father for him.
[10] The Applicant's estranged wife wrote a letter of support stating that "My wishes are that our son has a father in Canada".
[11] Although the Applicant claimed that he made financial support, no evidence of such support was before the H & C Officer.
[12] That was the sum of evidence before the H & C Officer. From the decision of the Federal Court of Appeal in Owusu, supra, at para. 8, I adopt the reasoning of Justice Strayer where he states that "since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril". The H & C Officer, in his decision, noted all of the evidence before him and concluded that "I am not satisfied that there is a bond between the subject and this child such that a separation would cause an excessive hardship". In my view, the officer demonstrated, in the reasons for the decision, that he was "alert, alive and sensitive" to the interests of Alexander. Nothing was overlooked.
[13] Simply, there was little, if any, evidence of hardship to Alexander. I do not doubt for a minute that the Applicant loves his child and that the loss - even temporarily - of the opportunity to visit with his son will be difficult for the Applicant. However, with respect to the analysis of the best interests of Alexander, this is irrelevant. There was nothing before the H & C Officer that focussed on what hardship would be suffered by Alexander. In light of the separation of his parents, the lack of evidence of financial support from the Applicant and failure to provide details of the role played by the Applicant in the child's life, a conclusion that the separation would not cause excessive hardship was not unreasonable.
[14] The Applicant points to a statement in the reasons that "On 02 Jun 2003 he applied for Social Assistance". The Applicant is correct that there is no evidence on the record that supports this statement. The statement is either incorrect or made on the basis of extrinsic evidence, either of which would be an error. However, I am of the view that the error was immaterial. The H & C Officer's decision does not turn on this point.
Issue #2: Risk assessment
[15] Because the Applicant made allegations of risk in his H & C submissions, the H & C Officer responsible for the file sought a risk opinion from the Pre-removal Risk Assessment ("PRRA") Unit. Upon preparation of that risk assessment, a draft of the risk assessment was provided to the Applicant for comment as required by Haghighi v. Canada (Minister of Citizenship and Immigration) [2000] 4 F.C. 407 (C.A.). The record contains comments provided by counsel for the Applicant and a response to those comments by the PRRA Officer. The PRRA Officer addressed the counsel's comments and concluded that the risk assessment did not change as a result. The Applicant argues that certain of the conclusions of the PRRA Officer, that were subsequently incorporated into the analysis of the H & C application, were patently unreasonable.
[16] First, I would comment that the process followed in this case has been accepted as one that is fair to the Applicant (Haghighi, supra, Jinadasa v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1038 (T.D.); Traore v. Canada (Minister of Citizenship and Immigration), 2002 FCT 909 (T.D.)). A draft of the assessment was provided to the Applicant, he was allowed to comment on the draft and his comments were considered.
[17] In this case, after a detailed review of the evidence, the PRRA Officer concluded as follows:
Thus, regrettably, the documentary evidence suggests that anti-Semitism is still a problem in Russia, as in other East European countries; however, according to the multiple sources consulted, it seems to be translated to, on one hand, some discrimination against minorities and, on the other hand, isolated incident [sic] of violence and vandalism. I accept that the applicant could have been persecuted in the past. However, as this is a forward-looking assessment, I am not satisfied that there is more than a mere possibility that the applicant would be at risk of persecution for reason of his religion and nationality. It is also unlikely that the applicant would be at risk of torture, risk to life or of cruel and unusual treatment or punishment.
[18] Although the Applicant argues that the evidence submitted and the comments provided should have led to a different conclusion, I am not satisfied that the conclusion was unreasonable. The Applicant would have me re-weigh the evidence. Accordingly, the Applicant does not succeed on this issue.
[19] The PRRA, in a form identical to that provided to the Applicant as part of the H & C record, was subsequently delivered to the Applicant. The Applicant did not seek leave to commence judicial review of that decision. The Respondent submits that a challenge of the risk assessment in the guise of a review of the H & C decision is a collateral attack on the PRRA decision and should not be allowed. Since I have determined that the risk assessment portion of the H & C decision was not made in error, I do not need to determine that question.
Conclusion
[20] For these reasons, I conclude that the H & C Officer did not err and that the application for judicial review should be dismissed.
[21] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed; and
2. No question of general importance is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4895-03
STYLE OF CAUSE: MIKHAIL ANASCHENKO v. THE M.C. & I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 21, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: September 28, 2004
APPEARANCES:
Mr. Arthur Yallen FOR APPLICANT
Ms. Matina Karvellas FOR RESPONDENT
SOLICITORS OF RECORD:
Yallen Associates FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada