DATE: 20020625
Docket: IMM-2108-01
Neutral citation: 2002 FCT 708
Ottawa, Ontario, this 25th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
AGNES PIERRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
- [1] Agnès Pierre, the applicant, applies for judicial review of a negative decision of Immigration Officer P.M. Johnson, (the "Officer") dated April 18, 2001. The decision denied the applicant's application for landing from within Canada on "humanitarian and compassionate" (H & C) grounds, pursuant to section 114(2) of the Immigration Act, R.S.C. 1985, c.I-2.
FACTS
- [2] The applicant, a citizen of Grenada, entered Canada as a visitor on November 6, 1995, with a Grenadian passport. The applicant has three daughters, two of which aged 23 and 11 years, are citizens of and are living in Grenada, and one, a Canadian citizen, Nidette Arel Waterman, three years of age and living with her mother in Canada. At the time the application for leave was heard, the applicant was also pregnant with a fourth child.
- [3] The applicant's evidence is that before coming to Canada, she lived with her mentally unstable brother, Stephen Pierre, her children and her former controlling and abusive partner, Roger Thompson, the father of the two Grenadian children. The applicant, while in Grenada, owned and operated her own clothing and cosmetic business in Grenada and was employed by the Rex Grenadian Hotel.
- [4] While in Canada, the applicant lived with friends at first, then with the father of her third Canadian born child. The applicant states that she was threatened and abused by the father of her third child and left him in 1997. The applicant has been working illegally since she arrived in Canada by cleaning houses for eight separate employers and earning about $600-$700 per month.
- [5] The applicant claims that pursuant to legal advice received, she was not eligible to make a refugee claim and therefore requested a risk assessment on humanitarian and compassionate grounds pursuant to subsection 114(2) of the Immigration Act.
- [6] The applicant claims that she is unable to return to Grenada because of abuse suffered at the hands of Roger Thompson, the father of her two Grenadian born children. She claims the abuse would likely continue should she return. The applicant claims that she also fears her mentally unstable brother, Stephen Pierre.
- [7] In a letter dated April 21, 1999, addressed to the Case Processing Center at Vegreville, former counsel for the applicant made submissions in regard to the applicant's humanitarian and compassionate grounds under subsection 114(2) of the Immigration Act. The following paragraph is found in the submissions.
Mrs. Pierre was also physically abused by her mentally unstable brother, Stephen Pierre, who attacked her with deadly weapons on several occasions. She sought protection from the local authorities who found her reports of the attacks amusing and did nothing to assist her. Ms. Pierre fears that her mentally unstable brother, who lives in the family's only place of residence, will physically harm her and her Canadian born child, and she believes she would not receive effective protection from the Grenadian authorities.
- [8] An interview was held on January 17, 2001, at which the applicant attended with a student from a legal clinic.
- [9] The negative decision of P.M. Johnson, Citizenship and Immigration Counsellor was rendered on April 18, 2001.
DECISION
- [10] The Officer denied the applicant's application for an exemption under subsection 9(1) of the Immigration Act. The following excerpts are from FOSS notes prepared by the Officer, and are submitted as her reasons:
· "Ms. Pierre claims she has been doing house cleaning for several different employers since about December 1995. She claims to earn $600-$700 per month working 1 day per week with each employer and that she gets paid in cash."
· "No proof of income was provided with respect to her earnings."
· "Her Canadian child's father is a Canadian citizen and although he does not provide support for the child, Ms. Pierre admits he cares for the child sometimes on weekends when she has to work."
· "No evidence has been provided of prior or the possibility of future abuse by this individual. (Her ex-boyfriend in Grenada.)" The Officer notes that the applicant submitted a copy of a CRDD decision she referred to as a PIF (Personnel Information Form) of another individual who was deemed to be a Convention refugee based on an abusive situation in Grenada. The Officer noted that, "The situations are, in my opinion, completely different and counsel has not provided an explanation of how this situation relates to her client neither has she provided any tangible evidence of abuse."
· "The abuse was never reported to the police."
· "There is presently no relationship betwee[sic] the applicant and the former boyfriend. Their relationship ended at least 5 years ago so there seem [sic] to be no logical basis for such fear."
· "I have considered the Baker decision however, no evidence was presented to suggest that the child would be at risk if returned with her mother to Grenada. She is young (pre-school) and healthy and there is no reason why she should not adjust to life in Grenada with her mother."
- · The Officer further noted that, "The child has a father in Canada who is a Canadian citizen, and should Ms. Pierre not want to remove her child from Canada, that is an option available to her."
· "Ms. Pierre also has a minor child in Grenada who needs her. The interest of that child needs also to be considered."
· The Officer also noted that, "...Ms. Pierre has not demonstrated that she established herself in Canada neither had she presented any credible evidence that she would face undue or disproportionate hardship should she return to Grenada."
· The Officer also noted that, "...Ms. Pierre violated the terms of a bond she signed in 1996 when she failed to show for removal arrangements and worked without authorization. This resulted in a warrant of arrest. The Warrant was executed and she was released on cash bond as she had her 3 year old child with her at the time. She also has a removal order against her."
ISSUES
(1) Did the Officer ignore relevant facts and evidence and/or take into account irrelevant considerations?
(2) Did the Officer fail to consider humanitarian considerations and to give due weight to the interests of the applicant's Canadian born child?
(3) Did the Officer err in law, exceed jurisdiction and fail to consider evidence in relation to the issue of risk assessment?
STANDARD OF REVIEW
- [11] In Baker v. Canada (M.C.I.), [1999] 2 S.C.J. 817, L'Heureux-Dubé J. determined at pages 857 to 858 that the appropriate standard of review for decisions made under ss. 114(2) of the Act and ss. 2.1 of the Immigration Regulations, 1978, SOR/78-172 is reasonableness simpliciter:
... 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 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.
I will therefore apply the standard of reasonableness simpliciter to the within judicial review application.
- [12] The reasonableness standard was defined by Justice Iacobucci in Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748 at 776-77:
[....] 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. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.
ANALYSIS
(1) Did the Officer ignore relevant facts and evidence and took into account irrelevant considerations?
- [13] The applicant submits that the Officer erred in law by finding that the applicant had not provided any proof of income where, in fact, numerous letters attesting to the applicant's employment were submitted. The applicant argues that one letter even mentions that she was paid $80 every two weeks.
- [14] On this point, I observe that the Officer also remarked in her notes that the applicant had done house cleaning for several different employers since about 1995 and that she had been paid in cash. It may well be an error to have noted that no proof of income was provided. I am of the view that such an error is not so central to the decision as to warrant this Court's intervention. [Chaudri v. Canada (M.E.I.), (1986) 69 N.R. 114 at pages 116-117 (F.C.A.).]
- [15] In her notes, the Officer states that "no tangible evidence of abuse" was adduced by the applicant. The applicant did, however, in her affidavit sworn June 14, 2001, attest that at her interview she stated that, "...I also fear my brother (the brother is referred to as being ‘mentally unstable' in the humanitarian submissions dated April 21, 1999,) would cause harm to me."
- [16] In her notes, the Officer makes no reference to the applicant's mentally unstable brother. Nowhere in her notes does she address the element of risk that was raised at the interview by the applicant nor did the respondent cross-examine the applicant on her affidavit. I am therefore left with an element of risk raised by the applicant at the interview and not addressed by the Officer in her notes. The only comments made by the Officer is that there was "no tangible evidence of abuse". The Officer did consider the allegation of abuse by the applicant's ex-boy-friend and concluded that "...No evidence has been provided of prior or the possibility of future abuse by this individual" and that "...There is presently no relationship betwee[sic] the applicant and the former boyfriend. Their relationship ended at least 5 years ago so there seem[sic] to be no logical basis for such fear."
- [17] The Officer's conclusion with respect to the ex-boy-friend appears to me to be a reasonable finding. However, I am of the view that not to have even mentioned the "mentally unstable brother" in her notes, one is left only to speculate whether this was even considered by the Officer or was totally overlooked.
- [18] I have deliberated at length as to whether this omission was sufficiently significant or material to justify the Court's intervention. I have concluded that I must intervene.
- [19] Two factors have helped me arrive at this conclusion. First the applicant's affidavit attesting that her brother would cause her harm was raised by her at the hearing. Second, the written submissions of counsel stating that her brother lives in the family's only place of residence. It is not for this Court to speculate on what inferences may be drawn from these factors. What is clear is that the second element of risk alleged to have caused the applicant to fear for her safety and that of her child, her unstable brother, was not mentioned in the Officer's notes.
- [20] The respondent argues that there was no evidence before the Officer of any evidence that the brother would harm the applicant or her child. The respondent contends that submissions by counsel are not evidence and there was no need to consider this element. I disagree, the applicant's affidavit made it clear that the applicant feared her "mentally unstable brother", and this was related to the Officer during the hearing. The respondent had the option of cross-examining the applicant on this declaration and did not. They cannot now suggest that "the mentally unstable" brother was considered by the Officer and rejected as an element that does not justify a fear of harm if returned. There is simply nothing in her reasons that would allow me to draw such a conclusion.
- [21] The respondent attempts to distinguish Wynter v. Canada (Minister of Citizenship and Immigration) (2000) 185 F.T.R. 211, from this case on its facts, arguing that since no evidence of abuse by the brother was evident, there was no need for the Officer to consider this in her notes or reasons. I disagree. I am of the view that there was sufficient evidence before the Officer to warrant consideration of the applicant's "mentally unstable brother" as a threat that could justify her fear of harm.
- [22] In Wynter, supra, Mr. Justice Teitelbaum wrote the following, which I believe is applicable to the within case:
[ 38] While it is beyond dispute that the decision-maker has no obligation to list each and every piece of evidence brought before him or her, the decision-making process must encompass a fair and full review of all relevant considerations--and the reasons must reflect this. It is certainly within the purview of the officer to accept or reject information, but he or she cannot ignore information. If a particular document or piece of information is rejected, the applicant should be advised of the reasons why, especially when the document or information supports the applicant's position. In such an instance, the officer must, at the very least, comment on the document or information.
- [23] I am of the view that the Officer erred by failing to comment on the applicant's "mentally unstable brother". Further, there is no way of knowing if the Officer considered the child's best interest in relation to the applicant's "mentally unstable brother". The notes do not mention it and there is no affidavit from the Officer to shed any light on whether she did.
- [24] For the above reasons this application for judicial review will be allowed.
- [25] The applicant proposes the following questions for certification:
1. In light of the Supreme Court's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, did the officer fail to give "substantial weight" or "serious weight and consideration" to the Canadian child's best interests; What does "serious weight" or "substantial weight" require?
2. Does an officer err in finding that there is no evidence of risk of a Canadian child when counsel has placed a written submission indicating that there is a risk to the child?
- [26] With respect to the first question, I am of the view that this matter has been settled by the Supreme Court of Canada in Suresh v. Canada (M.C.I.), 2002 S.C.C. 1. The matter has been further addressed by the Federal Court of Appeal in The Minister of Citizenship and Immigration v. Alexander Henri Legault, [2002] F.C.A. 125. This is therefore not a serious question of general importance.
- [27] With respect to the second proposed question, I am also of the view that it is not a serious question of general importance. It is evident that allegations in counsel's submissions are not evidence. In this case, I found there to be evidence before the Officer that the applicant feared her "mentally unstable brother".
- [28] Consequently, I will not be certifying a question of general importance as contemplated by virtue of section 83 of the Immigration Act.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed.
2. The matter is to be returned for rehearing before a differently constituted panel.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2108-01
STYLE OF CAUSE: Agnes Pierre v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 19, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: June 25, 2002
APPEARANCES:
Michael Crane FOR PLAINTIFF / APPLICANT
David Tyndale FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Michael Crane FOR PLAINTIFF/APPLICANT
166 Pearl Street, suite 100
Toronto, Ontario M5H 1L3
Morris Rosenberg FOR DEFENDANT/RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6