Date: 20001108
Docket: IMM-1693-99
BETWEEN:
ROSE BYFIELD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] Rose Byfield, a 57 year old citizen of Jamaica, applied on humanitarian and compassionate grounds for an exemption from the requirement to obtain an immigrant visa from outside of Canada. The application was denied by an immigration counsellor on March 17, 1999.
[2] Prior to coming to Canada, the applicant worked as a dressmaker and was part owner and operator of a passenger bus-line. The event which precipitated her departure from Jamaica occurred in March 1989 at a time when the applicant's house was being used by the government as a polling station. Armed men kicked in the door of the applicant's house. While the applicant's fiancé was trying to wrestle a gun from one of the intruders, he was shot in the leg and stabbed in the eye. The applicant was forced to watch as her two daughters were ordered at gunpoint to undress and then were raped. In turn, the daughters were forced to watch while their mother was raped. The intruders fled when neighbours arrived to help. The family was taken to hospital and admitted for treatment.
[3] During the subsequent police investigation, the applicant and her fiancé received a message warning them not to identify their assailants if they wished to stay alive. The applicant's fiancé fled to Antigua, her two daughters were sent to the United States and she came to Canada.
[4] Three years prior to this attack, the applicant and a co-worker were severely beaten and another co-worker was killed while they were working at a polling station.
[5] In 1993, the applicant applied for landing from within Canada with the assistance of an immigration consultant to whom she had paid $3,000. The consultant failed to appear on the required date resulting in the application being refused. Nothing further was done to regularise her status in Canada until the filing of the application which gives rise to this application for judicial review.
[6] In Canada, the applicant initially lived with her son then with her brother with whom she continues to reside. She has supported herself working as a seamstress and with the financial help of her brother and son. As well, she helps her son with the care of his children. The applicant has never been on social assistance and has been sending $75. per month to help support her youngest daughter still living in Jamaica.
[7] The applicant's brother, a Canadian citizen, and her son, a permanent resident, have stated they are prepared to assist the applicant financially. The brother signed an undertaking to this effect.
[8] In support of her application, the applicant submitted letters of reference regarding her involvement with her church and her volunteer work with the needy and youth. As well, she submitted a medical report, and psychiatric and trauma assessments. Of particular relevance is the conclusion of Dr. Ruth Baruch where she states:
| She genuinely believes that if she is to return to Jamaica, she would not have any protection. She feels that she may again be assaulted and raped. The possibility of returning to a country where she sustained these traumas, would in itself present as a re-traumatizing experience in an already fragile individual. |
[9] The reasons for the refusal of the application are included with the immigration counsellor's report. It states:
| Although subject has a son who may be willing and able to sponsor her it is my opinion subject does not have exceptional grounds to warrant favourable processing from within Canada. Subject's main family ties are outside of Canada. Her establishment and integration into the community are not such to warrant exceptional processing. Subject's risk identified although traumatic back in 1980 and yes it may be difficult for subject to rethink those events; there is no indication that any of those events may take place again. She in my opinion will have the support of her family, community and church as well as the police if something like that would ever happen again. In my opinion , subject would not be subjected to undue hardship if she returns to Jamaica and is sponsored through the proper channels. |
[10] The applicant submits that the immigration counsellor's decision was unreasonable in that it was based on findings not supported by the evidence and without regard to the particular circumstances of the applicant.
[11] The standard of review of humanitarian and compassionate decisions as stated by L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817at page 858 "... is reasonableness simpliciter". L'Heureux-Dubé J. went on to adopt the following statement of Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56 regarding the determination of the reasonableness of a decision:
| 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. |
[12] The immigration counsellor considered the potential risk to the applicant should she return to Jamaica. This analysis, however, focuses on the likelihood of a recurrence of an incident similar to that which caused her to leave Jamaica. While the applicant genuinely fears for her life should she return to Jamaica, the immigration counsellor failed to take into account the re-traumatization which is likely to occur should she return to the place where the brutal events took place in an already fragile individual.
[13] Further, the immigration counsellor noted that the applicant would have "the support of her family, community and church as well as the police" should a similar event occur again. Without commenting on the appropriateness of this statement, there is nothing in the record to suggest the availability of this support for the applicant in Jamaica.
[14] The immigration counsellor also found that the applicant's main family ties are outside Canada. Although the applicant has family living outside of Canada, the record does not support her finding that those individuals represent the applicant's main family ties. In fact, it disregards the closeness of the applicant's relationship and her reliance on her brother and son for personal and financial support.
[15] The immigration counsellor, in reaching her decision, also failed to take into account that the applicant lost her home and her business when she left Jamaica and consequently would have no means of supporting herself nor of continuing the financial support for her youngest daughter.
[16] Having regard to all of the applicant's circumstances, the immigration counsellor's conclusion that she "would not be subjected to undue hardship if she returns to Jamaica and is sponsored through the proper channels", in my view, is unreasonable.
[17] For these reasons, the application for judicial review is allowed, the decision dated March 17, 1999 is set aside and the matter is remitted back for reconsideration by a different immigration counsellor.
[18] Neither party submitted a question for certification.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
November 8, 2000