Date: 20010226
Docket: IMM-1064-00
Neutral Citation: 2001 FCT 119
BETWEEN:
PATRICIA ALOMA HOLDER
LUGAN DWAYNE HOLDER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision rendered by the immigration officer, which denied the application of Patricia Aloma Holder (the applicant) and Lugan Dwayne Holder (Zane) for humanitarian and compassionate consideration pursuant to subsection 114(2) of the Immigration Act1 (Act).
[2] The applicant fled her country of origin, St. Vincent and the Grenadines, in 1990 because she feared the abuse of Gladstone Greene, her common law spouse.
[3] Zane is the son of the applicant and Gladstone Greene. In 1998, Zane came to visit his mother in Canada. On his arrival, the applicant noticed that her son was bruised. He told her that his father had been physically and emotionally abusive to him.
[4] The applicant felt compelled not to return Zane to St. Vincent and the Grenadines, fearing that he would be further physically and emotionally abused by his father.
[5] The applicants submitted an application for permanent residence on humanitarian and compassionate grounds, on April 9, 1999 which was refused by letter dated December 23, 1999. This letter was not received by the applicants until February 29, 2000.
[6] The immigration officer concluded that the circumstances did not warrant an exemption from the requirements that an application for landing be made outside of Canada.
[7] The immigration officer's notes2 reveal that she found that there was insufficient evidence to establish a risk of hardship or abuse upon return of the applicant because the ex-spouse has his own family now. She notes that the applicant has family members in Canada but that she also has family back home. She accepted that the applicant had experience as a caregiver and that she was appreciated by her employer. However, she was satisfied that she could be replaced by another caregiver. With regard to the son, she concluded that his place is where his mother is.
[8] After a careful review of the evidence, I am satisfied that the immigration officer's finding is unreasonable.
[9] Recent jurisprudence of the Federal Court of Canada establishes that since the Supreme Court of Canada decision in Baker3 there is a new perspective in humanitarian or compassionate decisions which requires a more focussed approach from the immigration officer when assessing applications for humanitarian and compassionate considerations.
[10] With regards to the role of the reviewing judge, as pointed out by my colleague Lemieux J. in Garasova v. Canada (MCI)4 he or she must take a "hard look" at the humanitarian and compassionate decision, and must assess whether it is reasonable by examining the reasons to see if they can stand up to a somewhat probing examination of the evidence.
[11] Here, the decision cannot stand up to that examination. Rarely have I seen more evidence of humanitarian considerations warranting an exemption under subsection 114(2) of the Act.
[12] First, the immigration officer found that there was insufficient evidence to establish a risk of hardship or abuse upon return of the applicant. However, the evidence clearly establishes that Mr. Greene continued to abuse the applicant after he was married to another women, that she was rejected by her own mother when she attempted to leave her spouse while still residing in St. Vincent and that in light of the size of St. Vincent she has no place to stay or means to support herself and her son should they return.
[13] Further, the evidence shows that Zane was recently emotionally and physically abused in 1998, and, that in the past when he sought protection at his grandmother's house he was forced to return to the father's house. It also demonstrates that Mr. Greene had a history of abusing his other children, causing the applicant's son, Cameron Holder, to attempt to take his own life.
[14] The evidence also provided a detailed assessment by a therapist who has experience in assessing and counselling children who are victims of abuse. The immigration officer failed to attribute any weight to Ms. Manning's assessment that Zane suffers from depression as a result of the abuse inflicted by his father and step mother, and that "until Zane resolves earlier childhood trauma, he will be burdened by depression".5 She failed to weigh the evidence that Zane is responding well to his environment in Canada.
[15] In concluding that the child's place is with his mother the immigration officer failed to discharge her responsibility to give serious weight or consideration to the interest of the child.
[16] Further, the evidence clearly demonstrates that the applicant has close ties to Canada, a de facto family relationship, and a remarkable degree of establishment given her skills. None of these factors are present in St. Vincent. It was unreasonable for the immigration officer to conclude that a relationship exists between the applicant and her mother in St. Vincent. To the contrary, the evidence shows that she never had a close relationship with her mother and that being a child conceived during a rape, she never lived with her.
[17] For these reasons, the judicial review is allowed. The decision of the immigration officer is set aside and the matter is remitted to the Minister for redetermination by a different immigration officer.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
February 26, 2001.
__________________3 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.