Date: 20041006
Docket: IMM-8285-03
Citation: 2004 FC 1369
Toronto, Ontario, October 6th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
JENNY PERSAUD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Jenny Persaud is a thirty-three-year-old Guyanese woman of East Indian descent who entered Canada in August 1998. She initially made a refugee claim that was refused on January 16, 2001. A negative PRAA assessment was completed on September 9, 2002.
[2] Ms. Persaud applied for a exemption from the permanent resident visa requirement on humanitarian and compassionate grounds ("H & C") on July 17, 2002. She was removed from Canada on December 4, 2002 before the decision was made. The application was refused on October 7, 2003. The officer concluded that the applicant would not suffer "unusual, undeserved or disproportionate hardship" if required to apply for an immigrant visa from outside Canada.
[3] The principal issue before me was whether the officer erred in failing to properly take into account the best interests of the applicant's Canadian-born child. For the reasons set out below, I have concluded that he did not and the application will be granted.
Background
[4] In the supplementary information form submitted as part of the application required for consideration under the former Immigration Act, Ms. Persaud named a son, Anthony Bishamber, born in Canada on June 15, 2001 and resident at the last address she occupied in Canada.
[5] Among the special reasons cited by Ms. Persaud for seeking exceptional consideration were the best interests of her Canadian-born child and her fear that the child would suffer hardships if separated from her or if required to join her in Guyana. Her principal reasons for seeking an exemption were the climate of violence in Guyana directed at persons of East Indian origin and the lack of employment opportunities there to support herself and her children.
[6] Counsel for Ms. Persaud elaborated upon these concerns in a letter, dated August 6, 2003, in response to a standard "thirty day" request from the respondent, dated July 23, 2003, for additional information and for completion of the new Immigration and Refugee Protection Act forms. Counsel noted that Ms. Persaud was no longer in the country which made it difficult for her to comply with the thirty day requirement and requested that the determination be made on the previous application form or that additional time be provided for the forms to be completed in Guyana and returned to Canada. There was no response to that request.
[7] Counsel's letter noted that, according to Ms. Persaud, Anthony's father has no interest in taking care of or supporting her son. The father has no involvement in the child's life and has given no indication of any willingness to raise the child.
[8] The H & C officer prepared a brief letter, a handwritten narrative report and FOSS notes from which the reasons for refusal can be gleaned. These notes indicate that the officer questioned the parentage of the child Anthony Bishamber and concluded that the child had been left in Canada, with the father. In any event, the officer concluded, the child was young enough to adapt to any situation, including living with his mother in Guyana under the conditions she would face in that country.
Analysis
[9] The applicant argued that the officer erred in in finding that the child had been left in Canada with the father based on counsel's submissions of August 6th, 2003. This was completely contrary to the content of the submissions and revealed the insensitive manner in which the officer considered the application.
[10] Ms. Persaud submits further that the officer also erred in finding that the father could take care of Ms. Persaud's child. The only evidence about the father was that he had no interest in the care of the child or involvement in the child's life. The officer did not provide reasons for doubting this evidence and the conclusion was unreasonable: Hilo v. MCI (1991), 130 N.R. 236; Baker v. MCI, [1999] 2 S.C.R. 817.
[11] While the best interests of the child are not determinative, it is an important factor and must reveal a sympathetic and careful assessment. Where there is no sympathetic assessment, as here, the findings of the officer are deficient: Hawthorne v. MCI (1991), 130 N.R. 236 (FCA); Malekzai v. MCI 2004 FC 1099; Qureshi v. MCI (2000), 196 F.T.R. 85.
[12] Ms. Persaud submits that the evidence before the officer was that she had a three-year-old son, she was solely responsible for the child, and the father had no involvement in the child's life. It also indicated that Ms. Persaud had no home or means of support in Guyana. The documentary evidence indicates that the economic situation is unstable there. The officer should have assessed the best interests of the child in light of these facts: Baker, supra; Ek v. MCI (2003), 232 F.T.R. 305.
[13] The respondent submits that the standard of review in this case is reasonableness simpliciter: Mayburov v. MCI (2000), 183 F.T.R. 280; Baker, supra.
[14] Further the respondent says, the officer took into account the best interests of the child, as well as could be done, given the lack of evidence about the child. The onus is on the applicant to provide facts that support an H & C application: Gallardo v. MCI (2003), 230 F.T.R. 110.
[15] Even if the officer erred in finding that the child was with the father in Canada, the respondent argues, the error was not material to the decision, first, because there was no objective evidence as to whose child it was, and second, because there was evidence that Ms. Persaud was removed from Canada, but no evidence that the child was removed with her. There was no factual foundation upon which the officer could take the best interests of the child into account because there was no evidence to support the assertion that Ms. Persaud had a Canadian-born child. Thus, both Baker and Hawthorne are distinguishable.
[16] I agree with the respondent that the onus is on the applicant to provide facts to support an H & C application. It follows, in my opinion, that the applicant must also provide sufficient evidence to support her assertions of fact. If, in fact, the application lacked a basis to conclude that Ms. Persaud had a Canadian-born child, it was open to the visa officer to give little weight to the assertion.
[17] In my view, however, there was sufficient evidence before the officer , including corroborating evidence, that Ms. Persaud had a Canadian-born child, and that evidence was evidently ignored by the H & C officer. Apart from her own declaration in the application, there was a letter from Ms. Persaud's former employer indicated that she was on maternity leave from May 2001 to at least October 3, 2001. Anthony's birth certificate, submitted to the officer, indicates that he was born June 15, 2001. Although the visa officer claimed to have "seen and acknowledged" this evidence apparently it was given only the most cursory examination.
[18] Consideration of the best interests of a child does not lead inescapably to the conclusion that parent and child should remain in Canada. The submissions made about the lack of interest in and support for the child from its father in Canada, combined with the evidence of an extended family in Guyana, could have led to a reasonable conclusion that the child would in fact be better off in Guyana with his mother. It was reasonably open to the officer to find that Ms. Persaud had a home and support in Guyana for herself and the child. She had lived with her parents (and two Guyanese children) and siblings before leaving for Canada, and the evidence did not demonstrate that she could not do so again.
[19] However, since the H & C officer appears to have written off the application from the outset because of a lack of "proof" that Ms. Persaud actually had a child, I cannot accept that the child's best interests were truly given the sympathetic and careful assessment required.
ORDER
THIS COURT ORDERS that the application is hereby granted and the matter is remitted back for redetermination by a different officer. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8285-03
STYLE OF CAUSE: JENNY PERSAUD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 5, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: OCTOBER 6, 2004
APPEARANCES:
Mr. Lorne Waldman FOR APPLICANT
Mr. Marcel Larouche FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
FEDERAL COURT
Date: 20041006
Docket: IMM-8285-03
BETWEEN:
JENNY PERSAUD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER