Date: 2004007
Docket: IMM-3650-03
Citation: 2004 FC 538
Ottawa, Ontario, this 7th day of April 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
KUNAR PERSAUD
MOHINI DEVI PERSAUD
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Kunar Persaud and his minor daughter Mohini Devi Persaud (the "Applicants") seek judicial review of the decision of Immigration Officer John Battista (the "Immigration Officer"), dated May 2, 2003. In his decision, the Immigration Officer refused the Applicants' application for admission into Canada on humanitarian and compassionate grounds ("H & C application").
[2] The Applicants are citizen of Guyana and entered Canada in 1999. They sought Convention refugee status but were unsuccessful. In 2001, the adult Applicant applied for entry into Canada pursuant to the exercise of discretion vested in the Respondent by the former Immigration Act, R.S.C. 1985, I-2, as amended, section 114(2). In that application, the Applicants raised issues of risks, particularly risk to the minor Applicant in relation to a kidnapping attempt in 1997. Continuing Submissions were made by the Applicants following their initial application.
[3] The record shows that the Immigration Officer sought and obtained risk opinions in relation to the Applicants, that is a Pre-Removal Risk Assessment ("PRRA") and a risk assessment conducted specifically in relation to the "H & C" application. Neither the PRRA report nor the risk opinion identified a risk to either of the Applicants, although the occurrence of the kidnapping attempt was acknowledged by the officer dealing with the latter assessment.
[4] The Immigration Officer filed an affidavit in this proceeding in which he said the following:
13. I also considered the best interests of the minor applicant and Mr. Persaud's other daughter who was living with her mother in Canada as a refugee claimant. Considering the age and circumstances of the children, including their bests [sic] interests, I determined that it would not be unusual and undeserved if the minor applicant returned to Guyana with her father and apply for permanent residence in the normal manner.
14. As I set out in my refusal, having considered all of the evidence, I was not satisfied that Mr. Persaud and his daughter would suffer unusual and undeserved or disproportionate hardship should they be required to apply for permanent residence from outside Canada. I was not satisfied that there were sufficient grounds to waive subsection 11(1) of the Immigration and Refugee Protection Act, and therefore refused their application.
[5] The Immigration Officer was cross-examined, specifically as to how he considered the best interests of the minor Applicant. However, a review of the entirety of this cross-examination leads to the impression that the Immigration Officer engaged in only a cursory examination of the best interests of the minor Applicant and addressed his mind to irrelevant factors, such as the status of the parents, as well as failing to consider relevant factors. In the circumstances of this case, that is a reviewable error.
[6] Accordingly, this application for judicial review is allowed and the matter is remitted to a different Immigration Officer for redetermination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter remitted to another Immigration Officer for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3650-03
STYLE OF CAUSE: KUNAR PERSAUD, ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 25, 2004
REASONS FOR ORDER AND
ORDER BY: HENEGHAN, J.
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Mr. Lorne Waldman
Waldman & Associates
281 Eglinton Ave, East
Toronto, Ontario
M4P 1L3
For the Applicants
Mr. Martin Anderson
For the Respondent
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT
Date: 20040407
Docket: IMM-3650-03
BETWEEN:
KUNAR PERSAUD
MOHINI DEVI PERSAUD
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER