Federal Court Decisions

 

 

 

Date: 20070103

Docket: IMM-7669-05

Citation: 2007 FC 5

Ottawa, Ontario, January 3, 2007

PRESENT:     The Honourable Mr. Justice Lemieux

 

 

BETWEEN:

ZELMA VANESSA ALLEN AND

JAIME LEE CHARLES

Applicants

and

 

THE MINISTER OF CITIZESNHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

Introduction and background

[1]               Zelma Vanessa Allen and her daughter Jaime Lee Charles, both citizens of Guyana, are the applicants in this judicial review application which seeks to set aside the November 30, 2005 decision of Immigration Officer Lloyd (the I.O.) who denied their application for permanent residence in Canada based on humanitarian and compassionate grounds as provided for in section 25 of the Immigration and Refugee Protection Act, (the Act) which reads:

 

[2]     Zelma Allen and her daughter Jaime first arrived in Canada in June of 1998 as visitors on visas valid for six months.

  

[3]      They came to visit Zelma Allen’s mother who is now a Canadian citizen having entered Canada in 1983 and landed in 1992.  They also came to visit Zelma Allen’s brother and sister who are also Canadian citizens, being landed in Canada in 1993 after sponsorship.

 

[4]     The applicants overstayed their visas and made a refugee claim in March of 1999 based on spousal and child abuse.  These claims were rejected by the Refugee Division in May of 2000 with leave to apply for judicial review refused by this court on September 1, 2000.  Departure orders had been issued against them in June of 1999 which became enforceable in May of 2000.

 

[5]     Zelma Allen has been working in Canada since January 2001 on work permits valid for a year and renewed yearly since.  Jaime has been attending school on a student permit renewed yearly.

 

[6]     The H&C application which the court is concerned with was filed in June 2002; family ties, established within Canada and the best interests of Jaime were the main factors advanced.  The application was coupled with an allegation of risk of return to Guyana based on the likely abuse from Zelma Allen’s common-law spouse. 

 

[7]     Submissions in support of the application were received from the applicants’ counsel in June 2002 with additional submissions filed in June 2003 on account of the coming into force of the Immigration and Refugee Protection Act.  Further submissions in support of the application were received on July 15, 2005.

 

[8]     As indicated, the H&C application was coupled with risk factors.  The Immigration Officer asked for a risk assessment from a colleague in the Pre-Removal Risk Assessment Unit.  That opinion was received by the Immigration Officer in October 2005 after copies had been sent to Zelma Allen and her counsel for comment by the Risk Assessment Officer. No comments were received.

 

[9]     Counsel for the applicants argued the Immigration Officer erred by making unreasonable assessments in respect of both Zelma Allen and her daughter Jaime. He relied on certain passages from Justice Evans’ concurring reasons in the result in the Federal Court of Appeal’s decision in Hawthorne v. Canada (Minister of Citizenship and Immigration) 2002 FCA 475.  The majority reasons were issued by Justice Décary concurred in by Justice Rothstein, as he then was.  

 

[10]     Hawthorne, above, is a pre-IRPA case based on subsection 114(2) of the Immigration Act of 1976 pursuant to which the Governor-in-Council authorized the Minister of Citizenship and Immigration “to exempt any person from any regulation made under subsection 1 or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempt from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.”

 

[11]     In support of the exercise of this discretion by Immigration Officers, the delegates of the Minister, ministerial guidelines were issued and are found in the Immigration Manual published by Citizenship and Immigration Canada which Justice Evans described in his reasons at paragraph 30 as being “instructions issued by the Minister to Immigration Officers in order to structure the exercise of their statutory discretion under subsection 114(2) and to advise potential applicants of what they may have to prove in order to obtain a favourable decision on an H&C application.”, adding, “Although the Manual is not a legislative document in the formal sense, its provisions form a sufficiently important part of the normative framework within which H&C decisions are made that the provision most relevant to this appeal can usefully be reproduced here.”

 

[12]     Justice Evans then went on to cite certain provisions from the Manual including the following extract under paragraph 6.1 headed “What is meant by ‘Humanitarian and Compassionate Grounds?’” including the following:

§       “Subsection R 2.1 provides the flexibility to approve deserving cases for processing within Canada, the circumstances of which were not anticipated in the legislation.”  

 

§       “Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigration visa from outside of Canada in the normal manner would be (i) unusual and undeserving or (ii) disproportionate.  Applicants may present whatever facts they feel are relevant.”        

 

§       “The following definitions are not meant as “hard and fast” rules; rather, they are an attempt to provide guidance to decision-makers when they exercise their discretion in determining whether sufficient H&C considerations exist to warrant the requested exemption from Article 9(1) of the Act” [which provides that every immigrant or visitor, subject to some exceptions, shall make an application for and obtain a visa before that person appears at a port of entry in Canada].

 

§       Unusual and Undeserved hardship is the hardship (of having to apply for an immigration visa outside of Canada) that the applicant would face should be, in most cases, unusual.  In other words, a hardship not anticipated by the Act or the Regulations; and the hardship (of having to apply for an immigration visa from outside of Canada), that the applicant would face should be, in most cases, the result of circumstances beyond the person’s control

 

§       Disproportionate hardship is described in the following way:  “humanitarian and compassionate grounds may exist in cases that would not meet the “unusual and undeserved” criteria but where the hardship (of having to apply for an immigration visa from outside of Canada) would have a disproportionate impact on the applicant due to his or her personal circumstances.”                     

 

[13]     Justice Evans also referred to section 8.5 of the Manual headed ‘Separation of Parents and Dependent Children (outside the family class)’ the text of which reads:

The removal of a status-less individual from Canada may have an impact in relation to family members who do have the legal right to remain (i.e. permanent residents or Canadian citizens).  The geographic separation of family members could create a hardship that may warrant a positive H&C decision ... in evaluating such cases, you should balance the different and important interests at stake: ... the circumstances of all the family members, with particular attention given to the interests and situation of the status-less individual’s children.     

 

                                                  

[14]     Two other pre-IRPA cases bear heavily on the proper considerations and approach to be given to H&C applications involving minor children.  They are the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 and the Federal Court of Appeal’s decision in Legault v. Canada (Minister of Citizenship and Immigration) [2002] 4 F.C. 358 a judgment authored by Justice Décary. 

 

[15]    At paragraph 73 of her reasons, Justice L’Heureux-Dubé, in Baker, above, wrote as follows:

73     The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the "humanitarian" and "compassionate" considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker's children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned. In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she had been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.  [Emphasis mine]

 

 

[16]     Justice L’Heureux-Dubé concluded at paragraph 75 that the appeal should be allowed because the decision was unreasonable.  The Immigration Officer, in the case before her, minimized or diminished the interests of children and did not consider the children’s best interests as an important factor, did not give those interests substantial weight, and was not alert, alive and sensitive to them.  She cautioned however that “this is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H&C claim even when children’s interests are given this consideration.” 

 

[17]     The following paragraphs from Justice Evans’ concurring reasons in Hawthorne, above, relied upon by counsel for the applicants, were:

32     It was also common ground that an officer cannot demonstrate that she has been "alert, alive and sensitive" to the best interests of an affected child simply by stating in the reasons for decision that she has taken into account the interests of a child of an H & C applicant (Legault, at para. 13). Rather, the interests of the child must be "well identified and defined" (Legault, at para. 12) and "examined ... with a great deal of attention" (Legault, at para. 30). For, as the Supreme Court has made clear, the best interests of the child are "an important factor" and must be given "substantial weight" (Baker, at para. 75) in the exercise of discretion under subsection 114(2).                

 

40     These arguments do not persuade me that the Applications Judge erred in finding that the officer failed to give the careful consideration to the best interests of Suzette that is required by law. As Baker and the Guidelines indicate, it is certainly necessary for the decision-maker to consider the seriousness of the harm that a parent's removal is likely to cause to a child. However, unless the decision-maker considers the degree of harm in the context of the best interests of the child, she is likely to be diverted from her duty to be "alert, alive and sensitive" to this important factor in the exercise of discretion. The danger of subsuming a consideration of the child's best interests in an assessment of the degree of hardship likely to be caused by a negative decision is well illustrated by the immigration officer's responses to two submissions respecting Suzette that were made to her.

 

41     First, the submissions made to the immigration officer on behalf of Ms. Hawthorne emphasized that her removal would be very detrimental to the best interests of Suzette who might feel that she had no effective choice but to return to Jamaica with her mother. The officer found that this would not be a major hardship warranting a positive exercise of discretion, because Suzette had lived in Jamaica for nearly all her life, having been in Canada for less than a year. However, if the officer had started by identifying the best interests of Suzette, now a permanent resident, as being able to continue to live in Canada, the removal of Ms. Hawthorne could only reasonably have been regarded as highly detrimental to Suzette's best interests if she was thereby effectively compelled to return to Jamaica with her mother. A best interests analysis makes Suzette's present life in Canada the relevant point of comparison, not her previous residence in Jamaica: see Koud v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1237, 2001 FCT 856 at para. 18.

 

42     Second, it was submitted to the officer that, given the closeness of their relationship and the material and emotional support that Ms. Hawthorne has provided to Suzette as she has adjusted to her new social and educational environments in Canada, it would be contrary to the best interests of Suzette to deprive her of her mother's presence. The officer's response was that it would not be a major hardship for Suzette to remain in Canada without her mother, since she had been separated from Ms. Hawthorne for the seven years before she came to Canada in 1999.

 

43     Again, by failing adequately to identify and define the best interests of Suzette at the time of the decision, the officer compared the seriousness of her mother's removal with the previous period of separation. The relevant comparison is with the crucial part that her mother plays in her life in Canada, and the effect on her best interests of having to live in a new country without either her mother or other relatives who could assume her absent mother's role in the way that her grandmothers had done in Jamaica when Ms. Hawthorne came to Canada.

 

44  The officer's treatment of these issues satisfies me that she was not "alert, alive and sensitive" to Suzette's best interests. The officer assessed the degree of harm that Ms. Hawthorne's removal would cause to Suzette by considering Suzette's life circumstances before she became a permanent resident in Canada, and not by reference to the damage to her present best interests. Cases on the best interests of the child in custody disputes (Young v. Young, [1993] 4 S.C.R. 3, and P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, for example), as well as the various provisions of the Convention on the Rights of the Child, provide indirect guidance on the range of considerations that constitute the best interests of the child in the context of H & C applications.

[Emphasis mine]

 

 

[18]     According to the applicants, the I.O. erred in assessing Jaime’s best interests as a child and Zelma Allen’s circumstances as Jaime’s mother and a daughter to Veronica Allen by not following the approach set out by Justice Evans in Hawthorne, above. 

 

[19]     Counsel for the applicants suggested the objective behind Justice Evans’ approach is to ensure the assessment does not minimize the best interests of a child or of a parent by focusing the analysis on a proper point of departure, that is, the current situation of the individuals involved in Canada rather than looking at the situation of those persons in their country of origin or residence.  Only in this way, counsel for the applicants suggests, a proper assessment will be made which scrutinizes the hardship which will occur if the person is removed from Canada in the event the H&C application is denied. 

 

[20]     Counsel for the applicants pointed to the following passages in the I.O.’s decision to illustrate his point the I.O.’s perspective was flawed by choosing a point of departure which emphasized the past life of the applicants in Guyana rather than their current situation in Canada thereby leading to a failure to properly assess their current harm upon removal.  The I.O. stated:

§       “I note that Ms. Allen was employed prior to her entry into Canada and had leave from her employment to come to visit family in Canada.  I considered that Ms. Allen attended school in Guyana and did take a course of Computer Programming in Guyana...it should also be noted that this is not an unique situation, Ms. Allen left her home and employment to come to Canada...it is also noted that she lived in St. Lucia for a period of time, which shows that she has the ability to adjust to change.”

 

§       “I have carefully considered the parental relationship between Ms. Zelma Allen and Ms. Gwendoline Allen...I note that Ms. Gwendoline Allen entered Canada in November 1983 and remained here until she was granted permanent resident status in February 1992 at the Mississauga backlog office.  Then she later obtained Canadian citizenship on February 26, 1996...I note that Ms. Charles and Ms. Allen resides with her mother and have since they entered Canada; that Ms. Gwendoline Allen and Ms. Zelma Allen have purchased a home together in Mississauga, Ontario.  I am not discounting either’s family ties in Canada; however, the removal of an individual without status from Canada may have an impact on family members who do have the legal right to remain, also, there is insufficient evidence provided of a strong level of inter-dependency.  I note that Ms. Allen did not enter Canada until she was an adult; her mother departed Guyana in 1983, choosing to leave her daughter behind.”

 

§       “I have considered that Ms. Charles has been attending school in Canada but I note that prior to her entry into Canada she also was in school in Guyana.  I note that Guyana provides the same educational needs to children of free education to the end of high school and if post secondary education is needed, similarly to Canada, the parent will have to pay.”

 

§       “I believe it may be difficult for Ms. Charles to return to Guyana, more so than when she first came to Canada, as she had spent most of her educational time in school in Canada.   She will have established friends here that may be difficult for her to leave.  However it remains that the decision to uproot her daughter was Ms. Allen’s and it could be anticipated that as both were under removal orders that their time in Canada may be temporary.  I note that Ms. Charles will be returning to a country where the language spoken, written and read is English; Guyana is a democratic country and offers similar educational opportunities to the children.  Parents decide what is best for their children and at times children are compelled to go with their parents notwithstanding the difficulties they may experience.”

 

§       “Ms. Allen and Ms. Charles may experience some difficulties in re-establishing/readjusting life to life in Guyana; however, Ms. Allen has spent her formative years in Guyana, worked there and was educated there.  As previously stated with Ms. Allen’s assistance, Ms. Charles’ adjustment to life in Guyana may be difficult but I am not satisfied that it would be insurmountable.  While the conditions in Guyana may not be ideal, there is no persuasive evidence to indicate the subjects would be subject to any conditions not experienced by the population in general if returned to Guyana.  As such, I grant little weight to the costs and disruption that they may experience.”                                  

 

[21]     Under the criteria relating to the hardship of having to obtain a permanent residence visa from outside Canada being unusual and undeserved or disproportionate, counsel for applicants further argued the I.O. erred by only considering hardship and ignoring other factors such as family ties, establishment and Jaime’s best interests.  Furthermore, the I.O. was diverted from rendering a proper analysis by taking into account irrelevant factors such as casting blame on Gwendoline Allen for coming to Canada in 1983 without her daughter.  Finally, it is argued by the applicants the I.O. failed to engage into a proper individual analysis of risk by referring to the experience of the general population in Guyana.       

Analysis

(a)   Standard of review                   

[22]     Baker, above, established the standard of reasonableness simpliciter as the applicable standard of review in connection with an Immigration Officer’s assessment of an application for permanent residence to Canada based on humanitarian and compassionate grounds.  In that case, Justice L’Heuruex-Dubé adopted what Justice Iacobucci had described as an unreasonable decision in Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748 as follows:

56. ... 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....

 

[23]     In Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247, Justice Iacobucci further explained what the reasonableness standard required of a reviewing court expanding on what he had written in Southam, above, stating that his words “signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and “look to see” whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission, to those reasons.”

 

[24]     Justice Iacobucci then contrasted the standard of reasonableness to that of reviewing a decision for correctness concluding, “When deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been.”  He further stated “Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own processes and for its own reasons.  The standard of reasonableness does not imply that a decision-maker is merely afforded a “margin of error around what the court believes is the correct result.”                    

 

[25]     Justice Iacobucci further wrote at paragraph 51 of Ryan, above:

51     There is a further reason that courts testing for unreasonableness must avoid asking the question of whether the decision is correct. Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. For example, when a decision must be taken according to a set of objectives that exist in tension with each other, there may be no particular trade-off that is superior to all others. Even if there could be, notionally, a single best answer, it is not the court's role to seek this out when deciding if the decision was unreasonable.

[26]     He then contrasted the reasonableness standard from the most deferential standard of patent unreasonableness, and on this point, concluded “a decision may be unreasonable without being patently unreasonable when the defect in the decision is less obvious and might only be discovered after “significant searching and testing” explaining “the defect may require a detailed exposition to show that there are no lines of reasoning supporting the decision which could reasonably lead that tribunal to reach the decision it did.”

 

[27]     Justice Iacobucci in Law Society of New Brunswick, above, asked how will a reviewing court know whether a decision is reasonable given that it may not first inquire into its correctness?  The answer is that a reviewing court must look to the reasons given by the tribunal. He then concluded at paragraphs 55 and 56 as follows:

55     A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).

56     This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.

(b) Conclusions

[28]     Applying the reasonableness standard to the I.O. decision, I conclude that this judicial review application must be dismissed for the following reasons noting, at the very start, the onus, on an application for an H&C exemption, is on the applicant (see Owusu v. Canada (MCI) 2003 FCT 94) and further observing what Justice Décary said at paragraph 5 of Hawthorne:

5     The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the "child's best interests" factor will play in favour of the non-removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer.  [Emphasis mine]              

 

[29]     First, I cannot accept counsel for the applicants’ submission the I.O. erred in the way the best interests of the child analysis was approached in Jaime’s case.  It must be remembered while Justices Décary and Rothstein agreed with Justice Evans the appeal before them should be dismissed, those Justices reached their conclusion based on different grounds from his.  Specifically at paragraph 3 of this reasons, Justice Décary agreed with counsel for the Minister “that to insist as a matter of law that an Immigration Officer spell out expressly that she had considered the best interests of the child before examining the degree of hardship to which the child would be subject, is to elevate form above substance.”  He added the following at paragraph 7 of his reasons:

7     The administrative burden facing officers in humanitarian and compassionate assessments - as is illustrated by section 8.5 of Chapter IP 5 of the Immigration Manual reproduced at para. 30 of my colleague's reasons - is demanding enough without adding to it formal requirements as to the words to be used or the approach to be followed in their description and analysis of the relevant facts and factors. When this Court in Legault stated at paragraph 12 that the best interests of the child must be "well identified and defined", it was not attempting to impose a magic formula to be used by immigration officers in the exercise of their discretion.  [Emphasis mine]

 

[30]     Furthermore, Justice Décary expanded his view the content of “the best interests of the child”, how that determination is made and what the term “hardship” implies.  I quote paragraphs 4, 6 and 9 of his reasons:

4     The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.

6     To simply require that the officer determine whether the child's best interests favour non-removal is somewhat artificial - such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer's task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.

9     Fourth, "hardship" is not a term of art. As noted in section 6.1 of Chapter IP 5 of the Immigration Manual (reproduced at para. 30 of my colleague's reasons), the administrative definition of "unusual and undeserved hardship" and "disproportionate hardship" in the Manual are "not meant as 'hard and fast' rules" and are, rather, "an attempt to provide guidance to decision makers when they exercise their discretion". It is obvious, for example, that the concept of "undeserved hardship" is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship. [Emphasis mine]

 

[31]     The best interests of the child analysis for Jaime and the H&C analysis for her mother must be put in a proper context.  The scenario faced by the I.O. was not one where Zelma Allen would be separated from her daughter because one of them had a legal right to remain in Canada but the other did not.  The fact-situation confronted by the I.O. was one where both of them were subject to removal orders.  The cases relied upon by counsel for the applicants are distinguishable because they involved situations where the parent or caregiver would, if removed, be separated from a child who had the right to remain in Canada.

 

[32]     Third, in the context of the removal of the applicants to Guyana, the I.O. determined it was in Jaime’s best interests to be with her mother who was her primary caregiver and who would provide support to her.  The I.O. did not consider it in Jaime’s best interests that she be separated from her mother pending an overseas application for permanent residence to Canada.  This finding of the I.O. was not seriously contested by counsel for the applicants although I do note from Zelma Allen’s affidavit in support of the judicial review application Jaime is also taken care of by her grandmother.  This does not detract from the I.O. finding her mother was the primary caregiver.  

 

[33]    Similarly, in this context and reading the I.O.’s reasons as a whole against the cautionary comment made by Justice Décary about there being no magic formulas I reached the conclusion the I.O.’s approach to his consideration of hardship did not minimize the H&C analysis for either Jaime or her mother.  It is true there were references by the I.O. to life in Guyana before they came to Canada but as I see it, these references did not distort the hardship analysis by ignoring their current situation in Canada.  It is clear from a reading of the I.O.’s extensive rationale and reasons, the I.O. was sensitive to the applicants’ current situation in Canada and was not dismissive of that situation. 

 

[34]     Fourth, I find no merit in counsel for the applicants’ argument the I.O. only considered hardship on removal, that the I.O. ignored Jaime’s relationship with her grandmother, that he breached the guidelines by not considering family members and that he should have asked for more information through an interview.  Furthermore, I cannot fault the I.O.’s reasoning with respect to the risk of return on account of Jaime’s father who lives in Guyana.  The I.O.’s reasons took into account that situation as well as available State protection.

 

[35]     Fifth, I cannot conclude the I.O. ignored the country condition evidence in Guyana by not specifically mentioning some difficulties in the educational system or some difficulties women may have in obtaining employment. It is noteworthy the principal applicant did not advance, in her affidavit, these specific difficulties should she return to Guyana.

 

[36]     Sixth, counsel for the applicants misinterprets the I.O.’s reference to the experience of the general population in Guyana.  That comment by the I.O. does not detract from his conclusion the applicants were not at personal risk on return to Guyana. 

 

[37]     Seventh, I am not prepared to set aside the I.O.’s decision because of the use of the word “insurmountable” in the phrase describing Jaime’s adjustment to life in Guyana acknowledging it would be difficult but not “insurmountable”.  I am satisfied reading the decision as a whole, the I.O. applied the correct test of undue and undeserved or disproportionate hardship.                                                         

 

[38]     Finally, in her affidavit in support, Zelma Allen states she should have been granted an interview.  This point was not pressed on the court by her counsel.  It is clear from Baker, above fairness does not require an interview.

 

JUDGMENT

This application for judicial review is dismissed.  No certified question was proposed.

 

 

“François Lemieux”

 

 

FEDERAL COURT

 

                                     Names of Counsel and Solicitors of Record

 

 

DOCKET:                                                      IMM-7669-05

 

STYLE OF CAUSE:           ZELMA VANESSA ALLEN, JAIME LEE CHARLES

v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:                                TORONTO, ONTARIO

 

DATE OF HEARING:                                  DECEMBER 7, 2006 

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                                LEMIEUX J.

 

DATED:                                                         JANUARY 3, 2007    

 

 

APPEARANCES BY:                     

 

George J. Kubes                                              For the ApplicantS

 

Alexis Singer                                                    For the Respondent

                                                                                                                                                           

 

SOLICITORS OF RECORD:              

 

George J. Kubes

Barrister and Solicitor 

Toronto, Ontario                                              For the ApplicantS                  

 

John H. Sims, Q.C.

Deputy Attorney General of Canada                 For the Respondent