[2011] 4 F.C.R. D-9
Citizenship and Immigration
Exclusion and Removal
Removal of Visitors
Judicial review of decision by pre-removal risk assessment officer refusing applicant’s application for permanent residence within Canada based on humanitarian and compassionate (H&C) grounds—Applicant, citizen of Australia, fleeing to Canada from violent, abusive former husband involved in drug trafficking ring—Applicant’s spouse disabled, children having special needs—Officer finding that applicant not adducing sufficient evidence to demonstrate that personal circumstances such that hardships of not being granted exemption unusual, undeserved or disproportionate, not anticipated by legislation—Whether officer applying wrong test in assessing (1) risk as part of H&C analysis, (2) best interests of children—Officer committing legal error by assuming that applicant having to establish that impact on children of applicant’s removal amounting to usual, undeserved, or disproportionate hardship—Correct approach to assessing or weighing best interests of children in context herein set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555—Officer neglecting to take into account applicant’s unusual situation given determination of former husband to harm applicant notwithstanding best efforts of state protection—Officer not addressing in realistic or reasonable way problems awaiting applicant in Australia, impact on best interests of children—Also not addressing impact of disabled spouse’s ability to care for children—Officer’s decision at best minimizing best interests of children within meaning of Baker, at worst failing to address impact on children of living in Australia with applicant in greater proximity to former husband—Application allowed.
Pearson v. Canada (Citizenship and Immigration) (IMM-7721-10, 2011 FC 981, Russell J., judgment dated August 9, 2011, 19 pp.)