Canadian judge gives Guyanese family glimmer of hope

More than 10 years after arriving in Canada, a Guyanese family is still fighting to make that country its home and was recently given a glimmer of hope when a judge ruled that a decision to send it packing to Guyana should be reviewed.

Justice John A. O’Keefe made the ruling late last month, granting another reprieve to Mansur Mangru, his wife Carleen Hernandez and one of their three children. According to the judge, the couple and their eldest child arrived in Canada in 1999 and they claimed refugee status in 2001 but this was denied in 2003 and they later submitted an application for permanent residence on Humanitarian and Compassionate (H&C) grounds in March 2005.

In denying their application, the officer had noted that the family feared ethnic violence in Guyana and that the principal applicant had been threatened in Guyana by Afro-Guyanese men.
The officer also acknowledged the beating of the wife’s step-brother and the murder of her father. The officer considered the documentary evidence on crime and violence in Guyana and found that while crime remains an issue, the government had declared crime a top priority and taken measures towards improvement. The officer concluded that the applicants would not face unusual, undeserved or disproportionate hardship.

The family’s level of establishment and integration into the community was also taken into consideration and the officer favourably considered their employment history as well as their community involvement, volunteer work at their church and their charitable contributions.

Further, the officer had favourably noted that the applicants had housed a relative suffering from developmental issues.

The officer noted also the applicants’ good civil record and acknowledged letters of support from friends, family and community members. The officer recognised that the applicants purchased a home but found that they did so while under a removal order.

The officer found that the applicants’ prolonged stay in Canada of over ten years has been within their control and she concluded that the requirement to sell their home and sever ties to the community did not amount to unusual, undeserved or disproportionate hardship.

According to the judge, the officer also assessed the best interests of the children. She acknowledged that the applicants have three children, two of whom are Canadian citizens. But the officer found that with respect to the Canadian-born children, the applicants have an aunt and uncle and cousins in Canada and it would be the parents’ decision whether the children remain in Canada or leave with their parents.

The officer noted the older children’s school records and their desire to remain in Canada. The officer also found that it would be a hardship for the children to start a new life in Guyana as they have little connection to that country.

However, she found that the basic amenities would be provided for and the government is responsive to children’s rights and welfare.

She also found that they have been exposed to Guyanese culture through their family and that they have a grandmother and aunts who can help with their adjustment to life in Guyana.

In the end, the officer concluded that relocating to Guyana would not have a negative impact on the children that would amount to unusual, undeserved or disproportionate hardship.

‘Erred’

In their application to have the ruling of the officer reviewed the family argued that the officer erred in her assessment of the best interests of their children because she failed to properly assess the impact that removal from Canada would have on them, relying instead on the “option” to leave the children in Canada with their relatives. They further submitted that the officer erred in law in applying the unusual, undeserved and disproportionate hardship test while assessing the best interests of the children.

The family also contended that the officer erred in her assessment of the hardship they would face if removed to Guyana and that this assessment is not consistent with the documentary evidence regarding ethnic divisions and ethnic conflict in Guyana.

They argued that the officer did not consider the issue of extortion or the potential for abduction of the children.

The officer also, according to the family, failed to make a reasoned assessment regarding their establishment as she did not balance the positive considerations of establishment.

In addition, the family argued that their establishment was not completely within their control as found by the officer.

They pointed out that Citizenship and Immigration Canada took more than five years to decide the H&C application and in that time they reasonably continued to establish themselves.

In handing down his decision the judge found that the officer’s assessment of the best interests of the children in the H&C decision before him was inadequate.

“Primarily, the error in the officer’s decision is the application of the wrong test in both form and substance to the analysis of the best interests of the children,” the judge said.

Further, the judge said it is clear that the officer not only described the test for analysing the best interests of the children incorrectly, but, in fact, assessed their interests as such.

He said that the officer did not provide a full assessment of the effect on the children of being removed from Canada to Guyana. Rather, she minimised the impact on the children indicating that the government protects the rights of children in Guyana and their basic needs would be met.

“The application of the wrong test in form and substance to the analysis of the best interests of the children was an incorrect and unreasonable exercise of the officer’s discretion.

“I would therefore allow the application for judicial review and remit the matter to a different officer for redetermination,” the judge ruled.

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