Date: 20030619
Docket: IMM-581-02
Neutral citation: 2003 FCT 765
BETWEEN:
JOHANNES JACOBUS VIVIERS
MARGARETHA MAGHDALENA VIVIERS
DOMONIC VIVIERS
HELENE HELOISE VIVIERS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, by the applicants, Johannes Jacobus Viviers, Margaretha Maghdalena Viviers, Domonic Viviers and Helene Heloise Viviers (the "applicants"). The applicants seek judicial review of the decision of the immigration counsellor, dated January 17, 2002, wherein the applicants' application for permanent residence from within Canada on humanitarian and compassionate ("H & C") grounds was refused.
[2] The applicants had filed an application for permanent residence based on H & C grounds dated October 18, 1999. The application was denied on February 2, 2000. An application for judicial review was filed with respect to this decision and leave was granted. However, in October 2000, the respondent agreed to have the case reviewed by another officer. This application deals with the second officer's decision to refuse the application.
[3] The applicants are citizens of South Africa. They first entered Canada on April 23, 1999 at Vancouver. Later they moved to Prince Rupert, British Columbia.
[4] Both the father, Johannes and his daughter, Heloise suffer from variegate porphyria ("VP"). There is some suggestion that the son, Domonic, also suffers from VP. VP is a genetic condition that causes the victim to be highly sensitive to sunlight. Some also say they are sensitive to heat. In VP sufferers, sun exposure can cause skin fragility, blisters, open sores, scarring, abnormal pigmentation and hirsuitism. VP can also cause an "acute attack", the symptoms of which include abdominal pain, cramps, constipation, vomiting or nausea.
[5] The father, Johannes, has to avoid both heat and sunlight to avoid medical problems. The daughter, Heloise, suffers from respiratory problems, severe abdominal cramps, fatigue, headaches and photosensitivity.
[6] The immigration counsellor stated in her analysis that "[m]edical officers at NHQ Immigration Health Services confirmed that both Mr. Viviers and Heloise have variegate porphyria and as such have been given M-3 profiles."
[7] The evidence submitted before the immigration counsellor contained medical reports and other reports concerning VP.
[8] As a result of sun and heat creating such problems for the Viviers, the family undertook research to find out where more suitable climates would be so as to minimize their health problems. The Canadian Porphyria Foundation replied to their letter and informed them "[w]e feel that Prince Rupert, British Columbia would be a good place for your family to live in Canada because it has cool temperatures year round and likely the most rain, fog, and cloud coverage". The Viviers obtained a visitor's visa to come to Canada and to see if Prince Rupert was a suitable place for them to live.
[9] All of Mr. and Mrs. Viviers' relatives live in South Africa. The Viviers do not have any relatives living in Canada. However, they have developed a strong bond with the community of Prince Rupert.
[10] Prior to coming to Canada, the Viviers sold their residence in South Africa and lived with Mrs. Viviers' mother. She has now passed away and the applicants have no home to return to.
[11] The immigration counsellor's decision states in part at page 46 of the certified record:
During the interview on 06 February 2001, Mr. Viviers described his symptoms of Variegate Porphyria while still living in South Africa. He stated that when he bumped his hands, they would need bandaging. He indicated that he passed out about "three times a week", and that in January, February, and March - the hottest months when temperatures reached 46 degrees - he would black out three or four times a day. He also suffered from severe headaches, and would stop breathing until cold water or ice was placed on his face to shock his body. Another symptom of the disease, he said, was depression. Howeer, in the article, "A Guide to Porphyria - Variegate Porphyria", it states that "there is little evidence to show that Variegate Porphyria is a cause of long term psychiatric disease". On the Supplementary Information form included as part of the H & C application, I also note that Mr. Viviers indicated that he had "frequent, intense headaches", but again insufficient evidence was received to suggest that this was a result of exposure to the sun or the heat.
The Viviers stated that Heloise's symptoms were similar to her father's in South Africa. I note in the letter prepared by the Viviers' family, which accompanied the family's initial application for permanent residence, that "during the day when the temperature rise extremely Heloise had trouble breathing and had to take a cold shower about every 10 minutes to cool off. . . . Both kids were constantly exhausted and had no energy due to the heat." The letter also stated that "Heloise's feet bled constantly, and she had hardly any skin underneath her feet". Ms. Sas also mentioned in her letter of 03 December 1999 that, "Johannes and the two children suffer from a condition called Porphyria that makes the victim extremely sensitive to light and heat, especially the skin and eyes." Yet there was no evidence submitted to indicate that sun and heat are a cause of an acute attack, nor did any of the publications describe difficulty in breathing as a result of the heat and sun as a symptom of Variegate Porphyria.
[12] And, at pages 47 to 48 of the certified record:
Mr. and Mrs. Viviers also stated that South Africa experiences extreme high temperature, especially in the summer months. They advised that in the hottest months temperatures reach 42 or 46 degrees. Yet the highest average maximum temperatures in Vereeniging, the place where they last lived, is 27.8 degrees Celsius in January, as reported in www.worldclimate.com. The other summer months report the average maximum temperatures as 27.3 for February, 26.2 for March, and 23.1 for April. June is the coolest month with an average maximum temperature of 17.6 degrees. No evidence was provided by the Viviers to confirm that temperatures reach 46 degrees in Vereeniging, the place where they last lived.
[13] The applicants stated that they had to stay inside the house during the daytime in South Africa and could only go out after sunset. In Prince Rupert, where it is often cloudy, the applicants are able to be outside during daylight hours.
[14] By a letter dated January 17, 2002, the immigration counsellor denied the applicants' H & C application.
Applicants' Arguments
[15] The applicants submit that the immigration counsellor erred by considering extrinsic evidence without first disclosing this evidence to the applicants. The extrinsic evidence used was the temperature information obtained from a website.
[16] The applicants state that the immigration counsellor did not consider the best interests of the children.
[17] The applicants' former counsel realized after receiving the decision that she had not filed a psychologist's report and she requested that the immigration counsellor reopen the decision and consider this new evidence. The applicants submit that the immigration counsellor erred in concluding that she did not have jurisdiction to reopen the decision.
[18] The applicants submit that the immigration counsellor misconstrued the temperature evidence she obtained from the website as those temperatures were average temperatures for a certain period and this would not preclude the temperature from being higher than the average on certain days.
[19] The applicants submit that the immigration counsellor misconstrued the medical evidence by stating, "[o]ther than general evidence about the different types of porphyria, they have not presented sufficient detailed medical documentation to support the nature and extent of their illness". The applicants submit that the immigration counsellor ignored the medical reports of several physicians.
[20] The applicants submit that the immigration counsellor's decision was unreasonable in that the evidence showed that a strong case existed on H & C grounds.
Respondent's Arguments
[21] The respondent submits that disclosure of the temperature information from the website was not required as it was not a factor that played a crucial role in the final decision. It is submitted that based on this information, the temperature stated by the applicants was not possible.
[22] The respondent submits that the principle of functus officio applies and that the immigration counsellor's decision was final. It is therefore submitted that the counsellor could not reopen the decision and consider new evidence.
[23] The respondent submits that a review of the immigration counsellor's notes shows that she was sensitive to the best interests of both children.
[24] The respondent submits that the immigration counsellor properly considered the medical evidence and did not misconstrue or ignore any of the medical evidence. Further, the respondent states that the counsellor was correct in concluding that the medical evidence was insufficient to support the H & C application.
[25] The respondent submits that the immigration counsellor's decision was reasonable based on the evidence.
Issues
[26] The issues as stated by the applicants are:
1. Did the immigration counsellor err in law by breaching the duty of fairness by considering extrinsic evidence without providing the applicants with an opportunity to reply?
2. Did the immigration counsellor err in law by not reopening the case on presentation of important additional evidence that had been inadvertently omitted?
3. Did the immigration counsellor err in law by not considering the best interests of the children?
4. Did the immigration counsellor err in law because she ignored or misconstrued the evidence?
5. Did the immigration counsellor err in law by making findings of fact that were unreasonable?
Relevant Statutory Provisions
[27] Subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, states:
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114.(2) The Governor in Council may, by regulation, authorize the Minister 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 exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
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114.(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.
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Analysis and Decision
[28] Issue 1
Did the immigration counsellor err in law by breaching the duty of fairness by considering extrinsic evidence without providing the applicants with an opportunity to reply?
The applicants stated that it was very hot and sunny in the summer in South Africa and that in the hottest months, temperatures reached 42 or 46 degrees Celcius. The immigration counsellor went to a website and found that the average maximum temperatures in Vereeniging, where the applicants last lived, were as follows:
January 27.8 º
February 27.3 º
March 26.2 º
April 23.1 º
June 17.6 º
The immigration counsellor included this data in the portion of her reasons for decision made under the heading "Analysis". The immigration counsellor also states that no evidence was presented by the applicants to confirm that the temperatures reached 46 degrees in Vereeniging.
[29] The applicants submit that the immigration counsellor erred in considering the extrinsic temperature evidence from a website without first giving the data to the applicants to give them an opportunity to refute the evidence. The respondent states that this extrinsic evidence was publicly available and did not play a crucial role in the final decision. I do not agree with the respondent. Firstly, the extrinsic evidence is specifically considered by the immigration counsellor in the analysis portion of the reasons for decision. Secondly, some of the evidence does refer to both heat and sunlight. I cannot tell how much this temperature evidence influenced the immigration counsellor in coming to her decision.
[30] In Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.), Stone J.A. stated at page 215:
Returning to the matter of the Province of Ontario assessment I do not view its receipt by the visa officer as bad in itself. In fact its reception was contemplated and even authorized by the appellant at the time of his application and subsequently. Nevertheless, I think it was the officer's duty before disposing of the application to inform the appellant of the negative assessment and to give him a fair opportunity of correcting or contradicting it before making the decision required by the statute. It is, I think, the same sort of opportunity that was spoken of by the House of Lords in Board of Education v. Rice, [1911] A.C. 179 in these oft-quoted words of Lord Loreburn L.C., at page 182:
They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.
Those words have application here even though a full hearing was not contemplated. ([1980] 1 S.C.R. 1105">Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at page 1113; see also Randolph, Bernard et al. v. The Queen, [1966] Ex.C.R. 157, at page 164.)
[31] In the present case, the immigration counsellor obtained information and used it as part of her reasons without first disclosing the information to the applicants. If disclosed, the applicants would have had an opportunity to address the information. I am of the opinion that the immigration counsellor erred in this regard.
[32] The application for judicial review is allowed and the decision of the immigration counsellor is set aside and the matter is referred to a different immigration counsellor for redetermination.
[33] Because of my finding on Issue 1, I need not deal with the other issues.
[34] The parties shall have one week from the date of this decision to submit any proposed serious question of general importance for my consideration for certification.
"John A. O'Keefe"
J.F.C.C.
Halifax, Nova Scotia
June 19, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-581-02
STYLE OF CAUSE: JOHANNES JACOBUS VIVIERS
MARGARETHA MAGHDALENA VIVIERS
DOMONIC VIVIERS
HELENE HELOISE VIVIERS
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, January 7, 2003
REASONS FOR ORDER OF O'KEEFE J.
DATED: Thursday, June 19, 2003
APPEARANCES:
Mr. Lorne Waldman
FOR APPLICANTS
Ms. Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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