Date: 20000426
Docket: IMM-884-99
Winnipeg, Manitoba, this 26th day of April 2000
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
DOUGLAS GILLESPIE
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The present judicial review application challenges a decision made in February 1999 by a Senior Immigration Officer under s.114(2) of the Immigration Act (the "Act") concerning whether humanitarian and compassionate reasons existed at that time for exempting the Applicant from the application of the regulations made under the Act .
[2] It is agreed that the standard of review as set by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)1 is whether the decision is unreasonable.
[3] To determine the process whereby this question can be answered, Justice L"Heureux-Dubé in Baker at paragraph 63 gives the following guidance:
| (3) Was this Decision Unreasonable? |
| I will next examine whether the decision in this case, and the immigration officer's interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in the judgment of Iacobucci J. in Southam, supra, at para. 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. |
[4] I find that the reasons for the decision in the present case do not stand up to a "somewhat probing examination".
[5] It is agreed that the Senior Immigration Officer"s reasons are contained within a memorandum dated 5 February 1999. These reasons contain the following observations and conclusion:
| Mr. Gillespie stated that he would suffer mentally and physically from the loss of emotional support in Canada. However, Mr. Gillespie has family members in his birth country including several sisters and brothers living in Scotland. |
| Without his support systems in place, Mr. Gillespie stated that he would also suffer emotionally and physically but similar systems such as AA groups and church organizations should be available in Scotland. |
. . .
| Based on the above, I am not satisfied that there are sufficient humanitarian and compassionate grounds to grant Mr. Gillespie a visa exemption in order to apply for permanent residence within Canada. Mr. Gillespie would not suffer unusual and undeserved hardship by obtaining an immigration visa in the normal manner outside of Canada.2 |
[emphasis added]
[6] As clearly acknowledged by the Senior Immigration Officer in her reasons, throughout the application for humanitarian and compassionate exemption, the Applicant argued that he would suffer mentally from the loss of emotional support in Canada. As part of the record before the Senior Immigration Officer, an independent piece of evidence raises this issue to prominence. The following is the content of a letter dated
24 September 1998, from Dr. Stanley Yaren, Psychiatrist, addressed to the Applicant"s counsel:
| The above-named individual is a patient under my care at Stony Mountain Institution. I have been treating him for depression for the past several months. The prospect of his impending deportation has caused him considerable psychological distress to the point that he is actively contemplating suicide. At present he is on suicide watch at Stony Mountain Institution. This followed the disclosure that he had been saving prescribed medication for the purpose of taking an intentional overdose. Deportation carries with it a significant risk that this man will attempt to end his life by suicide. 3 |
[7] Respecting the Applicant"s mental health and his potential deportation to Scotland at the time the decision was made, while the Senior Immigration Officer is correct in the observation that the Applicant has family in Scotland, there is no evidence on the record as to the actual support that these family members would offer if the Applicant is required to take up residence in Scotland. Indeed, the Applicant"s last visits there were in 1968 and 1977.
[8] In my opinion, the conclusion that the Applicant would not suffer "unusual hardship" is unsubstantiated, and, perhaps, is wrong at the time it was reached.
[9] Given that a significant discrepancy exists between the evidence on the record and the conclusion reached, I find that the Senior Immigration Officer"s decision is unreasonable.
ORDER
Accordingly, I set the decision aside and refer the matter back to a different Senior Immigration Officer for reconsideration.
"Douglas Campbell"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-884-99
| STYLE OF CAUSE: Douglas Gillespie v. The Minister of Citizenship and Immigration |
PLACE OF HEARING: Winnipeg, Manitoba
| DATE OF HEARING: April 25, 2000 |
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MR. JUSTICE CAMPBELL
DATED APRIL 26, 2000
APPEARANCES:
David Matas for the Applicant
Sharlene Telles-Langdon
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6 for the Respondent
SOLICITORS OF RECORD:
David Matas for the Applicant
Barrister & Solicitor
602 - 225 Vaughan St.
Winnipeg, MB R3C 1T7
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
__________________
1 [1999] 2 S.C.R. 817.
2Applicant"s Application Record, p.26.
3Ibid, p.21.
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