Date:
20121029
Docket:
IMM-2007-12
Citation:
2012 FC 1255
Ottawa, Ontario,
October 29, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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JUANA PILAR LOZANO VASQUEZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a Citizenship and Immigration Canada officer (the officer) dated
October 21, 2011 wherein the applicant’s permanent residence application was
refused (the decision). This conclusion was based on the officer’s finding that
there were insufficient humanitarian and compassionate (H&C) grounds to
warrant an exception allowing the applicant’s permanent residence application
to be made from within Canada.
[2]
The applicant requests that the officer’s decision
be set aside and the application be referred back to Citizenship and
Immigration Canada (CIC) for redetermination by a different officer.
Background
[3]
The
applicant is a citizen of Ecuador. She first entered Canada in 1992, after
being denied a temporary resident visa. The applicant filed a refugee claim
which was rejected in December 1993.
[4]
In
March 1998, the applicant was convicted of having committed fraud contrary to
subsection 380(1)(a) of the Criminal Code, RSC 1985 as a result of
defrauding social service. An admissibility report was written.
[5]
In
2001, the applicant failed to report for a pre-removal interview and an
immigration warrant was issued. She was apprehended and removed from Canada.
[6]
In
2004, the applicant reentered Canada without authorization. She was rearrested
in 2006 and a new inadmissibility report was prepared.
[7]
In
2006, the applicant submitted an H&C application on the basis that her
medical needs including diabetes, open chronic diabetic wounds, hypothyroidism,
adrenal insufficiency, hypertension, leg ulcers, advanced osteoarthritis,
osteoporosis and mild depression, could not be met in Ecuador. Her pre-removal risk assessment application was rejected in February 2009 and her H&C
application was rejected in April of that year. After the applicant sought judicial
review, the file was reassigned to a different officer who made a negative
decision in December 2009. That decision was quashed by this Court in November
2010 and returned to CIC which resulted in the decision under review.
Officer’s
Decision
[8]
The
officer informed the applicant that her application had been rejected in a
letter dated October 21, 2011. Reasons for this decision were provided to the
applicant in correspondence dated January 24, 2012.
[9]
The
officer’s reasons list the applicant’s biographical information and immigration
status history. The officer noted the two hardships identified by the applicant
should she be removed from Canada: lack of comparable health care in Ecuador and the absence of a family support network.
[10]
The
officer noted the applicant has restricted mobility and is bound to a
wheelchair and that a doctor’s letter provided evidence of the medical problems
described above. The officer acknowledged the applicant’s argument and written
evidence that the Ecuadorian health care system would be inadequate.
[11]
The
officer summarized correspondence from a regional medical officer at the health
management branch that spoke to the quality of health care in Ecuador, which described it as “very good medical care”. The officer noted the applicant’s response
to this evidence was that she lived in a different city in Ecuador which had more limited care but the officer did not see why the applicant could not commute
when needing access to facilities.
[12]
The
officer noted a 2008 letter from the applicant’s physician stating she was
unfit to fly, but noted it would fall to the Canada Border Services Agency to
assess her condition and determine whether to stay the removal in the event she
was required to leave Canada.
[13]
Turning
to the hardship ground and a lack of a family network, the officer noted the
applicant’s family members in Canada and the letters of support from them. The
officer acknowledged the importance of the applicant’s family, including their
physical assistance and the presence of the applicant’s mother in Canada. The officer found that insufficient evidence was submitted as to why the applicant
could not live in an assisted living facility in Ecuador to replace this
physical assistance.
[14]
As
to the emotional support, the officer found the applicant could maintain frequent
contact from Ecuador and made the same finding as to financial support.
[15]
Considering
the applicant’s establishment in Canada, the officer expected that a certain
level of integration would occur as a result of being in Canada for an extended period of time. However, the officer was not satisfied the applicant’s
current level of establishment warranted an H&C exemption.
[16]
The
officer pointed out that the applicant was inadmissible under section 39 of the
Act due to her inability to be financially independent and refused to exempt
her from that requirement. The officer also found that the applicant was
inadmissible due to serious criminality for her fraud conviction. The officer
refused to recommend an exemption from this requirement. The officer also found
the applicant inadmissible due to reentry to Canada after a forcible removal
and similarly refuses to exempt her. Finally, the officer could not determine
whether the applicant was inadmissible on health grounds due to lack of
evidence.
[17]
In
conclusion, the officer acknowledged a certain level of hardship would occur,
but was not satisfied it would be unusual, undeserved or disproportionate.
Issues
[18]
The
applicant submits the following points at issue:
1. Was
the officer’s decision unreasonable because it was inconsistent with
humanitarian and compassionate values?
2. Did
the officer ignore evidence that contradicted her conclusions?
3. Did
the officer err in her analysis of the applicant’s inadmissibilities?
[19]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the officer ignore evidence that contradicted her conclusions?
3. Was
the officer’s decision unreasonable?
Applicant’s
Written Submissions
[20]
The
applicant submits the officer’s decision to reject the applicant’s hardship
grounds as incompatible with the principle of intelligibility. The applicant is
a 60-year-old woman who requires 24-hour supervision and is in a situation of
great helplessness and dependency. She is completely dependent on her family for
emotional support.
[21]
The
officer failed to see the applicant as a human being by suggesting that it would
not be an unusual or disproportionate hardship for an elderly, depressed, sick
and severely disabled woman to be forced into a nursing home in a country
overseas. This is not an intelligible application of humanitarian principles.
The applicant submits the officer cannot conduct a reasonable H&C analysis
without meaningfully engaging these qualities.
[22]
Similarly,
the applicant submits the officer did not analyze her establishment evidence,
but simply recited the evidence before her. This ignores the importance of the
family unit as emphasized in the CIC Policy Manual IP 5 and subsection 3(1)(d)
of the Act. The decision was unreasonable because it failed to reflect the
values of section 25 of the Act.
[23]
The
applicant further submits the officer erred by failing to consider direct
contradictory evidence on the insufficiency of Ecuadorian health care. The officer
does not mention or consider four documents the applicant filed on this point.
The applicant relies on case law indicating that the more important evidence
is, the more willing a court may be to infer from a decision maker’s silence
that it made a finding without regard to the evidence.
[24]
Finally,
the applicant submits the officer erred in making admissibility findings. The
IP 5 Manual makes clear that an application to remain in Canada as a permanent
resident is comprised of two distinct assessments, an H&C assessment of the
requested exemptions (stage 1) and a final decision on the permanent resident
application (stage 2). The officer considered financial inadmissibility at stage
1 when it should have been considered separately at stage 2 and provided
inadequate reasons.
[25]
In
considering the other grounds of inadmissibility, the officer merely recited
the original facts leading to inadmissibility instead of properly balancing
them against the hardship that would be suffered by the applicant. The officer’s
analysis of the applicant’s inadmissibilities suggest a closed mind.
Respondent’s
Written Submissions
[26]
The
respondent submits that the standard of review of H&C decisions is
reasonableness. Significant deference is to be afforded to the decision and a
wider scope of possible reasonable outcomes. The H&C process is not an
alternative stream for immigration to Canada.
[27]
The
respondent argues that guidelines are not binding and cannot be applied in such
a way as to unduly fetter a decision maker’s discretion. The officer considered
the applicant’s family ties and the applicant is asking this Court to reweigh
those findings.
[28]
The
respondent draws attention to the fact that the applicant agreed quality
medical care is available in two Ecuadorian cities. The documents not mentioned
by the officer were several years old.
[29]
Establishment
is relevant to hardship analysis, but is not determinative. This Court has
emphatically rejected the claim that establishment is a factor that can, in and
of itself, justify a positive H&C decision.
[30]
The
respondent argues that the applicant’s prolonged stay in Canada was not due to matters beyond her own control and H&C applications should not be
a conquest by attrition.
[31]
Finally,
there was no need for a separate stage 2 analysis as the officer had not found
that a positive stage 1 decision was warranted but for inadmissibility. The officer
found there to be inadequate grounds at the stage 1 stage.
Analysis and
Decision
[32]
Issue
1
What is the
appropriate standard of review?
Where
previous jurisprudence has determined the standard of review applicable to a
particular issue before the court, the reviewing court may adopt that standard
(see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph
57).
[33]
It
is well established that assessments of an officer’s
decision on H&C applications for permanent residence from within Canada is
reviewable on a standard of reasonableness (see Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at paragraph 18, [2009] FCJ No
713; Adams v Canada (Minister of Citizenship and Immigration), 2009 FC
1193 at paragraph 14, [2009] FCJ No 1489; and De Leiva v Canada (Minister of
Citizenship and Immigration), 2010 FC 717 at paragraph 13, [2010] FCJ No
868).
[34]
Reviewing of the adequacy of reasons should also be done within a
reasonableness analysis (see Newfoundland and Labrador Nurses' Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708
at paragraph 22).
[35]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47, and Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at paragraph 59). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraph 59).
[36]
Issue
2
Did
the officer ignore evidence that contradicted her conclusions?
The
officer, on August 17, 2011, wrote to NHQ – Health Management of Citizenship
and Immigration Canada and the letter read in part as follows:
I
was wondering if a medical officer would be available to provide us with
his/her professional opinions on whether the client could reasonably have
access to quality long-term care facilities in Ecuador, whether the appropriate
medication is present and physical care available (since client’s mobility is a
concern). The applicant stated not to have private health insurance.
[37]
The
officer, in his decision, summarized the applicant’s health problems as
follows:
It
was reported that the applicant has numerous medical conditions which include –
but are not necessary limited to – diabetes, hypothyroidism, osteoarthritis,
degenerative disk disease, has high cholesterol and open chronic diabetic
wounds. It was also stated that she has restricted mobility and is wheelchair
bound. A recent letter from her family physician dated 09Feb11 was submitted as
evidence of the above. The client was in the past also diagnosed with major
depressive depression of mild severity and an older letter dated March 2009
from the same physician states that she also had hypertension, hyperthyroid and
adrenal insufficiency at the time. Several of the conditions listed above
appear to be derived from the diabetes and were said to be treatable with the
proper care and medications. The applicant argues that the necessary medical
services would most likely not be present or adequate in her native Ecuador. Various documentation and reports related to the situation of the healthcare
system in Ecuador were submitted and were carefully reviewed as part of the
assessment.
[38]
The
medical officer’s opinion was summarized by the officer, in his decision, as
follows:
An
impartial Regional Medical Officer at the Health Management Branch
specializing in the quality and availability of medical care in the region was
recently consulted as part of the assessment. In a correspondence dated 23Sep11
(copy on file), the medical officer and doctor informed this office that he has
personally visited first-hands tertiary facilities in Guayaquil and Quito and
advised that very good medical care is available for individuals with the
conditions listed above. He furthermore stated that specialized physicians such
as rheumatologists, orthopaedists, endocrinologists and cardiologists are on
staff in the hospital there. The medical officer’s opinion on the quality and
availability of the healthcare facilities in Ecuador was shared with the
applicant and the client was given the opportunity to comment on the officer’s
conclusion.
[39]
The
applicant submitted evidence which indicated that the health care system in Ecuador needs much improvement and that an overnight wait to see a doctor is not uncommon.
It is difficult to have prescriptions filled and hospital pharmacies do not
carry expensive drugs. It appears that only basic services are free.
[40]
The
officer did not deal with any of this evidence in his decision. In Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), 157 FTR 35, [1998] FCJ
No 1425 at paragraph 17:
However,
the more important the evidence that is not mentioned specifically and analyzed
in the agency’s reasons, the more willing a court may be to infer from the
silence that the agency made an erroneous finding of fact “without regard to
the evidence”: Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency’s finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
Here, the
applicant’s evidence dealt with her ability to receive medical care in her
personal situation.
[41]
I
am of the view that the officer’s decision was unreasonable as the officer
failed to deal with the evidence submitted by the applicant. This evidence
tends to indicate that medical assistance would not be available to the
applicant.
[42]
In
addition, I am of the view that the officer’s decision was not transparent. The
applicant’s application is all about her chronic medical conditions which have
resulted in her inability to walk or to take care of her personal needs. The
request from the officer to the medical officer requested information on the
applicant’s access to long term health care facilities in Ecuador, whether she could obtain the appropriate medication and the availability of physical care
as she is not mobile when she has no private health insurance.
[43]
In
my view, none of these requests were addressed in the medical officer’s letter.
That reply dealt with the availability of specialized doctors and the
availability of hospitals. Simply put, the report does not deal with the
availability of long term or assisted care facilities for the applicant which
is what she requires. As a consequence, the officer had no evidence on this
aspect of the case. If these issues had been addressed in the officer’s
decision, the outcome of the H&C application might well have been
different. I therefore find that the officer’s decision was also deficient and
unreasonable in this respect.
[44]
Issue
3
Was
the officer’s decision unreasonable?
H&C decisions are
discretionary and have a large range of possible outcomes (see Holder v Canada (Minister of Citizenship and Immigration), 2012 FC 337 at paragraph 18, [2012]
FCJ No 353).
[45]
In
this case, the applicant has presented separate arguments for the component of
the decision relating to the exemption from the requirement of applying for
permanent residence outside of Canada and for the component relating to exemptions
for inadmissibility.
[46]
When
returning a decision to a tribunal for redetermination, “the Officer
responsible is required to re-examine all aspects of the Decision, and the
Court should not interfere with this process by isolating one aspect and
placing it outside the scope of reconsideration” (see Malicia v Canada
(Minister of Citizenship and Immigration), 2006 FC 755 at paragraph 20,
[2006] FCJ No 946).
[47]
There
may be an exception where the parties are in agreement (see Malicia
above, at paragraph 21) but this is not the case here.
[48]
Therefore,
since both components were contained in the single decision under review, the officer’s
decision in its entirety will be returned for redetermination if either determination
is found to be unreasonable.
[49]
I
will therefore focus my analysis on the officer’s inadmissibility analysis.
[50]
The
applicant argues the officer’s reasons on inadmissibility were inadequate. The
purpose of reasons is to demonstrate justification, transparency and intelligibility.
They are not to be evaluated as a matter of procedural fairness and inadequacy
of reasons does not constitute a discrete ground of review (see Newfoundland
Nurses above, at paragraphs 1 and 14).
[51]
Therefore,
the question is whether the reasons given by the officer, taken together with
the outcome of rejecting the requested exemption, demonstrate that the result
is one inside a range of possible outcomes (see Newfoundland Nurses
above, at paragraph 14).
[52]
I
agree with the applicant that the officer’s reasons rejecting exemptions on two
of the four grounds amount to a recital of facts followed by a bare conclusion.
Although in each section the officer acknowledged the applicant’s submissions,
there is no insight into why they were rejected.
[53]
On
financial inadmissibility, the officer wrote: “I have considered the exemption
request in the context of the entire application and I am not satisfied that
circumstances of the case warrant an exemption …”.
[54]
On
illegitimate reentry to Canada, the officer wrote: “While it is understandable
that the applicant would want to be physically closer to her relatives in Canada for support after being diagnosed with diabetes, I am however not satisfied that it
justifies in itself breaching the requirements of the Act.”.
[55]
While
the applicant’s evidence was not entirely ignored by the officer, since it was
summarized in the text of the decision, there is no indication of why that
evidence provided insufficient grounds for an exemption. The officer simply stated
it was so. Therefore, the reasons on these grounds are inconsistent with the Dunsmuir
above, value of transparency.
[56]
On
criminality, the applicant argues the officer only considered factors relating
to the criminal act and not to the other reasons (i.e. humanitarian and
compassionate) the applicant provided justifying an exemption. The officer’s
reasons on this point do seem entirely concerned with the original criminal
offence, as the relevant paragraph starts with, “I again carefully reviewed the
circumstances of the case leading to the conviction” (emphasis added)
and ends with, “[i]nsufficient information were [sic] provided about the exact
circumstances that led to the criminal offence” (emphasis added).
[57]
The
purpose of a request for exemption is not to relitigate a criminal conviction
but to ask the Minister to consider whether an exemption is justified based on
the purpose of section 25 of the Act. According to the IP 5 Manual and the
principles of administrative law, this requires consideration of all relevant
factors. H&C factors (such as establishment and hardship) are by definition,
relevant to a consideration of an H&C application.
[58]
Here,
the applicant’s submissions on the H&C factors relevant to her requests for
exemptions are clearly known to the officer since they were considered in the
decision to not exempt from the requirement of applying from outside of Canada. The failure to consider those factors conflicts with the Dunsmuir above, value
of justification, since the officer only justifies the decision in relation to
the factor of the original criminal offence and not in relation to H&C
factors.
[59]
On
medical inadmissibility, the officer made no determination. Presumably, that
makes the applicant’s request for an exemption unnecessary at this time.
[60]
Taken
together, I find that the officer’s decision on the stage 2 exemptions falls
outside the range of reasonable outcomes.
[61]
Because
of my findings, I will not deal with the applicant’s submissions concerned with
the argument that the officer’s decision was unreasonable because it is
inconsistent with humanitarian and compassionate values.
[62]
The
application for judicial review is therefore allowed and the matter is referred
to a different officer for redetermination.
[63]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the officer is set aside and the matter is referred to
a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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3. (1) The
objectives of this Act with respect to immigration are
. . .
(d) to
see that families are reunited in Canada;
25. (1) Subject
to subsection (1.2), the Minister must, on request of a foreign national in
Canada who applies for permanent resident status and who is inadmissible or
does not meet the requirements of this Act, and may, on request of a foreign
national outside Canada who applies for a permanent resident visa, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
39. A
foreign national is inadmissible for financial reasons if they are or will be
unable or unwilling to support themself or any other person who is dependent
on them, and have not satisfied an officer that adequate arrangements for
care and support, other than those that involve social assistance, have been
made.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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3. (1) En
matière d’immigration, la présente loi a pour objet :
. . .
d) de
veiller à la réunification des familles au Canada;
25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire, soit ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada qui demande un
visa de résident permanent, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
39. Emporte
interdiction de territoire pour motifs financiers l’incapacité de l’étranger
ou son absence de volonté de subvenir, tant actuellement que pour l’avenir, à
ses propres besoins et à ceux des personnes à sa charge, ainsi que son défaut
de convaincre l’agent que les dispositions nécessaires — autres que le
recours à l’aide sociale — ont été prises pour couvrir leurs besoins et les
siens.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision, ordonnance,
question ou affaire — prise dans le cadre de la présente loi est subordonné
au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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