Date:
20121102
Docket:
IMM-1100-12
Citation:
2012 FC 1277
Ottawa, Ontario, November 2, 2012
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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CODINE PALMER
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The present application
is a challenge to a decision of a member of the Immigration Appeal Division of
the Immigration and Refugee Board [panel], dated December 20,
2011, in which the
panel upheld an exclusion order previously issued against the applicant for misrepresentation
within the meaning of paragraph 40(1)(a) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act]. The panel found that there were no grounds
to warrant special relief for humanitarian and compassionate [H&C]
considerations pursuant to paragraph 67(1)(c)
of the Act.
Background
[2]
The
applicant is a 28-year-old citizen of Jamaica. She immigrated to Canada on September 6, 2006 as a
sponsored permanent resident under the family class, having been sponsored by
her father. However, she was not granted landing on entry because she was found
to have been “directly or indirectly misrepresenting or withholding material
facts relating to a relevant matter that induces or could induce an error in
the administration of this Act,” as contemplated in paragraph 40(1)(a) of the
Act.
[3]
Prior to
coming to Canada, the applicant became pregnant and gave birth to a child. She
disclosed this information to the nurse who performed her medical examinations
for the purpose of assessing her admissibility, but she did not have an
immigration interview and did not think of informing the visa officer when she
went to the embassy to pick up her visa.
[4]
Upon
arriving in Canada, the applicant revealed to the Visa Officer that she had a
son and immigration
officials immediately commenced a misrepresentation
process against her. On May 14, 2009, the Immigration Division found that the disclosure of
a child, whether that child accompanied the applicant or not, was a material
fact and that the applicant had failed to meet her expected duty to communicate
this information to the immigration authorities prior to coming to Canada. The Immigration Division further found that her disclosure at the port of entry was
not sufficient. An exclusion order was accordingly issued against her.
[5]
On appeal
before the Immigration Appeal Division, the applicant did not challenge the
validity of her exclusion order but requested that the panel exercise its
discretion to consider whether sufficient H&C grounds exist to warrant
special relief in light of the special circumstances of her case under paragraph
67(1)(c) of the Act.
[6]
In 2009, the applicant started
developing symptoms of schizophrenia. She was admitted to the Sunnybrook Hospital in Toronto twice in 2010 for psychiatric care; she has been diagnosed with
paranoid schizophrenia and requires continuing treatment with anti-psychotic
medication. Since January 22, 2009, she resides in an emergency shelter for
single homeless women where she receives supportive care from a psychiatrist, a
nurse, and a caseworker.
[7]
For purposes
of the appeal hearing, the applicant was found to be a vulnerable person under
Guideline 8, Guideline on Procedures with Respect to Vulnerable Persons
Appearing Before the Immigration and Refugee Board of Canada, and in need
of a designated representative [DR]. The applicant’s social worker, Ms. Allen,
was so appointed. Ms. Allen and the applicant’s half-sister testified on her
behalf as her condition did not allow her to testify.
[8]
The panel
examined the Ribic factors, as applied by the Supreme Court in Chieu v Canada (Minister of
Immigration and Citizenship),
2002 SCC 3, [2002] 1 S.C.R. 84, and
determined that
special discretionary relief for H&C considerations was not warranted.
[9]
First,
the panel stated that the withholding of information in this case is serious
and significant and strikes at the very integrity of Canada’s immigration
system, but that this must be tempered by the fact that the applicant
voluntarily disclosed her child at the port of entry and that her
misrepresentation is closer to an inadvertent misrepresentation.
[10]
Second,
the panel found that the applicant had little establishment in Canada at the time of the hearing, notwithstanding the length of time she had spent here. The panel noted
that the applicant is unemployed, although according to the testimony of the DR
she had worked in the past; that there is no letter of support from the applicant’s
father or any other member of her family although according to the testimony of
her sister, she has aunts, uncles, cousins, and a grandmother in Canada; and
the applicant is not in touch with her relatives and has limited contact with
her father.
[11]
Third, the
panel concluded that none of her family members would suffer hardship should
the applicant return to Jamaica. The panel noted that the applicant’s father had
not taken an active role in caring for her or supporting her and the sole
family support appeared to come from her half-sister. It found that the latter
seems to be her only family member likely to experience some emotional hardship
as a result of her departure, as she is continuously in touch with her and
provides her with some financial and emotional support.
[12]
Fourth, the
panel rejected counsel’s argument that the medical and social community-based
support the applicant receives as a result of her medical condition will not be
available in Jamaica. The panel accepted the objective evidence (including
letters from two Directors of the Mental health and Substance Abuse Unit of the
Ministry of Health and Environment of Jamaica) asserting that most people with
chronic mental disorders are treated in communities under the supervision of their
families as there are no state-run shelters and that, without close family
support, they could end up homeless and victims of abuse and stigmatization.
However, the panel found that this evidence did not address the specific
circumstances of the applicant as to the level of family support she might have
in Jamaica. The panel accepted that the applicant may suffer hardship if she were
to return to Jamaica and that her condition could deteriorate as a result of
limited access to healthcare, but held that it could not speculate as to the
applicant’s lack of family support in her country. The panel stated:
A
key part of the determination of this factor is whether the appellant’s mother
is willing or able to provide some support to her if she was returned to Jamaica. There is no evidence that the appellant’s DR and her sister have made any effort
to contact the appellant’s mother and find out from her what she is capable and
willing to provide for the appellant, and no reason has been provided as to why
the appellant’s mother could not be called as a witness at the hearing. The
appellant is her daughter and had lived with her in Jamaica prior to coming to Canada.
The panel has not heard from the appellant’s mother or anyone who has actually
spoken to her in any depth regarding the appellant’s condition and her needs.
The panel finds there is insufficient evidence that the appellant’s mother is
unable or unwilling to provide her with a home, take her to a clinic or obtain
medication for her. If the appellant’s sister is willing to contribute
financially to support the appellant in Canada, as she testified, she should
also be willing to send money to Jamaica to help support the appellant there.
[13]
Finally,
the panel found that there is no child whose interest would be negatively
affected by its decision to dismiss the appeal. The applicant’s son has lived with
his father in Jamaica since the applicant came to Canada. He is now six years
of age and his father does not want him to leave Jamaica before he reaches the age
of majority. The panel found that in the circumstances, the child’s best
interest was for the applicant to return to Jamaica as it appeared that she
regularly spoke with him by telephone and maintained a close relationship with
him.
[14]
The panel
therefore concluded that there were insufficient H&C reasons to warrant
discretionary relief in the circumstances and maintained the applicant’s
exclusion order.
Standard of Review
[15]
The following
issues are raised by the applicant:
1. Whether the panel
erred in law or arrived at unreasonable conclusions based on the evidentiary
record before it by finding that the applicant can get the psychiatric, social
and housing support she requires in Jamaica?
2. Whether the panel
erred by elevating the standard of proof to one that is unattainable, ignoring
the applicant’s actual circumstances?
3. Whether the panel
violated natural justice by failing to raise during the hearing its concerns
with respect to the availability of relatives in Jamaica?
[16]
For
the reasons that follow, the Court finds that overall the panel’s decision is
unreasonable and that the panel breached its duty of procedural fairness as the applicant’s witnesses and counsel were not
given the opportunity to respond to some of the panel’s determinative concerns.
[17]
In the
applicant’s view, the appropriate standard of review is correctness as this
application is purely an issue of law. The respondents did not specifically
address the standard of review applicable to each of the above issues but
submitted that these questions do not lend themselves to a single result and
that the Court ought not to intervene unless the decision falls outside the
range of possible acceptable outcomes that are defensible in respect of the
facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190).
[18]
In Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras
57-58, [2009] 1 S.C.R. 339, the appropriate standard of review for matters arising
pursuant to paragraph 67(1)(c)
was found to be that of reasonableness:
In
recognition that hardship may come from removal, Parliament has provided in s.
67(1)(c) a power to grant exceptional relief. The nature of the question posed
by s. 67(1)(c) requires the IAD to be “satisfied that, at the time that the
appeal is disposed of ... sufficient humanitarian and compassionate considerations
warrant special relief”. Not only is it left to the IAD to determine what
constitute “humanitarian and compassionate considerations”, but the
“sufficiency” of such considerations in a particular case as well. Section
67(1)(c) calls for a fact-dependent and policy-driven assessment by the IAD
itself.
[…]
[The respondent] accepted that the removal order had been validly made against
him pursuant to s. 36(1) of the IRPA. His attack was simply a frontal challenge
to the IAD’s refusal to grant him a “discretionary privilege”. The IAD decision
to withhold relief was based on an assessment of the facts of the file. The IAD
had the advantage of conducting the hearings and assessing the evidence
presented, including the evidence of the respondent himself. IAD members have
considerable expertise in determining appeals under the IRPA. Those factors,
considered altogether, clearly point to the application of a reasonableness
standard of review. There are no considerations that might lead to a different
result. Nor is there anything in s. 18.1(4) that would conflict with the
adoption of a “reasonableness” standard of review in s. 67(1)(c) cases. I conclude, accordingly, that
“reasonableness” is the appropriate standard of review.
[19]
The jurisprudence
of this Court has consistently held that the standard of review for the panel’s
assessment of the evidence in withholding relief is reasonableness (Gardner v Canada (Minister of
Citizenship and Immigration),
2011 FC 895 at paras 24-25, [2011] FCJ 1119; Manalang v Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 1368 at paras 71-79, [2007] FCJ 1763).
Although the applicant framed them as questions of law, the first two issues
are questions of mixed fact and law, reviewable on a reasonableness standard.
[20]
On the other
hand, the issue of the procedural fairness - as to whether the applicant was
afforded a fair hearing before the panel - is reviewable on a standard of correctness (Khan v Canada (Minister of
Citizenship and Immigration),
2010 FC 22 at para 29, [2010] FCJ 24).
Review of the impugned decision
The panel’s assessment of the evidence of the applicant’s hardship in Jamaica
[21]
The applicant submits that the panel erred in requiring positive
evidence that the applicant’s family in Jamaica, and particularly her mother,
will not be supportive of her while the evidence satisfactorily established
that the support
she requires is not available in Jamaica, thus elevating what
is required for H&C consideration beyond what the law requires. The
applicant argues that the panel’s assumption is unsupported by the evidence. She relies on this Court’s recent
decision in White v Canada (Minister of Citizenship and Immigration),
2011 FC 1043, [2011] FCJ 1299, where it was held that an immigration officer
had erred by making unsupported speculative findings that the applicant, a
Jamaican immigrant who was found inadmissible to Canada on the basis of serious
criminality, could make suitable arrangements for specialized psychiatric care
in Jamaica, as there was no evidence that the kind of care the applicant
required was available or how much it would cost.
[22]
The
applicant also takes issue with the panel’s finding that the letters from the Ministry of Health and
Environment of Jamaica on the country conditions are not
conclusive as they do not specifically address
the circumstances of the applicant. She argues that objective
evidence need not name an individual in order to be relevant and reliable.
[23]
Having
reviewed the documentary and testimonial evidence submitted on behalf of the
applicant, I agree that the
panel’s assessment of the evidence of the applicant’s hardship in Jamaica was unreasonable. The panel accepted that the applicant could not expect any
state-run or community-based services that could provide her with the care she
requires. However, it stated it could
not speculate that the applicant would not have sufficient family support in
her country, and ended up speculating that she would. Yet, having regard to the
entirety of the record, there was more evidence in support of the applicant’s
allegation than in support of the panel’s finding. Both the applicant’s DR and
her half-sister testified that they had little to no contact with the applicant’s
mother and that the latter never expressed any willingness to be supportive of
her daughter for the past three years that she has lived at the women’s
shelter. In fact, no relative other than the applicant’s half-sister has
remained in contact with the shelter, including those who live in Canada.
[24]
Even if none
of the witnesses have directly raised the issue with the applicant’s mother (a
fact that is in my view understandable given the respondents’ admission and the
panel’s finding that the applicant has little to no relation with her father
and mother), the facts objectively indicated that there is little chance that
the applicant’s mother would support her sufficiently upon her return to
Jamaica. I agree that it is for the panel and not for the Court to assess the
evidence. However, the panel’s assumption that either the applicant’s mother or
her half-sister would be able to provide financial support for her remains
purely speculative and unsupported by any evidence at all. Rather, the
applicant’s half-sister testified that the mother is unemployed, that she
consistently complains about financial difficulties when she calls, and that
she has trouble taking care of the applicant’s younger siblings and sending
them to school. When the applicant’s mother has called the applicant in the
past, it was to blame her for not sending money to Jamaica to help her mother
with her younger children. The applicant’s father has beaten the applicant for
not reading the Bible and her mother believes she is under a curse. The
applicant’s half-sister is herself a single mother to a 5 year old. According
to her testimony, most of the applicant’s expenses are taken care of at the
shelter, but she sometimes buys clothes, toiletries or phone cards for the
applicant. I find the panel findings to be in direct contradiction with this
evidence.
[25]
I
also find that the panel’s decision generally ignored the severity of the applicant’s condition,
the extent of care that her condition requires and the degree to which she is
currently dependent on the community-based medical and social support she is
receiving in Canada. All of these factors tend to demonstrate, in the special
circumstances of this case,
the applicant’s establishment in Canada.
The failure to provide witnesses
and counsel with an opportunity to respond
[26]
The
second and third issues are interrelated and will be dealt with together. Since
the overall question is one of
procedural fairness, it will be reviewed on a standard of correctness
[27]
The
applicant asserts that considering her special circumstances it was
unreasonable for the panel to expect that she compel her mother, or other
relatives in Jamaica, to testify at the hearing as they have shown no interest
in her well being despite knowing that she lives in a shelter. The applicant
submits that there is no legal requirement that testimony be corroborated to be
believed, unless there is a basis to disbelieve it.
[28]
The applicant
further relies on Gracielome v Canada (Minister of Employment and
Immigration), [1989] FCJ 463, for
the proposition that for the panel to predicate its decision on the fact that
the applicant’s relatives and friends in Jamaica were not called as witnesses, it
should have confronted counsel or witnesses with its concerns and give them the
opportunity to respond to the perceived lack of evidence. The applicant
contends that the failure to do so constitutes a breach of procedural fairness
as this deprived the applicant of her right to refute the panel’s assumptions.
[29]
I
agree. The panel’s
conclusion that further testimonial evidence from the applicant’s mother and/or
other family members in Jamaica was required was at least partially
determinative of the issue before it. However, at no point in the hearing
transcript does the panel raise this question or inquire into it.
[30]
In
the context of hearings before the Immigration Appeal Division, the jurisprudence recognizes that
an applicant must be able to respond to concerns that are likely to harm his or
her case, particularly where they are highly material to the decision and cause
the panel to exclude or discount other relevant evidence (Sidhu v Canada
(Minister of Citizenship and Immigration), 2012 FC 515 at paras 78-82,
[2012] FCJ 771). In Ziade v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1352, [2007] FCJ 1754 [Ziade],
in the context of an H&C application, the panel took issue with the absence
of the applicant’s family members at the hearing but failed to raise the issue
in a meaningful manner at the hearing or provide the applicant with a real
opportunity to present the required evidence. Justice Lemieux of this Court
held that the panel was required to give the applicant the opportunity to prove his case before concluding,
in the absence of this evidence, that the applicant had not demonstrated that there were sufficient
H&C considerations in his favour.
[31]
Although the facts of the present case are slightly
different with those of Ziade, above, in the sense that in
that case the applicant’s family members were able to be present and testify at
the hearing, I believe that the rationale from Ziade readily applies
here. The
panel in the case at bar could not choose to rely on a lack of evidence that
was not brought to the attention of those appearing on behalf of the applicant
without providing them with an opportunity to alleviate its concerns or
clarify the reasons why the evidence it required was not available.
[32]
For these
reasons, I will allow this application for judicial review. The parties agree
that there is no question of general importance for certification and the Court
concurs.
JUDGMENT
THIS
COURT’S JUDGMENT IS THAT:
1. The application for judicial
review is allowed; the decision of the panel is set aside and the matter sent
back to the Immigration Appeal Division of the Immigration and Refugee Board
for a re-determination by a differently constituted panel;
2. No question of general importance
is certified.
“Jocelyne
Gagné”
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