Date: 20090129
Docket: IMM-2737-08
Citation: 2009 FC 98
Ottawa, Ontario, January 29, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ANTONIO
PAULO DEL MELO GOMES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of a decision by Citizenship and Immigration Canada (CIC)
rejecting the Applicant’s humanitarian and compassionate (H&C) application.
II. BACKGROUND
[2]
The
Applicant is a citizen of Portugal, in his mid-fifties,
who has been in Canada for ten years and lives with his mother who is
a Canadian citizen.
[3]
The
Applicant has three siblings, two sisters and a brother, and an aunt in Portugal. The
Applicant was living with his aunt prior to coming to Canada. The
Applicant’s father is deceased.
[4]
The
Applicant’s H&C application was based upon his medical conditions which
include schizoaffective disorder, Barrett’s oesophagus, emphysema, and a fatty
liver. He relies on his mother for financial, medical, and emotional support. His
medical conditions and his reliance on his mother are the principal grounds of
his H&C application.
[5]
The
Applicant arrived in Canada under a visitor’s visa on February 26,
1998, and that visa was extended on a number of occasions up to November 27,
1999. After that, the Applicant continued to live in Canada without
status.
[6]
In
the CIC’s decision, the Officer acknowledged and outlined the Applicant’s many
health conditions and acknowledged that the Applicant is dependant on his mother
for financial, medical, and emotional support. It was further acknowledged that
the Applicant cannot work. The Applicant’s limitations were supported by a
family physician’s assessment that the Applicant’s condition would deteriorate
rapidly without his mother’s support.
[7]
The
Officer recognized that it would be preferable for the Applicant to live with a
family member. He also recognized that his two sisters in Portugal were unable
to provide housing or other support and that the Applicant’s mother, in her
advanced age, might require assistance to continue to provide the Applicant
with the level of care that he required.
[8]
The
Officer concluded that the Applicant had sufficient ties to Portugal and would
have sufficient medical care available to him such that he would not endure
undeserved or disproportionate hardship due to his removal. Lastly, the Officer
viewed the Applicant’s decision to remain in Canada after his
visitor’s visa had expired as a “strong negative factor”.
III. ANALYSIS
[9]
I
adopt Justice Dawson’s rationale in Ahmad v. Canada (Minister of
Citizenship and Immigration), 2008 FC 646, in finding that the standard
of review for an H&C decision is a deferential standard of reasonableness.
This recognizes that the decision must be reasonable, and that the decision
contains a significant discretionary element and is largely fact-based.
[10]
This
decision turns principally on the onus of proof which an applicant bears. The
underlying reason for the negative decision is the failure of the Applicant to
discharge the burden of proof in respect of the critical elements of the claim.
[11]
The
Applicant argued that many of the Officer’s findings were based upon
speculation. This included the ability of Portugal to provide medical care and
the existence of one or more members of the family in Portugal who could
supply financial and emotional support for the Applicant. The Applicant also
questioned the Officer’s conclusion that the Applicant’s mother may require
assistance to continue to care for him in the future.
[12]
The
speculative elements of the decision arose as the result of the failure of the
Applicant to adduce evidence to the contrary, as was his obligation. The
Officer, in concluding that Portugal could provide medical
care, undoubtedly took judicial notice of the fact that Portugal is a member
of the EU and as such, has a reasonable medical system. The Applicant
acknowledges that he provided no evidence that medical care sufficient for the
Applicant was not available in Portugal. While it might have
been preferable for the Officer to simply state that the Applicant had failed
to discharge the onus of proof in respect of this matter, the conclusion that Portugal, on a
balance of probabilities, could provide medical care was not unreasonable.
[13]
With
regard to the availability of family support, the Applicant failed to produce
evidence that there was no family member in Portugal able to
provide assistance to him. The Officer acknowledged that the two sisters were
not in a position to provide housing and other support. However, in the absence
of evidence regarding the two remaining members of the family being unable to
provide support, the Officer concluded that some form of support was available
from one or more of them. The basis for this conclusion included not only a
brother, but also the aunt with whom the Applicant had lived prior to coming to
Canada. Again, if
the Officer had merely stated that there was no evidence that some members of
the family could not care for the Applicant, the Applicant would have no argument
available to him. Given the evidence in this case and the lack of evidence
produced by the Applicant, the Officer’s conclusion on this point was
reasonable.
[14]
The
Officer’s conclusion with respect to the Applicant’s mother potentially
requiring assistance in the future was a logical conclusion to draw from the
evidence of her age and circumstances. While the conclusion may be somewhat
speculative, it is not unreasonable and not fatal in this instance.
[15]
The
Applicant also argued that the Officer did not grasp or fully understand the
nature of the medical evidence. That evidence was that the Applicant required
both medical care and the care of his mother in order to prevent deterioration
of his condition.
[16]
The
difficulty with the medical evidence adduced is that it provides no details as
to the nature of the condition or the prognosis for cure or control. It also
does not address in any way the alternatives of medical care in Portugal or of
support from close family members such as his brother and aunt in lieu of the
care of the mother. It simply concludes that the existing situation is the best
one, without addressing any of the alternatives.
[17]
As
such, it is inaccurate to describe the Officer as not having grasped the nature
and import of the medical evidence. The evidence was insufficient in critical
aspects of the claim for H&C consideration.
[18]
Finally,
the Applicant submitted that the Officer erred in putting undue weight on the
lengthy period of the Applicant’s illegal stay in Canada. While the
Officer overstated the importance of the length of time, the true import of the
Officer’s comment is that the length of time in Canada cannot form
a proper basis for an H&C application in these circumstances. While I find
that the phrasing of the length of time being a “strong negative factor” to be
erroneous and unfortunate, I find nothing wrong with the ultimate conclusion.
[19]
In
my view, the finding with respect to the length of time in Canada, to the
extent that it may be questionable, is not fatal to the decision. It clearly
did not form a critical part of the Officer’s analysis.
[20]
The
decision, read as a whole, is reasonable in all of its major constituent parts
and in its conclusion.
IV. CONCLUSION
[21]
For
these reasons, this application for judicial review will be dismissed. There is
no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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