Date: 20071029
Docket: IMM-6110-06
Citation: 2007 FC 1113
BETWEEN:
BERTHA PRESIDENT BRANDFORD
ANDISHA
CELESTE BRANDFORD
MISIA
KRYSTAL BRANDFORD
AISIA
VICTORIA LAMBERT
NATHAN
SEAN LAMBERT
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow a brief hearing of an application for judicial review of a
decision that is described in the application for leave and for judicial review
as a refusal of the Applicants’ application for permanent resident status on
humanitarian and compassionate grounds pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act. In the view of the Court, it is more
accurately described as a denial of a waiver of a medical inadmissibility
determination. That denial in turn resulted in a denial of the application by
the first three named Applicants for landing from within Canada on humanitarian
and compassionate grounds. The decision under review was made by a Minister’s
Delegate and is dated the 11th of July, 2006.
BACKGROUND
[2]
The
first three named Applicants are a mother and 2 of her daughters who are all
citizens of St.
Lucia.
The fourth and fifth Applicants are a third daughter and a son of the same
mother. They are Canadian citizens and are therefore perhaps improperly named
as Applicants on this application, but nothing turns on that. All five
Applicants are resident together in Canada and constitute a single
parent family unit.
[3]
The
first three named Applicants applied for landing from within Canada on
humanitarian and compassionate grounds. Sufficient humanitarian and
compassionate grounds were identified to justify their landing from within Canada. However,
one of the St. Lucian daughters was determined to be medically inadmissible
and, in the result, the application for landing from within Canada was denied.
An application for judicial review of the denial of landing from within Canada on grounds
of medically inadmissibility was commenced but was discontinued when the respondent
agreed to “re-open”, “re-consider”, or “consider waiving the medical
inadmissibility determination”. The decision now under review followed.
THE DECISION UNDER
REVIEW
[4]
The
decision under review is brief. Following two introductory paragraphs, it reads
as follows:
…..
Ms. President Brandford
is seeking a medical waiver for her daughter Andisha Celeste Brandford due to
issues surrounding developmental delays and hearing loss. While I have not
been provided with the medical assessment itself, I am satisfied, based on the
material before me that these are the issues that have given rise to the
medical inadmissibility. I note that Ms. Brandford replied in the negative in
section L of the form entitled “Request for Exemption from Immigrant Visa
requirement” dated December 4, 2000 that neither she nor any of her listed
dependants, which included Andisha Celeste Brandford “Had or still have any
serious disease or mental or physical illness”.
HUMANITARIAN AND
COMPASSIONATE CONSIDERATIONS:
Having reviewed the
material before me, I agree that there are sufficient humanitarian and
compassionate considerations present in the case to warrant favourable
consideration. This decision is based, among other things, on my assessment of
the best interests of the four children mentioned – two of which are Canadian
citizens. Clearly, in this instance, it is not in the best interests of the
Canadian citizen children to be separated from either their siblings or their
biological mother. I would note that this refers to the circumstances in this
particular case and this decision is not to be extrapolated to other cases.
WAIVER OF MEDICAL
INADMISSIBILITY:
In addition to various
Charter arguments (section 7 and 15 in particular), the essential reason for
seeking the waiver of medical inadmissibility for Andisha Celeste Brandford is
outlined in the letter from the Parkdale Community Legal Services dated
February 15, 2006 as follows:
While Ms. President
Brandford was pleased to have been granted the TRP [Temporary Resident Permit]
for herself and her daughters, it is our position that there is no need in this
case for a further three year delay before she and her daughters are
landed in Canada. As we
pointed out in our argument to the Federal Court, while on a TRP, Andisha Celeste
would continue to
access the same support
services that she would have access to as a permanent resident so there is
absolutely no saving of provincial education costs by delaying the family’s
landing application due to her medical condition.
Mention is also made of
the non-OHIP coverage and the additional costs (presumably by private medical
coverage) at an annual cost of $850 per annum.
In my view, the above
reasons requesting a waiver pursuant to 25(1) of the IRPA do not justify
the requested exemption. The fullest consideration of the material before me
fails to demonstrate to me that there would be any unusual, undeserved or disproportionate
hardship in allowing the affected persons to remain in Canada under the
authority of Temporary Resident Permits until such time as they are able to
qualify under the Permit Holders Class as described in Regulation 64 of the Immigration
and Refugee Protection Regulations.
[5]
In
summary, the Minister’s Delegate found there to be “sufficient humanitarian and
compassionate considerations” to warrant favourable consideration of the first
three named Applicants’ application for landing from within Canada. He
nonetheless went on to deny the waiver of the medical inadmissibility
determination on the ground that no unusual, undeserved or disproportionate
hardship would flow because the “affected persons” are in Canada and were, at
the time of the decision, entitled to remain in Canada under a Temporary
Resident Permit. That Permit, at the time of the decision, would continue to be
valid barring a drastic change in circumstances, for more than two years,
following which, once again barring a dramatic change in circumstances, the
“affected persons” would qualify to apply for landing from within Canada as
members of the Permit Holders Class, as described in section 64 of the Immigration
and Refugee Protection Regulations.
ANALYSIS
[6]
Counsel
for the Applicants raised three issues on this application for judicial review,
in the following terms:
a. Whether
the negative redetermination of the Applicants’ application for permanent
residence is in error because the decision that the Applicants are inadmissible
pursuant to section 38(1)(c) of the Immigration and Refugee Protection Act
is wrong in law since it failed to properly consider the particular
circumstances of the Applicants’ case.
b. Whether [the Minister’s Delegate’s]
decision to refuse a medical waiver in the Applicants’ case is an
unreasonable decision.
c. Whether
refusing to grant permanent resident status to the Applicants based on the
inadmissibility finding under section 38(1)(c) of the Act, and instead,
placing them on a Temporary Resident Permit for three years under Section
65(b)(i) of the Regulations constitutes discrimination on the enumerated
ground of disability contrary to section 15(1) of the Charter of Rights and
Freedoms, deprives the Applicants of their right to security of the
person contrary to section 7 of the Charter and does not constitute a
reasonable limit prescribed by law in accordance with section 1 of the Charter
and is therefore unconstitutional.
[7]
By
Agreement, the first and third issues were not pursued at hearing and the
second issue was expanded to focus on the issue of “adequacy of reasons”.
[8]
The
Minister’s Delegate had before him evidence that, on the facts of this
particular case, the Applicants were struggling, not only with the universal
difficulties of a single parent family unit of limited means, but with the
medical difficulties of one of the St. Lucian born children, medical difficulties
of one of the Canadian born children and the troubled personality of the other
Canadian born child. Further, the Minister’s Delegate had evidence before him
that living in Canada under a Temporary Resident Permit imposed on the
Applicants financial burdens and uncertainty that would have been greatly
relieved if the waiver that the Applicants sought had been granted. In short,
the challenges that the Applicants faced at the time of the decision under
review, and continue to face, would have been significantly reduced if the
waiver had been granted. There is no indication whatsoever on the face of the
Minister’s Delegate’s reasons for decision that any of this was taken into
account or given weight.
[9]
In
Baker v. Canada (Minister of Citizenship and Immigration), Madam
Justice L’Heureux-Dubé wrote at paragraph 43 of her reasons:
…It is now appropriate
to recognize, that in certain circumstances, the duty of procedural fairness
will require the provision of a written explanation for a decision. The
strong arguments demonstrating the advantages of written reasons suggest that,
in cases such as this where the decision has important significance for the
individual, when there is a statutory right of appeal, or in other
circumstances, some form of reasons should be required.
[10]
In
Aowan v. Canada (Minister of Citizenship and Immigration), my
colleague Justice Harrington wrote at paragraph 11 of his reasons:
Although a criminal
case, R v. Sheppard, [2002] 1 F.C.R. 869, is nevertheless
a useful guide [regarding reasons]. Mr. Aowan was entitled to know why his
claim was rejected. Justice must not only be done, it must be seen to be
done. A reviewing Court must know the basis of a decision before it can determine
if it was unreasonable.
[11]
The
closing paragraph of the Minister’s Delegate’s “reasons” quoted above is not
“reasons”
at all, it is simply the statement of a
conclusion without meaningful explanation as to how that conclusion was arrived
at. It provides no assurance whatsoever that the Minister’s Delegate was
“alert”, “alive” and “sensitive” to the best interests of the four children
directly affected by the decision. Further, it provides no basis upon which
the Applicants, their counsel, or, indeed, this Court, can determine whether
the decision under review is reasonable. Put another way, the decision as
provided denied the Applicants procedural fairness.
[12]
None
of the foregoing is to say that the decision under review might not have been
reasonably open to the Minister’s Delegate. It is simply to say that whether
it was reasonably open cannot be determined.
CONCLUSION
[13]
For
the foregoing brief reasons, this application for judicial review will be allowed.
The decision under review will be set aside and the Applicants’ application for
waiver of the medical inadmissibility determination in respect of one of the
St. Lucian born Applicants will be referred back to the Respondent for
re-determination by a different officer.
[14]
It
is, of course, not for this Court to impose priorities on the Respondent in the
absence of a successful application for mandamus. That being said, the
evidence before the Court in this matter and the conclusion of the Minister’s
Delegate with respect to the humanitarian and compassionate considerations here
at issue cry out for an early re-determination of this matter.
CERTIFICATION OF A
QUESTION
[15]
At
the close of the hearing of this matter, counsel were advised of the Court’s
conclusion.
Neither counsel recommended certification
of a question. The Court itself is satisfied that no serious question of
general importance arises in this matter that would be determinative of an
appeal herein.
“Frederick E. Gibson”
Ottawa,
Ontario
October
29, 2007
Email this Content