Date: 20081212
Docket: IMM-2673-08
Citation: 2008 FC 1368
Toronto, Ontario, December 12, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ANATOLIY DUBOVTSEV
OLGA DUBOVTSEVA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review of a negative decision of a PRRA officer, dated April 30,
2008, refusing the applicants’ request, on humanitarian and compassionate
grounds, to have their applications for permanent residence processed inland. For the
reasons that follow, I am of the view that the application must be dismissed.
Background
[2]
Mr. Dubovtsev has
worked steadily since his arrival in Canada, and for the
same employer since 2001. Mrs. Dubovtseva has not worked in Canada save for a
one-month period in 2005, which ended abruptly when she suffered a severe
workplace injury which has left her permanently cognitively disabled and
unsteady on her feet. Since the incident she is in receipt of workers’ compensation
payments. According to a doctor’s letter dated February 10, 2008, her
condition is chronic and will not improve. The physician writes that “Ms.
Dubovtseva suffered a catastrophic head injury with multiple permanent
sequelae. She needs constant care and supervision.”
[3]
The applicants also led
evidence that neither of them is psychologically healthy. No doubt this has
been largely, if not entirely caused by the injury to Ms. Dubovtseva and its
consequences.
[4]
The officer found that
there was no evidence of significant community involvement or other factors
that would indicate a degree of establishment beyond that expected of persons
who have resided and worked in Canada since November 1999.
[5]
The officer relied on
documentary evidence to conclude that the applicants would be unlikely to face
a serious risk on account of their ethnicity and religious affiliation upon
return to Kazakhstan. She also described the existence in Kazakhstan of a social security system – again on the basis of
documentary evidence - to which the applicants could potentially have recourse
should Mr. Dubovtsev be unable to secure employment on his return. The officer
considered the availability of housing, given the applicants’ claim their house
was damaged by fire in 2001. She looked as well at their family ties and the
best interest of children who would be affected by the applicants’
deportation. While acknowledging that the applicants share a household with
their daughter and grandchildren, the officer was nonetheless of the view that
the absence of any detailed information in this respect stood in the way of a
finding of unusual, undeserved, or disproportionate hardship.
[6]
The most extensive
portion of the officer’s reasons relates, understandably, to Ms. Dubovtseva’s
medical circumstances. The officer canvassed the material on file relating to
her accident and condition, and acknowledged evidence that she is unable to
work, drive or take public transit, and suffers from personality changes
brought on by trauma to the brain. She accepted as well the evidence that Ms.
Dubovtseva has reached “maximum recovery”. The officer nonetheless noted that
information regarding Ms. Dubovtseva’s day-to-day needs and requirements was
lacking, making it difficult to conclude that these needs and requirements
could not be met in Kazakhstan. The officer gave little weight to dated
information on medical services in Kazakhstan, noting that
in any event, it did not establish that general medical care was unavailable.
Finally, the officer acknowledged the doctor’s opinion that Ms. Dubovtseva is
unable to travel on account of her unsteadiness, but noted that her medical
fitness and physical ability to leave Canada can be raised
and evaluated when actual removal preparations are underway, and she refers in
this respect to operational manual ENF 10.
Issue
[7]
The
applicants raise a single issue – the reasonableness of the officer’s decision.
Analysis
[8]
The
applicants submit that the officer’s determination of establishment in Canada was
unreasonable. While I am prepared, on the facts of this case, to accept that
establishment was impaired by the injury to Ms. Dubovtseva, that injury does not account for the
absence of evidence to show more than an expected degree of establishment.
[9]
The officer notes and
credits the applicants with the fact that Mr. Dubovtsev has an admirable work
history in Canada. She also notes their reference to church
involvement, but observes that there were no letters of support from a church
or church leaders. She further notes that there is a dearth of information to
indicate a level of community involvement or integration that might support a
finding of significant establishment in Canada. Given the absence of evidence, other than that mentioned above, it
cannot be said that the officer’s decision on establishment was unreasonable.
[10] It is also
submitted that the officer’s decision was unreasonable because she failed to
assess the applicants in light of their exceptional profile. By this is meant
the significant injury to Ms. Dubovtseva.
A reading of the officer’s decision indicates that she did review and consider all
of the medical evidence presented to her. The jurisprudence is clear and well
established – the onus is on the applicants to bring forward all relevant evidence
necessary to make their case. It is clear from the reasons that,
unfortunately, the applicants failed to provide sufficient evidence to
establish that they ought to be exempted from the usual requirements of the
Act. The following selected passages from the officer’s reasons illustrate
this failure:
- “While “details of
any treatment/care currently being received by Ms. Dubovtseva” were specifically
requested in a letter dated 22 January 2008, these were not provided”.
- “…no clear information was provided as to what
actual care or treatment the female applicant currently receives from
either medical professionals or her family in Canada”.
- “...it is unclear what her day-to-day needs are
in terms of care and treatment and so it is difficult to determine what
her requirements are so as to see if such would be available to her in Kazakhstan”.
- “The February 2008
letter from the female applicant’s family doctor … likewise provided
little detail on her current care or treatment schedule …”.
- “I note that while counsel
undertook in October 2006 to provide a letter with a personalized
assessment of lack of healthcare for the female applicant’s needs, no such
information has been provided”.
- “I have
insufficient current evidence before me to establish that the applicant
would be unable to access medical care or treatment in Kazakhstan were it
required”.
- “[The physician]
states that she could not tolerate any long travel, but does not give
details related to this as to why, how long, etc.”.
- “…no specific
information has been provided as to what medications or other treatment
she is receiving, who she is being treated by and how often”.
The officer’s reasons are replete with
similar statements and observations concerning the lack of evidence, other than
general statements as to the condition and health of Ms. Dubovtseva.
[11] The
applicants submitted that the officer should have “inferred” from the evidence
before her that Ms. Dubovtseva
could not be removed from Canada and suggested that this fact, in itself,
supported a positive H&C application. Whether or not the inability to
travel, in itself, warrants a positive H&C determination is not a matter
for this Court on this application. What is clear, however, is that the
officer was entitled to expect clear, convincing and detailed evidence to
support that claim. It simply was not provided by the applicants, in spite of
the fact that detailed evidence had been requested and was promised by them.
[12] Lastly, there
was a submission made by the applicants that the officer had raised the bar so
high in an H&C application that it would never be able to be met. It was
submitted that an H&C application is not the extraordinary remedy that the
officer has made it. First, this officer, in my view, has not raised the bar
any higher in this decision. Second, an H&C application is extraordinary.
If accepted, the applicants would not be required to apply for status from
outside Canada.
Application from abroad is the norm; application in-country is extraordinary.
[13] For all of
the foregoing reasons, and although the injury to Ms. Dubovtseva and the consequences for the applicants are truly
lamentable, this application must be dismissed.
[14] As was noted
by the officer in her reasons, and by respondent’s counsel at the hearing, the
applicants will have an opportunity to present evidence, if it is available,
that Ms. Dubovtseva’s health
is such that she cannot withstand the air travel to Kazakhstan. If they choose to do so, they are strongly encouraged to ensure that
the evidence provided is precise, detailed, and current.
[15] Neither party proposed any question for
certification, nor is there any on the facts presented.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is dismissed; and
2.
No
question is certified.
“Russel W.
Zinn”
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