Date: 20080723
Docket: IMM-1990-07
Citation: 2008 FC 896
BETWEEN:
KITTS WHITE by his
Litigation Guardian, Juline White
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
HENEGHAN J.
[1]
Mr.
Kitts White by his Litigation Guardian (the “Applicant”) seeks judicial review
of the decision of N. Stocks, a Pre-Removal Risk Assessment Officer (the “PRRA
Officer”). In that decision, dated April 25, 2007, the PRRA Officer refused the
Applicant’s application for permanent residence on humanitarian and
compassionate (“H & C”) grounds, which application had been made pursuant
to subsection 25(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”).
[2]
The
Applicant was born in Jamaica on November 22, 1973. He
came to Canada with his family on December 21, 1980, and has lived in Canada since that
date. At the age of 14, while a passenger in a car, the Applicant was seriously
injured in a motor vehicle accident. His injuries included significant
Traumatic Brain Injury (“TBI”) and damage to his left arm. At the time of this accident,
the Applicant was 18-years-old and was scheduled to start university studies,
as a scholarship student, at York University.
[3]
As
a result of the severe and permanent brain damage, the Applicant underwent
significant personality and behavioural changes. These changes were described
in detail in a Case Summary prepared in 1997 by Dr. R. Van Reeken, F.R.C.P.C.
of the Baycrest Centre for Geriatric Care in Toronto.
[4]
Between
1993 and 1998, the Applicant was convicted of several criminal offences, the
most serious of which was a conviction of aggravated sexual assault in 1998. He
was sentenced to an eight-year term of imprisonment for that offence in June
1998.
[5]
The
Officer’s “Notes to File” record the details of the Applicant’s arrival in Canada, the
occurrence of the accident and the Applicant’s subsequent criminal convictions.
[6]
The
Officer recorded that the information submitted with the Applicant’s
application was outdated, in particular information about the lack of adequate
medical facilities in Jamaica that could be accessed
by the Applicant. The Officer noted that this information had been created
several years earlier.
[7]
The
Officer commented on the availability of mental health services in Jamaica, according
to his own research from the U.K. Home Office. Reference was also made to a
World Health Organization document from 2005 and to a publication in a Jamaican
newspaper for 2005. He acknowledged that while he had considered the
Applicant’s case “with great sympathy,” he had also considered the
“immigration objective of protecting the health and safety of Canadians”. He determined
that the Applicant had failed to meet his onus of providing sufficient evidence,
concluding that “his personal circumstances are such that the hardship of
having to obtain a permanent resident visa from outside of Canada would be
unusual, undeserved or disproportionate hardship.”
[8]
As
a closing note to his decision, the Officer said that the Applicant had presented
further submissions on April 23, 2007, advising that a further report was
pending from a specialist and this report would be forwarded upon receipt. The
Officer said that no further time would be granted for further submission and
that the decision was made on the basis on the information at hand.
[9]
The
decision here in issue was made by the Officer in the exercise of the
discretionary authority provided by subsection 25(1) of the Act which provides
as follows:
25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
|
25.
(1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui
ne se conforme pas à la présente loi, et peut, de sa propre initiative,
étudier le cas de cet étranger et peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger
— compte tenu de l’intérêt supérieur de l’enfant directement touché — ou
l’intérêt public le justifient.
|
[10]
According
to the recent decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, administrative decisions by statutory
decision-makers are to be reviewed upon one of two standards, that is, the
standard of correctness or the standard of reasonableness simpliciter.
In the present case, the standard of reasonableness will apply.
[11]
A
decision made pursuant to subsection 25(1) of the Act is an extraordinary
remedy conferring upon an applicant the opportunity to apply for fuller status
in Canada while remaining in the country; see Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817. In the exercise of
the statutory discretion, a decision-maker is to have regard to the evidence
submitted, as informed by the legislation; see Vidal v. Canada (Minister of
Employment and Immigration) (1991), 13 Imm. L.R. (2d) 123 at para. 9
(F.C.T.D.). The discretion is to be exercised on the basis of relevant
considerations; see Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R.
2.
[12]
The
Act requires the Officer to consider the particular circumstances of an
applicant and to assess those circumstances in light of the Act and
relevant guidelines. In Chieu v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 84, the Supreme Court of Canada decided the
words “in all circumstances on the case” as found in paragraph 70(1)(b) of the Immigration
Act, R.S.C. 1985, c.I-2 (the “former Act”) are to be interpreted in the
grammatical and ordinary sense, with regard to the legislative intent and
statutory purposes. Those words require attention to the factual circumstances
of an individual applicant.
[13]
The
benefit of applying for permanent resident status from within Canada is an
extraordinary remedy and it follows that such an application focuses on the
individual circumstances at play. The Act regulates the admission of
non-citizens into Canada. Admission into Canada is a privilege, not
a right; see Chiarelli v. Canada (Minister of Employment
and Immigration), [1992] 1 S.C.R. 711 at 733.
[14]
I
am satisfied that the decision here in issue does not meet the standard of
reasonableness. In my opinion, the Officer ignored or misunderstood the
evidence concerning the Applicant’s personal circumstances, in particular
the nature of his disability. The Applicant suffers from a several brain
injury, not mental illness.
[15]
The
“sympathetic” nature or otherwise in a particular case is not the determinative
factor. The officer is to pay attention to the individual circumstances of
a particular applicant and determine if the consequences of requiring the
compliance with the requirement to obtain a permanent resident visa from
outside Canada will cause “an
unusual, undeserved or disproportionate hardship,” that consideration arising
from jurisprudence developed under the former Act in relation to H & C
applications. Again, I refer to the decision of the Supreme Court of Canada
in Baker.
[16]
In
my opinion, the Officer also failed to consider the fact that the Applicant has
no immediate family in Jamaica. He has been living in Canada for a longer
period than he ever resided in Jamaica. The Applicant was
formerly a permanent resident but as a result of his conviction in 1998, a
deportation order was issued against him in February 1999. That conviction
arose from behaviour that is inextricably related to the Applicant’s impaired
cognitive ability resulting from a motor vehicle accident in 1991. The
Applicant has served his sentence.
[17]
I
refer to the decision of the Federal Court of Appeal in Lau v. Minister of
Employment and Immigration, [1984] 1 F.C. 434 at 438 when Justice Heald
said the following:
... the Adjudicator has given undue
weight to the circumstances of a breach of provisions of the Immigration
Act, 1976. If Parliament had intended that circumstance to be the
dominating and determining circumstance, then there would have been no point in
conferring the subsection 32(6) discretion on the Adjudicator. By so conferring
a discretion, Parliament must have intended the Adjudicator to look at all the
circumstances and implied in that discretionary power is the power to grant
departure notices where all the circumstances warrant it, notwithstanding that
breaches of the Immigration Act, 1976 have occurred. Accordingly, I have
concluded that the Adjudicator misconceived the parameters of the discretion
conferred upon him pursuant to subsection 32(6) of the Act, which misconception
represents an error in law reversible by the Court under section 28 of the Federal
Court Act.
[18]
In
Drame v. Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 1232, Justice Nadon allowed an application for judicial review of an
immigration officer’s refusal of an H & C application. Having reviewed that
decision on the standard of reasonableness, the Court determined that the
decision failed to meet that standard. At paragraph 50, Justice Nadon said the
following:
It is hard to understand why Miss
Barnabé's notes made no mention of the applicant's pregnancy nor of the birth
of her child in April 1993, in view of the significance attached to that
information by the applicant. I can only conclude that Miss Barnabé did not
consider the applicant's application as a reasonable person would have done.
Accordingly, I consider that in the circumstances of the case at bar Miss
Barnabé did not exercise her discretion in good faith.
[19]
In
my opinion, the same observations apply here. The Officer in the present case
mischaracterized the Applicant’s disability and ignored the particular
circumstances of his family relationships. In these circumstances, I am
satisfied that the statutory discretion was not exercised in good faith and the
decision of the Officer will be quashed. The matter will be remitted to a
different officer for re-determination.
[20]
Counsel
shall have five (5) days from the date of these reasons to submit a question
for certification.
“E.
Heneghan”
Vancouver, BC
July
23, 2008
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