Date:
20130730
Docket:
IMM-10131-12
Citation:
2013 FC 778
Montréal, Quebec,
July 30, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
|
|
DAVID LOPEZ ARTEAGA
MARIA DEL PILAR FLORES VALENCIA
DAVID LOPEZ FLORES
AND
JOSEMARIA LOPEZ FLORES
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The applicants seek judicial review of an
immigration officer’s decision made pursuant to subsection 25(1) of the Immigration and Refugee
Protection Act,
SC 2001, c 27 [IRPA], whereby the officer refused to exempt the
applicants from the
requirement to apply for permanent residence status from outside Canada, on humanitarian and compassionate [H&C] grounds.
[2]
Essentially,
the applicants argue that the Court’s intervention is warranted in this case
because (i) the officer’s assessment of the evidence regarding the central
factor of their H&C application, namely the best interests of their nine-year-old
son affected with Down syndrome, is flawed and unreasonable, and (ii) the
officer breached procedural fairness by relying on extrinsic evidence regarding
the availability of medical services for the child in Mexico, without
disclosing this evidence to the applicants.
I.
Background
of the H&C Application
[3]
The
applicants are from Mexico and have lived in Canada since 2008. They are a family
of four: the principal applicant, Mr. Lopez Arteaga, his spouse, Ms. Flores Valencia, and their two sons, Josémaria and David, presently 10 and 13 years old.
[4]
Their
refugee claim was rejected in August 2011 and leave to apply for judicial
review of that decision was denied in November 2011.
[5]
In
January 2012, the applicants applied for permanent residence on H&C
grounds, primarily based on the best interests and special medical and
therapeutic needs of Josémaria
and on the basis of their establishment in Canada since 2008.
Establishment
in Canada
[6]
The
principal applicant and his spouse have taken several months of French courses
since June 2008. The principal applicant and his son, David, also speak
English.
[7]
At
the time of the officer’s decision, the applicant’s spouse was unemployed and had
been attending sewing training since September 2011 to become a seamstress. The
principal applicant had worked as a self-employed hand-launderer and presser
since May 2011. Their sons went to school and Josémaria attended a private
government-subsidized school for children with disabilities in Montréal known
as Peter Hall School.
Josémaria’s condition
[8]
The
evidence before the officer established that Josémaria’s condition necessitated
regular speech therapy, physiotherapy, occupational therapy and child psychologist services, to which
he did not have access in Mexico, except for a limited number of therapy
sessions provided by the public health sector. Further services were refused to
Josémaria in Mexico in light of the high level of demand and services were
unavailable in the two schools that Josémaria attended, even though one of the
schools was considered to be a special school for children with disabilities. Although
at the time the required therapies were available in the private sector, the
costs were prohibitive for the applicants. They submitted
documentary evidence in support of their account of the limited availability of
services for children with disabilities in the public sector in Mexico and the unaffordability of such services in the private sector.
II.
Decision under Review
[9]
In
lengthy and detailed reasons, the H&C officer recognized several positive
factors of the family’s integration and establishment, namely their stable
employment, their participation in linguistic and vocational courses, and their
active involvement in their church, in the parents’ committee of Josémaria’s
school and in a community organization for persons with disabilities named Ameiph (Association
multiethnique pour l’intégration des personnes handicapées). Nevertheless,
she found that this did not justify the exemption of the family from the
statutory obligation to apply for an immigrant visa before
coming to Canada.
[10]
That
said, this application for judicial review more specifically challenges the
officer’s findings regarding Josémaria’s
condition and whether his best interests warranted an H&C exemption. I will
therefore focus on the relevant part of the reasons.
[11]
In
her decision, the officer noted that Josémaria had significant development
delays when he arrived in Canada as a result of his lack of access to the
services he required: though he was nearly five years old, he could not speak,
could only communicate with few gestures, could not control his urination and
bowel movements, still needed diapers, could not eat on his own, could not walk
straight and walked with his head to one side.
[12]
The
officer also noted that, since arriving in Canada, Josémaria has been attending
Peter Hall School, where he benefits from a multi-disciplinary program
designed to address his specific therapeutic needs. The evidence submitted
before the officer, including the letters from Ameiph and from Josémaria’s teacher, established that as a
result of the services he received, Josémaria had made considerable progress in
all areas of his development. Josémaria had gained considerable autonomy and
made significant physical and intellectual progress.
[13]
The
officer took issue with the fact that the March 2009 medical evaluation from the
Montreal Children’s Hospital, which the applicant referred to in his affidavit,
was not furnished as evidence in support of the allegation that Josémaria’s medical
reports indicated the benefits of the treatments he had started receiving and
recommended that they be continued.
[14]
The
officer recognized, however, that according to Ameiph’s letter, any interruption and sudden change in the
therapeutic services Josémaria was receiving in Montreal could have negative
consequences on his development and social integration, and risked negatively
affecting the progress that he had already made. However, she found
that the letter from Josémaria’s
teacher at Peter Hall School did not indicate that a change of school would be
detrimental to his development and well-being. The officer further noted that
no evidence from health care professionals treating Josémaria in Quebec was provided to support this allegation.
[15]
With
respect to the availability of the services Josémaria required in
Mexico, the officer found that these services existed both in the public and
the private sector, such as the Centro de Atencion Multiple, the Centro
psicopedagogico, the Centro de rehabilitacion y Educacion Especial and
the Intervencion Temprana, the John Langdon Down Foundation (a private
institution) and other NGOs (World
Health Organization, Mental Health Altas, and Plaidoyer en faveur de la
santé mentale: Guide des politiques et des services de santé mentale, 2005).
She
found that any interruption of these services would be temporary and that the
applicants would be able to earn enough money in Mexico to pay for private
services for their son. In addition, the officer noted that public healthcare
in Quebec was limited, like it was in Mexico, as demonstrated by the fact that Peter
Hall School was a private school essentially funded by the private Peter
Hall Foundation, although it was also subsidized by the Quebec Ministry of
Education. In reaching these conclusions, the officer relied in part on the
website of Peter Hall School, the John Langdon Foundation, CBC news articles,
the website of Teachers Without Borders, a November 2006 Notice from the
Advisory Board on English Education to the Quebec Ministry of Education, Recreation
and Sports (http://www.mels.gouv.qc.ca/cela/anglais.htm), and a 2011
report from the International Psychiatry journal entitled “Services for
adults with intellectual disability in Mexico: Opinions and Experiences of
Service Users.”
[16]
As
a result, she found that Josémaria’s well-being and development
would not be compromised by returning to Mexico.
III.
Issues and Standard of Review
[17]
The
applicants submit that the Court’s intervention is necessary in this case on
any of the following grounds of review:
(i) The officer ignored
evidence of the limited availability of public sector services for children
with Down syndrome in Mexico;
(ii) The officer’s finding
that the applicants could afford to pay for services in the private sector was
speculative and contrary to the evidence;
(iii) The officer breached procedural
fairness by relying on extrinsic evidence without disclosing it to the
applicants or providing them with an opportunity to comment on it.
[18]
The first two
errors alleged by the applicants involve the officer’s assessment of the
evidence and determination of whether the best interests of the child
negatively affected by the decision warranted H&C consideration. These are
questions of fact or mixed fact and law and are reviewable on the
reasonableness standard (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, at
para 47). It is also well established that the standard of review for a decision based on H&C grounds under
subsection 25(1) of the IRPA is that of reasonableness (Singh v Canada (Minister of
Citizenship and Immigration),
2009 FC 11, at para 21).
[19]
By
contrast, questions of procedural fairness, such as whether the officer
breached the
applicants’ right to procedural fairness by relying on extrinsic evidence
obtained through the internet, without disclosing it to the applicants
and providing them with an opportunity to respond, are, as both parties agree,
subject to the standard of correctness (Kambo v Canada (Minister of Citizenship and
Immigration),
2012 FC 872 at para 24).
IV.
Analysis
[20]
The
issue of procedural fairness is dispositive of this case and warrants the
intervention of the Court.
[21]
The
applicants rightfully submit that the H&C officer erred by conducting her
own internet search on the availability of services for children with
disabilities provided by non-governmental organizations and foundations in
Mexico, without disclosing the evidence to the applicants or seeking their
input on the subject. In fact, a number of the documents relied upon, as listed
above, do not exist in the National Documentation Package on Mexico and
although they are filed in the Tribunal Record under the heading “General
information submitted by the applicants,” it is apparent from the officer’s
reasons that they were not submitted by the applicants but rather consulted by
the officer on her own initiative. Her reliance on extrinsic evidence is also
problematic in that her final conclusion was that even if one centre,
organization or specialized school did not or could not offer a given treatment
or service, it would be possible to merge the services offered by the different
public and private institutions to which the officer referred to in her
decision.
[22]
Again,
some of these sources were unknown to the applicants and they were not provided
with an opportunity to comment on their relevance. The applicants are of the
view that with the exception of the website of the John Langdon Down
Foundation, which is a private foundation that provides costly services to
children with Down syndrome, the remainder of the extrinsic evidence to which
the officer referred to was of little to no relevance to the issue before her.
It is obviously not the role of this Court to determine the probative value and
the relevance of this evidence to the applicants’ case, hence the officer’s
duty to disclose them to the applicants in order to provide them with the
opportunity to make submissions. It is important to note that the applicants’
own experience regarding the disputed services when they were still in Mexico remained non-contradicted and was a relevant consideration that was poorly evaluated
by the officer.
[23]
As
such, the respondent’s reliance on Adetunji
v Canada (Minister of Citizenship and Immigration), 2012 FC 708, at para 38, is
unfounded because not only were the documents at issue in the present case not
made available to the applicants, but also nothing suggests that the
information contained in those documents regarding the numerous institutions to
which the officer referred to was reasonably available to the applicants. Be
that as it may, the relevance of those documents in assessing the availability
of the special and specific services required by Josémaria is what the
applicants challenge here in part.
[24]
The
problem of documents unilaterally consulted on the internet by the
decision-maker has already been raised before this Court. The general rule to
be distilled from the jurisprudence is that when the documents relied upon
contain “novel and significant” information that the applicant could not
reasonably anticipate (which is generally the case when documents are retrieved
and chosen from the vast pool of information available on the internet),
fairness dictates that the applicant should have the opportunity to challenge
their relevance or validity by making additional submissions (see Zamora v Canada (Minister of
Citizenship and Immigration),
2004 FC 1414 at
paras 17-25; Radji v Canada (Minister of Citizenship and Immigration),
2007 FC 836 at para 25; Davis v Canada (Minister of Citizenship and
Immigration), 2009 FC 1223 at paras 24-26 and Gonzalez v Canada
(Minister of Public Safety and Emergency Preparedness), 2013 FC 153).
[25]
The
respondent cited no case law in support of its argument that the issue of
extrinsic evidence should be viewed differently in the context of an H&C
application than in the context of a refugee claim or a pre-removal risk assessment, and in fact, the respondent withdrew this
argument at the hearing.
[26]
In an application
made pursuant to section 25 of the IRPA, the H&C officer’s role is to
assess if the applicants would face unusual, undeserved or disproportionate
hardship if they were to file their application for permanent residence from
outside Canada in the usual manner provided at section 11 of the IRPA (Kharrat v Canada (Minister of Citizenship and Immigration,
2007 FC 842 at para 25). Aside from the crucial importance of the best interests
of the child directly affected by the decision under review, to which the
officer is required to be “alert,
alive and sensitive” (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 75),
it is
imperative to ensure that the applicants have had the opportunity to satisfy
the officer of the hardship that they may encounter as a result of lack of the services
required by Josémaria’s
condition, and counter the officer’s conclusion regarding the availability of
such services in Mexico. This was not done in the applicants’ case.
[27]
Since the
present application must be granted on this basis alone, it is unnecessary for the
Court to address in further detail the two other issues regarding the officer’s
analysis of the best interests of the child. Suffice it to add briefly that as
a result of
her over-reliance on the extrinsic evidence, the officer gave very limited
weight to the documentary evidence submitted by the applicants regarding the
limited availability of public sector services for children with Down syndrome
in Mexico, as well as the principal applicant’s allegation that although there
are some public sector services for children with special needs in Mexico, such
as those that were offered to Josémaria when he was in Mexico, the demand for
such services outstrips the supply. As such, the assessment clearly lacks in justification, transparency and
intelligibility (Dunsmuir, above, at para 47).
[28]
Also, it was
speculative, rather irrelevant, and therefore unreasonable for the officer to
expect the applicants
to be able to afford to pay for Josémaria’s schooling and treatment in the
private sector given the professional skills they have gained in Canada as a hand-launderer
and presser and as a seamstress, and given that they have learned English and
French. The jurisprudence cautions against such findings that are not based on
established facts or reasonably drawn inferences therefrom, but rather on mere conjecture
(Huot v Canada (Minister of Citizenship and Immigration),
2011 FC 180 at para 26, citing Justice Dawson’s decision in Zhang v Canada (Minister of Citizenship and Immigration), 2008 FC 533 at paras 2-3). A finding that directly
contradicts the evidence on file, which was that the cost of private services
in Mexico was prohibitive for ordinary working people such as the applicants,
should be based on other evidence and not on pure conjecture.
[29]
For all these
reasons, the present application for judicial review is granted. No questions
of general importance were proposed by the parties and none will be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The present application for
judicial review is granted and the matter is remitted back for a de novo
examination by a different H&C officer.
2. No question is certified.
“Jocelyne Gagné”
Email this Content