Docket: IMM-3593-13
Citation:
2014 FC 985
Ottawa, Ontario, October
16, 2014
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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MARIAN CONKA, TATIANA CONKOVA, MATUS CONKA, BRANISLAV CONKA,
ZUZANA CONKOVA, ROSALIA CONKOVA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION; THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
[1]
The applicants are challenging the legality of a
decision, dated February 28, 2013, by which an immigration officer [Officer]
refused their application for a visa exemption on humanitarian and
compassionate [H&C] grounds under subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act]. This application is being
heard in concert with file IMM-1035-14, an application for judicial review of
the pre-removal risk assessment [PRRA] refusal with regards to the same
applicants (2014 FC 984).
[2]
The applicants are all citizens of Slovakia of
Roma ethnicity. Marian Conka and Tatiana Conkova are the parents of Rozalia,
Matus, Zuzana and Branislav (between the ages of 17 and 21 at the date of this
hearing). They entered Canada on November 16, 2009 and filed a refugee claim
upon arrival. Their refugee claim was rejected on March 23, 2012 and the
application for leave of that decision was dismissed on May 30, 2012. Afterwards,
the applicants applied for H&C on May 11, 2012. The application for H&C
was refused on February 28, 2013 and the applicant subsequently filed the
present application for leave and judicial review of the H&C decision. The
applicants also applied for a PRRA on April 6, 2013. A negative PRRA decision
was made on January 6, 2014 and the applicants applied for leave and judicial
review of the PRRA decision. The applicants were the subject of a removal order
to be executed on March 17 and March 19, 2014, but they made a motion for an
order to stay the execution of the removal order. While the motion pertaining
to the H&C decision was denied, the motion for a stay pertaining to the
PRRA decision was granted on March 13, 2014.
[3]
As far as the present application for judicial
review goes, with respect to the H&C factors, the Officer apparently considered
the applicants’ establishment in Canada, the adverse country conditions, and the
best interest of the children, particularly of Matus who has significant health
and developmental problems.
[4]
The Officer found that while the adult
applicants showed a basic level of establishment in Canada (through
volunteering, classes and some friends), they had never worked in Canada and
were not established financially, while Marian Conka had worked for numerous
years in Slovakia as an electrician, line supervisor and general contractor.
[5]
On the question of the best interest of Matus,
the Officer recognized that Matus is at the severe end of the spectrum for
autism and has a severe developmental disability, and that he also has kidney
disease. Matus receives care and services both at a school serving students
with developmental disabilities and through the General Nephrology Clinic at Toronto General Hospital. However, the Officer found that there was “insufficient
evidence to demonstrate that the services available to Matus in Slovakia are so inadequate in comparison to those that he receives in Canada that it might be
against his best interests to return to Slovakia” [emphasis added].
[6]
On the question of the best interest of the three
other children who had often experienced verbal abuse, bullying and
discrimination in Slovakia (particularly at their schools), the Officer found
that it would be in their best interest to stay in Canada. However, balancing
the best interest of the children with the other factors led to the conclusion
that the grounds raised by the applicants did not constitute unusual and
undeserved or disproportionate hardships.
[7]
In particular, the Officer found that Roma
suffer discrimination, especially in the areas of employment, education,
housing and healthcare, and that the applicants had suffered serious incidents
of verbal and physical abuse. However, the Officer found that the applicants
had not provided evidence to demonstrate why it would be a hardship for them to
make further efforts to obtain state protection and that the applicants were
generally able to integrate into society much better than the general
population of Roma, and that, consequently, the applicants would not experience
unusual and undeserved or disproportionate hardship if they were required to
return to Slovakia to apply for permanent residence from abroad.
[8]
Three grounds of attack are presented today by
the applicants:
•
The Officer failed to conduct a proper analysis
of the best interest of Matus;
•
The Officer erroneously applied a state
protection and generalised risk analysis when assessing hardship due to discrimination;
and
•
The Officer unreasonably minimized the best
interest of the children and considered irrelevant factors in his final
analysis of unusual or disproportionate hardship.
[9]
The question of whether the Officer applied the
wrong legal test is a question of law which attracts the correctness standard (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 44; Pearson v
Canada (Citizenship and Immigration), 2011 FC 981 at para 18 [Pearson]),
while the question of the evaluation of the evidence by the Officer is a
question of fact (or of mixed fact and law) which attracts the application of
the reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9). For
the reasons that follow, the application for judicial review shall be allowed and
the matter sent back for redetermination by a different officer, as I find the
impugned decision on the whole unreasonable.
Best interest of Matus
[10]
On the question of the best interest of Matus,
the applicants submit that the Officer failed to adequately deal with the
concerns put to him; notably that he did not consider the impact that uprooting
and moving Matus would have on him, that he did not consider the discrimination
that Matus faced as a Roma child with a severe disability; and that he did not
consider the vast difference in care that Matus received in Slovakia and in
Canada. The applicants further submit that the Officer applied the wrong test:
he considered whether the health and educational services in Slovakia were adequate and whether Matus would suffer any hardship instead of
considering what would be in his best interest.
[11]
In response, the respondent submits that the
Officer did assess what would be in Matus’s best interest. The respondent
essentially reiterates the Officer’s findings that there was not sufficient
objective evidence that the resources for people dealing with autism in Slovakia and in particular, in Bratislava, are inadequate or ineffective, or that the treatment
received by Matus for his kidney disease was substandard. The respondent adds
that the Officer did not apply the wrong legal test, as his statements
regarding the fact that there was insufficient objective evidence to establish
that the services Matus would receive would be inadequate simply show that the
Officer was evaluating the evidence.
[12]
Before examining the reasoning of the Officer,
it is necessary to refer to the uncontradicted medical evidence provided by the
applicants with respect to the medical condition and special needs of Matus.
[13]
First, in her extensive report dated March 11,
2011, Mrs. Tanya Fudyk who assessed Matus, concludes:
In summary, Matus is a 16 year old adolescent
who continues to present with autism (at the severe end of the spectrum) and a
developmental disability, likely ranging from severe to profound. The current
results suggest development at an 18 month level. His adaptive skills range
from below a year level (language expression and comprehension) to a 4 year
level (gross motor skills). Observation of Matus indicates that he is a student
who demonstrates characteristics associated with autism including difficulties
engaging in non-preferred activities and difficulty controlling repetitive
behaviours, which interfere with his ability to attend and learn. However, it
is important to recognize that Matus has made progress since beginning school
in Canada. He is beginning to communicate through sign language more and as he
becomes increasingly familiar with novel activities, he is a more willing
participant. Overall, Matus is an adolescent who requires a high level of
support to function adaptively at school and home and he will continue to need
this type of, support as he proceeds into adulthood and beyond. (Tribunal
record at page 126).
[14]
Second, Matus has only one kidney. With respect
to his kidney condition, Dr. Rachel Pearl, Pediatric Nephrologist, who followed
him, notes in a letter dated May 22, 2012:
This boy has chronic renal failure related to a
solitary scarred kidney. I first met him two years ago when he came from Slovakia. He has global developmental delay of unknown etiology. He requires careful
medical follow up to manage his renal failure. He has hypernatremia and is at
risk for dehydration if he can not drink fluids. It is possible he will require
renal replacement therapy in the future or renal transplant. (Tribunal record
at page 337)
[15]
The applicants’ grievances against the impugned
reasoning of the best interest of Matus are well founded. In Sebbe v Canada (Citizenship and Immigration), 2012 FC 813, Justice Zinn explains the proper
analysis:
[15] In stating that "there is
insufficient evidence before me to indicate that basic amenities would not be
met in Brazil" the Officer is importing into the analysis an improper
criterion. He appears to be saying that a child's best interest will lie with
staying in Canada only when the alternative country fails to met the child's
"basic amenities." That is neither the test nor the approach to take
when determining a child's best interests. As Justice Russell recently held in Williams
v Canada (Minister of Citizenship and Immigration), 2012 FC 166, at
paragraph 64:
There is no basic needs minimum which if
"met" satisfies the best interest test. Furthermore, there is no
hardship threshold, such that if the circumstances of the child reach a certain
point on that hardship scale only then will a child's best interests be so
significantly "negatively impacted" as to warrant positive
consideration. The question is not: "is the child suffering enough that
his "best interests" are not being "met"? The question at the
initial stage of the assessment is: "what is in the child's best
interests?"
[16] Undoubtedly placing a child in an
environment where his or her basic needs are not met can never be said to be in
that child's best interest. However, to suggest that the child's interest in
remaining in Canada is balanced if the alternative provides a minimum standard
of living is perverse. This approach completely fails to ask the question the
Officer is mandated to ask: What is in this child's best interest? The Officer
was required to first determine whether it was in Leticia's best interests to
go with her parents to Brazil, where she had never been before, or for her to
remain in Canada where she had "better social and economic
opportunities." Only once he had clearly articulated what was in Leticia's
best interest could the Officer then weigh this against the other positive and
negative elements in the H&C application. (See also Felix v Canada (Citizenship and Immigration), 2014 FC 582)
[16]
I completely agree with the statements above
made by my colleague and I endorse his reasoning which is equally applicable to
the case at bar. That said, even if the Officer had applied the proper legal
test, his analysis with regards to the best interest of Matus would still be
unreasonable.
[17]
In the case at bar, the Officer misread the
applicants’ submissions to conclude that Matus had access to medical care and
to a special school for children with autism, but without making any
credibility findings, disregarded the concrete experience Matus and his parents
had in these establishments. It is worthwhile to reproduce the uncontradicted
evidence of Matus’s parents concerning Matus, which comes from their statutory
declaration in support of the H&C application:
18. Our second eldest son Matus was born on 13
May, 1994 after a normal pregnancy and childbirth. When he was about 3 months
old, he contracted a very high fever and we took him to the hospital. The
doctors took him from us, to stay in hospital to check everything. He stayed in
that hospital for about 2 weeks, and we visited him every day. We were first
told he had an infection of the heart, then another diagnosis, then another.
After about two weeks they sent him to another hospital, where we were told
that one of his kidneys was not functioning properly.
19. Our son had high fever during these two
weeks in hospital, and we believe he was not given proper medical care. They
did no bloodwork during this time. They did not make his fever go down. We
believe this is because we are Roma. We have friends who work as cleaners in
the hospital, who have told us that Roma children are kept separate from the
other child patients.
20. During those first two weeks we were not
allowed to go into the nursery where Matus was, although other white parents
were allowed in to hold their children. I brought clean pyjamas and blankets
for Matus, but these were not allowed in the nursery. A nurse told us that we could
not enter because we are gypsies, and dirty.
21. Matus remained in hospital for the first
year of his life. We were not allowed to touch or hold him during that first
year of his life. This was true in both the first, and second hospital. We
observed Matus through the glass, however, and saw that he spent that first
year of his life lying on his back. Both his arms and legs were tied to the
bed. He could not play, or scratch himself. Apart from his medical care, no one
interacted with him. We truly believe his mental suffering during this first
formative year of his life may have triggered his autism. Even until now, he is
unable to cuddle. It is very hard to get close to him to hug him. He fights off
physical contact. We believe this formative year also affected Matus’ attitude
towards doctors; he fights them. And to this day, he lies on his bed with his
arms above his head, as they were when they were tied.
22. During his first year of life we observed
Matus in hospital through the glass of the nursery. We could tell from early
days that he had some developmental problems. He did not respond to normal stimulus.
But perhaps this was not surprising given the terrible way he was treated. When
the nurses fed him, they would just prop the bottle into his mouth and it would
pour into him. No one held him for his feedings and his arms continued to be
tied during his feedings also. To this day, whenever he drinks he guzzles as
fast as he can. We know this is partly because of his kidney problem, but we
also wonder whether it might partly be because of his early feeding experience.
23. At one point, we believe it was around 9
months of age, Matus nearly died and had to be revived in hospital. We were
never informed what had happened. When we tried to make further inquiries, no
one would tell us. There was not a single note in his chart. It was never
reported.
24. Also at around 9 months old Matus had a
kidney removed and he had a nephostropic bag put in. His second kidney only
works about 40-50%. After this Matus was in and out of the hospital with many
infections until he was 8 or 9 years old and was ongoing antibiotics until just
recently. He has had three surgeries throughout the years: two that involved
his kidneys and one that involved removing the nephroscopy bag. We could have
had the nephroscopy bag removed sooner, but the doctor demanded an under-the-table
payment which we could not afford.
25. When we arrived in Canada we took Matus to the Hospital for Sick Children as soon as possible. The specialists in Toronto have given us practically the opposite medical advice from what we heard in Slovakia. Matus’ medicine was stopped instantly, and replaced. We were also told in Slovakia that Matus should not drink much water, but here the doctors encourage Matus to
drink lots of water. When we brought Matus to Canada the doctors told us he was
dehydrated.
26. When we brought Matus home, he couldn’t sit
by himself at one year of age. Matus continued to be followed by the kidney
specialists. We recall asking about Matus’ developmental delay, but the doctor
yelled at us not to tell him how to do his job. Finally when he was 4 or 5
years old, Matus was seen by a specialist referred by our family doctor, who
diagnosed him with autism.
27. Matus was 17 years old when we submitted
this humanitarian and compassionate application. He stood for the first time at
around 4 or 5 years of age. At about 8 or 9 years of age, Matus started
attending a school for kids with special needs. It was terrible. The teachers
advised us only to bring Matus once or twice a week. When he did go, he mostly
sat on the floor in the corner of the room, ignored. The teachers did not try
to teach him anything. They did not teach him any basic life or communication
skills. We remember going to pick up Matus, and knocking at the door. The
teacher opened the door and closed it again. We heard the teacher say, “Bring
the gypsy, his parents are here”.
28. That school was the only option available
for extra support for Matus. As a result we mostly kept Matus at home. I,
Tatiana, cared for him full-time and I, Marian, supported the family by
working. Matus was very difficult to control. He could not speak. He would get
frustrated and bite himself or others, or cry, or kick or throw furniture. It
was very stressful because we could not understand what he needed.
29. We tried to follow the advice of the doctor
not to allow him to take in more than 2L of liquid per day. I would take away a
drink after Matus had a few sips. But he would get angry and hurt himself. If
we weren’t careful he would also grab a dirty vase of water and drink it, or
anything in sight, even cleaning supplies. We had to watch him constantly for
his own safety. Now we understand that he was thirsty, and his kidney condition
meant he should have been drinking so much more.
30. On two occasions I, Tatiana, was doing
errands with Matus when we were attacked by skinheads. Once was around June
2005, and we were riding on a bus. Skinheads started to verbally abuse us,
calling us gypsies, and I decided to get off the bus for our safety. At the
time Matus had a tube inserted into his body so he could urinate. The skinheads
pushed us and pulled the tube of Matus’ body. Matus was screaming in pain, and
the site where the tube came out was bleeding. I, Tatiana, took Matus
immediately to the hospital. From there, while Matus was treated. I called the
police but they took over 30 minutes to arrive. By then the police said they
couldn’t do anything for us since the attackers had fled.
31. The second incident happened in August 2009,
when Matus and I, Tatiana, were on our way home from grocery shopping. Some skinheads
stopped us and as per usual, started with the verbal abuse. It soon escalated
and I was pushed to the ground and my hair was pulled. I covered Matus with my
body to protect him from the kicks. It finally stopped when my screams for help
attracted other people. The skinheads again fled the scene. I went with Matus
to the police station right away, but the police yelled at me. They asked me,
“where could we look for these people?” They were unable to help.
32. Now, in Canada, it is extraordinary the
difference we see in Matus since he has been able to access an appropriate
specialized program. He attends a program at Lucy McCormick Senior School in Toronto for youth with special needs like his. In the two years he has been at
that school, Matus has learned sign language. He can now communicate with his
family through sign language. He is very visibly calmer and happier.
[18]
In light of the assessment of Matus’s mental
condition, the question was not how a normal seventeen-year-old adolescent
would adapt if he were to return to Slovakia, but how an autistic adolescent
whose “adaptive skills range from below a year level
(language expression and comprehension) to a 4 year level (gross motor skills)”
would adapt to a fundamental change of environment. An environment (Slovakia)
that has proved to be both insecure and hostile for a Roma child, who besides
being autistic, is suffering from an important kidney failure requiring
prolonged medical attention.
[19]
The Officer does recognize that documentary
evidence supports the applicants’ submission that Roma experience
discrimination in access to healthcare and segregation in healthcare facilities,
but dismisses the discrimination that Matus and his parents experienced by
indicating that they were able to access various medical services on numerous
occasions and speculates that the discriminatory attitude they experienced in
the hospital could simply be a staff directive of preventing infection by
generally restricting access. The Officer also fails to compare the level of care
Matus had access to in Slovakia to the care he receives in Canada, simply indicating that Matus had access to medical services and was not denied medical care.
The Officer does not really address the applicants’ submissions on the level of
care that Matus received or on the various incidents of discrimination they
faced while receiving care, except to say that there is insufficient objective
evidence, and the Officer does not consider the improvement of Matus’s
condition since he started receiving services and care in Canada.
[20]
The Officer’s statements with regards to the
adequacy of services in Slovakia are not a simple evaluation of the evidence
and show that he applied the wrong legal test. At no point in the decision does
the Officer mention positively what would be in the best interest of Matus. He
does however repeatedly state that the applicants did not provide sufficient
objective evidence to demonstrate that the services in Slovakia are “inadequate” or even “significantly inadequate.” He concludes that:
[H]aving reviewed the evidence, I find
insufficient evidence to demonstrate that the services available to Matus in Slovakia are so inadequate in comparison to those that he receives in Canada that it might be
against his best interests to return to Slovakia. [emphasis added]
[21]
The Officer was not tasked with evaluating
whether Matus’s basic needs would be met in Slovakia, but rather with
evaluating what would be in his best interest. The Officer did not apply the
correct legal test and that is a reviewable error. As submitted by the
applicants, similar analyses have been struck down by this Court in previous
decisions.
[22]
I entirely agree with the applicants’ submission
that instead of being sensitive to this issue and assessing it to determine the
best interest of the child, the Officer simply conceded that this is a level of
hardship that Matus will have to face. He states “I
recognize that Matus would experience some level of hardship if forced to
return to Slovakia due to having to adapt to changes in staff providing medical
and social support to him.” In fact, the Officer demonstrated his lack
of sensitivity by suggesting even further changes, such as the applicants
moving to a completely new city of Bratislava. This suggestion is made without
any regard to the consequences of uprooting this child, and demonstrates that
the Officer was not alert to the issue and was clearly minimising the impact of
hardship on this child.
[23]
It is important not to overlook the fact that
even if the best interest of children is not necessarily determinative, the
very purpose of the humanitarian and compassionate application is to ensure
that the best interest of children are met, and that they do not suffer
hardship. Justice Décary of the Federal Court of Appeal makes this very point
in Hawthorne v Canada (Minister of Citizenship and Immigration),
2002 FCA 475 (CanLII), when he states “It is obvious […]
that the concept of ‘underserved hardship’ is ill-suited when assessing the
hardship on innocent children. Children will rarely, if ever, be deserving of
any hardship” (at para 9). For an Officer to simply accept that hardship
will occur frustrates his role as a protector of the children’s interests.
[24]
At this point, it is important to underline that
the mental condition of Matus does not only impose a duty of care on his
parents, but it can also involve the parens patriae jurisdiction of the
State itself, which, from time to time, has been divested to courts in case of
persons mentally incompetent (see E (Mrs) v Eve, [1986] 2 S.C.R. 388, 1986
CanLII 36 (SCC) at paras 72 to 74). While this is not a case where Canadian courts
have been called to exercise a parens patriae jurisdiction, the Officer
had to ask himself if it was in the “best interest” of an intellectually
disabled child, who turns out to be an ethnic Roma, to be forced by Canada to
return to his home country, Slovakia, where discrimination against Roma is rampant
and persistent, simply because his parents and family have not been
sufficiently established and there are Roma who have been more discriminated.
In such a case, in the context of an H&C application, the effectiveness of
the state protection had to be considered in measuring the degree of hardship
imposed on the applicants if they are to make an application from their home
country and wait possibly years before receiving a response.
Analysis of discrimination and adverse country conditions
[25]
The Officer’s analysis of discrimination and adverse
country conditions is also problematic. As decided by the Court in the past,
state protection need not be perfect to be adequate, but in assessing risk and
hardship in the H&C application, the Officer has to take into account the
realities of the situation and whether, notwithstanding the home country state
apparatus, the applicant’s personal circumstances and the real risk he faces
deserve an H&C exemption (Pearson, above at paras 38-41). As
indicated by this Court in Durrant v Canada (Citizenship and Immigration),
2010 FC 773 at para 4:
The question on an H&C application is not
whether adequate state protection is available to the applicants in their
country of origin, but rather whether, having regard to all of the applicants'
individual personal circumstances, they would face unusual, undeserved or
disproportionate hardship if returned home.
[26]
Even if I assume that it was open to the Officer
to consider the availability of state protection in the evaluation of the
existence of unusual and undeserved or disproportionate hardship, the Officer
also had to consider the applicants’ actual circumstances, the personal
discrimination or risk they faced in the past or were likely to face as Roma (Pearson,
above at para 38; Sosi v Canada (Citizenship and Immigration), 2008 FC
1300 at para 16 [Sosi]; Hinzman v Canada (Citizenship and Immigration),
2010 FCA 177 at para 30).
[27]
It’s also important to note in this case the RPD
did not make any negative credibility findings with regards to the applicants’
submissions on the discrimination they faced in Slovakia. Absent any
credibility findings, the Officer had to take into account the facts on the
discrimination experienced by the applicants as they were accepted by the RPD
and as they were contained in the applicants’ statutory declaration (Ahmed v
Canada (Minister of Citizenship and Immigration), [2001] 1 FC 483, [2000]
FCJ No 1365 at paras 26-29; Sosi, above at para 16).
[28]
Again, it is worthwhile reproducing what the
principal applicant and his wife state in this regard in their statutory
declaration:
11. In Sala we experienced repeated abuse and discrimination
by our neighbours, who did not want us as Romas living on their streets. At
times they physically blocked the road, making a human chain, trying to keep us
from getting home. The tires on our car were repeatedly slashed. Stones were
often thrown through the front window facing the street. We never used that
front room, but rather stayed with our children in the back room of the house.
12. We witnessed our children being bullied in
school as they grew up. They regularly came home from school crying or very
upset for having been called "dirty gypsies”. Our children routinely came
running home in fear because other kids threw rocks at them. We witnessed this
treatment of our children both in Spisska Nova Ves, and later in Sala.
13. Our children learn very well and are very
bright. But their teachers gave them low grades, and often told us they didn’t
believe our children were capable of learning. We just knew this was wrong. The
teachers also always accused the Roma children when something bad had happened,
such as a broken window.
14. Our son Branislav loves sports. He was
excluded from joining sports teams at school, however, because he is gypsy. The
other children, and their parents, did not want a gypsy kid on their team.
There was no official policy to exclude Roma kids from sports, but this was how
it played out in reality.
15. We often went to the school to speak with
the teachers about these problems. The teachers would claim to help fix the
situation, but nothing ever changed. At one point the cruelty of other kids
turned into taunts against our son Branislav, with kids accusing him of having
sex with his mother. When we approached the teacher about this, she did nothing
to discipline the other kids. Rather, she later brought my son to the front of
the classroom, smacked him in front of the class, and accused him of being a
tattle-tale. The bullying against our son escalated after this, such that he
became the victim of more frightening stone-throwing.
16. We would have gone to the principal of the
school, but the principal was the mother of Branislav’s teacher. We felt
defeated and powerless to do anything about it. We thought about switching our
children's school, but I, Marian, knew from my, Marian’s, sister who had kids
in another school in Sala that the situation was no better there.
17. In Canada, Rozalia, Branislav and Zuzana
attend Jarvis Collegiate in Toronto. They are thriving in school. Their grades
are great. Branislav is successful in sports. They have all earned English in
the short time we have been in Canada. We are amazed at our children’s
accomplishments now that they are not in a discriminatory society.
[29]
In the present case, the Officer’s evaluation of
the applicants’ actual circumstances is unreasonable. The Officer recognizes that
the applicants have experienced severe incidents of discrimination including
verbal and physical abuse while living in Slovakia, but finds that since the
male applicant was consistently employed, since the children were attending the
mainstream school system and since Matus had accessed medical services on
numerous occasions, the applicants were better integrated in society than the
general population of Roma in Slovakia and the hardship they experienced
because of discrimination did not reach the level of unusual and undeserved or
disproportionate. The Officer recognizes that there is discrimination against
Roma but minimizes the discrimination experienced by the applicants because of
the fact that they were able to access services, without considering the
discrimination they suffered while accessing these services, including in education
and health care. This is unreasonable.
[30]
Instead of considering the concrete experiences
of the applicants, the Officer concludes that the discrimination faced by the
applicants is not as bad as the discrimination faced by other Roma, which leads
him to the conclusion that the hardship that would be suffered by the
applicants is not unusual and undeserved or disproportionate. In past cases,
the Court has found that it was a reviewable error to dismiss an H&C
application on the basis that the potential hardship of a family – including a
child whose best interest is to remain in Canada – is similar to the hardship
experienced by others in their home country: Dina v Canada (Citizenship and
Immigration), 2013 FC 216 at paras 9 and 10 [Dina]. The applicants
are correct when they indicate that if a comparison is to be made, it should be
made with the white Slovakian population: the fact that some Roma experience
worse discrimination than the applicants should not be used to minimize the
level of hardship lived by the applicants.
The consideration of mitigating factors
[31]
In other cases where the Officer has found the
best interest of children favoured a positive decision but was outweighed by
other factors, the Court has turned its attention to the mitigating factors to
determine if they were reasonably assessed (Dina, above; Beharry v
Canada (Citizenship and Immigration), 2011 FC 110; Pearson, above;
and Elenes Gaona v Canada (Citizenship and Immigration), 2011 FC 1083).
This court has found that review is warranted in situations where the factors
considered by the tribunal in coming to its decision are not relevant or
appropriate. Recently, in De Coito v Canada (Citizenship and Immigration),
2013 FC 482, Justice Gleason summarised the jurisprudence on review of
discretionary decisions. She states:
[6] The instances where review is warranted due
to the unreasonable nature of the result reached by a tribunal in making a
discretionary decision will be few and far between because it is not for the
reviewing court to reweigh the factors considered by the tribunal, provided the
factors it considered are the relevant ones (Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at para 37, [2002] 1 S.C.R. 3).
Where, however, the tribunal fails to consider the relevant factors or
considers irrelevant ones in coming to its decision, the case law has long
recognised that such failure will provide the basis for intervention (see e.g. Maple
Lodge Farms Ltd v Canada, [1982] 2 S.C.R. 2, 137 DLR (3d) 558).
[32]
In this case, the Officer clearly sets out four “mitigating
factors” in the last paragraph of his decision. They are:
•
He finds insufficient evidence to demonstrate
that Matus’s medical, educational and social needs could not be met upon his
return to Slovakia;
•
Although discrimination does exist, the
government does not condone it;
•
The applicants have integrated themselves better
in Slovak society than the majority of the Roma;
•
Their establishment in Canada is at best basic.
[33]
Despite the able presentation made at the
hearing by the respondent's counsel, I must agree with the applicants’ counsel
that the first three are considerations that are inappropriately brought into
the H&C analysis by the Officer.
[34]
First, the Officer’s finding that Matus’s
medical and social needs could be met in Slovakia fails to consider the
discrimination that he would face in accessing those services, and accepts that
he will face hardship by tearing him away from support services here. I agree
with the applicants’ counsel that this factor does not actually mitigate any of
the concerns that the Officer is supposed to be alert, alive and sensitive to.
The fact that Matus would be allowed to go to a school and enter a hospital was
not the issue, the issue was that the care he was getting was inferior based on
discriminatory attitudes, and that tearing him away from stability would cause
serious hardship. In such circumstances, the fact that he can get some care and
schooling does not address the concern presented.
[35]
As submitted by the applicants’ counsel, the
second mitigating factor is also irrelevant. The fact that the government of Slovakia does not condone the discrimination faced by Roma does not mitigate the fact that
it happens. Firstly, according to the documentary evidence and numerous Court
cases, there is much evidence to hold the contrary view – a point that I do not
need to decide today – that government actors do in fact condone the
discrimination. Secondly, and more importantly, whether discrimination is
condoned or not, it is still rampant, and the Officer accepts that it has
serious adverse effects on the family. The reality is that the applicants will
face this serious discrimination regardless of government policies. The
humanitarian and compassionate application must be assessed from this practical
reality. As to the third mitigating factor, the Officer stresses the applicants’
success in integrating into Slovak society better than most Roma. Again, it is
an irrelevant consideration, especially given that the Officer himself finds
that in trying to integrate, they have faced serious discrimination in the past.
[36]
To summarize my thought, it is unreasonable for
the mitigating factors to simply be trite considerations that fail to account
at all for the reasons why the applicants are seeking relief in the first
place. This frustrates the very purpose of an H&C application. Indeed, as
in Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, the Officer has diminished the interest of the children to
such a level that he, in effect, ignored them. An Officer cannot simply accept
that a child should face hardship, and present no coherent reason or public
policy that would support removal. The mitigating factors in this case are
unreasonably applied to the circumstances of this case.
Conclusion
[37]
For all these reasons, the judicial review is allowed
and the impugned decision is set aside and the matter is sent back for
redetermination by a different Officer. No question of general importance has
been proposed by counsel.
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