Date:
20140326
Docket:
IMM-295-13
Citation:
2014 FC 291
Toronto, Ontario,
March 26, 2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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MARY MORONSOLA ADEDEJI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review, challenging a negative decision on the Applicant’s
application for permanent residence from within Canada on humanitarian and compassionate
grounds [H&C Application]
under section 25 of the Immigration and Refugee Protection Act, SC 2001,
c 27 must
be dismissed.
[2]
The Applicant
is a 66 year old citizen of Nigeria. She has lived in Canada since February 3, 2003. Her refugee protection claim was refused by the Refugee
Protection Division of the Immigration and Refugee Board on June 29, 2006. Her
application for leave for judicial review was denied. She had a Pre-Removal
Risk Assessment Application refused on July 27, 2009.
[3]
Her counsel,
in the H&C Application raised her establishment in Canada and her medical condition as the principle reasons for seeking the exemption.
The
Applicant has developed very close emotional ties to other Canadians, as can be
seen from the supporting letters, and she has become Canadianized since the
Applicant has lived in Canada for 8 years. The hardship of having to apply for
an immigrant visa from outside Canada would have a disproportionate impact on
the Applicant, due to her personal circumstances of being extremely ill and
unable to obtain proper medical care in Nigeria, andd [sic] in addition,
she would be subject to physical and emotional harm should she be forced to
return to Nigeria.
[4]
The
Immigration Officer acknowledged the Applicant’s medical condition but found
that she had not provided sufficient objective evidence confirming the
appropriate care she would require, and the unavailability of that care in Nigeria. It was said that all she had provided was a generalized statement from her
physician that Nigeria lacks the resources to treat her properly.
[5]
The
Immigration Officer also acknowledged the amount of time that has passed since
the Applicant landed in Canada, as well as the general consequences of
relocating and settling back in Nigeria, but gave little weight to these
factors since they did not amount to unusual, underserved, or disproportionate
hardship.
[6]
The applicant
initially raised an issue of whether all of the Applicant’s supporting
documentation was in front of the Officer. However, the Certified Tribunal
Record contains all of the information that was suspected of having been
omitted and this is no longer an issue.
[7]
The real
issue is whether, given the material in the record, the Officer properly
weighed it and arrived at a reasonable decision. For the reasons that follow,
I find that the Officer’s decision was reasonable and ought not to be
disturbed.
[8]
I agree with
the statement in the Inland Processing Manual 5 - Immigrant
Applications in Canada Made on Humanitarian or Compassionate Grounds - that the onus is on an applicant to show what
treatment is required for her medical conditions, that such treatment is vital
for her physical or mental wellbeing, and that the treatment would not be
available to her if returned to her country of citizenship.
[9]
The only
evidence submitted by the Applicant that she may not get the medical treatment
she needs is a letter from Dr. O. Makinde dated September 22, 2009, stating
that:
Her
Parkinson’s disease is progressing and getting worse. She is at a risk of
rapid deterioration in her health if she is forced to return to Nigeria, where she will not be able to get proper medical attention.
[10]
Another
letter from Dr. O. Makinde dated August 5, 2010, reiterates that:
Ms.
Adedeji’s health will deteriorate if she returns to her home country Nigeria, where she will not be able to get proper medical care. Being a Nigerian, I know
that the health care system in Nigeria is not well funded and is poorly
managed. There is a shortage of resources. Medications are not readily
available.
[11]
There was also
some discrepancy in the information submitted by the Applicant as to the
medications she was receiving for her Parkinson’s disease. In the same August
5, 2010 letter by Dr. O. Makinde he states that the Applicant “suffers from
hypertension, parkinson’s [sic] disease and generalized anxiety
disorder. Her medications are Norvasc 10 mg daily and Lopressor 50 mg daily.”
Dr. O. Makinde does not refer to any medications being used to treat the
Applicant’s Parkinson’s, and yet concludes that the Applicant would not receive
“proper medical care”.
[12]
In contrast,
in July 21, 2010 when Ms. Adedeji was discharged from hospital, the attending
physician discharged her with the following medications: Norvasc, Coversyl,
Sinemet, Plavix, Metoprolol, and Amoxicillin. Only Norvasc was continued by
Dr. O. Makinde as of August 5, 2010, and yet by September 25, 2011, Dr. O.
Makinde had started prescribing the Applicant Sinemet and Bromocriptive.
Therefore, it is unclear exactly which medications were vital for the
treatment of the Applicant’s Parkinson’s disease.
[13]
The
Immigration Officer made reference to the above statements and found that the
Applicant “has not adduced any objective evidence confirming what [sic]
the appropriate care that is required and the unavailability of this care in Nigeria. Her doctor has stated that Nigeria lacks the resources to treat her properly.
However, I find this to be a broad statement that is generalized in nature. It
lacks specifics as to what treatment is unavailable.” The Immigration Officer
also pointed to documentary evidence which shows that “drugs are available but
may be expensive. There are many pharmacies throughout Nigeria. The National Agency for Food and Drug Administration and Control [NAFDAC] has
worked hard to ensure that these pharmacies are regulated and sell genuine
medicines to the Nigerian Public.”
[14]
The Applicant
did not submit any evidence describing exactly what treatment would be
necessary for her Parkinson’s disease, and in fact, submitted inconsistent
information about the medications she required. Further, she did not submit
any evidence from the relevant health authorities in Nigeria or anyone else attesting
to the fact that an acceptable treatment for Parkinson’s is not available to
her in Nigeria. She did not lead the evidence required to meet her burden.
[15]
At the
hearing, counsel raised a concern that the Officer stated in the decision that
the Applicant has three children, when she has none. This issue was not
identified in the written memorandum and is improperly raised at such a late
date. Nevertheless, I have considered this error and am unable to conclude
that the Officer’s error impacts in any material respect the reasonableness of
the decision in regards to her medical condition and the availability of medical
care and treatment in Nigeria.
[16]
In my view,
based on the record before the Officer the conclusion that he or she was “not
satisfied that the applicant suffers from any medical condition whose treatment
would not be available in Nigeria” is a reasonable conclusion and cannot be
upset.
[17]
No question
was posed for certification.
[18]
The
Respondent requested that pages 8 to 21 of the certified tribunal record be
struck from the Record. Those pages are information that was exchanged or
provided subsequent to the decision under review. They were not before the
decision-maker and are not properly part of the certified record and they will
be struck.
JUDGMENT
THIS COURT’S JUDGMENT is that the application is dismissed, no
question is certified, and pages 8 to 21 of the certified tribunal record are
struck.
"Russel W.
Zinn"
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