Docket:
IMM-6198-13
Citation: 2014 FC 345
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal, Quebec, April 9, 2014
Present: The Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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AMA BAH (ALSO KNOWN AS
RAMATOULAYE BAH)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review filed
under subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (the Act), of a decision by an immigration officer of Citizenship
and Immigration Canada made on September 10, 2013, rejecting the
applicant’s application for permanent residence based on humanitarian and
compassionate considerations (H&C application) under section 25 of the
Act.
FACTUAL BACKGROUND
[2]
The applicant is a citizen of Guinea. She arrived in Canada for the first time on August 16, 1998, with a visitor’s visa
under the identity of Ramatoulaye Bah, born on January 1, 1977.
[3]
On October 5, 1999, the applicant entered Canada a second time, again with a visitor’s visa, but under the identity of Ama Bah, born
on December 17, 1982.
[4]
On October 12, 1999, the applicant claimed
refugee protection under this second identity. On March 10, 2000, she obtained
refugee status, and on June 13, 2000, she was granted permanent residence,
again under the identity of Ama Bah.
[5]
On March 23, 2007, following a denunciation
made by a third party, the Immigration and Refugee Board vacated her refugee
status on the ground that she had obtained it using a fraudulent identity. The
applicant then lost her permanent resident status. The application for leave
and judicial review of the Board’s decision was dismissed by the Federal Court on
July 26, 2007.
[6]
On July 21, 2010, she submitted a Pre-Removal
Risk Assessment (PRRA), which was denied on April 10, 2011.
[7]
On June 26, 2012, the applicant gave birth to
her son following a high-risk pregnancy. In order to bring the pregnancy to
full term, she had to undergo four uterine surgeries because of uterine cysts and
fibroids.
[8]
On July 5, 2012, the applicant submitted an
application for permanent residence based on humanitarian and compassionate
grounds, which was rejected on September 10, 2013. It is the subject of
this application for judicial review.
PANEL’S DECISION
[9]
The officer first noted that the applicant did
not submit any documentary evidence supporting her allegation that she always
worked and paid her bills. However, he noted that working and not being a
burden on the government is a normal and reasonable expectation.
[10]
The officer then indicated that the applicant did
not submit any documents indicating that she took client care attendant training.
Even in giving the benefit of the doubt to the applicant, the officer was of
the view that the applicant did not show that she would not be able to pursue
this employment in her country of origin and that her skills would be a great asset.
[11]
While the officer may have acknowledged that the
applicant does volunteer work and that this is a positive factor in her establishment,
the officer was of the view that such volunteer involvement is common for a
foreigner living in another country.
[12]
In addition, the officer pointed out the fact that
the applicant established herself in Canada by fraudulently obtaining her permanent
resident status. The officer noted that the applicant continues to benefit from
social, medical and community services under her alias and that, since 2007, the
date when she had to reveal her true identity; she has continued to use her
alias for different administrative processes.
[13]
Therefore, the officer was of the view that the factors
relating to the applicant’s establishment may be considered to be humanitarian
and compassionate grounds.
[14]
While the officer stated that he was sensitive
to the best interests of the applicant’s child, he found that no documented and
factual information was submitted in support of the applicant’s claim that her
son would be ostracized and considered to be an illegitimate child in Guinea. Further, the officer considered that the applicant did not prove her allegations that
it would be impossible for the father to take charge of his child. Therefore, the
officer found that it was not proven to him that the child would experience unusual,
undeserved or disproportionate hardship if he went with his mother to Guinea.
[15]
The officer then addressed the issue of the
applicant’s high risk medical
condition. On this topic, he referred mainly to the letter
written by Dr. Marcoux, an obstetrician and gynecologist treating the applicant.
The officer pointed out that these documents, while indicating that the
applicant underwent surgical procedures and that there is a risk of recurrence,
reveal that the applicant is in remission and that she is reticent to have a hysterectomy.
Therefore, the officer was of the view that no probative evidence justifies that
submitting her claim from outside Canada would be an unusual or undeserved
hardship for the applicant.
[16]
Moreover, the officer stated that he examined
the documentary evidence submitted by the applicant on the medical situation in
Guinea. In his finding, he gave it little weight since it did not contain any
tangible, documented or objective data. Indeed, the officer doubts the authenticity
of the titles and qualifications of the individuals who described the state of
the health care system in Guinea. He also set aside the information submitted
by certain community agencies since the reports cited and on which the claims
about state of the health care system in Guinea are based were not submitted.
[17]
Finally, the officer gave little weight to the
applicant’s argument that she would be ostracized as a single mother on the
grounds that no impartial factual information was submitted. The officer was
also of the view that the applicant could benefit from family support since her
parents, three sisters and one brother still live in Guinea.
ISSUE
[18]
The only issue in this case is whether the officer’s
findings were reasonable, specifically with respect to the applicant’s establishment
in Canada, her medical
condition and the best interests of her Canadian child.
STANDARD OF
REVIEW
[19]
Section 25 of the Act grants the Minister broad
discretion as to the assessment of humanitarian and compassionate
considerations raised as part of a residence application based on such grounds
and it is well-established law that the applicable standard in such a situation
is that of reasonableness (see, generally, Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). See also Kisana
v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18;
Thandal v Canada (Minister of Citizenship and Immigration), 2008 FC 489
at para 7; De Leiva v Canada (Minister of Citizenship and Immigration),
2010 FC 717 at para 13; Nsongi v Canada (Minister of Citizenship and
Immigration), 2010 FC 1291 at para 8).
[20]
Therefore, this Court must show deference and
exercise great restraint in determining whether the findings are justified,
transparent and intelligible and therefore fall within “a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
PARTIES’ ARGUMENTS
Applicant’s
arguments
[21]
First, the applicant argued that although the
officer stated that he was sensitive to the 14 years that the applicant has
spent in Canada, his findings are unreasonable. Indeed, his reasoning with
respect to the applicant’s work and volunteer involvement is illogical. He
supposed that, since it is normal for an individual to work and get involved in
his or her community, these factors should not be considered. Moreover, it is
exactly such factors that must be taken into account in assessing an
individual’s degree of establishment when analyzing an H&C application.
[22]
The officer’s findings that her skills as a
client care attendant would be an asset in her country of origin are only speculations
not supported by the evidence submitted. Further, it was unreasonable not to consider
the circumstances that led the applicant to use a false identity when she arrived
in Canada.
[23]
As to the best interests of the child, case law
sets out that it is one factor to be analyzed in an H&C application and
that it must be granted significant weight (Ribic c Canada (Ministre de
l’Emploi et de l’Immigration), [1985] DSAI No 4; Chieu v Canada (Minister
of Citizenship and Immigration), 2002 SCC 3; and Baker, above). The
officer stated that he was sensitive to this factor, but his analysis does not
show any sensitivity.
[24]
Further, the officer erred in rejecting the documents
filed by different community agencies indicating that the applicant’s son would
be ostracized since he was born outside of marriage, because these agencies are
independent. The applicant was also of the opinion that it was unreasonable to
reject her allegations as to the absence of the child’s father simply on the basis
that the father had not confirmed such allegations.
[25]
With respect to the applicant’s medical condition, the
officer was selective in the evidence used from the applicant’s medical record.
The officer disregarded certain passages of the letter from Dr. Marcoux stating
the seriousness of the illness, the high risk of recurrence, the strong
possibility of surgery and the need for close medical monitoring.
[26]
In addition, the applicant submits that it is
false to claim that no evidence would help confirm the medical qualifications
of the individuals who testified about the state of the health care system in Guinea,
since a national identification card of Dr. Mathieu Loua, indicating that he is
a doctor, was submitted to the officer.
[27]
As to the information provided by the community agencies,
they clearly made reference to reports describing the state of the health care
system in Guinea and the officer could easily have accessed these reports.
Similarly, the evidence submitted by the agencies on the situation of single
mothers in Guinea should have been considered, since these agencies are serious
and independent sources.
[28]
Finally, the applicant points out that although
certain members of her family live in Guinea, she does not have any connection
with them and could not benefit from their support.
Respondent’s
arguments
[29]
The respondent was of the view that the officer
analyzed each of the applicant’s claims and the evidence submitted and that the
applicant did not prove that the officer’s findings were unreasonable.
[30]
Indeed, the officer considered the circumstances
that led to the use of a false identity. However, given the fact that the
applicant continued to use her alias even after the fraud was discovered, it
was reasonable to consider this factor to be negative. In addition, it was open
to the officer to find that the applicant’s work and her volunteer activities
were not in themselves sufficient to grant the exception.
[31]
With respect to the best interests of the child,
the officer’s reasons show that he was receptive to this factor, but that the
evidence submitted did not persuade him that the child would be ostracized if
they were to move to Guinea. It was also reasonable not to give much weight to
the applicant’s allegations of the father’s absence since the evidence in
support of such allegations was insufficient.
[32]
With respect to the applicant’s medical condition, the
officer indeed considered the letter of Dr. Marcoux and reasonably pointed
out that this letter stated that, at that time, there was no risk of recurrence
and that the applicant had chosen not to go ahead with the surgery.
[33]
The respondent submits that the applicant did
not discharge the burden of proving that the care required for her condition would
not be available in Guinea. The burden was also on her to provide the reports
cited by the agencies if she wanted the officer to consider them.
[34]
Finally, it was reasonable to state that no
documentary evidence was submitted to corroborate the opinions expressed by the
community agencies in their letters of support. It was also reasonable, in the absence
of evidence to the contrary, to find that the applicant would allegedly be able
to benefit from the support of her family members in Guinea.
ANALYSIS
[35]
First, I will address the factor relating to the applicant’s medical
condition since the officer erred in the analysis of this factor and that this
error is determinative in the outcome of the case.
[36]
Although a decision-maker is not required to refer to all the evidence,
substantial evidence supporting the contrary view cannot be ignored, as Justice
John Evans stated in Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No. 1425 at para 17:
… Moreover, when the agency refers in some detail to
evidence supporting its finding, but is silent on evidence pointing to the
opposite conclusion, it may be easier to infer that the agency overlooked the
contradictory evidence when making its finding of fact. …
[37]
In this case, the letter of June 17, 2013, written by Dr. Marcoux only
a few months before the officer’s decision, clearly indicates uncertainty as to
the applicant’s medical condition and the need for close medical monitoring.
[translation]
… Ama believes that her clinical
condition is deteriorating. She has been complaining of chronic pelvic pain for
several months.
… Considering the little medical information
published on this rare pathology, it is exceedingly difficult to predict the
rapidity of growth or the likelihood that such a lesion will recur. Moreover,
it is impossible for us to predict when a lesion may reappear: a few
months after giving birth or could she remain in remission longer?
…
… a hysterectomy would certainly have to be done
to treat a recurrence of her agiomyolipoma. However, one year after she gave
birth, the fact is that her illness seems to be in remission. But for how
long? She has already had at least three recurrences since 2008.
… At this time, a hysterectomy does not seem indicated,
as it is a radical surgery for a young woman … Also, in her case, I hesitate to
go ahead immediately with this surgery, which will probably be very difficult
considering her previous surgeries … although there does not seem to be at this time any evidence of recurrence. The risks of
surgery at this time seem to outweigh the potential benefits of such an
intervention. The patient is also very reluctant to go ahead with the
hysterectomy without evidence of recurrence.
Thus, I have agreed not to go ahead with the hysterectomy for now. However,
close clinical monitoring is required for this illness that will probably recur
and will then require a difficult surgery in a specialized centre.
[Emphasis added]
[38]
The letters from 2012 written by Dr. Lachapelle and Dr. Marcoux also
emphasize the seriousness of the applicant’s medical condition and the need for
monitoring in Canada:
[translation]
Letter from Dr. Lachapelle of September 24, 2012
… The diagnosis of Ms. Bah is rare and requires monitoring
in a University Health Centre by a Gynecologist specialized in oncology. The
surgery will be very complex considering her five previous surgeries.
In conclusion, Ama Bah needs specialized
monitoring that is not available in Guinea.
Letter from Dr. Marcoux of October 30, 2012
… Her medical and surgical history is dramatic and
complicated. I firmly believe that she requires surgical treatment that is
essential to her survival and that it cannot be proven safely in her country of
origin.
…
… Ama Bah is now waiting for surgery that will be
complicated by the fact that she has recently undergone several surgeries … . I
firmly believe that it would be dangerous for her health to have her leave the
country. She would be deprived of essential care that, in my opinion, may be
provided only in a health care system like ours. … she may have to wait
more than six months for her surgery, she will be monitored closely until
then. …
[Emphasis added]
[39]
The medical letters must be viewed as a whole and it was unreasonable to
conclude that the applicant’s medical condition is stable, but to ignore the uncertainty
related to this stability and the need for monitoring in Canada.
[40]
As for the evidence submitted by the applicant on the state of the
health care system in Guinea, although it would have been diligent for the
applicant to provide more documentary evidence, it was unreasonable to reject
the letter of Dr. Mathieu Loua on the ground that the authenticity of his
qualifications and professional status could not be verified. His medical
profession is proved by the note that he is a doctor on his national identity
card, which was attached to his letter. The doctor practicing in Guinea could
offer credible evidence on the reality of the medical facilities in Guinea and
the available care.
[41]
Therefore, the medical evidence submitted clearly shows that the
applicant would face unusual, undeserved or
disproportionate hardship because
of her high-risk medical condition if she had to return to Guinea to submit her
application for permanent residence. It was therefore unreasonable for the
officer to disregard the evidence as a whole in finding that the applicant’s
medical condition was stable. This ground is alone sufficient to set aside the decision.
Therefore, it is not necessary to analyze the merit of the officer’s findings
as to the factors of establishment and the interests of the child. However, I
would add with respect to the best interests of the child that the officer could
not ignore, without valid reason, the evidence submitted by the applicant
composed of letters from credible independent agencies that would confirm that the
applicant’s son, born outside marriage, would be highly ostracized.
[42]
For these reasons, the application for judicial
review is allowed and the matter is referred back for redetermination by a new
officer.
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