Date: 20150213
Docket:
IMM-6066-13
Citation: 2015 FC 175
Ottawa, Ontario, February 13, 2015
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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Juliana Desmarien Hoyte
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Applicant
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and
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THE Minister of Citizenship
and Immigration CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
September 5, 2013 decision of a Senior Immigration Officer of Citizenship and
Immigration Canada (Officer) refusing an application for permanent residence,
based on humanitarian and compassionate (H&C) grounds pursuant to s. 25(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA),
made by the Applicant, Juliana Desmarien Hoyte.
[2]
Having read the materials filed, and upon
hearing the submissions of counsel for each of the parties, I have determined
that this application should be allowed for the reasons that follow.
Background
[3]
The Applicant is a citizen of both Antigua and Barbuda (Antigua) and of St. Vincent and the Grenadines (St. Vincent). She claims that
she was abused and neglected by her parents as a child, sexually abused by a
man who lived in her parents’ home, violently attacked by her brother on a
number of occasions, and, held up while working in her parents’ bakery. During
a visit to Canada in 1995 she met her future husband, who she married in Canada on June 2, 1996. The marriage broke down and her husband withdrew his sponsorship
application. Her son, Durrael, was born in Canada on December 24, 2011. He
was premature, required resuscitation upon delivery and the Applicant claims
that he has resultant ongoing health problems. She is concerned about access
to appropriate health and educational services for her son if she is returned
to Antigua or St. Vincent; that due to an economic downturn she will be unable
to find employment to support herself and her son there; and, that she and her
son will be threatened by her brother upon their return.
Decision Under Review
[4]
The Officer considered hardships upon the
Applicant’s return to Antigua or St. Vincent, her establishment in Canada, the
personal ties which would create a hardship if severed and the best interests
of the Applicant’s child, but concluded that the evidence did not establish
that the hardship upon return would be unusual, undeserved or that it would be
disproportionate.
Analysis
[5]
The Applicant’s submissions are lengthy,
numerous and take issue with many matters. In summary, she submits that the
Officer’s decision was both procedurally unfair and unreasonable. The duty of
procedural fairness was breached because the Officer relies on extrinsic evidence
and because evidence material to the best interests of the child is missing
from the Certified Tribunal Record. Further, that the Officer applied the
wrong test and disregarded and misconstrued evidence in her analysis of the
best interests of the child. And, that the hardship analysis was unreasonable
in light of the Applicant’s circumstances, including a history of abuse and a lack
of support in her country of nationality.
[6]
Having reviewed the submissions of the parties,
the record and the decision, it is necessary to address one matter on a
preliminary basis, and that is the Applicant’s submission that Durrael has, or
may develop, health issues and educational needs resulting from his premature
birth. More specifically, that “he is at higher risk
for multiple health conditions and developmental delays”. The Applicant
relies heavily on this premise in many aspects of her submissions challenging
the Officer’s decision. However, having reviewed the record, it is my view
that her position is not supported by the evidence and that the Officer made no
reviewable error in this regard.
[7]
As noted by the Officer, the Applicant submitted
Durrael’s hospital discharge report. This indicates that he was born on
December 24, 2011 at 32 and 3/7 weeks gestation and discharged on January 20,
2012. He had an “unremarkable” head ultrasound
on December 30, 2011 and continued to “demonstrate a
normal neurological exam”. A follow up neurological appointment was
scheduled for June 7, 2012, however, no evidence was submitted concerning that examination.
Nothing in the discharge report indicates any significant concern for Durrael’s
health. While he was initially given antibiotics these were quickly
discontinued. He remained “clinically well”
while in hospital and on discharge the only medications prescribed were
elemental iron and vitamin D.
[8]
The only other medical evidence is a prescription
note of Dr. Caulford of the Community Volunteer Clinic, dated May 23, 2013,
stating that Durrael “male, weight 8.26 kg 17months, is
continuously breast feeding. Mother has difficulty weaning child. Please see
this pleasant child with regards to his feeding habits”. This referred
Durrael to the Toronto Public Health, Healthy Babies Healthy Children (HBHC)
Program. The HBHC report, dated May 27, 2013, described Durrael as having been
breast fed for his first eleven months, taking limited pureed food at the time,
not tolerating textured food well, and, that his mother considered him to be a “picky eater”. The Applicant was described as a first
time parent who would like to increase her parenting knowledge, including
toddler feeding. Weekly visits by a HBHC worker and visits every 6-8 weeks by
another worker were indicated to increase the Applicant’s parenting skills in toddler,
growth, development and feeding.
[9]
This is the full extent of the record pertaining
to Durrael’s health and needs. As indicated by the Officer, the Applicant did
not provide additional information or documentation concerning diagnosed health
conditions or developmental delays.
[10]
Thus, while the Applicant asserts that Durrael has
delayed speech and continues to be at risk because his weight is lower than 99%
of children in his age range, this is not supported by the record. Similarly,
while she submitted a report entitled “Behaviour Difficulties and Cognitive Function
in Children Born Very Prematurely”, this journal article states that it
pertains to children born before 32 weeks gestation age. The medical evidence
pertaining to Durrael is that he does not fit into that definition nor is there
any evidence that he is now or will in the future be at risk of such problems.
Use of extrinsic evidence
[11]
It is well established that breaches of procedural
fairness are to be reviewed on a standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 62; Mission Institution v Khela, 2014
SCC 24 at para 79). Further, that the correctness standard of review applies
in cases, where an applicant has not been afforded a meaningful opportunity to
respond to independent research conducted by an officer (Begum v Canada (Minister of Citizenship and Immigration), 2013 FC 824 at para 20 [Begum]; Noh
v Canada (Minister of Citizenship and Immigration), 2012 FC 529 at para
20).
[12]
The Officer in this case stated she had read and
considered the application and submissions of the Applicant in their entirety. In
addition, that she considered documentary evidence obtained through independent
research, which she listed, being:
−
United States Department of State Country
Reports on Human Rights Practices (US DOS) 2012 (US DOS);
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Immigration and Refugee Board of Canada (IRB),
Response to Information Request, VCT 42844.FE (RIR), accessed via
http://www.refworld.org/docid/41501c701c.html;
−
Education Database: Antigua and Barbuda
Education System (Education Database) accessed via
http://www.classbase.com/countries/antigua-and-baubuda/education-system;
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Commonwealth Health Online: Health in Antigua and Barbuda (Commonwealth Health), accessed via http://www.commonwealthhealth.org/health/Americas/Antigua_and_barbuda/;
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Government of Saint Vincent and Grenadines, Ministry of Health, Wellness & The Environment, Early Child Health Outreach
(Outreach) accessed via http:/www.health.gov.vc/index.php?option+com_content&view+article&id+130&itemid+122.
[13]
Of these documents, the first two could be found
in the National Documentation Packages (NDP) of those countries. The remainder
were obtained by the Officer on her own initiative.
[14]
As the parties have noted, I have previously
addressed the use of information found on the internet in the conduct of an
H&C analysis. In Begum, above, I stated that I did not agree with
the position of the respondent therein, which was that information found on the
internet is not extrinsic evidence because it is publicly available in that
forum. Rather, it was my view that extrinsic evidence, in the context of an
H&C application, is evidence that does not form a part of the submissions
of the applicant, the immigration record of the respondent concerning the
applicant, or, the disclosed tribunal record, which includes online NDPs.
Further, where an officer relies on such information, there is a duty to
disclose novel and significant evidence which affects the decision (see also: Radji
v Canada (Minister of Citizenship and Immigration), 2007 FC 835 at para 15;
Bailey v Canada (Minister of Citizenship and Immigration), 2014 FC 315
at paras 70-71; Begum, above, at para 20). I remain of that view. Accordingly,
while the first two documents listed above are not extrinsic evidence, the
following four are.
[15]
The question then becomes whether meaningful
facts that are essential or potentially crucial to the decision were used to
support it without providing the affected party with an opportunity to respond
to, or comment on, those facts (Yang v Canada (Minister of Citizenship and
Immigration), 2013 FC 20 at para 17; Mancia v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461 (FCA) at para 22; Lopez
Arteaga v Canada (Minister of Citizenship and Immigration), 2013 FC 778 at
para 24). That is, is it new and significant evidence that affected the
Officer’s decision?
[16]
The Applicant submits that in response to her
submissions that education in St. Vincent and in Antigua is underdeveloped, the
Officer relied on an undisclosed source. Based on the Education Database
concerning Antigua, the Officer stated that education is free and compulsory
for all children between the ages of 5 and 16. Further, this source also reported
that “Even transport, school infrastructure and class
materials are accounted for under a levy of basic wages. Primary education
starts at age 5 and lasts for 7 years”. The Applicant points out that
the website does not provide a source or date of publication for this
information, and that the referenced levy is not mentioned in any of the
materials submitted by the Respondent. Additionally, that its relevance
appears to be undermined by information submitted by her indicating that
children often discontinue their education due to poverty. Similarly, another
extrinsic source, the Encyclopaedia of Nations – St. Vincent and the Grenadines,
describes educational facilities in St. Vincent in 1994, and states that the
government-assisted School for Children with Special Needs serves handicapped
children. The Applicant submits that these two documents formed the sole basis
for the Officer’s findings with regards to the educational opportunities
available to Durrael in St. Vincent and Antigua.
[17]
It is true that these documents were extrinsic
evidence. However, the Officer stated that she had also reviewed all of the
Applicant’s submissions. These generally support that education in both
countries is available. For example, the UN Caribbean Development Report
states at page 37 (CTR, p 102):
The Caribbean subregion also scored
favourably on many United Nations Millennium Development Goals, particularly
literacy, primary education, gender representation and improved access to
source amenities. Literacy rates were generally high and most CARICOM countries
were on target to meet the Goal of universal primary enrolment…
(Also see p. 55)
[18]
Similarly, the UNICEF “Structural Analysis of
Children and their Families in the Eastern Caribbean” states that World Bank data
from 2009 showed primary education enrolment of 88.3% in Antigua and 91.5% in St. Vincent. Secondary level access was 88% for Antigua in 2009, and 90.3% in St. Vincent in 2008. However, that performance at that level was poor, with only 21%
obtaining passes in at least five subjects.
[19]
As to health care, the Officer referred to the
RIR which states that health care is free for children in St. Vincent. The Poverty
Assessment Report states that St. Vincent “has a
reliably robust system of primary health care” (CTR p 484). And the UNICEF
report entitled “A Study of Child Vulnerability in Barbados, St. Lucia and St. Vincent and The Grenadines” confirmed that in St. Vincent, free medical care is provided to
children 16 years and younger (CTR p 507).
[20]
As to Antigua, the Officer referred to the
undisclosed Commonwealth document describing available health care services. The
Applicant challenges this both because it was extrinsic and because she asserts
that it contains contradictory evidence. She submits that the same document
states that the government is facing challenges. However, the full quote is that;
The future for small island developing
states such as Antigua and Barbados holds many challenges including reduced
financial resources, the negative impacts of globalization and limited human
resources. However, my government believes that focusing on the social deterrents
of health, strong political will and continued health system strengthening will
help to ensure quality, equitable healthcare for citizens and residents will in
turn help to ensure sustainable development.
In my view, this is not contradictory.
[21]
The Applicant also submits that the Officer does
not reference any of her submissions regarding the lack of support services for
students with special needs, the use of corporal punishment or the economic
barriers which, in her view, prelude education. While the Officer was not
required to address every piece of evidence submitted by the Applicant (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16) the burden to address contradictory information
increases in proportion to relevance of the contradictory evidence to the
matter (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
(1998) 157 FTR 35 at para 17; Weng v Canada (Minister of Citizenship and
Immigration), 2014 FC 778 at para 27). I am not convinced, however, that
the extrinsic evidence as to education and health services referenced by the
Officer was novel, significant evidence that affected the outcome of her
decision. The Applicant’s own documentary evidence largely supports the
Officer’s conclusions. And for the same reason, nor am I of the view that the
Officer erred in failing to refer to that information.
[22]
As to the extrinsic Outreach document, the
Officer described this as a program designed to link early childhood
development and health care services for families with children at risk. This
was quoted as stating that “ECHO uses methods of an
informal home-visiting programme for children (birth to three years) which
support parents in communities with limited access to these services giving
them access to early stimulation and parenting education”. It may or
may not be that the services ECHO provides are comparable to that which the
Applicant currently obtains through her referral to the HBHC in Canada, and, therefore, the Officer should have provided the Applicant the opportunity to
address any discrepancies in the services between the programs. This is
compounded by the fact that the HBHC services plan was submitted on July 18,
2013 but does not appear in the CTR. However, in my view, this was not novel
or significant evidence that would have affected the outcome. The evidence
does not suggest that Durrael’s weaning difficulties pose a health risk. Thus,
even if not exactly comparable to the HBHC program, such services to assist
with Durrael’s weaning and enhancing his mother’s knowledge was available.
Further, while the CTR may not have contained the HBHC report, the Officer put
her mind to the issue (Yadav v Canada (Citizenship and Immigration), 2010
FC 140 at para 36; Varadi v Canada (Citizenship and Immigration), 2013
FC 407 at paras 6-8; Aryaie v Canada (Citizenship and Immigration), 2013
FC 469 at para 27).
[23]
In these circumstances, the failure of the
Officer to disclose the extrinsic evidence concerning the ECHO program and
allow the Applicant a chance to properly respond did not amount to a breach of
the duty of procedural fairness.
Other issues
[24]
The Applicant further claims that the Officer
failed to provide due consideration to the circumstances of her hardship upon return
to Antigua or St. Vincent. However the decision addresses her transferable
employment skills, the law enforcement apparatus and government support services
available to victims of domestic violence in both Antigua and St. Vincent, and her
integration into the community. H&C relief is an exceptional remedy (Kanthasamy
v Canada (Citizenship and Immigration), 2014 FCA 113 at para 40), and the
reasons indicate that the Officer turned her mind to these issues. I find no
reason to disturb her findings in this regard.
Best interests of the child
[25]
The Applicant also argues that the decision is
unreasonable because the Officer failed to demonstrate she was alert, alive and
sensitive to the best interests of Durrael, and to accord this factor
substantial weight in her analysis. In this respect, I am inclined to agree.
[26]
An example of a misapprehension of the best
interests of the child can be seen in the Officer’s approach to the potential
harm Durrael faces from his uncle Tony, who lives in St. Vincent. The
Applicant deposes that Tony has a violent history, and has threatened and injured
her and members of her family on several instances, including:
• Heating a knife over a flame and burning the Applicant’s forearm
when she was 15;
• Attacking the
Applicant with a cutlass in 2005;
• Sending the Applicant a text message in 2010 stating, “Wait
until you come back here, I’ll get you”;
• Breaking a bottle and throwing it at the Applicant’s sister,
resulting in stitches;
• Assaulting and
choking the Applicant’s father in 2011.
[27]
Both the Applicant’s sister and her father have
confirmed these incidents in letters that were before the Board.
[28]
However, the Officer does not address this
issue, stating merely that:
The fact that poverty and violence exist
might adversely impact a child as he integrated into society; however, this
does not impact the best interest of that child in a significant manner. No
country, including Canada which is built on the value of good governance, can
provide a guarantee that poverty and hurtful incidents of a criminal and
prejudicial nature will not occur in a child’s lifetime.
[29]
It is true that the best interests of the child
is only one factor among several, and does not dictate the result in any given
case (Habtenkiel v Canada (Citizenship and Immigration), 2014 FCA 180 at
para 46). It is also true that no country, including Canada, can guarantee a child a life free from hurtful events. However, limiting the best interests
of the child analysis to such an aphorism does not address the question that
must be answered – what is the likely degree of hardship to the child, and how
does that hardship weigh against other factors that militate in favour of or
against the removal of the parent? (Canada (Minister of Citizenship
and Immigration) v Hawthorne, 2002 FCA 475 at para 6).
[30]
The Officer in this case did not meaningfully address
Durrael’s potential for abuse or articulate why the Applicant’s concerns are to
be disbelieved or deserve little weight and thereby failed to properly consider
his best interests. This is a reviewable error.
[31]
I would also note that while the Officer states
that the Applicant’s cousin resides in Canada and so “it
would be a parental decision as to whether or not Durrael would remain with her
should the applicant return”, there appears to be no evidence on the
record that the Applicant’s cousin would in fact be willing or capable of
looking after Durrael.
[32]
With respect to the Applicant’s novel arguments
as to whether s. 25(1.3) of the IRPA would apply to Durrael given his status as
a Canadian citizen, I find no need to address this issue in light of the error
noted above.
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