Dockets: IMM-7139-13
IMM-3175-14
Citation: 2015 FC 815
Ottawa, Ontario, July 2, 2015
PRESENT: The
Honourable Mr. Justice Zinn
Docket: IMM-7139-13
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BETWEEN:
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MOHAMMAD AHSAN
ULLAH
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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Docket: IMM-3175-14
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BETWEEN:
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MOHAMMAD AHSAN
ULLAH
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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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JUDGMENT AND REASONS
[1]
The personal circumstances of the applicant cry
out for compassion. The officers who made the decisions under review appear to
have been so influenced by the fact that the applicant was found inadmissible
to Canada that they failed to properly and reasonably consider the exceptional and
tragic personal circumstances of the applicant, a paraplegic.
Background
[2]
The applicant, Mohammad Ahsan Ullah, is a
citizen of Pakistan. In June 2001, members of the Muttahida Qaumi Movement
entered the family home and shot him twice in the back as he tried to escape.
As a result of his injuries, he is a paraplegic having no sensation or movement
in his legs and trunk.
[3]
His family, concerned that he would not receive
adequate health care in Pakistan, raised funds and brought him to Canada to
receive medical care. He entered Canada on October 11, 2001, on the basis of a
Temporary Resident Permit for health reasons.
[4]
He made a claim for refugee protection on
December 27, 2001. It was denied as he was found to be inadmissible to Canada pursuant
to the former subsection 19(1)(f) of the former Immigration Act and the current
subsection 34(1)(f) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA].
[5]
Following the inadmissibility hearing, a
deportation order was issued against him on November 29, 2006. On November 15,
2006, he requested Ministerial relief from inadmissibility pursuant to
subsection 34(2) of IRPA. That request for relief remained outstanding
as of the date of the most recent decision under review.
[6]
A negative pre-removal risk assessment [PRRA]
was rendered on February 18, 2010. Leave was granted and a final decision was
rendered on February 24, 2011, dismissing the application for judicial review: Ullah
v Canada (Minister of Citizenship and Immigration), 2011 FC 221.
[7]
An application for permanent residence from
within Canada on humanitarian and compassionate [H&C] grounds was received
on February 20, 2013. It was denied by decision dated March 27, 2014, and is
the decision under review in IMM-3175-14.
[8]
A request for deferral of removal was received
on October 31, 2013, following the issuance on October 25, 2013, of a Direction
to Report for removal on November 17, 2013. Initially the enforcement office
refused the request for a deferral but in light of new medical evidence
received, he cancelled the removal and reconsidered the request. On November
14, 2013 the deferral was refused and the applicant was scheduled to be removed
on November 24, 2013. That decision is the decision under review in
IMM-7139-13.
[9]
On November 7, 2013, the applicant sought an
order staying his removal “until such time as decisions
are made on his outstanding Humanitarian and Compassionate Grounds Application
and his request for Ministerial Relief.” By Order dated November 22,
2013, Justice Mandamin ordered “that the application for
a stay of removal is granted.”
[10]
Leave was granted in both applications for
judicial review, and they were heard together in Toronto on May 12, 2015.
The Applicant’s Personal
Circumstances
[11]
As a result of the gun shots in his back, the
applicant has been diagnosed with complete
paraplegia. He depends on a wheelchair and spends most of his time in
bed. In Canada, the applicant resides with his brother Mohammad Amanullah, a
Canadian citizen who lives in Brampton, Ontario, with his wife and three young
boys.
[12]
The applicant is taken care of by his brother
and his brother’s family. The brother’s home has been modified to accommodate
the applicant’s mobility. The applicant uses a catheter and has developed
bedsores, which require daily attention. The applicant uses a specialized air
mattress and pain medication.
[13]
The applicant can transfer himself from the bed
to the chair in order to use the bathroom but requires his brother to shower
and change the dressing on his bedsores. The applicant has been diagnosed with
major depressive disorder, generalized anxiety disorder and post-traumatic
stress disorder.
[14]
The applicant has uncles and cousins who reside
in Canada and who he sees regularly. His other immediate family members reside
in Karachi, Pakistan.
[15]
His mother lives with her younger brother in a
fourth floor apartment that is accessible only by stairs as there is no
elevator. She cares for her younger brother who has been diagnosed with
schizophrenia. She is now 63 and has high blood pressure and diabetes. She
depends on her deceased husband’s pension and assistance from her brothers in
Canada and the UK to pay her rent and provide for her needs.
[16]
His sister, her husband, and their four children
live in a two bedroom apartment with her mother-in-law. Although it is on the
ground floor and thus accessible to him, he attests that there is not space for
him to live with them.
[17]
In addition to his reasonable concerns relating
to how he would live in Pakistan, he expressed a fear of harm travelling
there. He provided an affidavit in which he attests that when he travelled to
Canada, he got a blood clot in his left leg which caused severe swelling and
which resulted in him having to delay treatment here until he had recovered.
[18]
In addition to the assistance he receives from
his brother and his family in Brampton, he says that his uncle in Mississauga
and others assist him in taking him to his medical and other appointments.
Decisions Under Review
A.
Refusal to Defer
[19]
The enforcement officer acknowledged in the
decision that Mr. Ullah is dependant in Canada on his brother and extended family,
but notes that “he has lived in Pakistan most of his
life.” While true, it is also true that when he was in Pakistan,
he was able-bodied and self-sufficient.
[20]
The officer further acknowledges the
submission that Mr. Ullah’s family in Pakistan would not be able to help him
with his “immediate as well as day to day vital
physical, medical and personal needs.” However, the officer dismisses
this concern, noting that they “may be able to
attenuate the period of adjustments for him [emphasis added].” The
officer adds that no evidence was provided to show that “his extended family would not be able to help him after he
returns to Pakistan.”
[21]
In my view, the officer’s statements are magic
realism. No thought has been given to the fact that Mr. Ullah requires
assistance from day one with daily living and that he has no family, extended
or otherwise in Pakistan, who can offer those services to him. The officer
indicates that he understands the exceptional needs the applicant has in light
of his paralysis, and understands that these are being met in Canada, but
simply fails to address how these significant personal needs can or will be met
in Pakistan in light of the evidence that was before the officer regarding his
family circumstances in Pakistan.
[22]
The officer further failed to consider
the evidence of the blood clot the applicant experienced when he travelled to
Canada many years earlier. The officer relies on the advice of the Senior
Medical Officer and states that he notes that the Senior Medical Officer did
not state that the applicant “is not suitable to travel
by air or that the necessary care will not be available” to him in
Pakistan. The problem here is that the Senior Medical Officer is addressing
the general condition in Pakistan and the general circumstances of
paraplegics. He does not appear to be addressing this applicant personally.
An illustration of this can be found in the Senior Medical Officer’s statement
that the applicant “requires assistance at home”
with no acknowledgement that there is no home he can go to in Pakistan, let
alone one offering him assistance. Moreover, although he says he has read the
medical file, he makes no mention at all to the clotting that occurred the last
time he travelled and the possible risk to health is it occurs on the flight
back. Rather, he states that he recommend that the applicant travel with his
medication and that the “appropriate transport be
organized (wheelchair).”
[23]
The failure of the enforcement officer to
directly address the risk to the applicant posed by the air travel alone makes
the decision unreasonable. Coupled with the other issues noted above, the
entire decision fails to meet the standard required.
B.
Negative H&C Decision
[24]
The test to be used in making a decision on an
H&C application is whether the applicant would suffer unusual and
undeserved or disproportionate hardship in having to make his application for
permanent residence from outside Canada.
[25]
In Damte v Canada (Minister of Citizenship
and Immigration), 2011 FC 1212 at para 36, Justice Campbell in his
characteristically adept manner addressed what is meant by disproportionate
hardship in this context:
With respect to disproportionate impact
hardship, a decision-maker must ask the question: how would I feel if I were
this person when the door to the plane opens upon arrival in the country from
which I fled? In the present case, the question becomes: on arrival in
Ethiopia what would it feel like to be an impoverished middle-aged mentally
unstable woman racked with immobilizing fear returning to a punishing
political, social, and economic place which has virtually no mental health
care, with no birth family or marriage support, no job, no prospect of
obtaining meaningful work, no place to live; and, indeed, no future. Heartfelt
compassion might require her to not take the first step. There is no evidence
in the decision presently under review that a credible disproportionate impact
analysis was undertaken.
[26]
In the context of this case, the officer ought
to have asked how would I feel as a paraplegic wheel-chair bound man suffering
from PTSD arriving in Pakistan with no place to live, no family support for my
daily needs such as bathing and treating bed sores, no income or possibility of
work, and no ability to care for myself?
[27]
In this decision, the officer’s failure to
address the impact of the lack of family care and support in Pakistan on the
applicant as well as the risk to his health of requiring him to travel to
Pakistan are each sufficient to conclude that the decision is unreasonable and that
his application must be reconsidered by a different officer.
[28]
Neither party proposed a question for
certification.
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