Docket: IMM-6576-14
Citation:
2015 FC 1166
Ottawa, Ontario, October 15, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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NISHANTHILAN
SANTHAKUMARAN SANTHAKUMARAN SELVARASA KALAJOTHY SANTHAKUMARAN NISHANTHILA
SANTHAKUMARAN NIVERTHAN SANTHAKUMARAN NITHARSAN SANTHAKUMARAN MUGIRTHANAN
SANTHAKUMARAN
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Applicants
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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
I.
Introduction
[1]
Nishanthilan Santhakumaran has brought an
application for judicial review pursuant to s 72 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA]. He challenges a decision
of the Immigration Appeal Division [IAD] of the Immigration and Refugee Board
to reject the application for permanent residence of his parents and four
siblings, whom he sought to sponsor. The IAD upheld the finding of a visa
officer [the Officer] that Mr. Santhamukran’s father was medically inadmissible
pursuant to s 38(1)(c) of IRPA. The Officer then found the remainder of the
family to be inadmissible pursuant to s 42(a) of the IRPA by virtue of their
joint application. The IAD concluded that humanitarian and compassionate
[H&C] considerations did not overcome the findings of inadmissibility.
[2]
For the reasons that follow, I have concluded
that the IAD failed to consider that Mr. Santhakumaran arrived in Canada at the
age of 12 as a Convention refugee, and unreasonably found that his separation from
his family was a “natural by-product of the choices his
parents made” and was “no different than others
who have moved to Canada and are separated from their family members.”
In addition, the IAD failed to consider whether Mr. Santhakumaran’s mother and
siblings would be admissible without the father. The application for judicial
review is therefore allowed.
II.
Facts
[3]
Mr. Santhakumaran is 30 years old and a Canadian
citizen of Sri Lankan Tamil origin. He came to Canada at the age of 12 as a
Convention refugee, fearing forcible recruitment into the Liberation Tigers of
Tamil Eelam. His immediate family continues to reside in Colombo, Sri Lanka.
[4]
In 2005, Mr. Santhakumaran submitted an
Application to Sponsor and Undertaking on behalf of his parents and siblings.
In 2007, Mr. Santhakumaran’s father, as principal applicant, filed an
Application for Permanent Residence. In 2011, as part of the application
screening process, the Regional Medical Officer in Colombo conducted medical
examinations of Mr. Santhkumaran’s parents and siblings. The medical
assessments revealed that Mr. Santhakumaran’s father suffers from chronic renal
failure and diabetes.
[5]
On January 24, 2012, the Officer refused the
application on the ground that Mr. Santhakumaran’s father has a medical
condition that might reasonably be expected to cause excessive demand on Canada’s
health services, and he was therefore medically inadmissible under s 38(1)(c)
of the IRPA. This rendered all of the applicants, specifically Mr. Santhakumaran’s
mother and four siblings, inadmissible to Canada pursuant to s 42(a) of the
IRPA.
[6]
Mr. Santhakumaran appealed the Officer’s
decision to the IAD and a hearing was scheduled for August 7, 2014. Prior to
the hearing, Mr. Santhakumaran’s father wrote a letter to the IAD requesting
that, in the event that it upheld the Officer’s finding regarding his
inadmissibility, the panel still consider the admissibility of Mr. Santhakumaran’s
mother and siblings without him.
[7]
Before the IAD, Mr. Santhakumaran did not
contest the legal validity of the Officer’s decision to refuse the application,
but argued that there were sufficient H&C grounds to warrant the granting
of special relief. In the alternative, Mr. Santhakumaran repeated his request
that the admissibility of his mother and siblings still be considered in the
event that his father was found to be inadmissible.
[8]
In a decision dated August 22, 2014, the IAD
dismissed Mr. Santhakumaran’s appeal. He filed an application for judicial
review in this Court on September 11, 2014, and leave was granted on March 25,
2015.
III.
The IAD’s Decision
[9]
The IAD noted that the information concerning
Mr. Santhakumaran’s father’s condition had not been updated since the initial
medical examination in 2011, and no credible plan had been put forward to
enable the family to care for the father in Canada and alleviate the burden on
the healthcare system. In response to Mr. Santhakumaran’s commitment to assume
his father’s medical costs, the IAD observed that it would be impossible to
enforce such a personal undertaking since healthcare is a universal benefit to
which all residents of a province are entitled (Deol v Canada (Minister of
Citizenship and Immigration), 2002 FCA 271). The IAD therefore confirmed
the validity of the Officer’s refusal.
[10]
H&C factors considered by the IAD included
Mr. Santhakumaran’s isolation from his family, letters of support from family and
friends, and reports of country conditions in Sri Lanka. The IAD acknowledged
that Mr. Santhakumaran had been separated from his family since the age of 12,
but described this as the “natural by-product of the
choices his parents made that he live in Canada with another family member.”
The IAD concluded that Mr. Santhakumaran’s circumstances were no different from
those of others who have moved to Canada and are separated from their family
members as a result.
[11]
Mr. Santhakumaran testified to the discrimination
that his family faces in Sri Lanka. However, the IAD found that there was no
independent documentary evidence to support this testimony, and no explanation
for why it not provided. The IAD declined to take notice of country conditions
in the absence of documentary evidence.
[12]
Finally, the IAD acknowledged the significant
distance separating the family, but found that they have managed to stay
emotionally close. The IAD remarked that family reunification will rarely
constitute sufficient H&C grounds to overcome a finding of inadmissibility.
[13]
The IAD concluded that H&C considerations
did not warrant special relief. The IAD did not consider whether Mr.
Santhakumaran’s mother and siblings would be admissible without the father.
IV.
Issues
[14]
Mr. Santhakumaran raised a number of issues in
support of his application for judicial review. Two of these are determinative:
A.
Was the IAD’s characterization of the reasons
for the family’s separation reasonable?
B.
Did the IAD improperly fail to consider whether
Mr. Santhakumaran’s mother and siblings would be admissible without the father?
V.
Analysis
A.
Was the IAD’s characterization of the reasons
for the family’s separation reasonable?
[15]
The IAD’s assessment of H&C considerations
is subject to review by this Court against the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa]
at paras 57-58). Deference is owed to the IAD by virtue of its expertise and
special position as trier of fact (Khosa at para 25). Courts will
interfere with the IAD’s decision only if its factual findings were “made in a perverse or capricious manner or without regard
for the material before it” (Khosa at para 72; Federal Courts
Act, RSC, 1985, c F-7, s 18.1(4)(d)).
[16]
The IAD is presumed to have considered all of the
evidence that was before it and is not required to refer to each piece of
evidence in its decision (Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 (FCA) at para 1). However, the more
important the evidence that is not mentioned specifically and analyzed in the
IAD’s reasons, the more willing a court may be to infer from the silence that
the agency made an erroneous finding of fact “without
regard to the evidence” (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at para 17.)
[17]
In this case, the IAD made no mention of the
fact that Mr. Santhakumaran was found by the Refugee Protection Division of the
Immigration and Refugee Board to be a Convention refugee. Instead, the IAD
observed that the family’s separation was a “natural
by-product of the choices his parents made,” and that this was “no different than others who have moved to Canada and are
separated from their family members.”
[18]
In my view, the manner in which the family came
to be separated should have been a central consideration in the H&C
analysis. The unusual and painful circumstances in which Mr. Santhakumaran
arrived in Canada at the age of 12 to live with a distant relative whom he
barely knew were plainly in evidence, yet they are wholly absent from the
decision. One of the stated goals of the IRPA is to
“support the self-sufficiency and the social and economic well-being of
refugees by facilitating reunification with their family members in Canada”
(IRPA, s 3(2)(f)). The IAD’s failure to acknowledge the reasons for the
family’s separation leads to the conclusion that its finding was made without
regard to the material before it (Rahal v Canada (Minister of Citizenship
and Immigration), 2012 FC 319 at para 39). The IAD’s reasons in this
respect are not justified, transparent or intelligible, nor is its decision
defensible with respect to the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
B.
Did the IAD improperly fail to consider whether
Mr. Santhakumaran’s mother and siblings would be admissible without the father?
[19]
The IAD is not required to address each issue
and every argument raised by the parties, nor to make an explicit finding
respecting each element that leads to its final conclusion. Reasons are
adequate if they permit a reviewing court to understand why the tribunal made
its decision, and to determine whether the conclusions fall within the range of
acceptable outcomes in light of the evidence before the tribunal and the nature
of its statutory task (Newfoundland and Labrador Nurses Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at paras 16, 18).
[20]
Nevertheless, a tribunal’s reasons must
demonstrate that it considered the important points in issue in a given case,
and the main relevant factors. A reviewable error may be found to exist where
an applicant can establish that he or she raised an important and relevant
point before the IAD, but the panel’s reasons, taking into account the record
as a whole, do not allow a court to understand why the point was disregarded (Chopra
v Canada (Attorney General), 2014 FC 246 at paras 191-192, citing Turner
v Canada (Attorney General), 2012 FCA 159 at paras 40-42, and Stelco Inc
v British Steel Canada Inc, [2000] 3 FC 282 (FCA) at paras 22, 24-26, aff’d
2015 FCA 206). I am satisfied that the IAD made such an error in this case.
[21]
The Minister relies on Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 [Owusu], and
argues that the “alternative plea” regarding the
admissibility of Mr. Santhakumaran’s mother and siblings without the father was
not properly raised before the IAD. I disagree. In Owusu, the Federal
Court of Appeal held that the H&C officer was not required to consider a
particular factor (in that case, the best interests of a child) because it was
raised only obliquely in one sentence in a seven-page letter. In this case, the
issue was raised explicitly on two occasions. It was mentioned in the letter
that Mr. Santhakumaran’s father’s sent to the IAD prior to the hearing, and again
in Mr. Santhakumaran’s testimony before the IAD. This was sufficient to raise
the issue before the IAD, and the IAD was therefore obliged to address it.
VI.
Conclusion
[22]
For the foregoing reasons, the application for
judicial review is allowed and the matter is remitted to a
differently-constituted panel of the IAD for reconsideration.
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