Docket: IMM-4671-14
Citation:
2015 FC 583
Ottawa, Ontario, May 5, 2015
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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ISTVANNE GULYAS
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JANOS TOTH
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ISTVAN GULYAS
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KRISZTOFER RACZ
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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]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the
decision of a senior immigration officer [Officer], dated April 3, 2014
[Decision], which rejected the Applicants’ application for permanent residence
from within Canada on humanitarian and compassionate [H&C] grounds.
II.
BACKGROUND
[2]
The Applicants are a family from Hungary. They
include the Principal Applicant, her common-law spouse, her nineteen-year-old son,
and her ten-year-old grandson [Minor Applicant]. The Principal Applicant and
the children came to Canada to seek refugee protection in December 2010. Her
common-law spouse joined them in February 2011. The Applicants’ refugee claim
was based on their fear of Skinheads due to their Roma ethnicity.
[3]
In May 2011, the Minor Applicant was hit by a
car while crossing the street. He suffered a traumatic brain injury and has
been receiving a range of treatments, including occupational therapy,
physiotherapy, speech-language therapy and special education support. There is
pending litigation to seek compensation for his injuries.
[4]
The Refugee Protection Division of the
Immigration and Refugee Board [RPD] rejected the Applicants’ claim for refugee
protection in June 2012. The Federal Court denied leave for judicial review of
the RPD decision in November 2012.
[5]
The Applicants submitted an H&C application
in October 2012. They continue to claim they will face discrimination based on
their ethnicity if required to return to Hungary. They also claim that the
Minor Applicant will be unable to access the health and educational services
that he requires and is currently accessing in Canada.
III.
DECISION UNDER REVIEW
[6]
The Applicants’ H&C application was rejected
on April 3, 2014.
[7]
The Officer said that she considered the
Applicants’ H&C application on the standard of unusual and undeserved, or
disproportionate hardship. She defined unusual and undeserved hardship as that
which is not anticipated by the Act or the Immigration and Refugee
Protection Regulations, SOR/2002-227 and is usually beyond an applicant’s
control. She defined disproportionate hardship as a hardship which would have a
disproportionate effect on an applicant due to his or her personal
circumstances.
[8]
The Officer first considered hardship relating
to discrimination and adverse country conditions in Hungary. She said that she
had reviewed both the RPD decision and the Applicants’ Pre-Removal Risk
Assessment submissions, as she was also charged with conducting that
assessment. She also reviewed the Applicants’ documentary evidence and
conducted her own research into the treatment of Roma in Hungary.
[9]
The Officer found that the documentary evidence
did not corroborate the Applicants’ claims of past hardship while living in
Hungary. She noted that “[d]iscrimination continued to
significantly limit Roma access to education, employment, health care, and
social services.” However, she found that the Hungarian government
provides public employment opportunities for registered unemployed persons,
funding for special colleges for Roma students, and funding to improve the
living conditions for Roma persons living in segregated settlements. She also
noted that the Hungarian government established a Roma Affairs Council to “elaborate proposals for the social inclusion of Roma and to
monitor the implementation of government programs.” She found that while
the conditions in Hungary may not be ideal for Roma citizens, there are avenues
of redress and recourse available to the Applicants and having to access the
programs would not constitute a hardship.
[10]
The Officer then considered the Applicants’
establishment in Canada. She noted that the adult Applicants had both attended
school in Hungary. The Principal Applicant was unemployed when she came to
Canada but she had worked in the past. Her spouse had been working in Hungary
when he came to Canada. There was no indication that the adult Applicants had
attended any courses to upgrade their job or language skills in Canada.
[11]
The Applicants’ submissions indicated that the
Principal Applicant was unable to work due to injuries from a car accident but
no details were provided. The Officer acknowledged that the Principal Applicant
cares for the Minor Applicant but noted that he is in school full-time. The
financial information indicated that the Applicants supported themselves
through social assistance. There was no indication that they had any savings or
owned any assets.
[12]
The Officer said there was no evidence to
indicate that the Principal Applicant’s son was employed or attending school.
The evidence indicated that he was involved with the Roma Community Centre as a
dancer. There was no other evidence that the Applicants were involved in the
community in Canada.
[13]
The Officer requested updated information
regarding the Minor Applicant’s injuries in July 2013. She acknowledged he was
in an intensive rehabilitation program including speech and physical therapy. The
treatments were largely funded through his insurance and he also received
one-on-one support from a Special Needs Assistant at school. The Minor
Applicant’s lawyer indicated that he is entitled to compensation for his
injuries and that the litigation process could take longer than three to four
years.
[14]
A June 2013 medical progress report indicated
that the Minor Applicant “had recovered well from his
injuries, and was able to do any activity except full contact sports or
anything where he could be hit in the head.” He had no further medical
appointments scheduled at the time. There was a recommendation that he see an
orthopedic surgeon and engage in exercises to strengthen his muscles. The
report indicated that while his English was improving, he had missed a large
amount of school and was significantly behind.
[15]
The Officer noted that the Minor Applicant’s
mother had signed a consent form to permit the Minor Applicant to travel to
Canada with the Principal Applicant. However, there was no documentation to
support that the Principal Applicant had legally adopted the Minor Applicant, nor
was there any information to suggest that the Minor Applicant could legally be
included in the Principal Applicant’s application for permanent residence.
There was also no indication that the Minor Applicant’s mother could not care
for him, or that they had not been living together in Hungary.
[16]
The Officer said she had reviewed the evidence
from the Applicants regarding the difficulties that Roma people experience in
accessing healthcare in Hungary. However, she said that the articles failed to
provide any information as to whether these applicants, and particularly the
Minor Applicant, would be able to access healthcare.
[17]
The Officer found that while the Applicants’
return to Hungary may cause hardship, it would not be unusual, undeserved or
disproportionate. While the Minor Applicant was entitled to seek compensation
for his injuries, the legal process was long and arduous. There was no
information to suggest the Minor Applicant’s medical treatment could not
continue in Hungary. There was also no information to suggest the Minor
Applicant would not benefit from being reunited with his mother in Hungary. She
concluded that “[t]he information before [her] does not
support that the needs of this child and his family can only be served by them
obtaining permanent residency in Canada.”
[18]
The Officer said that a consideration of the best
interests of the child [BIOC] required that she be “alert
and alive to the interests of children in accordance with the Convention on the
Rights of the Child.” She said that the BIOC was to be given substantial
weight but was only one of many important factors to be considered in an
H&C application. She said she had considered the BIOC in her earlier
assessment and that the information did not suggest that the Applicants’ return
to Hungary would “adversely impact the best interests
of the minor applicants such that it warrants an exemption.”
[19]
In conclusion, the Officer found there was no
evidence to suggest that the Applicants would have any difficulties readjusting
to Hungarian society and culture. The adult Applicants were educated and
employed in Hungary, and they have immediate family members living in Hungary.
The fact that the Applicants find Canada a more desirable place to live is
insufficient to warrant an H&C exemption.
IV.
ISSUE
[20]
The Applicants raise one issue in this application:
Whether the Officer’s BIOC analysis was reasonable.
V.
STANDARD OF REVIEW
[21]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[22]
The Federal Court of Appeal has recently
confirmed that H&C decisions are reviewable on a standard of
reasonableness: Kanthasamy v Canada (Citizenship and Immigration), 2014
FCA 113 at para 37; Lemus v Canada (Citizenship and Immigration), 2014
FCA 114 at para 18. The range of reasonable outcomes remains limited by the
established legal principles to be applied in assessing the BIOC: Blas v
Canada (Citizenship and Immigration), 2014 FC 629 at paras 18-20; Canada
(Minister of Citizenship and Immigration) v Hawthorne, 2002 FCA 475 at para
9 [Hawthorne]; Sinniah v Canada (Citizenship and Immigration),
2011 FC 1285 at paras 59-64 [Sinniah]; Arulraj v Canada (Citizenship
and Immigration), 2006 FC 529 at para 14.
[23]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: see Dunsmuir,
above, at para 47; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
VI.
STATUTORY PROVISIONS
[24]
The following provisions of the Act are
applicable in this proceeding:
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Humanitarian and compassionate considerations — request of foreign
national
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Séjour pour motif d’ordre humanitaire à la demande de l’étranger
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25. (1) Subject to subsection (1.2), the Minister must, on request
of a foreign national in Canada who applies for permanent resident status and
who is inadmissible — other than under section 34, 35 or 37 — or who does not
meet the requirements of this Act, and may, on request of a foreign national
outside Canada — other than a foreign national who is inadmissible under
section 34, 35 or 37 — who applies for a permanent resident visa, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
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25. (1) Sous réserve du paragraphe (1.2), le ministre doit, sur
demande d’un étranger se trouvant au Canada qui demande le statut de résident
permanent et qui soit est interdit de territoire — sauf si c’est en raison
d’un cas visé aux articles 34, 35 ou 37 —, soit ne se conforme pas à la
présente loi, et peut, sur demande d’un étranger se trouvant hors du Canada —
sauf s’il est interdit de territoire au titre des articles 34, 35 ou 37 — qui
demande un visa de résident permanent, étudier le cas de cet étranger; il
peut lui octroyer le statut de résident permanent ou lever tout ou partie des
critères et obligations applicables, s’il estime que des considérations
d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de
l’intérêt supérieur de l’enfant directement touché.
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VII.
ARGUMENT
A.
Applicants
[25]
The Applicants submit that the Officer’s BIOC
analysis failed to meet the standards set out in Hawthorne, above, at
para 5.
[26]
First, the Officer ignored the evidence regarding
the Minor Applicant’s inability to access the rehabilitation and education
services that he requires in Hungary. The Officer unreasonably discounted the
documentary evidence which indicates that Roma people “face
serious barriers in access to healthcare” because it did not address the
Applicants’ specific circumstances. In doing so, she ignored the evidence which
did address the Applicants’ specific circumstances. In particular, the Minor
Applicant’s occupational therapist indicated she had searched for
rehabilitation services in Hungary and been unable to find an equivalent or comparable
treatment to that which the Minor Applicant is receiving in Canada. In
addition, she had experience in the special education system in Hungary and
said that children with severe brain injuries are placed in special schools
which would be inappropriate given the Minor Applicant’s abilities. The
Officer’s failure to mention or analyze the evidence which directly
contradicted her conclusions is a reviewable error: Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR 35 at para 17 [Cepeda-Gutierrez].
[27]
Second, the Officer committed a reviewable error
in failing to consider that the Minor Applicant’s lawyer indicated that his
compensation claim could be dismissed if he was not available in Canada at
various stages of the litigation process.
[28]
Third, the Officer erred in relying on the
benefits that she felt would arise from the Minor Applicant being reunited with
his mother. The evidence indicated that his mother gave the Minor Applicant to
the Principal Applicant at a young age. There is also evidence that the
Principal Applicant is the Minor Applicant’s legal guardian and caregiver.
B.
Respondent
[29]
The Respondent submits that the Officer
reasonably considered the BIOC in the H&C application. The H&C process
is an exceptional remedy designed to provide relief from unusual and
undeserved, or disproportionate hardship: Canada (Minister of Citizenship
and Immigration) v Legault, 2002 FCA 125 at paras 11, 15-17 [Legault].
While an officer must be “alert, alive and sensitive”
to the BIOC, they are not determinative but rather one factor to be considered:
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at para 75 [Baker]; Legault, above, at para 12; Kisana v
Canada (Citizenship and Immigration), 2009 FCA 189 at para 24 [Kisana].
[30]
The Officer detailed the Minor Applicant’s
medical history, his rehabilitation program and the details of the most recent
medical report. However, the Applicants did not provide sufficient evidence
that the Minor Applicant could not receive comparable health care in Hungary. The
Federal Court has held that mental illnesses or chronic illnesses do not give
non-Canadians a right to remain in Canada: Gardner v Canada (Citizenship and
Immigration), 2011 FC 895 at para 41; Bichari v Canada (Citizenship and
Immigration), 2010 FC 127 at para 28.
[31]
Contrary to the Applicants’ assertion, the
Officer did consider the evidence of the Minor Applicant’s occupational
therapist. However, there was no error in the Officer’s failure to refer to her
opinion that the Minor Applicant could not access health care in Hungary. The
occupational therapist did not provide any details regarding the research she
conducted to determine that the Minor Applicant would be unable to access
equivalent rehabilitation services. There was also no error in the Officer’s
failure to quote from her opinion on the Hungarian education system. Her
experience as a teacher in Hungary is from approximately twenty years ago and
is of little probative value.
[32]
The Officer reasonably concluded that while
civil litigation is time-consuming, it is temporary and does not justify
obtaining the exceptional remedy of permanent residency on H&C grounds.
There is no guarantee that the Minor Applicant is entitled to compensation.
[33]
Finally, the evidence is unclear as to whether
the Principal Applicant has legal custody of the Minor Applicant. There is a
distinction between legal custody of a child and temporary custody while a
parent is residing abroad. It was reasonable for the Officer to find that the
Principal Applicant’s statement that she has custody of the Minor Applicant to
be insufficient evidence of custody arrangements. In addition, the evidence
shows that the Minor Applicant’s mother moved to Canada one month after the car
accident and he lived with her for at least one and a half years. There is
significant evidence that the mother was the Minor Applicant’s primary
caregiver.
C.
Applicants’ Reply
[34]
In reply, the Applicants submit that while an
H&C application is not designed to eliminate all hardships, the “unusual, undeserved or disproportionate” hardship has
no place in a BIOC analysis: Sinniah, above; Hawthorne, above.
[35]
The Applicants also clarify that they are not
arguing that the Officer gave the wrong amount of weight to the evidence
regarding the Minor Applicant’s treatment but rather they argue that the
Officer failed to assess it entirely.
VIII.
ANALYSIS
[36]
I agree with the Respondent that the Applicants
are not entitled to an affirmative result in their H&C application simply
because the best interests of the Minor Applicant favours that result. See Legault,
above, at 12; Kisana, above, at para 24;
[37]
In reaching a final decision on an H&C
application, an officer is required to be “alert, alive
and sensitive” to the BIOC affected by the decision and to take these
best interests into account when deciding the application. See Baker,
above, at para 75. The Officer purports to do that when she says “I have considered the best interests of the children
included in these applications as required and previously mentioned in this
assessment, along with the personal circumstances of this family” (CTR at 11).
[38]
However, in deciding what weight to give to the BIOC
in the overall decision, the Officer must show a reasonable awareness of the
situation actually faced by the children; otherwise, she cannot be said to be
alert, alive and sensitive to those interests.
[39]
In this case, the Officer does not demonstrate
such an awareness. As the Applicants point out, the Officer does not engage
with evidence which addresses the inability of the Minor Applicant to access
the rehabilitation and education services that he requires in Hungary. The
Officer says that the documentation provided does not contain “information specific to the healthcare available to the applicants
in particular, the FA’s grand-son,” and that the “information before me does not support that the child would
be unable to access healthcare or other supports in Hungary with regard to both
his injuries and additional issues that may have resulted from his injuries” (CTR
at 10). However, the Minor Applicant’s occupational therapist gives direct
information about what the child requires that is not available in Hungary.
[40]
The Officer says that she has “read and considered all the information and evidence
presented by the applicants as well as publically available documentation” (CTR
at 8). The Officer also acknowledges that the articles provided show
that “issues of discrimination affect the healthcare
received by many of the Roma population,” but says that “the articles do not provide information specific to the healthcare
available to the applicants” and so do not “support
that the child would be unable to access healthcare or other supports in
Hungary with regard to both his injuries and additional issues that may have
resulted from his injuries” (CTR at 10). However,
the Applicants provided specific evidence from the Minor Applicant’s occupational
therapist, who had researched the situation in Hungary which spoke directly to
the issue of why the Minor Applicant’s needs could not be met in Hungary. This
evidence directly contradicts what the Officer says, yet it is not discussed.
It is not sufficient for the Officer to say that she has looked at all the
evidence, but then fail to engage with and address evidence that contradicts her
conclusions and, in this case, addresses the very issue that the Officer says
is deficient, i.e. the lack of evidence specific to the Applicants. See Cepeda-Gutierrez,
above.
[41]
Similar problems arise with regard to the
Officer’s treatment of the evidence about the deficiencies in Hungary’s
educational system and their impact upon the Minor Applicant, as well as
evidence from the Minor Applicant’s solicitor about what would happen to the
child’s legal right to compensation and the legal process he is involved in
Canada should he be removed at this time.
[42]
These considerations need not have been
determinative of the overall H&C application, but simply ignoring evidence
and reaching BIOC conclusions that are directly contradicted by the evidence
renders the whole Decision unreasonable because it means that an appropriate
balancing of the factors at play cannot have occurred and that the Officer was
not alert, alive and sensitive to the BIOC.
[43]
The Respondent says that this evidence was
addressed when the Officer says the “information before
me does not support that the needs of this child and this family can only be
served by them obtaining permanent residency in Canada.” In other words,
the Respondent says it is sufficient for the Officer to acknowledge that evidence
has been provided and to then provide a general conclusion without saying why
the occupational health evidence and legal evidence does not support such a
conclusion. If this were the case, then it would mean that no arbitrary conclusions
could ever be challenged. The jurisprudence of the Court is clear that this is
not a reasonable approach to dealing with important evidence that contradicts
an officer’s general conclusions. See Hinzman v Canada (Citizenship and
Immigration), 2010 FCA 177 at para 38, quoting Cepeda-Gutierrez,
above; Ratnarajah v Canada (Citizenship and Immigration), 2010 FC 1054
at para 17; Zheng v Canada (Minister of Citizenship and Immigration) (1995),
27 Imm LR (2d) 101 at para 13 (FCTD). An H&C officer has a wide discretion
but that discretion cannot be exercised in an arbitrary way that is not
transparent and intelligible.
[44]
As a consequence, this matter must be returned
for reconsideration in which the BIOC are fully identified and given
appropriate weight.
[45]
Counsel agree there is no question for
certification and the Court concurs.
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