Docket: IMM-2636-16
Citation: 2017 FC 72
Ottawa,
Ontario, January 19, 2017
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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HAROLD LAWRENCE
MARSHALL
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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
I.
Nature of the Matter
[1]
This is an application for judicial review by
Harold Lawrence Marshall [the Applicant] pursuant to s. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA], of a decision
made by an Immigration Officer [Officer or Minister’s Representative], dated
May 26, 2016, in which the Applicant’s application for permanent
resident [PR] status on humanitarian and compassionate [H&C] grounds was
denied [the Decision]. The application is granted for the following reasons.
II.
Facts
[2]
The Applicant is a 65-year-old U.S. citizen. He
came to Canada in 1976 to avoid registering for the US military service; the draft
ended in 1973, but registration for military service apparently continued to be
required. In addition, he claimed fear of repercussions for avoiding military
registration in 1976. He also claimed that he experienced severe racism as an
African-American.
[3]
Before his arrival in Canada in 1976, the
Applicant had several drug-related police charges pending in the USA. At the
time of his application, he had put the drug problem behind him; he had been
drug free for 12 years.
[4]
The Applicant suffered from drug addiction for
many years and was deported back to the United States of America [USA] after a
charge of possession of a controlled substance in 1985.
[5]
He returned to Canada shortly thereafter using
fraudulent identity documents; he has remained here since. By the time he
returned to Canada, President Carter’s 1977 pardon of those who failed to
register for the draft was in place.
[6]
After his return, the Applicant lived and worked
under a false name. Some thirty years later, he applied for permanent resident
status on H&C grounds in May 2015, citing unusual, undeserved and
disproportionate hardship coupled with his establishment in Canada as grounds
upon. His H&C application was filed before the Supreme Court of Canada
released its decision in Kanthasamy v Canada (Citizenship and Immigration),
2015 SCC 61 at para 44 [Kanthasamy], when the general test for H&C
was unusual, undeserved and disproportionate hardship. His H&C submissions therefore
focussed on hardship as was the norm at that time.
[7]
The Immigration Officer, acting as a
representative of the Minister of Citizenship and Immigration, did not make a
decision until May 26, 2016, approximately six months after the Supreme Court
of Canada’s decision in Kanthasamy, a case which changed the law on
H&C. The Officer dismissed the Applicant’s request for H&C permission
to apply for permanent resident status from inside Canada.
[8]
In terms of establishment, he had been in Canada
for 40 years by the time of the decision of the Minister’s Representative
except for the brief period after he was deported. The Applicant has worked a
handful of jobs since his arrival in Canada; his most recent began in 2007 as a
self-employed painter. He has been heavily involved in community radio. He
first worked with a community radio station out of Ryerson University, CKLN,
and currently works on Regent Radio in Regent Park, Toronto. He goes by the
name Victor Bains Marshall. He also volunteers with the 12 Step Program,
counselling recovering drug addicts, particularly within the African-Canadian
community.
[9]
As part of his application for H&C, he
submitted a very large number of what I would call very good quality character
and reference letters written by various members of the community, including both
his ex-wife and a woman with whom he has resided for the past 10 years (he
remains close friends with both and their families). These letters indicate his
importance to and involvement within the community.
[10]
The Applicant has six siblings residing in the USA
but each faces their own struggles and are all unable to provide or support him
if he is sent back. He has an older daughter who also resides in the USA, but little
information is provided about her.
[11]
The Applicant’s medical issues began in 2009 and
have since escalated. He has been diagnosed with Hepatitis C and stage 4
cirrhosis (end stage). He attends the Sherbourne Health Centre [Sherbourne], which
is known for its provision of care and support of Hepatitis C clients, for basic
medical and nursing care.
[12]
The Ontario Government, for reasons of its own, has
not provided the Applicant with an OHIP card despite repeated requests
supported by his family physician. Sherbourne has been providing health
services free of charge thus far. Nevertheless, due to a life-threatening
infection in 2012, he incurred a large bill at St. Michael’s Hospital that he
is still in the process of repaying. It appears he is able to obtain emergency treatment
without an OHIP card.
[13]
His family physician of five years advises as
follows in a report dated December 16, 2015:
…Mr. Marshall has been diagnosed with Hepatitis
C, a disease which if left untreated, can result in cirrhosis (scarring) of
the liver and a resultant impairment in liver function which itself can lead to
diabetes and a life threatening build up of toxins in the body.
Mr. Marshall has recently been diagnosed
with stage 4 cirrhosis (end stage) and is at risk EVERY day of decompensated
liver disease. Mr. Marshall has demonstrated early signs of impaired liver
function for several years, including hepatitis-induced diabetes. Now the risk
is greater: if left untreated, Mr. Marshall’s liver might further fail, leading
to a build up o fluid around his abdomen (ascites) which can become infected;
to a state of reversible dementia called hepatic encephalopathy; to liver
cancer; and to death. At present, Mr. Marshall is without access to
OHIP-covered health care and he cannot afford to pay for health care out of
pocket. A number of investigations and treatments are indicated, available,
funded through OHIP and absolutely necessary in order to preserve Mr. Marshall’s
health and his life.
[emphasis in original]
[14]
An earlier report from 2014, the same family
physician states:
I am concerned that without access to basic
health care, including medications, Mr. Marshall’s condition will further
deteriorate. Should he be forced to return to the USA, I am certain he would
not have access to the care that he needs and would die. We have the
ability to provide this care – in fact the Sherbourne Health Centre is known
for its provision of care and support of Hepatitis C clients – Mr. Marshall
only needs to be granted access to health care for this to happen.
[emphasis added]
[15]
Another report from a physician at Sherbourne
states:
I have educated the patient that he has
early stages of cirrhosis but his health is at significant risk of
deterioration if he defers the required care for his HCV and cirrhosis. It is
imperative that he have health coverage to receive appropriate care. Without
health coverage he will almost certainly die of liver related
complications.
[emphasis added]
[16]
The Applicant alleged that, at his age and with
his absence of work history in the States, it would be difficult, if not
impossible, for him to become employed there should he be deported. Other than
what is stated by his family physician as noted above, he provided no other
evidence of inability to obtain appropriate medical care in the USA. It does
not appear that the family physician has any expertise qualifying her to make
the statement she made concerning the availability of medical care in the USA.
III.
Decision
[17]
On May 26, 2016, the Minister’s Representative
denied the Applicant’s application for PR status on H&C grounds.
[18]
Despite commending the Applicant’s very
substantial achievements as a volunteer in the community, which were granted “significant weight”, the Officer says the Applicant can
do volunteer work in the USA, noting also the large number of Alcoholics
Anonymous and Narcotics Anonymous services operating across the USA – more than
60,000 of the former alone:
…volunteer work with recovering addicts is
not unique to Canada. In other words, in the event the Applicant is required to
return to the USA, he can reasonably seek volunteer work with organizations
which treat and assist those battling with addiction.
[19]
The Officer made note of the lack of evidentiary
support for the Applicant’s employment after the 1980’s and assigned very
little weight to employment in terms of establishment. Also noted was the fact
there was little evidence of discrimination against him in the USA.
[20]
Despite having noted that the Applicant’s family
members in the USA are incapable of helping him to settle, the Officer
concluded that the Applicant’s submissions demonstrated that these family
members “love [him] very much and he loves them”;
therefore, “[a]t the very least they may offer some
emotional support.”
[21]
The Officer assigned significant weight to the
strong bonds formed between the Applicant and his ex-spouse, as well as the
woman with whom he lived for 10 years, and their families. The Officer noted
the Applicant’s many friends in Canada, but concluded:
Should the Applicant return to the USA, he
may very well suffer a degree of hardship not having his close friends nearby
and he may miss the immediate support they provide for him. However, the
Applicant need not completely sever his ties to his Canadian friends, should he
return to the USA; the Applicant can reasonably maintain his Canadian
friendships in a variety of ways including visiting each other in person.
[22]
The Officer found that the Applicant had
provided insufficient evidence to demonstrate there is a “serious possibility he faces discrimination in the USA or
that he faces mistreatment or prosecution due to his failure to register for
possible military service,” and, further, should he find himself a
victim of racial discrimination, he would have a “viable
course of action” in seeking help from the authorities. The Officer
references an Encyclopedia.com page that discusses President Carter’s 1977
pardon of those who had fled or failed to register for the draft. Referring to
a 2016 human rights report by Freedom House, the Officer concluded that
While some objective documentary sources
point to racial discrimination being a problem in the USA, I find that the USA
has laws and policies in place to prevent discrimination and assist those who
are victims of discrimination.
[23]
The Officer also made note of the Applicant’s
medical diagnosis of Hepatitis C and cirrhosis and the substantial hospital
bill he had incurred, but found, correctly in my view, that the Applicant provided
little evidence of his inability to receive the relevant medical treatment in the
USA. Referring to the website welfareinfo.org, the Officer concluded “I find that the social assistance programs in the USA are
reasonable and accommodating.”
[24]
In summary, the Officer concluded:
While 40 years is a significant length of
time, the number of years spent in Canada, in and of themselves, under illegal
circumstances, is not a reason to grant relief under humanitarian and
compassionate grounds.
I accept and view very positively the
contributions the Applicant has made in Canada, in his community. I also accept
and am deeply sympathetic that the Applicant will likely experience a degree of
hardship having to uproot himself and re-establish himself in a country he
abandoned a long time ago. However, in the USA the Applicant will very likely
have access to medical treatment and he will be reasonably protected from any
possible discrimination. In the USA the Applicant can reasonably access the
social programs which include employment and housing set up to assist USA
citizens who are in need of assistance.
In the USA, the Applicant can reasonably
access recovery programs and volunteer opportunities.
In the USA, the Applicant will have an
opportunity to reunite with his family members and this could prove to be a
positive event in the Applicant’s life. …
[25]
The Applicant seeks judicial review of this
decision.
IV.
Issues
[26]
In my respectful view, and recognizing that a
number of issues were raised, the determinative issue in this case is whether
the Officer incorrectly used the hardship lens to assess the Applicant’s
positive H&C factors in light of Kanthasamy. I have concluded that
the Officer committed reviewable error in this respect, and as a consequence,
the decision must be set aside and remanded for redetermination. Therefore I
will not address the other issues.
V.
Standard of Review
[27]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
While an Officer’s H&C findings are reviewed on the standard of
reasonableness: Kanthasamy at para 44, his or her choice of the legal
test is subject to review on the correctness standard: Valenzuela v Minister
of Citizenship and Immigration 2016 FC 603 at para 19; Scarlett v Canada
(Minister of Citizenship and Immigration), 2008 FC 1051 at para 10.
[28]
In Dunsmuir at para 50, the Supreme Court
of Canada explained what is required when conducting a review on the
correctness standard:
When applying
the correctness standard, a reviewing court will not show deference to the
decision maker’s reasoning process; it will rather undertake its own analysis
of the question. The analysis will bring the court to decide whether it agrees
with the determination of the decision maker; if not, the court will substitute
its own view and provide the correct answer. From the outset, the court must
ask whether the tribunal’s decision was correct.
VI.
Analysis
[29]
In my respectful opinion, the Supreme Court of
Canada in Kanthasamy changed the legal tests representatives of the
Minister must use to assess H&C applications. Undoubtedly, prior to Kanthasamy,
hardship was the general test although the courts had acknowledged that it was
not the only test.
[30]
Kanthasamy reviewed
the history of the Minister’s humanitarian and compassionate discretionary power
enacted set out in section 25 of IRPA. The Supreme Court of Canada
re-established that Chirwa v Canada (Minister of Citizenship and
Immigration), [1970] IABD No 1 [Chirwa] provided an important
governing principles for H&C assessments, principles that are to be applied
along with the older “hardship” analysis
required by the Guidelines:
[13] The meaning of the
phrase “humanitarian and compassionate considerations” was first discussed by
the Immigration Appeal Board in the case of Chirwa v. Canada (Minister of
Citizenship and Immigration) (1970), 4 I.A.C. 338. The first Chair of the
Board, Janet Scott, held that humanitarian and compassionate considerations
refer to “those facts, established by the evidence, which would excite in a
reasonable man [sic] in a civilized community a desire to relieve the
misfortunes of another — so long as these misfortunes ‘warrant the granting of
special relief’ from the effect of the provisions of the Immigration Act”: p.
350. This definition was inspired by the dictionary definition of the term
“compassion”, which covers “sorrow or pity excited by the distress or
misfortunes of another, sympathy”: Chirwa, at p. 350. The Board
acknowledged that “this definition implies an element of subjectivity”, but
said there also had to be objective evidence upon which special relief ought to
be granted: Chirwa, at p. 350.
[31]
The Supreme Court of Canada then stated as
follows:
[21] But as the
legislative history suggests, the successive series of broadly worded
“humanitarian and compassionate” provisions in various immigration statutes had
a common purpose, namely, to offer equitable relief in circumstances that
“would excite in a reasonable [person] in a civilized community a desire to
relieve the misfortunes of another”: Chirwa, at p. 350.
[32]
As to hardship the Supreme Court of Canada said
that that the hardship tests continue to apply, but added:
[33] The words “unusual and undeserved
or disproportionate hardship” should therefore be treated as descriptive, not
as creating three new thresholds for relief separate and apart from the
humanitarian purpose of s. 25(1). As a result, what officers should not do, is
look at s. 25(1) through the lens of the three adjectives as discrete and high
thresholds, and use the language of “unusual and undeserved or disproportionate
hardship” in a way that limits their ability to consider and give weight to all
relevant humanitarian and compassionate considerations in a particular case.
The three adjectives should be seen as instructive but not determinative,
allowing s. 25(1) to respond more flexibly to the equitable goals of the
provision.
[emphasis in original]
[33]
In reviewing the reasons of the Officer, I am
unable to detect any appreciation of the Chirwa approach. In my
respectful opinion, H&C Officers should not only consider the traditional
hardship factors, but in addition, they must consider the Chirwa
approach. I do not say that they must recite Chirwa chapter and verse,
nor that there are any magic formulae or special words these Officers must use.
But the reviewing courts should have some reason to believe that the Officers
have done their job, that is, that H&C Officers have considered not just
hardship but humanitarian and compassionate factors in the broader sense.
[34]
The Applicant submits that the Minister’s
representative assessed every factor through the lens of hardship, and hardship
to the Applicant, and that in doing so the Officer applied the wrong legal
test. I have reviewed the Officer’s reasons and have come to the conclusion
that the Applicant is correct.
[35]
In my respectful view, the Officer’s assessment
of the Applicant’s establishment was indeed filtered through the lens of
hardship. The Officer gave significant weight to the support he received in
respect of his years of community volunteer work, radio work and music – but
immediately discounts it by referring to his ability to do volunteer work in the
USA, i.e., he will not suffer much hardship. In my view, this focus on what he
can do in the USA also runs afoul of what Justice Rennie, then of this Court,
said in Lauture v Minister of Citizenship and Immigration 2015 FC 336 at
25: “… an analysis of the applicant’s degree of
establishment should not be based on whether or not they can carry on similar
activities in Haiti. Under the analysis adopted, the more successful,
enterprising and civic minded an applicant is while in Canada, the less likely
it is that an application under section 25 will succeed.”
[36]
The Officer gave weight to establishment ties
due to the close relationships he has formed in Canada, and gave significant
weight to the support he received from his family – but immediately discounted it
by observing the Applicant may maintain his Canadian friendships in a variety
of ways including visiting, i.e., he will not suffer much hardship. As to the
Applicant’s siblings in the USA, the Officer, in my respectful view almost
gratuitously suggested “they may offer some emotional
support to the Applicant”: I am unable to see how that support would
differ from that he received in Canada given their own struggles and challenges.
In other words, the Officer suggests his hardship would be attenuated. The
focus again is on hardship and its amelioration.
[37]
The hardship-centric analysis continues with
respect to the Applicant’s medical conditions, where the Officer focuses on health
care availability in the USA. The Officer concludes that the Applicant provided
“very little evidence that he would be unable to receive
medical treatment for his condition in the USA.” While there was, in my
respectful view no evidence of treatment problems in the USA, except the single
sentence already noted, again the focus in on hardship to the Applicant. It is
worth noting that this sort of focus on treatment options in an applicant’s
home country was criticized by the majority in Kanthasamy:
[47] Having accepted the
psychological diagnosis, it is unclear why the Officer would nonetheless have
required Jeyakannan Kanthasamy to adduce additional evidence about
whether he did or did not seek treatment, whether any was even available, or
what treatment was or was not available in Sri Lanka. Once she accepted
that he had post-traumatic stress disorder, adjustment disorder, and depression
based on his experiences in Sri Lanka, requiring further evidence of the
availability of treatment, either in Canada or in Sri Lanka, undermined the
diagnosis and had the problematic effect of making it a conditional rather than
a significant factor.
[emphasis added]
[38]
No deference is owed where the wrong test is
employed; the correctness standard of review is engaged. In focussing on
hardship the Officer applied the wrong legal test. Therefore, judicial review
must be granted and the Officer’s decision must be aside.
VII.
Certified Question
[39]
Neither party proposed a question to certify,
and no such question arises.
VIII.
Conclusions
[40]
The application is granted and the matter must
be remanded for redetermination. No question is certified.
JUDGMENT
THIS COURT’S JUDGMENT is that judicial
review is granted, the Decision of the Immigration Officer is set aside, the
matter is remanded to a different decision-maker for redetermination, no
question is certified and there is no order as to costs.
“Henry S. Brown”
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