Docket: IMM-2605-16
Citation:
2016 FC 1364
[ENGLISH TRANSLATION]
Ottawa, Ontario, December 9, 2016
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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PARVEEN BUSHRA
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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]
This is an application for judicial review of
decision by an immigration officer [the officer] dated June 1, 2016, rejecting
the applicant’s request for an exemption on humanitarian and compassionate
grounds [H&C request], pursuant to section 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act].
[2]
The applicant is a citizen of Pakistan. She is
infected with the Hepatitis C virus [HSV] and suffers from post-traumatic
stress disorder and major depression. She claimed refugee protection a few
weeks after arriving in Canada in December 2012. In June 2013, the
Refugee Protection Division of the Immigration and Refugee Board of Canada rejected
her refugee protection claim, and the Refugee Appeal Division confirmed that decision
in November 2013. In July 2014, after a very difficult pregnancy, the
applicant gave birth to a baby girl. The baby has several health issues, the
causes of which remain unclear; apart from this, her condition is stable, and
she continues to receive medical follow-up care. The child’s father is unknown,
and the applicant has sole custody.
[3]
In January 2015, the applicant submitted an
H&C request to be exempted from the obligation to apply for a permanent
resident visa from outside Canada. In rejecting the H&C request, the
officer concluded that the applicant’s degree of establishment and integration
was no greater than what would have been expected of any person arriving in
Canada. The officer also concluded that treatment is available in Pakistan for people
living with HSV, as well as for the various psychological issues from which the
applicant also suffers. Moreover, there was no evidence in the record to
suggest that the applicant’s daughter could not receive appropriate care in Pakistan
or would be discriminated against because she was born out of wedlock and is
being raised by a single mother. The officer was also of the opinion that the
applicant’s profile was not consistent with that of women who are victims of
discrimination in Pakistan.
[4]
The refusal to grant the exemption sought by the
applicant on humanitarian and compassionate grounds is not an acceptable
outcome which is defensible in respect of the applicable legal principles and
the evidence in the record. Even if we assume that the applicant’s daughter
could receive medical follow-up and that the applicant herself could have
access to psychologists and medication in Pakistan to treat her psychological
issues and depression, the fact remains that the officer’s cursory analysis of
the evidence in the record concerning Hepatitis C is incomplete, selective
and seriously deficient.
[5]
The uncontradicted evidence in the record shows
that the applicant is infected with a genotype of HCV (the 3a genotype) that is
among the most difficult to treat, while according to the documentation on
record, there is no treatment in Pakistan equivalent to the one that the
applicant started in Canada in March 2016 and has not yet finished. The
documents referenced by the officer clearly support the applicant’s allegations
to the effect that the treatments for Hepatitis C available in Pakistan
are not only very expensive but also very limited, despite the county having
one of the highest rates of people living with HCV in the world. In fact, the
situation reported in the documentation illustrates that, despite the action
taken by the government since 2005, the situation is highly alarming. In
Pakistan, approximately 150,000 deaths each year are attributable to the
Hepatitis B and C viruses. This situation therefore creates a real and personal
risk to the applicant.
[6]
Furthermore, the medical specialist who has been
treating the applicant since July 2015, Dr. Louis-Patrick Harroui,
whose credibility was never called into question, provided the following
details in his letter dated January 7, 2016:
[translation]
HCV infection is a chronic illness with
potentially very serious health consequences for people, particularly cirrhosis
of the liver and its related complications and even liver cancer, which can
result in premature death. The risk of a person infected with HCV developing
one of these complications depends on several factors, including the viral
genotype, that is, the subtype of HCV. Ms. Parveen has HCV genotype 3a,
which is one of the most difficult to treat and most likely to cause cirrhosis
of the liver. Moreover, according to preliminary tests done since the
construction, it appears that Ms. Parveen might already have cirrhosis,
which would reduce her chances of recovery and increase the risk of severe
complications.
It is imperative to continue the
investigations related to her HCV infection in order to offer her timely
treatment. According to the preliminary information, she would be a candidate
for an antiviral treatment as soon as possible to prevent her health from
deteriorating. Beginning treatment within the next few weeks would bring her
chances of making a full recovery to at least 85% and would stop the
progression the damage to her liver. A cure would give her a life expectancy
equal to that of a person not infected with HCV. The treatment for Ms. Parveen’s
infection has been available in Canada for only two years. Access to this
treatment is still very limited, even non-existent, in many regions of the
world, such as Pakistan, not to mention the obstacles in buying this treatment
in countries where there is no health care coverage.
[7]
In addition, in his letter dated March 23,
2016, Dr. Harroui explains that the applicant has begun a 15-month
experimental treatment and that interrupting it could have deadly consequences
for her:
[translation]
Ms. Parveen will begin a treatment for
Hepatitis C today as part of a clinical trial of a medication sponsored by
a pharmaceutical company. This trial should last 15 months, most likely
more. It is crucial that Ms. Parveen remain in Canada for the full
duration of the clinical study to ensure the best possible care and treat
her infection. I am persuaded that her chances of being cured of
Hepatitis C through this clinical trial are over 95 per cent. If
Ms. Parveen is sent back to Pakistan before the end of her treatment, the infection
will continue to progress and could even be fatal. There is no equivalent treatment
for Hepatitis C in Pakistan.
[Emphasis added]
[8]
It was therefore entirely unreasonable for the
officer to disregard this conclusive medical evidence, which dates from 2016 and
directly concerns the applicant, and rely instead on general, inconclusive
documentary evidence dating from 2010. In response, the respondent argues that
even though the documentary evidence appears to suggest that Hepatitis C
treatments are limited and very expensive in Pakistan, the officer did not have
to consider what treatments were in fact available and whether the applicant
could take advantage of free care. The respondent also submits that if there is
still an imminent danger in stopping the experimental treatment which she began
in March 2016 and does not appear to be currently available in Pakistan, the
applicant can still raise any risk to her life or her health and present new
medical evidence to the enforcement officer once she is about to be removed to
her country.
[9]
I do not agree with the respondent. The
applicant is currently suffering from an HCV infection and is already showing
signs of advanced infection, even including the early stages of cirrhosis of
the liver. It is imperative that the applicant be treated and that she be able
to complete the experimental treatment that she has begun in Canada. I find it
highly capricious and arbitrary, in the course of analyzing this H&C request,
to speculate on the possibility of seeking treatment of some sort in Pakistan, the
nature and effectiveness of which is unknown, in order to play down the
importance of the risk to the applicant’s life or health. Similarly, it is just
as unreasonable to ask the applicant, in the days leading up to her
deportation, to try to satisfy an enforcement officer—whose discretion is very
limited—to stay the removal order once it is already too late.
[10]
What is more, at the hearing before this Court,
counsel for the applicant also stressed the uncontradicted fact that the
fragile health of the applicant’s daughter, aged 21 months when the
H&C request was filed, is a crucially important factor. In this case, it is
in the best interests of the young girl not only to remain with her mother, but
also to continue to receive follow-up medical care in Canada rather than in Pakistan.
He also criticizes the officer for giving little weight to the risks of
discrimination that her daughter will face in such a traditional and religious
country. He notes that Pakistan is a Muslim country where women are already
discriminated against. A fortiori, it may well be asked whether the fact
that the young girl—a Canadian, no less—would be brought up in Pakistan by a
single mother is likely to cause her harm. Limiting the analysis to the mere
evidence of the availability of health care in Pakistan and the fact that the
applicant was able to take care of her little girl in Canada shows a profound
lack of sensitivity on the part of the officer (Baker v Department of
Citizenship and Immigration, [1999] 2 S.C.R. 817 [Baker]).
[11]
Although the Court need not base its
intervention on the lack of sensitivity alleged by the applicant, this is an
additional reason to quash the decision under review and refer the case back to
another immigration officer.
[12]
First, it should be noted that there is no
pre-set formula or rigid test for analyzing the best interests of the child (Hawthorne
v Canada (Minister of Citizenship and Immigration), 2002 FCA 475,
[2003] 2 FC 555 at paragraph 7 [Hawthorne]), other than
that the officer must be “alert,
alive and sensitive” to the child’s best
interests (Baker). Nonetheless, in December 2015, in Kanthasamy
v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909
[Kanthasamy], the Supreme Court placed in their proper perspective
the general principles that should guide immigration officers in exercising
their discretion under section 25 of the Act.
[13]
First, in light of the statute and the
legislative summary, it is clear that Parliament intended to grant the Minister
and immigration officers broad discretion allowing them “to mitigate the rigidity of the law in an
appropriate case” (Kanthasamy at paragraph 19).
On the one hand, there will inevitably be some hardship associated with being
required to leave Canada, but this alone will not generally be sufficient to
warrant relief on humanitarian and compassionate grounds under
subsection 25(1) of the Act (Kanthasamy at paragraph 23). That
said, the systematic application of the “unusual and undeserved” or “disproportionate” hardship test, as defined in the Guidelines
of the Act, goes against the goals of this provision. On this point, the
Supreme Court held that the “three
adjectives” in question do not limit the
officer’s power to consider factors other than those set out in the Guidelines.
In short, these factors should “be
seen as instructive but not determinative, allowing s. 25(1) to respond
more flexibly to the equitable goals of the provision” (Kanthasamy at paragraph 33).
[14]
Moreover, turning to the “best interests of a child directly
affected” test, the Supreme Court noted in Kanthasamy
that this test is “highly
contextual” because of “the multitude of factors that may impinge
on the child’s best interest” (Kanthasamy at paragraph 35). Needless to say, an
officer cannot simply state in his or her decision that the child’s interests
have been taken into account (Kanthasamy at paragraph 39 citing, inter
alia, Hawthorne at paragraph 32). Given the importance of
protecting children in the Canadian justice system (Kanthasamy at paragraph 36
citing AB v Bragg Communications Inc, 2012 SCC 46 (CanLII), [2012] 2 SCR
567 at paragraph 17), the officer must first ensure that the best
interests of the child are “well
identified and defined” and then examine those
interests “with a great deal of
attention” in light of all the evidence (Kanthasamy
at paragraph 39).
[15]
In their contextual analysis of the best
interests of the child, officers must consider, among other things, “each child’s particular age, capacity,
needs and maturity”, while as the Supreme Court
reminds us, “[t]he child’s
level of development will guide its precise application in the context of a
particular case” (Kanthasamy at paragraph 35).
On this point, the Supreme Court also noted that “[t]he Minister’s Guidelines set out
relevant considerations for this inquiry” (Kanthasamy
at paragraph 40), and it cited the following factors found in
section 5.12 of those Guidelines:
•
the age of the child;
•
the level of dependency between the child and
the [humanitarian and compassionate] applicant or the child and their sponsor;
•
the degree of the child’s establishment in
Canada;
•
the child’s links to the country in relation to
which the [humanitarian and compassionate] assessment is being considered;
•
the conditions of that country and the potential
impact on the child;
•
medical issues or special needs the child may
have;
•
the impact to the child’s education; and
•
matters related to the child’s gender.
[16]
Finally, after reiterating that “‘[c]hildren will rarely, if ever, be
deserving of any hardship’, the concept of ‘unusual and undeserved hardship’ is
presumptively inapplicable to the assessment of the hardship invoked by a child
to support his or her application for humanitarian and compassionate relief” (Hawthorne at paragraph 9), the Supreme Court clarified
that “[b]ecause children may
experience greater hardship than adults faced with a comparable situation,
circumstances which may not warrant humanitarian and compassionate relief when
applied to an adult, may nonetheless entitle a child to relief” (Kanthasamy at paragraph 41). In Kanthasamy,
after analyzing the reasonableness of the decision under review, the Supreme
Court criticized the officer for having required additional evidence regarding
the treatment available to the child in the country of origin, when even the
officer had accepted the child’s diagnosed post-traumatic stress disorder
(Kanthasamy at paragraphs 47-48).
[17]
There is most likely a connection to be made
with the present case. Indeed, the officer did not consider the best interests
of the applicant’s child to be a determining factor, despite the admission of
her specific medical condition, essentially because of the availability of
health services in Pakistan. In my view, the reasoning that simply remaining in
Canada will be in the best interests of a child only if the other country is
unable to meet the child’s “basic
needs” runs contrary to the general purpose of
section 25 of the Act (Williams v Canada (Minister of Citizenship and Immigration),
2012 FC 166 at paragraph 64; Sebbe v Canada (Citizenship and
Immigration), 2012 FC 813, [2012] FCJ No. 842 at paragraphs 15-16;
Akyol v Canada (Citizenship and Immigration), 2014 FC 1252, [2015] FCJ
No. 175 at paragraphs 20-21; Felix v Canada (Citizenship and
Immigration), 2014 FC 582, [2014] FCJ No. 623 at paragraph 31).
[18]
Moreover, before Kanthasamy, this Court
had criticized this approach by which officers limited themselves to
determining the magnitude of the hardship or harm, rather than actually
considering what was in the child’s best interests (Conka v Canada (Citizenship
and Immigration), 2014 FC 985, [2014] FCJ No. 1032 [Conka]). Conka
concerned the best interests of a Slovak teenager of Roma ethnicity who, in
addition to having autism and developmental disabilities, was struggling with
chronic kidney failure. In addition to the state protection issue, the officer
had acknowledged the teenager’s diagnosis and the existence of discrimination
against the Roma people with regard to access to health care. His H&C
application was nonetheless rejected. There was insufficient evidence to
demonstrate that the services offered in the teenager’s country of origin were
inadequate in this regard, compared with those he was receiving in Canada.
Referring to Sebbe, the Court noted that the officer was not tasked with
evaluating whether the child’s basic needs would be met in his country of
origin, but rather with evaluating what would be in the child’s best interests
(Conka at paragraph 21). The Court noted that even if the best
interest of children is not necessarily determinative, the very purpose of the
H&C application is to ensure that those interests are met, and that
children do not suffer hardship (Conka at paragraph 23).
[19]
In the case under review, apart from the usual
formulaic statements—where the best interests of the child are at issue—and the
general finding that there was nothing to suggest that the young girl could not
receive treatment in Pakistan, the officer does not seem to have considered
what would in fact be in the best interests of the applicant’s daughter. Aside
from the comment that the girl would be able to accompany the applicant to Pakistan
and that the applicant had taken good care of her while in Canada, the officer
did not conduct a contextual analysis of the child’s situation or examine the
consequences that being brought up by a single mother in Pakistan could have on
her.
[20]
This application for judicial review is allowed.
The officer’s decision is set aside, and the case is referred back to another
officer for redetermination. No question of general importance is raised in
this case.
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