Docket: IMM-2320-17
Citation:
2017 FC 1170
Ottawa, Ontario, December 19, 2017
PRESENT: The
Honourable Mr. Justice Ahmed
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BETWEEN:
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A.B.
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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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and
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HIV & AIDS
LEGAL CLINIC ONTARIO and
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CANADIAN
HIV/AIDS LEGAL NETWORK
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Interveners
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JUDGMENT AND REASONS
[1]
The Applicant has applied for judicial review of
a decision (“Decision”) of the Immigration
Appeal Division (“IAD”) of the Immigration and
Refugee Board, dated May 5, 2017, upholding an immigration officer’s decision
to deny permanent resident visas to her parents. The officer denied the visas
after the Applicant’s father, Mr. A.B., was found to be medically inadmissible
to Canada. This application is brought pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (“IRPA”).
I.
Background
[2]
In September 2009, the Applicant, a 45 year-old
Canadian citizen, applied to sponsor her parents as members of the family
class. They are Chinese nationals. The Applicant’s father, Mr. A.B., is 62
years-old, and her mother is 66 years-old. The Applicant immigrated to Canada
in 2001 and her only sibling, her sister, immigrated in 2007. The Applicant and
her sister reside close to each other in Ottawa. The Applicant’s sister has two
young children, Mr. and Ms. A.B.’s grandchildren. The Applicant is very close
to her parents and she is in contact with them every day. The Applicant
testified at the IAD that as an individual of Chinese origin, she has
responsibilities and duties as the eldest daughter of the family and that care
for her parents falls primarily on her. The sponsorship of her parents is
important not only for family reunification purposes, but also so she can
fulfil her filial obligation to her parents.
[3]
As part of the sponsorship application, Mr. and
Ms. A.B. were required to complete medical examinations. During the course of
Mr. A.B.’s medical examination it was discovered that he is HIV positive. In a
procedural fairness letter dated March 6, 2013, an immigration officer
disclosed the HIV finding to Mr. A.B., and advised him that his health
condition might reasonably be expected to cause excessive demand on health
services pursuant to section 38(1)(c) of the IRPA. The officer allowed Mr. A.B.
a chance to respond to the finding.
[4]
In response, in a letter dated July 5, 2013, the
Applicant submitted evidence to show the family was willing and able to cover the
cost of her father’s anti-retroviral medication. The Applicant also requested
humanitarian and compassionate (“H&C”) relief.
The sponsorship application was refused on May 23, 2014 on the basis that the
assessing officer found Mr. A.B. inadmissible pursuant to section 38(1)(c) of
the IRPA. The officer noted the estimated cost of the drugs would be $15,000
per year and the officer was not satisfied the Applicant had the ability to pay
the plan in place. The officer also noted Mr. A.B. would be eligible to apply
for a provincial drug plan to cover the cost of the medication.
[5]
The IAD dismissed the Applicant’s appeal on May
5, 2017. The IAD upheld the officer’s finding that Mr. A.B.’s health condition
might reasonably be expected to cause excessive demand on health services in
Canada. The IAD also concluded there are insufficient humanitarian and
compassionate considerations to grant special relief.
[6]
The Applicant’s parental sponsorship application
has taken eight years. If it were not for the cost of out-patient prescription
drugs required for Mr. A.B’s health condition, the Applicant’s parents would be
admissible to Canada as members of the family class, and they may have been
reunited in Canada.
[7]
The Intervenors in this Application are the HIV
&AIDS Legal Clinic Ontario and Canadian HIV/AIDS Legal Network. These two
organizations represent people living with HIV and they seek to advance and
promote the human rights and dignity of people living with HIV. The Intervenors
state they have expertise with respect to HIV-related stigma and
discrimination.
II.
Issues
- Did the IAD err
in the analysis of humanitarian and compassionate relief?
- Did the IAD err
in its analysis of individualized assessment?
III.
Analysis
A.
Did the IAD err in the analysis of humanitarian
and compassionate relief?
[8]
The IAD held there are insufficient H&C considerations
to grant special relief in the Applicant’s case.
[9]
The Applicant submits the IAD erred in its
analysis of H&C relief on four grounds. First, the Applicant argues the IAD’s
Decision undermines the objective of family reunification in section 3(1)(d) of
the IRPA. The Applicant testified before the IAD to the close relationship she
has with her parents. The Applicant also explained that, as the eldest child in
a family of Chinese origin, care for her parents falls primarily on her. The
Applicant submits the IAD cavalierly dismissed and minimized the Applicant’s
close relationship with her parents. For example, the IAD found there is no
reason why the Applicant cannot communicate with her parents over the phone.
[10]
Second, the Applicant submits the IAD erred in
finding the threshold for H&C relief is high. The Applicant submitted a
detailed mitigation plan to show how her family would cover the cost of her
father’s anti-retroviral drugs. The Applicant argues the IAD’s failure to
assess the family’s ability and intention to pay for the required health
services was in error.
[11]
Third, the Applicant argues the IAD failed to
apply a compassionate approach in assessing H&C relief. The Applicant
maintains the IAD minimized the relationship the Applicant has with her
parents, and dismissed the importance of this relationship in Chinese culture.
The IAD also minimized the best interests of Mr. and Ms. A.B.’s grandchildren. The
Applicant argues the relationship the grandchildren have with her parents
cannot be substituted by phone or electronic communication, as the IAD suggests.
[12]
Fourth, the Applicant submits the IAD erred in
its analysis of hardship that Mr. A.B. faces in China. The Applicant submitted
128 pages of country condition evidence which speaks to the stigma of HIV
individuals in China, including the risk of discrimination and prejudice. The
evidence also explained there is a risk an individual’s HIV status in China
will be disclosed by health-care professionals. Mr. A.B. testified at the IAD
to the fear he has that his status might be revealed, and the discrimination he
would suffer as a result. The Applicant argues the IAD ignored this evidence,
and unreasonably found Mr. A.B. would not be ostracized in China and would not suffer
significant hardship.
[13]
The Intervenors argue the Decision relies on and
perpetuates hallmarks of HIV-related stigma. The Intervenors submit the IAD
improperly concludes that Mr. A.B. does not deserve H&C relief because he
is morally culpable for contracting the disease. The Intervenors point out that
blaming individuals for their HIV status is a hallmark of HIV-related stigma. The
Intervenors submit the way in which Mr. A.B. contracted HIV is irrelevant. The Intervenors
also take issue with the IAD’s finding that Mr. A.B.’s siblings in China may
refuse to share drinks with him if they discover his status and they argue it
appears the IAD does not understand how HIV is contracted. The Intervenors submit
the IAD minimized the impact of any HIV-related stigma Mr. A.B. will suffer in
China, which contributes to the unreasonableness of the Decision.
[14]
The Respondent submits the IAD reasonably
assessed all relevant H&C factors. The Respondent suggests the IAD
considered the IRPA objective of family reunification and recognized the
importance of Chinese culture to the Applicant and her family. The Respondent
argues the IAD reasonably assessed potential hardship Mr. A.B. would face in
China and explained why the evidence was not accepted. The Respondent maintains
the IAD does not assess the morality of Mr. A.B., but stated a fact of how Mr.
A.B. contracted the disease. Further, the IAD acknowledged that Mr. A.B.’s HIV
status is a “serious health condition”, but
recognized he was receiving free medical treatment in China, and found there
was little chance that others might learn of his HIV status. The Respondent
agrees that administrative decisions should not be based on stigma, and when
this is the case, judicial review relief is possible.
[15]
I agree with the Applicant and Interveners that
the IAD erred in a number of ways in its H&C analysis. In Kanthasamy v Canada
(Citizenship and Immigration), 2015 SCC 61, the Supreme Court of Canada confirms
that the meaning of “humanitarian and compassionate
considerations” is set out in Chirwa v Canada (MCI) (1970) 4
I.A.C. 338:
[...] 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".
Kanthasamy at
paragraph 13, citing page 350 of Chirwa.
[16]
It is clear an H&C decision-maker must
determine whether equitable relief is warranted in the circumstances. Damte
v Canada (Citizenship and Immigration), 2011 FC 1212 also provides a
helpful starting point for an H&C analysis. In Damte, Justice
Campbell explained humanitarian and compassionate relief at paragraph 34, as he
so aptly put it:
Applying compassion requires an empathetic
approach. This approach is achieved by a decision-maker stepping into the shoes
of an applicant and asking the question: how would I feel if I were her or him?
In coming to the answer, the decision-maker’s heart as well as analytical mind,
must be engaged.
[17]
In the present case, the Court asked the Respondent
to identify any part of the Decision where the IAD applied compassion. The
Respondent could point to only one paragraph in the Decision where the IAD, in
the Respondent’s view, applied compassion. The Respondent argues the IAD
applied compassion in paragraph 26 of the Decision, since it was recognized the
Applicant is sponsoring her parents because she wants to reunify with them:
The appellant, and her sister, apparently
communicate daily with the applicants, whether by phone or video chat. The
appellant appears close to her parents. The appellant has visited China,
presumably mostly to see her parents, frequently, since she has immigrated to
Canada.
[Decision, paragraph 26]
[18]
The IAD seems to accept the Applicant appears
close to her parents. However, the IAD fails to apply an empathetic approach to
any other part of the H&C analysis. The complete lack of empathy or
compassion in the Decision is unreasonable.
[19]
In addition to not applying compassion, the IAD does
not believe the Applicant’s unchallenged testimony. Throughout the Decision,
the IAD uses the word “apparently” or “allegation” six times in reference to the Applicant’s
testimony and evidence:
The appellant, and her sister, apparently
communicate daily with the applicants, whether by phone or video chat. […]
[Decision, paragraph 26]
As of now, her parents are fine. They apparently
do not require personal assistance from their children. […]
[Decision, paragraph 28]
The allegation was that there is
daily communication between the sisters and her parents, and the children are
involved. […]
[Decision, paragraph 33]
The evidence was that, between them, they
have six siblings in their city. None of them, though, know the father is HIV
positive. If they did, it was alleged, they would be shunned.
[Decision, paragraph 45]
The father attends at hospital for his
consultations. There is allegedly a sign in the hospital which suggests
that the area he goes to treats HIV positive patients. […]
[Decision, paragraph 46]
The applicants have known their siblings for
50 or 60 years or more. It was alleged they are on good terms. […]
[Decision, paragraph 48]
[20]
It is trite law when an applicant testifies, and
swears to tell the truth, a presumption is created that those allegations are
true unless there are reasons to doubt their truthfulness (Maldonado v Minister
of Employment and Immigration., [1980] 2 F.C. 302 (C.A.) at 305). Adverse findings
of credibility based on implausibility may only be made in the “clearest of cases” and the decision-maker has a duty
to justify its credibility findings with clear reference to the evidence (Valtchev
v Canada (MCI) 2001 FCT 776 at paragraphs 7 and 8).
[21]
The Respondent argued the IAD used “inexact” language with respect to these references.
Notwithstanding the able efforts of the Respondent’s counsel to persuade me
otherwise, in my opinion, no clear negative credibility finding was made
against the Applicant’s testimony. It is not stated in the Decision why the IAD
fails to accept the Applicant’s evidence. Instead, the IAD frames the
Applicant’s evidence as “allegations”.
[22]
The IAD makes additional undue negative
inference findings against the Applicant’s evidence. For instance:
The appellant testified that she wants hugs
from her parents daily, and wants to eat her mother’s home-cooked food every
day. She testified that she is so distraught that she cannot concentrate on her
studies. Despite this stress, however, the appellant indicated that, in April
2017, she will receive three separate professional designations – CPA, CFA and
FRM. Apparently, she is able to sufficiently concentrate to achieve this. The
appellant, though, in fact is a 45-year old successful professional woman, thus
the Panel finds that the above expressions of thought constitute excessive
sentimentality and embellishment.
[Decision, paragraph 36]
[23]
It is unclear what the Applicant’s status as a
45-year-old professional woman has to do with her desire to enjoy her parents’ affection
and home-cooked food. The IAD uses the Applicant’s success to undermine her
evidence, inferring her success in obtaining the CPA, CFA and FRM to be proof
that any adversity she has faced in doing so is negligible. In my view, these
findings illustrate the IAD is drawing conclusions about the Applicant’s
credibility without explicit recognition. If the IAD believed the Applicant’s
testimony to be lacking in credibility with regard to the hardship she faces in
the absence of her parents, a clear finding should have been stipulated and
supported with a logically sound rationale. Again, if the IAD believed the
Applicant’s evidence to be lacking in credibility, a clear finding had to be
made.
[24]
The IAD makes three references to how the
Applicant’s father contracted HIV. I agree with the Intervenors that the way in
which Mr. A.B. contracted HIV is not relevant to the sponsorship appeal. The
circumstances under which Mr. A.B. contracted HIV are wholly irrelevant to the
issue before the IAD, as are any issues related to the Applicant’s father’s
moral character. The IAD appears to make judgments against Mr. A.B.’s moral
character, and in doing so, the IAD acts as moral police:
The reason why it is claimed the family will
shun [the Applicant’s parents] is a perception that such patients have loose
morals, in that a key way the virus is transmitted is by having sex. In
fact, it turns out that the father did get the virus from having an affair.
It is noteworthy, perhaps, that this did not come out until the Panel directly
asked the appellant why her father had the virus.
[Decision, paragraph 47]
If there is any antipathy, the Panel
finds, then it would most likely be against the father for risking a
long-standing marriage by having an affair in his middle age or later. The sister conceded that this could indeed be part of the reason
her aunts and uncles might shun her parents, if they found out.
[Decision, paragraph 49]
[Emphasis added]
[25]
The IAD then continues to evaluate the moral
values of Mr. A.B. by stating:
[…] It is unfortunate that the father had
an affair which led him to become HIV positive. However, this was again,
a risk he took, which was unlikely but reasonably foreseeable, and it has
unfortunately presented him with very significant problems.
[Decision, paragraph 59]
[Emphasis added]
[26]
The above three references are irrelevant to the
objective of the IRPA. The choice of language by the IAD is troublesome because
it unduly chastises Mr. A.B. for having HIV. The IAD seems to suggest that
because of the “risk he took”, Mr. A.B. is
deserving of hardship.
[27]
The IAD also errs in its assessment of the best
interests of the children. The IAD Member acknowledges the best interests of
the children are to be considered. The IAD then holds:
With respect to Chinese culture and values,
this has been dealt with above – while it would be ideal for the
grandparents to be near the sister and the children, each of the sisters are
capable of infusing the children with Chinese culture.
In terms of contact, visits can occur, to
China, and the electronic and phone communication can continue. The Panel
notes, however, that the applicants only saw only one of their grandchildren
once, several years ago, when the oldest was not even a year old. As the
sisters said, phone and video communication is not like the real thing. Thus,
it appears that no real close bond exists between the applicants and the
children, as they have never met, except for the oldest, when he was an infant,
and will not remember. Thus, the children, in the Panel’s estimation, will not
be significantly negatively impacted by the continued absence of the applicants
from their day to day life.
All things considered, while it would be a
good thing for the children to have their own grandparents living nearby, it
is not essential, and there appears to be no reason why the children will
be significantly negatively affected by their continuing absence.
[Decision, paragraphs 55-57]
[Emphasis added]
[28]
While it is undeniable the Applicant and her
sister are able to infuse the grandchildren with Chinese culture, there are
teachings of which the children will be deprived due to the physical absence of
their grandparents. The Applicant argues that it is not in the grandchildren’s
best interest to be deprived of this important element of their cultural
heritage. With respect to the best interests of the children, the IAD conducts
a cursory analysis of the children, and finds because the grandchildren and grandparents
do not reside together, they do not have a “close
bond.” The IAD then concludes continuous separation would not negatively
impact the grandchildren and having their grandparents reside close by is “not essential”. This perverse and capricious
reasoning is not what the courts have established is meant by being alert,
alive and sensitive to the best interests of the children. The IAD presumes the
bond will not be stronger in the future and instead engages in an unduly
restrictive analysis of the best interests of the children.
[29]
Further, the IAD finds the absence of a physical
presence between the grandchildren and their grandparents means they have not
formed a close bond, evoking the grandchildren’s inability to remember their
grandparents. This method of thought is problematic for two reasons. First, the
evidence provides the grandchildren do, in fact, know their grandparents
through the use of telephone/electronic communication, and would likely
continue to bond with them through these mediums. Second, the IAD is
essentially suggesting continued separation of the grandchildren from their
grandparents will ensure that they will not, in the future, form the stronger
bonds that are likely to result from physical contact. Such perverse
conclusions by the IAD surely cannot be what is meant by the “best interest of the child” and are unlikely to have resulted
should the IAD have considered the future relationship between the
grandchildren and their grandparents or, for that matter, if the IAD was alert,
sensitive and alive to the issues before it.
[30]
As I find the IAD Decision to be unreasonable,
it is not necessary for this Court to address the second issue.
IV.
Conclusion
[31]
Given the IAD’s failure to reasonably determine
the H&C issues as described above, I find the Decision under review is
unreasonable.
[32]
The Respondent proposed three questions for
certification, only one of which is relevant to this judicial review:
“Is the ability and willingness of
applicants to defray the cost of their out-patient prescription drug medication
(in keeping with the provincial/territorial regulations regulating the
government payment of prescription drugs) a relevant consideration in assessing
whether the demands presented by an applicant’s health condition constitute an
excessive demand?”
[33]
Given my conclusion, this question is not
determinative of the present judicial review application and therefore does not
meet the test for certification. As a result, there are no questions to
certify.
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