Docket: IMM-2989-16
Citation:
2017 FC 102
[ENGLISH
TRANSLATION]
Montréal, Quebec, January 26, 2017
PRESENT: The
Honourable Mr. Justice Shore
|
BETWEEN:
|
|
ROSE KADJE
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA) of a decision made by an immigration officer on June 30, 2016,
refusing the Applicant’s application for permanent residence on humanitarian
and compassionate grounds (H&C application) under subsection 25(1) of the
IRPA.
II.
Facts
[2]
The Applicant, age 65, is a citizen of Cameroon
and is a nurse by profession. She has two sons who live in Canada. One is a
Canadian citizen, and the other is a permanent resident. She also has five
grandchildren and one nephew in Canada. Her husband, retired; her third son,
physician and some of her grandchildren still live in Cameroon.
[3]
In May 2011, the Applicant came to Canada to
visit her sons and grandchildren.
[4]
The Applicant says that she had been
hospitalized a few times in Cameroon prior to her arrival in Canada. Hepatitis
tests had been performed, and all of the results were reportedly negative.
[5]
Shortly after her arrival in Canada, the
Applicant felt unwell and saw a physician — at her family’s expense — and
received results indicating that she had hepatitis C.
[6]
On October 6, 2011, the Applicant submitted a
refugee claim.
[7]
In March 2012, the Applicant filed an
application for permanent residence on humanitarian and compassionate grounds.
[8]
In April 2012, the Applicant received a liver
transplant. Since then, she has been under close medical supervision. She also
has ophthalmologic problems, more specifically, bilateral macular edema, for
which she must receive additional medical care.
[9]
On July 11, 2013, the Refugee Protection
Division of the Immigration and Refugee Board denied the Applicant’s refugee
claim.
[10]
On March 9, 2016, an immigration officer refused
the Applicant’s H&C application. The Applicant filed an application for
leave and judicial review of that decision, but the Federal Court dismissed the
leave application due to the Applicant’s failure to perfect her record.
[11]
On June 15, 2016, an immigration officer agreed
to reopen the H&C application after receiving a letter from counsel for the
Applicant.
III.
Decision
[12]
On June 30, 2016, after reopening her file, a
senior immigration officer refused the Applicant’s H&C application,
upholding the March 9, 2016, decision.
[13]
The officer concluded that the Applicant had an
equal number of family ties in Canada and Cameroon and that she could remain in
contact with her family members in Canada by internet and telephone if she were
to return to Cameroon.
[14]
The officer found that the Applicant had come to
Canada to receive medical care, knowing that she had severe health problems and
would obtain better treatment in Canada than in Cameroon.
[15]
With regard to follow-up for her liver
transplant, the officer found that the Applicant had not demonstrated that the
required treatment and medications would be unavailable in Cameroon. The
officer did not give probative value to the letter from a Cameroonian
physician, doubting its authenticity. Moreover, the officer found that there
was nothing proving that treatment would be unavailable in Cameroon’s large
cities, though it is non-existent in the rural areas. The officer was also
unconvinced that other medications or generic forms would be unavailable in
Cameroon. Lastly, the officer determined that, although the Applicant’s husband
has only a monthly pension of $400, the Applicant could receive considerable
financial support from her family members. Her family members in Canada would
be able to support her financially, in addition to her son in Cameroon, since,
as a physician, he could provide his mother with care.
IV.
Submissions of the Parties
A.
Submissions of the Applicant
[16]
The Applicant argues that the immigration
officer’s decision is unreasonable. The Applicant’s argument is based
essentially on the officer’s erroneous interpretation of the medical evidence
she submitted when her H&C application was reopened. Firstly, she claims
that the officer erred in saying that the letter from the Cameroonian physician
was unsigned and did not bear a legible seal. Secondly, the Applicant claims
that the officer erred in assuming that the anti-rejection medications could be
available in the capital and that the specific medications could be substituted
with other medications, that is, with generics. Thirdly, the officer apparently
erred in finding that the cost of $900 per month for the Applicant’s medication
and treatment expenses in Cameroon were those incurred following the liver
transplant; these were in fact costs related to the Applicant’s other health
problems.
[17]
Lastly, the Applicant argues that the officer
erred in speculating that she could remain in contact with her grandchildren by
internet or telephone.
B.
Submissions of the Respondent
[18]
According to the Respondent, the immigration
officer’s decision is reasonable.
[19]
The Respondent submits that it was open to the
officer to determine whether the Applicant’s departure would compromise the
best interests of her grandchildren, considering that they could remain in
contact with her by internet or telephone. The Applicant did not submit any
documentation leading the officer to conclude that their best interests would
be compromised if she were to leave Canada. As a result, she did not discharge
her burden of proof (Owusu v. Canada (Minister of Citizenship and Immigration),
[2004] 2 FCR 635, 2004 FCA 38).
[20]
The Respondent also submits that the Applicant
had not demonstrated that the care required for her health problems — including
her ophthalmologic problems and follow-up for her liver transplant — would be
unavailable in Cameroon. The Applicant did not provide any evidence
demonstrating that treatment would not be available anywhere in Cameroon,
rather than solely in the rural areas. Considering that her family members are
already financially supporting her in Canada, it was open to the officer to
find that they would continue to do so if she were to return to Cameroon.
Consequently, the officer’s decision would fall within a range possible
outcomes and be reasonable.
V.
Issue
[21]
The issue in this case is the following:
Did the immigration
officer err in fact by rendering a decision contrary to the available evidence?
[22]
The standard of review applicable to the
officer’s decision on whether or not to grant an exemption on humanitarian and
compassionate grounds is that of reasonableness. Our Court must show deference
in the judicial review of the decision of an immigration officer exercising
this discretion (Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC
9 [Dunsmuir]).
VI.
Relevant provisions
[23]
Subsection 25(1) of the IRPA sets out exemptions
from the law for humanitarian and compassionate considerations.
|
Humanitarian and compassionate considerations — request of foreign
national
|
Séjour pour motif d’ordre humanitaire à la demande de l’étranger
|
|
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.
|
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.
|
VII.
Analysis
[24]
The Court finds that, despite the letter from
the Cameroonian physician describing the absence of appropriate treatment to
ensure the Applicant’s survival following her liver transplant, the officer
nevertheless found that she could obtain the required medications and treatment
in Cameroon:
[translation]
. . . in the rural area where she resides, the Bandjoun village in western
Cameroon, there is no technical platform for her long-term treatment. Her
anti-rejection medication, Prograf, is not available in Cameroon and requires a
serum dosage for treatment. In Cameroon and based on information, no laboratory
currently provides this dosage.
(Letter from Dr. Kamdem Philippe, at page 26
of the Immigration, Refugees and Citizenship Canada file)
[25]
The physician specifies that the Applicant’s
anti-rejection medication is not available anywhere in Cameroon, not only in
the village of Bandjoun. The officer’s speculations as to the existence and
availability of a generic medication that could replace the Applicant’s
medication are not based on any evidence on file.
[26]
Consequently, the officer rendered a decision
that was not justified, transparent and intelligible, and it did not fall
within the range of possible acceptable outcomes that are defensible in respect
of the facts and the law (Dunsmuir, above, at paragraph 47). The
Court finds that the immigration officer erred in his analysis of the medical
evidence the Applicant submitted. As a result, the officer’s conclusions were
contrary to the evidence, and his decision is unreasonable.
VIII.
Conclusion
[27]
The application for judicial review is allowed
and the matter is referred back to another immigration officer for
redetermination.
Email this Content