Date: 20061107
Docket: IMM-5182-06
Citation: 2006
FC 1331
Ottawa, Ontario,
November 7, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Celiaflor
GALLARDO
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
[4] …While serious jeopardy to life or safety
of the person may be too high a standard in some cases, the harm that is
claimed must, at the very least, be non-speculative and credible. In this
sense, the existence of irreparable harm is fact specific…
(Xu Canada (Minister of Citizenship and
Immigration),
[1997] F.C.J. No. 1634 (QL).)
[2]
The
tripartite test for a granting of a stay is fully met in this case. If it was
not granted in this case, now, then, when could it ever be granted; and if not
for such an Applicant, then for whom; and if not under the present
circumstances, then under which, if any, could it ever be granted.
JUDICIAL PROCEDURE
[3]
This is a
motion brought with respect to an Application for Leave and for Judicial Review
of the decision by a representative of the Minister of Citizenship and
Immigration Canada (CIC) not to grant an exemption in an application for
permanent residence from within Canada on humanitarian and compassionate
grounds. The Applicant seeks an order staying the execution for her removal
order until such time as the Application for Leave and for Judicial Review is
determined.
ISSUES
[4]
Whether or
not this application for an order staying the execution of the removal order
made against the Applicant, meets the tripartite test for the granting of a
stay, in that: the Applicant has raised a serious issue; the Applicant would
suffer irreparable harm if deported from Canada; and that on the balance of
convenience, giving consideration to both parties, the stay should be ordered.
(Toth v. Canada (Minister of Employment and
Immigration)
(1988), 6 Imm.L.R. (2d) 123 (F.C.A.), [1988] F.C.J. No. 587 (QL).)
ANALYSIS
A - Serious Issue
[5]
The Courts
have consistently established a low threshold for a finding of “serious issue
to be tried” in the context of stay motions. The Court has consistently held
that it is merely necessary to show that the application before the Court is
not frivolous and vexatious. (Turbo Resources Ltd. v. Petro Canada Inc.,
[1989] 2 F.C. 451 (C.A.), [1989] F.C.J. No. 14 (QL); North American Gateway
Inc. v. Canada (Canadian Radio-Television
and Telecommunications Commission), [1997] F.C.J. No. 628 (C.A.) (QL); Copello
v. Canada (Minister of Foreign Affairs), [1998] F.C.J. No. 1301 (T.D.)
(QL).)
[6]
The test
of arguable issue is “very low” in a stay application. As stated by the Federal
Court of Appeal in Oberlander v. Canada (Attorney General), 2003 FCA 134, [2003] F.C.J.
No. 427 (C.A.)
[20] …In my view, these arguments
meet the very low threshold for an arguable case in the context of a stay
application.
[7]
“Serious
issue” has also been described as an issue which is “not frivolous and
vexatious.” This Honourable Court has held that whether the issue or issues
meet the text for leave need not be determined at this stage. (Sowkey v. Canada (Minister of Citizenship and
Immigration),
2004 FC 67, [2004] F.C.J. No. 51 (QL).)
First Serious Issue: no
decision received
[8]
The
package the Applicant received on September 6, 2006, included a Pre-Removal
Assessment Risk (PRRA) decision with reasons, and a letter dated August 16,
2006 referring to a decision that was made relating to her humanitarian and
compassionate (H&C) application. It is not the decision itself. The
Applicant then received, on October 19, 2006, a second package, dated October
16, 2006, which she hoped would be the decision and reasons. This was the
response to the Court’s Rule 9 Federal Court/Immigration Refugee Protection
Rules request to provide written reasons of the tribunal. This second package
essentially was a copy of the same package items that the Applicant received on
September 6, 2006. The Applicant never received a decision regarding her
H&C application.
[9]
To the
extent that the August 16, 2006 letter is the H&C decision, which it is
not, the Applicant received the decision. Otherwise, the Applicant has still,
to the present time, not received the decision regarding her H&C
application.
Second Serious Issue:
inadequacy of reasons
[10]
The
Federal Court has held “boilerplate type decisions…(are)…imminently suspect and
will undoubtedly generate allegations that the Board did not really turn its
attention to the actual facts of a refugee claim”. (Mohacsi v. Canada (Minister of Citizenship and
Immigration),
[2003] 4 F.C. 771 (T.D.), [2003] F.C.J. No. 586 (QL).)
[11]
An officer
has a duty to give adequate reasons for her findings in “clear and unmistakable
terms.” (Hilo v. Canada (Minister of Employment and
Immigration),
[1991] F.C.J. No. 228 (QL); Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL).)
[12]
Not only
were adequate reasons not given by the representative in clear and unmistakable
terms in the case at bar, but reasons were not provided at all.
[13]
To the
extent that the letter of August 16, 2006 includes written reasons for the
negative decision, which it does not, those reasons are inadequate. The single
page letter does not include any reasons for the decision, but only a reference
that the circumstances of the Applicant’s request were reviewed. Paragraph 3 of
the letter provides:
On August 16, 2006, a representative of
the Minister of Citizenship and Immigration reviewed the circumstances of your
request and decided that an exemption will not be granted for your application.
[14]
The
obligation to provide adequate reasons is not satisfied by merely reciting the
submissions and evidence of the parties and stating a conclusion. Rather, the
decision-maker must set out its findings of fact and the principal evidence
upon which those findings were based. The reasons must address the major points
in issue. The reasoning process followed by the decision-maker must be set out
and must reflect consideration of the main relevant factors. (Via Rail
Canada Inc. v. National Transportation Agency), [2001] 2 F.C. 25 (C.A.), [2000] F.C.J. No. 1685 (QL), at
paragraphs 21 and 22.)
[15]
Therefore,
in order for reasons to be adequate, they must disclose the reasoning process
of the decision-maker and not merely state conclusions. No reasoning process is
evident in the letter of August 16, 2006, and the decision under review does
not meet the required standard.
[16]
The
following additional reasons for the importance of adequate written reasons
were provided by the Court of Appeal in Via Rail Canada, above, as
follows:
[18] Reasons also
provide the parties with the assurance that their representations have been
considered.
[19] In addition, reasons allow the parties to
effectuate any right of appeal or judicial review that they might have. They
provide a basis for an assessment of possible grounds for appeal or review.
They allow the appellate or reviewing body to determine whether the decision
maker erred and thereby render him or her accountable to that body. This is
particularly important when the decision is subject to a deferential standard
of review.
[17]
The
Applicant has not been allowed to effectuate any right of appeal or judicial
review that she may have had, without being furnished reasons for the negative
H&C decision. This is a serious issue.
[18]
The
Supreme Court of Canada has stated the following in Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817 (QL), regarding the issue of reasons for decisions:
[38] Courts and commentators have, however, often emphasized the
usefulness of reasons in ensuring fair and transparent decision-making. Though
Northwestern Utilities dealt with a statutory obligation to give reasons, Estey
J. held as follows, at p. 706, referring to the desirability of a common law
reasons requirement:
This obligation is a salutary one. It reduces to
a considerable degree the chances of arbitrary or capricious decisions,
reinforces public confidence in the judgment and fairness of administrative
tribunals, and affords parties to administrative proceedings an opportunity to
assess the question of appeal... .
The importance of reasons was recently
reemphasized by this Court in Reference re Remuneration of Judges of the
Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at paras. 180-81.
[39] Reasons, it has been
argued, foster better decision making by ensuring that issues and reasoning are
well articulated and, therefore, more carefully thought out. The process of
writing reasons for decision by itself may be a guarantee of a better decision.
Reasons also allow parties to see that the applicable issues have been
carefully considered, and are invaluable if a decision is to be appealed,
questioned, or considered on judicial review: R. A. Macdonald and D. Lametti,
"Reasons for Decision in Administrative Law" (1990), 3 C.J.A.L.P.
123, at p. 146; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), at para. 38. Those
affected may [page846] be more likely to feel they were treated fairly and
appropriately if reasons are given: de Smith, Woolf, & Jowell, Judicial
Review of Administrative Action (5th ed. 1995), at pp. 459-60. I agree that
these are significant benefits of written reasons.
[19]
The
Applicant has raised a serious issue regarding the adequacy of reasons by CIC
when it rejected the Applicant’s H&C application.
B - Irreparable Harm
[20]
If
deported, the Applicant would suffer irreparable harm in that she would not be
able to continue administering life-saving diabetes medication which she is
currently taking in Canada. She would not be able to
purchase it because of its high cost in the Philippines. Irreparable harm will be caused to the
Applicant’s parents if she were removed to the Philippines. They are dependent on the Applicant’s
help in regard to her mother’s quality of life.
[21]
The
Applicant has her two parents and four brothers – all living in Canada. Her four brothers and
parents are citizens of Canada. Apart from one brother in
Toronto, they all reside in Ottawa. Her mother is 72 years old
and her father has just turned 77. The Applicant has maintained two addresses
and is currently residing with her mother and father at 1909 Russell Road, Apt. #703 in Ottawa.
[22]
The
Applicant’s mother, Mrs. Corazon Agpoon, has been operated on many times
because of diabetes related illnesses and has had her left leg amputated
because of them. The Applicant and the Applicant’s father are “her mother’s
legs” as they wheel her about in a wheel chair and assist her in their
apartment on Russell
Road.
[23]
The
Applicant herself is a diabetic and has been a diabetic since a diagnosis in
1996 in the Philippines. She believes that she was
born a diabetic. She currently takes the prescription drug METFORMIN for her
diabetes. She takes three tablets per day at a cost in Canada of approximately 17.5 cents per tablet
(5.5 cents per day). While she was working in Canada, she was paying for these tablets.
However, since removal arrangements have commenced, she has had to stop working
because her work permit was taken away. When her tablets run out, she will have
to rely on family to assist in the purchase. If she can work, she does not need
this assistance.
[24]
The cost
of the METFORMIN medication in the Philippines
is approximately 75 pesos per tablet. The Applicant knows this because she was
on METFORMIN in the Philippines before she came to Canada. If she continued her
medication in the Philippines, it would cost approximately 225 pesos per day or
approximately $5.48 Canada per day (as 41 pesos = $1
Canadian). She states that this equates to $170.12 Canadian per month, an
amount which she simply would not be able to afford in the Philippines.
[25]
When the
Applicant was taking METFORMIN in the Philippines,
she was unemployed and her father, brother Florentino (married with three
children in Canada), would help her purchase the
drug. Whereas, her brothers and father could help her in the past, Florentino
would not be able to continue to help her if she returned to the Philippines. Florentino has just lost his
job and himself is unemployed with his own family to support. The Applicant’s
father would be unable to help either if she were to return. He is on a small
old age pension and his combined income with the Applicant’s mother is only
$1700.00 per month. This monthly pension has increased by only $5 each year
since 2001 (when the Applicant last was in the Philippines) and yet his expenses have increased in
the past five years. Where he was able to assist five years ago, he would not
be able to assist today.
[26]
The
Applicant only has a grade 3 education and little if no work experience. When
she lived in the Philippines, she was unemployed and any employment she has had
in Canada has been as a sorter in a
laundry store and cleaning houses. If she were deported to the Philippines, it is likely that she would
remain unemployed, considering her skills and education.
[27]
The Applicant
states that if she were able to obtain a minimum wage job, the most she could
expect to earn, based on her education and experience, is 15,000 pesos per
month or $365.85 Canadian per month (as 41 pesos = $1 Canadian). The Applicant
realizes that these figures are not supported by documented data in this
motion, but provides evidence by way of her affidavit from her personal
knowledge of the country conditions in the Philippines (including earning
capacity of minimum wage nationals) having lived there for almost 43 years
before coming to Canada. Also, her own husband earns 15,000 pesos as a driver
in the Philippines.
[28]
The cost
of taking METFORMIN in the Philippines would be almost half of her
monthly income if she were able to find a 15,000 pesos per month job, which the
Applicant was unable to find and hold, before, in the Philippines.
[29]
The
Applicant acknowledges that she has a husband and three children in the Philippines. Her husband is a driver
earning, as stated, 15,000 pesos per month. He supports the whole family
(himself and their three children, aged 19, 25 and 26, who live with him) on
his salary of $365.85 per month. All three children are still going to school,
notwithstanding their age. Schooling is not free in the Philippines. You must pay to send your
children to public school. If the Applicant were to be deported, the monthly
cost of METFORMIN would almost equal half her husband’s monthly income. The
Applicant is certain that an additional $170.12 per month for her medication
would be an excessive additional amount for the family to bear.
[30]
If the
Applicant were allowed to stay in Canada,
she would be able to work – as she had been (cleaning houses) – and she would
be able to afford and pay for her prescription medication herself. The standard
of proof to be applied by the Court is a balance of probabilities. The Court
need not be satisfied, on a balance of probabilities, that the harm will occur,
but need merely be satisfied that it is likely to occur.
[31]
In Xu,
above, the Court indicated that, in order to find irreparable harm, the harm
alleged must not be speculative:
[4] …While serious
jeopardy to life or safety of the person may be too high a standard in some
cases, the harm that is claimed must, at the very least, be non-speculative and
credible. In this sense, the existence of irreparable harm is fact specific…
[32]
The need
for the Applicant’s medication is supported by evidence filed with this record
– letter by Dr. Rahman, at Exhibit l. The Applicant’s lack of education and
work experience is also based on evidence from her life story. The cost of the
drug is also ascertainable and sworn evidence has also been given. These
elements are not speculative and all can be determined on the balance of
probabilities. What is speculative is – whether the Applicant’s brother will
find a job and be able to assist in funding the drug – whether the Applicant
herself will find a job in the Philippines. The evidence is that she has
not had a job there in the past. On a balance of probabilities, the harm – of
not being able to afford the drug in the Philippines – is likely to occur. If this happens
and the Applicant can’t take the drug, she believes that she is at risk of
physical harm.
[33]
The fact
that the Applicant’s mother has had her left leg amputated as a result of
diabetes must also be considered. This fact adds to the irreparable harm to be
suffered by the Applicant knowing that her own mother has been a victim of the
disease. She has stated her own fear that this may happen to her. This is not
speculative when the Applicant herself has been diagnosed with diabetes and is
taking prescription drugs to treat her own diabetes.
[34]
While this
Court has determined that, the fact that treatment may be expensive in another
country is not in itself irreparable harm, it left open the possibility that,
with appropriate evidence of the cost, there could be irreparable harm. (Singh
v. Canada (Minister of Citizenship and
Immigration),
2005 FC 909, [2005] F.C.J. No. 1133 (QL).)
[35]
This Court
in John v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 365, [2002] F.C.J. No. 466 (QL), decided that if the Applicant’s
child, who suffered from a serious medical condition, was unable to obtain
medication in St. Vincent, which would result in a deterioration of the daughter’s
health, then the Applicant would have experienced irreparable harm.
[36]
This Court
has also held that irreparable harm could result where the removal of a person
from Canada could prejudice the person’s health or access to ongoing medical
treatment if the Court is satisfied that there is an arguable case on an
application for judicial review of an application made for landing in Canada on
humanitarian and compassionate grounds. (See Samokhvalov v. Canada (Minister
of Citizenship and Immigration), [1994] F.C.J. No. 345 (QL).)
[37]
While the
facts of this case do not relate to ongoing medical treatment, but rather to
the administering of simple – but expensive – medication, when the facts are
broken down simply, the Applicant’s health indeed will be prejudiced if she is
removed from Canada and is unable to pay for her prescription medication in the
Philippines. There is an arguable case on the judicial review and when these
elements are satisfied (prejudice to health + arguable case), irreparable harm
is established.
[38]
The
Applicant is very close to her parents and four siblings in Canada. As indicated, she currently
resides with her parents. The Applicant has provided her own affidavit evidence
and her father’s affidavit evidence of the essential help that she provides to
her disabled mother. She is hoping that, in addition to this evidence, common
sense dictates that a family member such as herself, living with her mother,
provides essential physical help to her mother who is unable to walk. Her
father is 77 years old and logically would not have the same strength that the
Applicant has, to assist her mother. The Applicant’s father has provided
evidence to this effect.
[39]
A line of
cases supports the notion that irreparable harm can relate to family members of
the Applicant, if the Applicant is removed. (Richards v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 890 (QL); Goodman v.
Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1876
(F.C.T.D.) (QL); Charles v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 304, [1999]
F.C.J. No. 1149 (QL).)
[40]
It is
acknowledged that other cases support the notion that the irreparable harm
should be established in relation to the Applicant, if she were removed. In the
case at bar, irreparable harm would be caused to both the Applicant and her
parents if she were removed. In addition to the reasons explained above
regarding the Applicant’s inability to afford METFORMIN in the Philippines, she too, would lose the
benefit of knowing that she cannot continue to help her own mother in her
advancing years.
[41]
The facts
at bar (specifically the closeness of the family and help provided to the
mother by the Applicant) do not constitute the typical hardship occasioned by
removal. The hardship is specific and is explained in detail in both the
Applicant’s affidavit and her father’s affidavit relating to the dependence
that the Applicant’s mother has because of her disability.
[42]
Although
the applicant has a husband and three children in the Philippines, she has not received the same type of
support from them that she has received from her parents and four siblings in Canada, six of whom are Canadian
citizens. She has been separated from her husband and adult children for over 5
years. While a number of cases have held that loss of family support or
potential family break-up is not of itself irreparable harm, there are
additional factors in this case, which, when taken together, amount to
irreparable harm if the Applicant were removed from Canada.
C – Balance of Convenience
[43]
This Court
has recently defined balance of convenience as being an assessment of which
party will suffer most:
[3] …In other
words, whether the applicant would be more harmed if interim relief is not
granted then the respondent will be harmed if it is granted.
(Copello v. Canada (Minister of Foreign Affairs),
[1998] F.C.J. No. 1301 (T.D.) (QL) by Justice James Hugessen.)
[44]
Recognizing
that this is a case unto itself, based on its merits, (cas d’espèce), the
balance of convenience clearly favours the Applicant and does not hinder the
interests of the Minister in awaiting the predictable and timely response of
this Court in deciding the application for leave to judicially review the
representative’s H&C decision.
CONCLUSION
[45]
For all of the above
reasons, the application for a stay
of the execution for removal order is granted until such time as the
Application for Leave and for Judicial Review is determined.
ORDER
THIS COURT ORDERS that the application for a stay of the execution for
removal order be granted until such time as the Application for Leave and for
Judicial Review is determined.
“Michel M.J. Shore”
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