Date: 20100827
Docket: IMM-4719-09
Citation: 2010 FC 852
Ottawa, Ontario, August 27,
2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
VAN
THANH NGUYEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Applicant, a citizen of Vietnam, came to Canada in January 1988 as a
permanent resident. In 1992,
the Applicant was convicted of robbery with a weapon, and imprisoned for four
years, from 1992 to 1996. As a result, he lost his permanent resident status on
December 15, 1993 and a deportation order against him became effective. Since
that time, he has been living in Canada without status, and has acquired another
four criminal convictions in Canada. He has recently married and is the
father of a Canadian-born child and two step-daughters.
[2]
An important factor
in the Applicant’s case is his ongoing health concerns as a result of a kidney
transplant that he received in 1998. In 1999, his removal order was suspended
due to his medical issues. He alleges that he is currently unable to work and
is on a provincial disability allowance. Since his kidney transplant, the
Applicant has been on numerous medications, including cyclosporine, an
anti-rejection drug, without which he would suffer rejection of his kidney and
renal failure. The cost of the Applicant’s medications is currently covered by
provincial drug plans.
[3]
In December 2006, the
Applicant applied for permanent residence status from within Canada on humanitarian and compassionate (H&C) grounds
pursuant to s. 25 of the Immigration
and Refugee Protection Act,
S.C. 2001, c.27 (IRPA). In a decision dated September 16, 2009, an
Immigration Officer rejected the H&C application on the basis that there
was insufficient evidence to show that the Applicant would face unusual,
undeserved or disproportionate hardship in obtaining a permanent resident visa
from outside Canada. The Officer examined four relevant factors in coming to
his conclusion: establishment, medical history, best interest of the children,
and criminal history.
[4]
The
Applicant seeks judicial review of the decision.
II. Issues
[5]
The
determinative issue raised by this application is whether the Officer’s
decision was unreasonable, in that it was made without regard to all of the
evidence. In particular, the Applicant raises this issue with respect to the
Officer’s conclusion that: (a) he could work in Vietnam and be in a position to buy the
necessary medication; and (b) his wife could help support him in Vietnam.
III. Analysis
[6]
The
parties both submit that the appropriate standard of review of an H&C
decision is reasonableness. I agree. Given the discretionary nature of the
H&C decision and its factual intensity, the deferential standard of reasonableness
is appropriate. On this standard, the
Court should not intervene where the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 47). In
addition, the Court may grant relief if it is satisfied that the tribunal made
its decision without regard for the material before it (Federal Courts Act
R.S.C. 1985, c. F-7, s. 18.1(4)(d)).
[7]
Briefly stated, the
key argument of the Applicant is that the Officer’s decision is unreasonable
because it failed to consider the inability of the Applicant to afford to buy
anti-rejection medication in Vietnam. The Respondent, in turn, submits that,
based on the information before the Officer, the decision was not unreasonable.
An analysis of these arguments requires that I assess the information that was
before the Officer and determine whether the Officer had regard to that
evidence. Unfortunately, on this Certified Tribunal Record (CTR), I am unable
to do so and must, accordingly, allow the judicial review.
[8]
The Respondent refers
to much information and documentary evidence in the CTR that would support a
conclusion that the Applicant simply failed to meet his burden. After all, in the context of
an H&C application, it is the Applicant’s burden to adduce proof of any
claim on which the H&C application relies (Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635 at para. 5).
In Owusu, at para. 8, the Federal Court of Appeal stated that:
[S]ince applicants have the
onus of establishing the facts on which their claim rests, they omit pertinent
information from their written submissions at their peril.
[9]
To a certain point, I
agree with the Respondent. There is no question that the Applicant could have
provided better information to support his claim that he was unable to work or
to afford the cost of medication in Vietnam. Were it not for the problem described
in the following, I would have dismissed this application. Many of the
submissions made on behalf of the Applicant were heavy on rhetoric and light on
evidence.
[10]
However, the
Applicant refers to evidence in the CTR that indicates that an interview was
scheduled for the Applicant on March 30, 2009 (subsequently postponed to April
10, 2009). In his affidavit, filed with this application for judicial review,
the Applicant describes the areas of discussion with the Officer during the
one-hour interview. According to the Applicant, many of the matters raised at
the interview were relevant to the very question of whether the Applicant could
afford to pay for anti-rejection medication if he were deported to Vietnam. The Applicant was not cross-examined on his affidavit. The
Applicant’s responses during the interview appear to address many of the
concerns raised by the Officer, in his decision, about the insufficiency of
evidence on the Applicant’s ability to pay for medication in Vietnam. The problem is that the CTR, which would normally contain
the Officer’s interview notes, does not do so. Further, the interview is not
referred to in the Officer’s decision. Nor did the Respondent obtain an
affidavit from the Officer to explain the absence of the notes. In short, I
cannot be satisfied that the Officer had regard to the evidence obtained from
the interview. On this basis, I will allow the judicial review.
[11]
I would, as a final
note, observe that difficulty in accessing medical care in Vietnam is not determinative in an H&C application. The medical
condition of the Applicant is only one factor that must be weighed with all of
the relevant factors, including his lengthy criminal record. However, it is
important that the Officer’s decision be made with regard to all of the
evidence, including the results of any interview.
[12]
Neither party
proposes a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The application for
judicial review is allowed and the decision quashed;
2.
The matter is
remitted to the Minister for reconsideration by a different Officer, with an
opportunity provided to the Applicant to make further submissions; and
3.
No question of
general importance is certified.
“Judith
A. Snider”
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