Docket: IMM-2940-11
Citation: 2012 FC 112
Ottawa, Ontario, January 27,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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NOLY DELA ROSA MERCADO
CRISTINA TOLENTINO MERCADO
NORMAN CHRISTOPHER TOLENTINO MERCADO
NATHANIEL TOLENTINO MERCADO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
principal applicant, Mr. Noly Dela Rosa Mercado, is originally from the Philippines. He has three children:
one is a citizen of Australia (Norman), another of
the United
States (Nathaniel)
and the third (Nicolai) is a citizen of Canada. Two of these children and the applicant’s
wife, who is also a citizen of the Philippines, were dependent claimants. Two of the
children have an allergy to peanuts, Nicolai and Nathaniel. It was advanced
before the Pre-Removal Risk Assessment (PRRA) Officer that this allergy could
not be adequately managed in the Philippines and hence they would face undue
and disproportionate hardship if required to apply for status from outside of Canada.
[2]
The
applicant and his family made numerous attempts to regularize their status in Canada. Each of these
attempts failed and removal was scheduled for April 7, 2011. A judge of this
Court granted a stay of removal on April 4, 2011, pending judicial review of
the decision not to defer removal and review of the negative Humanitarian and
Compassionate (H&C) decision. In Noly Dela Rosa Mercado et al v The Minister
of Citizenship and Immigration, 2011 FC 1492 I held that the
application for judicial review of the refusal to defer removal was moot.
[3]
The
remaining issue between the parties is whether the decision of the H&C Officer
to refuse the applicants’ application for permanent residency under section 25
of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA)
withstands
scrutiny on the standard of review of reasonableness expressed in Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[4]
The
applicants’ argument is predicated on two alleged errors by the H&C
Officer: that the Officer erred in rejecting the applicants’ doctor’s medical
opinion without consulting the Immigration Medical Officer (IMO) and second,
that the Officer erred in ignoring the applicants’ evidence that the likelihood
of accidental exposure to peanuts is greater in the Philippines than it is in
Canada. For reasons that follow, both of these arguments fail and the
application is dismissed.
No obligation to refer to the IMO
[5]
It
is well-settled that the grant of an H&C application is reserved for
exceptional cases. As well, given the highly discretionary element in an
H&C decision, significant deference is afforded by this Court to the
decision and a wider scope of possible reasonable outcomes may be present: Jurado
Tobar v Canada (Citizenship and Immigration), 2011 FC 1111; Inneh v
Canada (Citizenship and Immigration), 2009 FC 108 at para 13; Del Melo
Gomes v Canada (Citizenship and Immigration), 2009 FC 98 at para 9. To
succeed on judicial review, an applicant must demonstrate that the officer
either ignored or misconstrued evidence, or made a reviewable error in the
analysis of factors relevant to the discretion.
[6]
In
essence, the applicant’s argument is that the decision is, on its face, unreasonable
as H&C officers are not trained medical doctors and, as such, when faced
with complex medical materials it is incumbent upon them to refer to Canadian
Immigration Medical Officers who are there for that purpose.
[7]
In
this case, the H&C Officer was facing neither a question of diagnosis nor
of treatment. It was common ground that the rapid injection of epinephrine was
the prescribed treatment, either by an ampoule and syringe or by an EpiPen.
The question facing the H&C Officer was, as between these two well
understood medical procedures for delivery of the treatment (administration by syringe
or EpiPen) the applicants would face undue or disproportionate hardship in
being required to use the less preferable treatment.
[8]
In
sum, the applicants contend that it was a reviewable error for the H&C Officer
to find, without the benefit of advice from an IMO, that treating a peanut
allergy with the ampoule/syringe form was an acceptable method to manage the
medical risk. The H&C Officer conducted a thorough examination of the
relative merits of each method:
The
applicants contend that it is particularly dangerous for the children to reside
in the Philippines as EpiPen, an epinephrine auto-injector,
is not available in that country. (Epinephrine is “the drug of choice” to treat
anaphylaxis.) The advantage of the EpiPen is that it allows for
self-administration of a pre-measured dose of epinephrine. The evidence
presented by the applicants suggests that, in the Philippines, epinephrine is instead available in ampoule
form. Counsel submits that the children are too young to be taught to be use
[sic] an ampoule, syringe and needle and that studies have shown that training
parents to do so “was not very productive”. Specifically, the study notes that
parents were less accurate in drawing up a dose than medical professionals and
that the parents “had many concerns about successfully preparing and
administering a dose by this method”.
While
counsel describes utilizing an ampoule, syringe and needle as “1800’s approach
to medicine”, the evidence before me would suggest that this method is still
used by medical professionals in order to ensure a more accurate dosage for the
particular weight of a patient. (The EpiPen is only available in two
pre-measured doses.)
[…]
According
to information provided by the applicants, tourists are allowed to bring
prescribed medication to the Philippines if they “bring a letter from their
physician stating the condition for which they are receiving treatment and the
dosage”. It seems reasonable, therefore, that the applicants, as returning
citizens, would be able to return to Philippines with whatever number of
EpiPens their physician recommends for the family to have on hand at home and
that these could be carried by the children in the Philippines. In this regard,
it is important to note that epinephrine is not a medication that one would
take on a daily basis, but rather is prescribed as a precaution in the event of
a “life- threatening allergic reaction”. I have no information before me as to
how often or, indeed, if ever the children have required an injection of
epinephrine or, more specifically, have used an EpiPen. A letter from the
school principal indicates that once Nathaniel had what she describes as a
“severe anaphylactic [sic] reaction” in the school and, on that occasion, he
[sic] assisted by paramedics. There is no mention that either Nathaniel himself
or a member of staff administered epinephrine using the EpiPen.
[9]
The H&C
Officer’s reasons reflect both common knowledge and common sense. In other
words, one need not be a medical expert to comprehend the relative differences
between administration of epinephrine via an ampoule and syringe and via an
EpiPen. There would be little, if any, value added to the exercise of discretion
by an IMO medical report. In any event, the H&C Officer approached the
issue on the basis that the EpiPen had advantages in its portability and ease
of administration, particularly with children.
[10]
Counsel
for the applicants relies on Patel v Canada (Minister of Citizenship &
Immigration), 2005 FC 1055, for the argument that where the H&C Officer
had obtained an opinion from the IMO, the H&C Officer erred by failing to
address all of the concerns raised in the applicants’ evidence from their own
medical doctors. Here, and unlike Patel, the H&C Officer did not
rely on any medical evidence to the exclusion of any other evidence provided
either by the applicants or by an IMO. In fact, the Officer framed his
assessment of the H&C factors on the basis of the applicants’ own medical
evidence:
The
applicants have not provided a doctor’s letter or other medical documents
regarding Nathaniel. It is, therefore, difficult to gauge the severity of his
condition or how it has, in the past, or would, in the future, affect him. As
for Nicolai according to a July 2010 letter from his pediatrician, Dr. Tse, he
has a “severe allergy to peanuts”, which “can be life-threatening without
proper precautions”. He further states that his condition “requires close
monitoring and treatment”.
[11]
The
letter from the applicants’ physician stated that the applicants’ children’s
allergy to peanuts “can be life-threatening without proper precautions.” All
that this means is that absent the proper precautions, i.e. having either an
ampoule, syringe or an EpiPen on hand in the case of exposure to peanuts, the
peanut allergy can be life threatening. The evidence does not say or
imply that not having an EpiPen is life-threatening. Dr. Tse’s letter
simply states: “Nicolai will have to avoid peanuts and to have with him an EpiPen
for emergencies.”
[12]
In
light of the evidence before the H&C Officer that the ampoule, syringe and
needle method is still used by medical professionals to deliver epinephrine,
there is nothing in Dr. Tse’s letter or in the record to suggest that the
ampoule, syringe and needle form of delivering epinephrine is any less
effective and life-saving than an EpiPen in the case of an anaphylactic
reaction. An EipPen is admittedly more convenient and may require less time (measured
in seconds) to administer, but that does not mean that the alternative is so unacceptable
as to constitute unusual or underserved hardship within the meaning of section
25 of the IRPA, as the Officer reasonably found.
[13]
The
applicants also contend that the H&C Officer neglected to consider Nicolai’s
peanut allergy with respect to his asthma. Counsel submits that “had the
Officer consulted a Medical Officer, the Officer probably would have been
alerted to the fact that the existence of asthma creates a very strong
comorbidity to anaphylaxis.”
[14]
Evidence
of comorbidity, not just asthma and peanut allergy, was not specifically mentioned in the medical
documentation in the record and was not before the H&C Officer such that
the Officer failed to consider it. With respect to asthma, the H&C Officer
wrote:
Dr
Tse also notes that Nicolai “developed” asthma in the six months prior to the
writing of his July 2010 letter. In that time period, he required treatment at
the hospital on three occasions. The applicants have submitted two discharge
sheets from the Sick Kids Hospital from March 2010, which indicate that the
child was diagnosed with “[r]eactive airways disease — possible asthma” and
“left sided pneumonia” and that he was given two prescriptions including one
for an inhaler. A note from Dr Tse written that same month indicates that the
child was suffering from bronchitis. This would suggest that his
hospitalization was not due solely to his asthma. Asthma is not an uncommon
ailment and the applicants have not submitted that the necessary treatment or
medication is unavailable in the Philippines. Although the applicants may prefer to
remain in Canada under the care of their current family
physician, they have provided little evidence to demonstrate that, in the Philippines, Nicolai would not have access to
whatever medical care he might require for his asthma.
[15]
Absent
any evidence which the H&C Officer failed to consider, there is no
suggestion on the record that the combination of asthma and peanut allergy have
a comorbidity which would make the decision unreasonable or to establish
arguable grounds of undue hardship. In any event, it is difficult to see how
postulating scenarios with adverse medical outcomes advances the applicants’
position as the H&C Officer approaches the decision on the basis that a peanut
allergy, in and of itself was life-threatening.
[16]
In
sum, the H&C Officer did not err in making the decision on H&C factors
without of the benefit of the opinion of an IMO. He was not required to consult
an IMO where what was involved was neither the diagnosis or management of a
complex medical condition, but rather the practical implications associated
with two different but widely known and acceptable methods of management of a
known condition.
The H&C
Officer did not err in respect of the likelihood that accidental exposure to peanuts
was greater in the Philippines than it was in Canada because the Officer did not ignore
evidence
[17]
The
applicants submit that the H&C Officer erred in ignoring the evidence which
demonstrated that the likelihood of an unintentional peanut exposure was
greater in the Philippines than it was in Canada. The applicants’
argument devolves to a disagreement over the weight given to the evidence by
the H&C Officer. The H&C Officer accepted that peanuts are abundantly
available in the Philippines. The Officer also
accepted that food labeling requirements may be less strict in the Philippines. He further assessed
the relative degree of social awareness between Canada and the Philippines with respect to peanut
allergy. It cannot be said that the Officer committed a reviewable error by
finding that the likelihood of an unintentional peanut exposure was no greater
in the Philippines than it was in Canada. The H&C Officer
did not ignore evidence in making such a finding.
[18]
The
appropriate test for an officer of Citizenship and Immigration Canada
adjudicating an H&C application is whether the applicant would suffer an
unusual, undeserved or disproportionate hardship by being forced to apply for
permanent residency outside of Canada. The reasons provided by the H&C Officer reasonably
demonstrate that no such hardships will be suffered and the decision remains
within the range of possible, acceptable outcomes defensible in light of the
facts and law and is therefore reasonable.
[19]
The
application for judicial review is dismissed.
[20]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
“Donald
J. Rennie”
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