Date: 20110726
Docket: IMM-7348-10
IMM-7349-10
Citation: 2011 FC 932
Ottawa, Ontario, July 26,
2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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VECKQUETH NEROW STEPHENSON
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The applicant
seeks to have two decisions judicially reviewed. Both decisions were made by
the same Pre-Removal Risk Assessment Officer (the Officer) on November 30,
2010.
[2]
In
the first decision, the Officer rejected the applicant’s Pre-Removal Risk
Assessment (PRRA) application after concluding that neither a risk of
persecution under section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] nor a danger of torture, a threat to life, nor a risk of
cruel and unusual treatment or punishment under section 97 of the IRPA had
been established. Court file IMM-7348-10 relates to this decision.
[3]
In
the second decision, the Officer denied the applicant’s request
under subsection 25(1) of the IRPA to have his application for permanent
residence processed from within Canada on Humanitarian and Compassionate (H&C)
grounds
after finding that the applicant had not demonstrated that he would experience
unusual and undeserved or disproportionate hardship if he were required to
apply for residence from abroad. Court file IMM-7349-10 relates to this
decision.
[4]
Both
applications for judicial review were heard together. As such, these reasons
will address both applications and a copy shall be placed in each of the
Court’s files.
I. Background
[5]
The
applicant, born October 24, 1961, is a citizen of Jamaica. He began to
experience vision problems in 1995, at the age of 34. In 1998, he had an
accident and lost all vision in his left eye. At the same time, he was
diagnosed with glaucoma. The vision that was remaining in his right eye
deteriorated over time to a point where, eventually, he became legally blind.
[6]
The
applicant arrived in Canada in June 2000, where his mother and two
sisters lived (they were, and are, Canadian citizens). In July 2004, he applied
for refugee protection on the basis of an alleged risk related to his prior
involvement in Jamaican politics. His claim was denied in May 2006.
[7]
In
November 2006, the applicant filed an H&C application, requesting
permission to apply for permanent residence from within Canada. The
applicant alleged that he would suffer from discrimination based on his visual
impairment if he returned to Jamaica. He also claimed that
he was well-established in Canada and relied on his family here for support
and, as such, the requirement to apply for permanent residence from abroad
would constitute a significant hardship.
[8]
In
August 2008, the applicant filed a PRRA application. He alleged that he would
suffer discrimination based on his impaired vision if he was returned to Jamaica and that
discrimination would, cumulatively, amount to persecution. Furthermore, he
claimed that he would not have access to adequate healthcare in Jamaica such that
his physical and moral integrity would be threatened.
[9]
On
February 3, 2010, negative decisions were rendered on both the applicant’s PRRA
and H&C applications. The applicant applied for judicial review and, by order
upon consent of the parties issued by the Federal Court on October 19, 2010
(files IMM-2256-10 and IMM-2257-10), both the PRRA and H&C applications
were returned for re-determination by a different PRRA officer.
II. The decisions under review
[10]
On
November 30, 2010, the applicant’s PRRA and H&C applications were denied
again. These are the decisions that are currently under review.
A. The
PRRA Decision (File IMM-7348-10)
[11]
The
Officer divided his analysis into two main parts: first he considered the risk
related to the applicant’s visual impairment generally, and second, he
considered the applicant’s allegations regarding the provision of inadequate
healthcare in Jamaica.
[12]
As
to the issue of visual impairment, generally, the Officer found that the applicant
had provided only minimal evidence to suggest that he had been personally
subject to discrimination in Jamaica. Instead, the
allegations at issue largely concerned the situation faced by similarly
situated people: Jamaicans with disabilities.
[13]
While
he acknowledged that a high unemployment rate existed among Jamaicans with
disabilities, the Officer explained that the causes for this unemployment went
beyond discrimination and included inaccessible workplaces as well as low
levels of training and experience. Furthermore, the Officer found that the
presence of organizations such as the Jamaica Society for the Blind (JSB) and
the Jamaica Council for Persons with Disabilities demonstrated that Jamaican
authorities and Non-governmental Organizations (NGOs) were seeking to improve
circumstances for the disabled, including the visually impaired.
[14]
According
to the Officer, little evidence had been provided concerning the workforce
participation of the visually impaired or concerning social discrimination
against the visually impaired in particular.
[15]
The
Officer concluded that, while people with disabilities may be discriminated
against in relation to employment and education, the available documentation
did not indicate that such discrimination was sustained or systemic so as to
constitute persecution. He found that the applicant had provided insufficient
evidence to establish that the visually impaired faced persecution in Jamaica.
[16]
As
to the issue of healthcare, the Officer emphasized that subparagraph 97(1)(b)(iv)
of the IRPA excluded risk caused by the inability of a country to provide
adequate health care. In any event, the Officer cited the UK Home Office as
stating that the Jamaican health system was capable of providing primary,
secondary and tertiary care. The Officer found that there was insufficient
evidence suggesting that the Jamaican government was unwilling to provide
medical services to the disabled.
[17]
Overall,
the Officer concluded that neither a risk of persecution, nor a danger of
torture, a threat to life, nor a risk of cruel and unusual treatment or
punishment, had been sufficiently demonstrated by the applicant.
B. The H&C Decision (File
IMM-7349-10)
[18]
The
Officer divided his H&C analysis into two parts: first he considered the
risk alleged by the applicant and, second, he considered the question of
establishment.
[19]
The
Officer’s analysis of the risk alleged vis-à-vis the applicant’s visual
impairment was virtually identical to the analysis set out in his PRRA
decision. He concluded, however, by stating that the applicant had not
demonstrated that he was personally affected by discrimination relative to
employment and education and that he had provided insufficient evidence of
widespread social or official discrimination, specifically targeting the
visually impaired. As a result, the Officer was not satisfied that the
applicant would experience a risk amounting to unusual and undeserved or
disproportionate hardship relating to discrimination based on his visual
impairment.
[20]
On
the question of establishment, the Officer stated that the issue was whether
the applicant had established links to Canada that, if
broken, would cause unusual and underserved or disproportionate hardship.
[21]
The
Officer found that the applicant had demonstrated only minimal integration into
the Canadian economy and that his degree of establishment specific to the
Canadian workforce, i.e. his part-time work as a janitor, was not in itself
sufficient to warrant an exemption on humanitarian grounds. The Officer noted
that the applicant would be able to access the type of government supported
employment services in Jamaica that he was prevented
from accessing in Canada due to his immigration status. The Officer was
not satisfied that the applicant’s employment potential would be negatively
affected by leaving Canada.
[22]
The
Officer noted that the applicant had provided evidence of a substantial
contribution to community organizations through volunteering. Although he found
the applicant’s efforts to be laudable, he indicated that the applicant had not
explained what hardship he would suffer if he were no longer associated with
these organizations. In any event, he did not find any evidence that the
applicant would be unable to continue with similar community based activities
in Jamaica.
[23]
The
Officer then turned to consider the applicant’s ties to his Canadian family
members. He acknowledged that the evidence demonstrated that the applicant was
dependent on his mother and sisters to a certain extent. However, he found that
there was little indication as to the level of dependency and, in light of his
community involvement, the Officer was not satisfied that the applicant’s
visual impairment would prevent him from caring for himself upon returning to Jamaica.
[24]
In
terms of whether adequate healthcare would be available to the applicant in Jamaica, the Officer
noted that the Jamaican health system was capable of providing primary,
secondary and tertiary medical care and that, if cost were a factor, the
applicant’s family had not indicated that they would be unable to continue to
financially support him.
[25]
The
Officer was not satisfied that the applicant would experience unusual and
undeserved or disproportionate hardship if he were required to apply for
permanent residence from abroad and, as such, he denied the applicant’s request
for exemption.
III. Issues
[26]
These
applications raise several issues. The following issue relates to both applications
for judicial review (i.e. both IMM-7348-10 and IMM-7349-10) :
(1)
Did the Officer breach the duty of procedural fairness by failing to
disclose certain country conditions documents and by failing to provide the
applicant with an opportunity to comment on those documents?
[27]
The
applications also raise issues that are specific to each file:
The
application relating to the PRRA decision (IMM-7348-10)
(2)
Did the Officer err in his assessment of risk for the purposes of the PRRA
application?
The
application relating to the H&C decision (IMM-7349-10)
(3)
Did the Officer err in his assessment of hardship relative to discrimination
for the purposes of the H&C application?
(4)
Did the Officer err in his assessment of hardship relative to the
applicant’s access to medical treatment for the purposes of the H&C
application?
(5)
Did the Officer err in his assessment of establishment for the purposes of
the H&C application?
[28]
At
the hearing, counsel for the applicant requested, should the Court decide to
allow one or both applications, that the Court grant costs as well as a stay of
removal until a re-determination is finalized. I will address these requests
after reviewing the PRRA and the H&C decisions.
IV. Standard
of review
[29]
Questions
related to procedural fairness are to be reviewed using the correctness
standard (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 43, [2009] 1 S.C.R. 339; Sketchley v Canada (Attorney
General),
2005 FCA 404 at para 53, [2006] 3 FCR 392). As such, the first issue,
regarding the Officer’s treatment of the documentary evidence, will be reviewed
without deference to the decision-maker.
[30]
The
remaining issues will be reviewed against the reasonableness standard.
[31]
The
jurisprudence is clear that the standard of review applicable to an officer’s
determination on an H&C application is reasonableness (Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at para 18, [2010] 1 FCR
360). Likewise, the standard to be applied when reviewing a PRRA determination
is also reasonableness (Kanaku v Canada (Minister of
Citizenship and Immigration), 2009 FC 394 at para 45, 176 ACWS (3d)
1122). It is also well established that the same standard applies to the
decision-maker’s assessment of the evidence (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190) [Dunsmuir]).
[32]
The
Court’s role when reviewing a decision against the reasonableness standard is
enunciated in Dunsmuir, above at para 47:
.
. . A court conducting a review for reasonableness inquires into the qualities
that make a decision reasonable, referring both to the process of articulating
the reasons and to outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
V. Analysis
Files
IMM-7348-10 and IMM-7349-10
(1)
Did the Officer breach the duty of procedural fairness by failing to
disclose certain country conditions documents and by failing to provide the
applicant with an opportunity to comment on those documents?
[33]
The
applicant submits that the Officer breached the duty of procedural fairness by
relying on extrinsic country conditions evidence, i.e. documents that were
neither submitted by the parties nor available in the Immigration and Refugee
Board’s National Documentation Package on Jamaica, without
providing him with an opportunity to make submissions in response to that
evidence.
[34]
In
particular, the applicant points to four documents included in the list of
“Sources Consulted” at the end of the Officer’s PRRA decision and in the
“Bibliography” at the end of the Officer’s H&C decision:
1. “Freedom in
the World 2010 – Jamaica” Freedom House (3 May 2010).
2. “JSB,
Empowering the Blind for 50 Years” Jamaica Information Service (10 March
2004).
3. “Society for
the Blind Sets Sights on Raising Funds” The Gleaner (12 June 2010).
4. “Jamaica Society for
the Blind Needs Help” The Gleaner (18 July 2010).
[35]
It
is well accepted that a PRRA officer need not disclose every document relied
upon in a PRRA or H&C assessment. The Federal Court of Appeal in Mancia
v Canada (Minister of
Citizenship and Immigration), [1998] 3 F.C. 461, 161 DLR (4th) 488 (CA)
[Mancia] set out what is required in terms of disclosure. The Court of
Appeal indicated that where an officer intends to rely on evidence not normally
found in documentation centres, fairness requires “that the applicant be
informed of any novel and significant information which evidences a change in
the general country conditions that may affect the disposition of the case” (Mancia
at para 22).
[36]
The
Officer referred to the first document, “Freedom in the World 2010 – Jamaica”, in both
his PRRA and H&C decisions, as part of his consideration of the risk of
political violence alleged by the applicant on his initial claim for refugee
protection. Since the applicant did not advance this risk as a basis for either
his PRRA or H&C applications, it can hardly be said that the Officer relied
on the first document for information that had the potential to affect the
disposition of the applicant’s case. As such, the Officer did not err in
failing to disclose this document or the information contained within it.
[37]
The
other three impugned documents are news articles related to the JSB. These
articles describe the role of the JSB in providing skills training, employment
counselling, and specialized tools and facilities for the visually impaired in Jamaica. They also
indicate that the JSB receives part of its funding from the Jamaican
government, and part of its funding from the private sector. The Officer relied
partly on these articles in both his PRRA and H&C decision to conclude
that, “Jamaican authorities and NGOs are seeking to improve the circumstances
for the disabled, including the visually impaired.”
[38]
While
I am satisfied that these particular articles were not part of the standard
documentation package for Jamaica, I am not satisfied that the information
contained in them was “novel and significant information which evidences a
change in the general country conditions” so as to engage the disclosure
requirement set out in Mancia, above. The US Department of State Report,
“2009 Human Rights Report: Jamaica”, which was included in the Immigration and
Refugee Board’s National Documentation Package on Jamaica (NDP), contained
similar information, it indicated:
The Ministry of Labor has responsibility
for the Jamaica Council for Persons with Disabilities, which had a budget of
J$47 million ($500,000) in 2008-09. The ministry also has responsibility for
the Early Stimulation Project, an education program for children with
disabilities, as well as the Abilities Foundation, a vocational program for
older persons with disabilities.
[39]
Justice
Michel Beaudry, in Jiminez v Canada (Minister of Citizenship and
Immigration), 2010 FC 1078 (available on CanLII) [Jiminez],
highlighted that when considering an officer’s obligation to disclose, the
question is not whether the impugned document was available to the applicant,
the question is whether the information contained in that document was
available to the applicant. I find, in the current case, that the information
relied upon by the officer – regarding the existence of government-funded
organizations and programs designed to improve the circumstances of the
disabled in Jamaica - was available to the applicant at the time of his
application. Although the existence of the JSB itself may not have been
mentioned in the NDP, the details set out in the impugned articles would not
have been difficult to come across. I adopt the words of Justice Beaudry from Jiminez
at para 19:
I find that there was no lack of
procedural fairness here. The information relied upon is widely available, and
even if the applicants had not read that specific article, it is a piece of
information that would have been easy to come across. . . .
The
application relating to the PRRA decision (IMM-7348-10)
(2)
Did the Officer err in his assessment of risk for the purposes of the PRRA
application?
[40]
The
applicant argues that the Officer erred in assessing whether the discrimination
faced by the visually impaired in Jamaica – in terms of access to
education, employment and healthcare – amounted to persecution on a cumulative
basis for the purposes of section 96 of the IRPA.
[41]
Discrimination does not always amount to
persecution. Although the term “persecution” is undefined in the IRPA, the
Supreme Court of Canada in Canada (Attorney General) v Ward, [1993] 2
SCR 689 at para 63, 103 DLR (4th) 1, endorsed a definition whereby “persecution”
is given the following meaning: a “sustained or systemic violation of basic
human rights demonstrative of a failure of state protection”. Discrimination,
thus, may amount to persecution if it satisfies this definition. This was the
test applied by the Officer in his reasons.
[42]
The applicant submits that the Officer
erred in determining that there was insufficient evidence to find that
discrimination against the visually impaired in Jamaica
was sustained or systemic. He points to evidence showing that persons with
disabilities encounter discrimination in terms of access to employment,
education and healthcare. He also emphasizes that there are no laws prohibiting
discrimination against persons with disabilities in Jamaica.
In essence, the applicant is asking the Court to re-weigh the evidence that was
before the Officer and substitute its own assessment as to whether the
discrimination faced by the visually impaired in Jamaica
is sustained or systemic so as to amount to persecution. That is not the role
of this Court on judicial review.
[43]
While the Officer recognized that
discrimination relative to employment and education may persist against the
disabled in Jamaica,
he was nonetheless unconvinced that sustained or systemic discrimination
against the visually impaired, within the meaning of the definition from Ward,
had been demonstrated. He explained that the applicant was relying almost
entirely on evidence relating to similarly situated individuals, and not
evidence as to his own personal experience in Jamaica.
He had concerns about that objective evidence, as it was general in nature –
addressing the issues of employment and education in relation to persons with
disabilities generally, but not particularly addressing the situation of the
visually impaired. Ultimately, given the existence of government funded
organizations working to improve the circumstances of the visually impaired,
the Officer found that the test for persecution as set out in Ward had
not been met. I cannot find that this weighing of the evidence was
unreasonable.
[44]
The
applicant also attacks particular aspects of the Officer’s analysis.
[45]
First,
he submits that the Officer unreasonably concluded that the Jamaica Council for
Persons with Disabilities (JCPD) and the JSB could provide him with protection.
He contends that the mandate of these organizations is to provide
rehabilitative services and employment counselling, not to provide protection.
[46]
However,
the question at issue was whether the discrimination alleged by the applicant
truly constituted a “sustained or systemic violation of basic human rights”.
The Officer did not conclude that the JCPD and JSB would “protect” the
applicant from discrimination; instead, he concluded that the existence of
these organizations showed that Jamaican authorities were seeking to improve
the circumstances of the visually impaired. It is not unreasonable for the
Officer to have considered the existence of government-funded organizations
that work to provide services to the disabled and to ameliorate their
disadvantaged position in society in his assessment of whether discrimination
was truly sustained or systemic so as to amount to persecution. I can find no
error in the Officer’s assessment in this regard.
[47]
Second,
the applicant argues that the Officer erred when he suggested that
discrimination was not the sole cause for the high rate of unemployment amongst
persons with disabilities in Jamaica. The applicant submits
that the other factors pointed to by the Officer – low levels of training and
experience, and inaccessible workplaces – are all, essentially, the result of
discrimination.
[48]
It
is possible that the Officer meant to differentiate between employers who
directly discriminate based on a person’s disability and more indirect forms of
discrimination. Nonetheless, I agree with the applicant that it would be a
mistake not to recognize that a disabled person’s restricted access to
training, and even their restricted access to certain physical workplaces, may
very well be the result of discrimination. Although I find the Officer’s
statement that, “the causes for [the high unemployment rate amongst the
disabled in Jamaica] include
inaccessible workplaces and low levels of training and experience, in addition
to discrimination”, to be problematic, I cannot find that it renders his entire
analysis as to persecution unreasonable. The Officer’s primary finding – that,
in light of the government-funded organizations dedicated to providing
assistance to the visually impaired, and in light of the general nature of the
evidence presented by the applicant, insufficient evidence had been adduced to
establish that the applicant would face discrimination amounting to a sustained
or systemic violation of basic human rights – is unaffected.
[49]
Third,
the applicant takes issue with the Officer’s finding that “little evidence” had
been provided concerning the workforce participation of the visually impaired
in particular. He argues that the 73 percent unemployment rate for persons with
disabilities cited in the evidence before the Officer included visually
impaired people. While this may be true, it is not unreasonable that the
Officer was concerned with the generality of this evidence. The onus was on the
applicant to demonstrate that he would be persecuted upon returning to Jamaica. While he
was entitled to rely on evidence as to similarly situated individuals, the more
specific that evidence to the applicant’s particular circumstances, the more
compelling it is. The applicant did include a newspaper article in his submissions
that highlighted the case of a visually impaired woman who had been unable to
secure work. However, that anecdotal evidence hardly constitutes evidence as to
“trends in workforce participation” [emphasis added] relating to the
visually impaired.
[50]
Finally,
the applicant submits that the Officer erred in considering the evidence as to
inadequate healthcare. He points to documentary evidence that was before the
Officer which indicated that the Jamaican health care system lacked specialized
services for persons with disabilities.
[51]
Subparagraph
97(1)(b)(iv) of the IRPA indicates that a claimant cannot be considered
a person in need of protection if they allege a risk to their life or a risk of
cruel and unusual treatment or punishment where that risk is caused by the
“inability” of their home country to provide adequate health or medical care.
The Federal Court of Appeal in Covarrubias v Canada
(Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3
FCR 169 [Covarrubias] interpreted the word “inability” to be broad
enough to include inability resulting from a good faith decision, made for
legitimate political and financial priority reasons, not to provide care.
[52]
The Officer referenced subparagraph 97(1)(b)(iv) of the IRPA
and Covarrubias, and found that there was “insufficient
basis to conclude that healthcare in Jamaica [was] allocat[ed] for
reasons other than financial priorities.” The onus was on the applicant to
demonstrate that the lack of specialized services was the result of something
other than a legitimate political or financial priority
reason (Covarrubias at para 41). The applicant adduced no evidence in
this regard and, as such, the Officer’s finding under section 97 of the IRPA
was reasonable
[53]
The
applicant also argues that, quite apart from the issue of section 97, the lack
of specialized services for persons with disabilities is also demonstrative of
systemic discrimination sufficient, when combined with the discrimination
related to employment and education, to constitute persecution under
section 96 of the IRPA. He contends that the absence of
specialized services has a disproportionate impact on people with disabilities
and, as such, is a form of indirect discrimination.
[54]
Although
the Officer did not specifically address the question of indirect
discrimination, it is clear that he was not satisfied that the applicant would
be provided with inadequate medical care in Jamaica. The Officer
cited evidence from the UK Home Office indicating that the Jamaican health
system was capable of providing primary, secondary and tertiary care and that
the Jamaican government did provide a certain level of financial assistance in
this regard. Given this, I cannot find that it was unreasonable for the Officer
to find that the applicant had not demonstrated that he would receive
inadequate treatment for his glaucoma if required to return to Jamaica.
[55]
Overall,
I find that the Officer did not err in his assessment of risk for the purposes
of the PRRA application. As such, the application for judicial review of the
PRRA decision is dismissed. The remaining issues relate to the H&C decision
only.
The
application relating to the H&C decision (IMM-7349-10)
(3)
Did the Officer err in his assessment of hardship relative to discrimination
for the purposes of the H&C application?
[56]
The
applicant submits that the Officer erred in concluding that there was
insufficient evidence of discrimination to warrant a finding that unusual and
undeserved or disproportionate hardship would result if he were required to
apply for permanent residence from abroad.
[57]
The
applicant argues that the Officer erred in finding that the discrimination
faced by people with disabilities in Jamaica was not systemic or
widespread. He points to the same evidence of
discrimination that he pointed to in relation to the PRRA decision. As with the
PRRA, the applicant is asking the Court to re-weigh the evidence. This time, he
is asking the Court to substitute its own assessment as to whether the
discrimination faced by the visually impaired in Jamaica
was widespread enough to warrant finding that the he would suffer unusual and
underserved or disproportionate hardship. Again, that is not the role of this
Court on judicial review.
[58]
The Officer expressed concern over the fact
that the applicant had not demonstrated that he would personally be affected by
discrimination in Jamaica.
He had concerns about the objective evidence of discrimination, as it was
general in nature – relating to people with disabilities broadly, but not to
the visually impaired specifically. Ultimately, given the existence of
government funded organizations working to improve the circumstances of the
visually impaired, the Officer found that there was insufficient evidence of
widespread discrimination targeting the visually impaired to warrant finding
unusual and underserved or disproportionate hardship in the applicant’s case. I
cannot find that this weighing of the evidence was unreasonable.
[59]
The applicant alleges the same specific
faults as he did in relation to the PRRA decision. Although the test to be
applied is different – instead of being concerned with whether the
discrimination amounts to persecution, in the H&C context we are concerned
with unusual and underserved or disproportionate hardship – the reasons I set
out above in relation to these points are equally applicable in the H&C
context. Ultimately, I find that the Officer’s treatment of the evidence as to
discrimination was reasonable.
(4)
Did the Officer err in his assessment of hardship relative to the
applicant’s access to medical treatment for the purposes of the H&C
application?
[60]
The
applicant argues that the Officer erred in concluding that there was little
evidence to establish that medical treatment available to the applicant in Jamaica would be
inadequate.
[61]
He
submits that his affidavit evidence was clear that he was not getting proper
treatment prior to coming to Canada. While it is true that the applicant did
state in his affidavit that his eyesight had deteriorated while he was in
Jamaica because he “was not getting proper treatment”, he went on in that
affidavit to explain that the reason for that lack of treatment was that he was
having problems paying for the necessary eye drops. The treatment was
available, but the applicant could not personally afford it. The Officer
addressed this concern by indicating that, “Should cost be a factor, the
Applicant’s family have not indicated that they would be unable to continue
financially supporting [him] as they do now.” I cannot find that the Officer’s
conclusion in this regard was unreasonable.
[62]
Furthermore,
the applicant points to the general country conditions evidence which indicates
that health services specific to persons with disabilities are not available in
Jamaica. I cannot
find that the Officer’s reasons for dismissing the applicant’s medical concerns
are rendered unreasonable simply because he did not mention a general
indication as to health services provided to persons with disabilities. There
was evidence before the Officer that treatment was available for people with
glaucoma. This specific evidence would presumably take precedence over the more
general evidence referenced by the applicant. In any event, the Officer also
noted the UK Home Office report which stated that the Jamaican health system was
capable of providing primary, secondary and tertiary care.
[63]
Ultimately,
I cannot find that the Officer erred in his consideration as to the adequacy
and availability of medical care in Jamaica.
(5)
Did the Officer err in his assessment of establishment for the purposes of
the H&C application?
[64]
The
applicant argues that the Officer unreasonably assessed his establishment in Canada.
[65]
First,
the applicant submits that the Officer failed to properly consider the extent
to which he was dependent on his family in Canada (i.e. his
mother, his two sisters, and his niece and nephew). He submits that, contrary
to the Officer’s statement that there was “little indication about his level of
self-sufficiency or about the activities that his family must perform for him regularly”,
there was, in fact, significant detail in this regard. Not only did the Officer
fail to properly consider the evidence adduced as to dependency, the applicant
further contends that the Officer failed to consider that there would be no
family available to provide him with a similar type of support in Jamaica. I
agree.
[66]
Although
the Officer did acknowledge that the applicant’s “lack of self-sufficiency may
have led to a degree of dependence on his family in Canada”, I find
that the officer unreasonably underestimated that dependence. His conclusion
that there was “little indication” about the applicant’s level of
self-sufficiency or about the support provided by his family in Canada was made
without proper regard to the evidence before him.
[67]
The
record clearly demonstrated that the applicant was dependent on his mother for employment:
the only job he had been able to secure, due to his disability, was a job given
to him by his mother. It also demonstrated that the applicant was dependent on
his mother for shelter: he lived in an apartment building that she owned
and he “contribute[d]” by paying her $260 a month. The record further revealed
that the applicant lived in very close proximity to his mother and two sisters,
living in the building next door to theirs, so that they could provide him with
assistance related to his disability: with errands such as shopping and
medical appointments, with day-to-day activities such as dressing, and more
generally with keeping him out of danger. His family emphasized in a number of
letters that the applicant depended on them a great deal. It is also important
to note that the record before the Officer demonstrated that the applicant
relied on his family in Canada for much-needed emotional support
as well.
[68]
Not
only did the Officer neglect to appropriately consider the above evidence of
dependence, he also neglected to consider that, in Jamaica, the
applicant would have no family members to provide him with similar types of
support. The applicant’s only family member in Jamaica is his
elderly father, who is unable to provide the applicant with care. Citizenship
and Immigration Canada's IP 5 Manual indicates that an immigration officer
should have consideration for the existence of “family members remaining in the
country of origin”. I find that this consideration is particularly important in
the applicant’s case. In this regard, I note the applicant’s affidavit evidence
regarding the situation he previously faced (prior to coming to Canada in
the year 2000) as a blind man living without family support in Jamaica:
I was living by myself in a little room
without a proper roof. My belongings would get wet when it rained. The living
conditions were very bad. There were lots of rats and cockroaches. It was not
healthy. The room was not very secure, because the hinges on the window did not
lock. It was easy for someone to break into my house. Some of my belongings
would go missing.
[69]
The
Officer’s reasons for not being satisfied that the applicant would face unusual
and undeserved or disproportionate hardship if forced to leave his family
support network in Canada lacked justification, transparency and
intelligibility. On this basis, I find that the Officer’s determination on the
H&C application as a whole was unreasonable.
[70]
For
all of the above reasons, the application for judicial review of the PRRA
decision will be dismissed and the application for judicial review of the
H&C decision will be allowed.
VI. Costs
[71]
The
applicant requests that I allow costs. He contends that there exist “special
reasons” in his case to justify an award of costs under Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22 [the Rules]. In
particular, he argues that because it is the second time that he has had to
file applications for judicial review in relation to negative PRRA and H&C
decisions, and because the second Officer repeated the errors made by the first,
he should be entitled to costs. The applicant relies on the following comments
made by Justice Eleanor Dawson of the Federal Court, as she then was, in Johnson
v Canada (Minister of Citizenship and Immigration), 2005 FC 1262 at para 26,
275 FTR 316: “Special reasons may be found if one party has unnecessarily or
unreasonably prolonged the proceedings, or where one party has acted in a
manner that may be characterized as unfair, oppressive, improper or actuated by
bad faith.”
[72]
Counsel
for the respondent argues that the applicant’s case does not warrant an award
of costs. He emphasizes that the order setting aside the initial PRRA and
H&C decisions was rendered upon consent and, as such, it did not set out any
reasons. Therefore, there is no evidence to support the applicant’s argument that
the Officer committed the “same errors” in rendering the decisions under review
as were committed with respect to the initial decisions. He further contends
that there is no evidence that the respondent or that he, as counsel, acted in
a manner so as to justify an award of costs. I agree.
[73]
There
is no support for the applicant’s argument that the Officer, when rendering the
H&C decision currently under review, made the same errors as were made by the
officer who rendered the initial H&C decision. The applicant’s primary
argument in this regard is that the initial decisions were returned for
re-determination on consent because the initial officer had erroneously
considered extrinsic evidence without providing the applicant an opportunity to
respond to that evidence. Since I have found that the Officer did not commit
any such error in rendering the decisions currently under review, this basis
for the applicant’s argument as to “special reasons” must fail.
[74]
Justice
Anne Mactavish in Dhaliwal v Canada (Minister of
Citizenship and Immigration), 2011 FC 201 at paras 29-33 (available on
CanLII), recently provided a summary of the principles surrounding the awarding
of costs in immigration proceedings:
[29] Costs are not ordinarily
awarded in immigration proceedings in this Court. Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22 provides that
"No costs shall be awarded to or payable by any party in respect of an
application for leave, an application for judicial review or an appeal under
these Rules unless the Court, for special reasons, so orders".
[30] The threshold for establishing
the existence of "special reasons" is high, and each case will turn
on its own particular circumstances: Ibrahim v. Canada (Minister of Citizenship and
Immigration),
2007 FC 1342, [2007] F.C.J. No. 1734, at para. 8.
[31] This Court has found special reasons
to exist where one party has acted in a manner that may be characterized as
unfair, oppressive, improper or actuated by bad faith: see Manivannan v.
Canada (Minister of Citizenship and Immigration), 2008 FC 1392, [2008]
F.C.J. No. 1754, at para. 51.
[32] However, "special reasons"
have also been found to exist where there is conduct that unnecessarily or
unreasonably prolongs the proceedings: see, for example, John Doe v. Canada
(Minister of Citizenship and Immigration), 2006 FC 535, [2006] F.C.J. No.
674; and Johnson v. Canada (Minister of Citizenship and Immigration),
2005 FC 1262, [2005] F.C.J. No. 1523, at para. 26; Qin v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 1154, [2002] F.C.J. No. 1576. In my view, this is such a case.
[33] The mere fact that an immigration
application for judicial review is opposed, and the tribunal is subsequently
found to have erred, does not give rise to a "special reason"
justifying an award of costs. . . .
[see also Ndungu v Canada (Citizenship and Immigration), 2011 FCA 208 (available on
CanLII)]
[75]
It
is unfortunate that the second Officer committed errors in his assessment of
the evidence presented in support of the applicant’s H&C application, but
in my view, his errors do not constitute “special reasons” as the concept has
been developed by our Court and by the Federal Court of Appeal.
VII. Stay
[76]
The
applicant further requests that I order a stay of his removal until the H&C
decision is finally re-determined. The respondent opposes this request.
[77]
I
see no basis for ordering a stay of removal at this stage. I do not even see on
what legal ground the Court could base its jurisdiction to entertain such a
stay. The Court’s jurisdiction with respect to the present applications for
judicial review will be extinguished with the issuance of this judgment and the
Court will become ex officio. The Court does not have any residual
jurisdiction over the process that will lead to a re-determination of the
H&C application.
[78]
No
questions of general importance were proposed for certification and none arise.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. In
file IMM-7348-10, the judicial review is dismissed;
2. In
file IMM-7349-10, the decision of the PRRA Officer dated November 30, 2010 is
set aside and the matter is referred back to Citizenship and Immigration Canada
to be re-determined by a different immigration officer;
3.
No costs are awarded;
4.
No question of general importance is certified.
5. A
copy of these reasons is to be placed in Court’s files IMM-7348-10 and IMM‑7349-10.
“Marie-Josée
Bédard”
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