[2]
As a
result of the Applicant’s medical exam, a Citizenship and Immigration Canada
(CIC) Medical Officer concluded that his health condition might reasonably be
expected to cause excessive demand on health services and that his health
condition might reasonably be expected to require health services, the costs of
which would likely exceed the average Canadian per capital costs over five
years. As a result, on January 23, 2008, the Applicant’s third application for a
further extension of his work permit was refused as he was found to be
inadmissible to Canada on health grounds
pursuant to s. 38(1) of the Immigration and Refugee Protection Act,
2001, c. 27 (IRPA).
[3]
In
normal circumstances, having completed 24 months of employment as a full-time
live-in caregiver, the Applicant would have been eligible to apply to become a
permanent resident under the live-in caregiver class (see Part 6, Division 3 of
the Immigration and Refugee Protection Regulations, SOR/2002-227). Due
to his medical inadmissibility, this was not open to the Applicant.
Accordingly, in May, 2007, the Applicant applied for permanent residence on
humanitarian and compassionate (H&C) grounds. He also requested a temporary
residence permit (TRP).
[4]
In a
decision dated June 17, 2008, an immigration officer (the Officer) found that
the Applicant would not suffer unusual, undeserved and disproportionate
hardship if required to apply for a permanent resident visa from outside Canada
(the H&C decision) and rejected the Applicant’s application for a TRP (the
TRP decision).
[5]
The
Applicant seeks judicial review of the decision.
II. Issues
[6]
This
application raises the following issues:
1.
Did
the Officer render an unreasonable H&C decision by virtue of:
a.
Her
consideration of the availability of medical treatment to the Applicant in the Philippines?
b.
Her
consideration of the Applicant’s establishment in Canada?
2.
Does
the Live-in Caregiver Program violate s.15 of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter)?
3.
Did
the Officer breach procedural fairness by failing to provide sufficient reasons
for refusing the TRP?
III. Analysis
A. Standard of Review
[7]
Both
parties agree that the decision of the Officer is reviewable on a standard of
reasonableness, meaning that the task of the Court is to determine “whether 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). It is also important to note that, on this standard of
review, the Court ought not to substitute its discretion for that of the
Officer, even if the Court might have drawn different inferences or reached a
different conclusion.
[8]
This
standard does not apply to the alleged insufficiency of the reasons for the TRP
decision; no deference is owed for a breach of procedural fairness.
B. Medical Treatment in the Philippines
[9]
The
Applicant submits that the Officer erred in refusing the H&C application by
ignoring the Applicant’s evidence that he did not have reasonable access to
health care in the Philippines due to the high cost of treatment for kidney
disease, poor public health care funding, the remoteness of his community in
the Philippines, his financial incapacity to relocate and his inability to
resume employment in the Philippines. Further, the Applicant asserts that the
Officer erred in finding that medical treatment was available to the Applicant
in the Philippines merely because a health
care system existed. In his view, in finding that there was insufficient
evidence to show that the medical care was inaccessible to the Applicant, the
Officer clearly preferred the opinion of Medical Officer John Lazarus without
providing any rationale for rejecting the Applicant’s evidence that he would
not be able to afford treatment in the Philippines.
[10]
Having
reviewed the record before the Court, I am satisfied that the Officer carefully
considered all of the evidence before her – both that submitted by the
Applicant and that of a medical officer at the Manila consulate. Although specific e-mails were
not provided to the Applicant, the evidence itself and its source were
disclosed to the Applicant in the fairness letter, dated March 28, 2008 and
provided to the Applicant. Based on the evidence, the Officer concluded that
there was insufficient evidence to conclude that the Applicant would not be
able to continue to manage his disease upon returning to the Philippines. Specifically, she
found:
·
Treatment
and medication was available in the Philippines for the Applicant’s illness.
·
Though
it may be inconvenient and disruptive to his employment to have to commute from
Bulacan to Manila for treatment, this
situation was not unlike that faced by others around the world who lived in
small communities at some distance from a hospital.
·
The
Applicant was on peritoneal dialysis, which he was able to administer at home on
his own schedule. There was insufficient evidence that he could not continue
this form of treatment in the Philippines rather than having to travel to a hospital. The Applicant
also had the option of moving closer to a hospital if he returned to live in
the Philippines.
·
There
was insufficient evidence as to the Applicant’s annual income in Philippines.
·
There
was insufficient evidence that the Applicant would not qualify for coverage
under the National Health Insurance Program (NHIP).
·
There
was insufficient evidence to show that the Applicant would not be eligible, if
he became indigent, to receive funding from the Philippine Charity
Sweepstakes Officer
(PSCO). Nor was there evidence that the Applicant would not eligible for
subsidies under the indigent component of the NHIP
[11]
In my
opinion, the Officer did not ignore any of the evidence that was submitted by
the Applicant. Her conclusion with respect to the availability of medical
treatment flowed from a careful analysis of the evidence before her – evidence
that indicated that medical treatment was available in the Philippines and that various
sources of funding may have been available to the Applicant. Although the
Applicant had submitted opinion letters from his friends stating that medical
treatment was expensive in the Philippines and that “only rich people are able
to afford dialysis treatment”, he failed to provide sufficient evidence that he
would not be able to access different sources of funding that were available in
the Philippines.
[12]
In
sum, the Officer properly weighed the evidence before her and reached a
conclusion that fell, in my opinion, within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick, above, at para. 47).
C. Establishment in Canada
[13]
The
Applicant asserts that the Officer applied an “arbitrary” standard on the
Applicant in assessing his degree of establishment in Canada. In his submission, the
Officer erred by failing to consider his establishment within the context of
his particular circumstances. Specifically, she failed to consider that in
spite of his chronic illness, the Applicant continued working and integrated
into his community. The Applicant refers to the portion of the Officer’s
decision, where she states that “as the holder of a work permit for three
years, it is only to be expected that Mr. Voluntad would have achieved a level
of establishment and integration in Canada.”
[14]
The
extract cited by the Applicant is contained in a lengthier passage dealing with
the degree of establishment. The Officer wrote in her decision:
Since
his arrival to Canada, Mr. Voluntad has been continuously
employed for his sister as a live-in caregiver. He speaks, reads and writes
English. Mr. Voluntad is actively involved with his church. He has worked as a
volunteer at the school of his nephew and niece. Letters have been submitted by
Mr. Voluntad from supporters of his application who include health care
professionals, friends, a social workers and an MP. I acknowledge that Mr.
Voluntad has been self-sufficient in Canada. I recognize his efforts to integrate in
the community through his friendships, church, and volunteer work. While I
acknowledge his establishment in Canada, I note that as the holder of a work
permit for three years, it is only to be expected that Mr. Voluntad would have
achieved a level of establishment and integration in Canada. His establishment, while commendable, is not in my opinion
a sufficient factor to warrant a visa exemption or an exemption from the
selection criteria related to becoming a permanent resident from within Canada.
[15]
Having
reviewed this portion of the decision, I am satisfied that the Officer provided
a thorough analysis of the degree of the Applicant’s establishment in Canada. No evidence was
ignored. The Applicant questions, in effect, the weight that was given to his
establishment. Although the Officer found that the establishment was
commendable, it was insufficient to justify granting the H&C application.
This was, in my opinion, a conclusion that is supported by the evidence. There
is no reviewable error.
D. Charter violation
[16]
The
Applicant submits that the live-in caregiver program violates s.15 of the Charter.
In his submission, while the admissibility of applicants in other economic
classes is fully determined before entry to Canada, live-in caregivers must undergo
admissibility screenings both before entry and upon completion of their work
requirement as live-in caregivers. This, in his view, constitutes differential
treatment of live-in caregivers on the basis of occupation. The Applicant
submits that this is an analogous ground under s.15 and that the differential
treatment constitutes discrimination.
[17]
Section15
of the Charter states that:
|
15. (1) Every
individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
|
15. (1) La loi ne fait
acception de personne et s'applique également à tous, et tous ont droit à la
même protection et au même bénéfice de la loi, indépendamment de toute
discrimination, notamment des discriminations fondées sur la race, l'origine
nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les
déficiences mentales ou physiques.
|
[18]
The
framework of analysis for an alleged infringement of s.15 of the Charter
was set out in Law v. Canada, [1999] 1 S.C.R. 497. The Applicant must
prove that:
i.
he
received differential treatment under law;
ii.
the
differential treatment was based on an enumerated or analogous ground; and
iii.
the
differential treatment constitutes discrimination.
[19]
In
my view, the Applicant fails at the first step of the analysis. The Applicant’s
argument, in this regard, is based on a misapprehension of the status of a
live-in caregiver in Canada. By definition, the
live-in caregiver program gives temporary – not permanent – status to the
person. To obtain permanent residence in Canada, the live-in caregiver must apply separately
for such status, at which time he must meet the relevant criteria for
acceptance, just like every other applicant for permanent residence.
[20]
The
fact that a live-in caregiver was required to meet certain admissibility
requirements upon his temporary entry to Canada, and then to demonstrate that he met some or
all of the same requirements for application as a permanent resident, is simply
not relevant. Upon application for permanent residence, the Applicant was
treated exactly the same as any other applicant for permanent residence. There
is no differential treatment.
[21]
Even
if I am prepared to accept that there is differential treatment by virtue of
the admissibility requirements placed upon foreign nationals in the live-in
caregiver class, I am not convinced that this differential treatment is based
on an enumerated or analogous ground. There is no jurisprudence indicating that
an occupation is an analogous ground: indeed, the case law is to the opposite
effect (see R. v. Alrifai, 2008 ONCA 564, [2008]
O.J. No. 2870 (Q.L.) at para. 29; Delisle v. Canada
(Deputy Attorney General), [1999] 2 S.C.R. 989 at
para. 44; and Baier v. Alberta, 2007 SCC
31, [2007] 2 S.C.R. 673 at paras. 65-66).
E. TRP decision
[22]
The
Applicant submits that, in refusing the TRP request, the Officer failed to give
sufficient reasons as to why she was not satisfied that the Applicant’s need to
remain in Canada was compelling and sufficient to overcome the health risk to
Canadian society.
[23]
While
it is true that the refusal of the TRP was dealt with in one paragraph of the
Officer’s decision, the TRP decision cannot be read in isolation. In the
present case, the Applicant sought permanent residence on H&C grounds based
on his establishment in Canada, the unavailability of
medical treatment in the Philippines and the best interests
of his niece and nephew. The Applicant
relied on these same factors with respect to his
request for a TRP. The main submission in his counsel’s written representations
to the Officer is:
In
the event that this application for landing is denied on H&C grounds, we
submit that Jayson should be allowed to remain in Canada in spite of his inadmissibility.
…
Jayson’s
case is unique in that he has already made a significant economic contribution
to Canada over the last two years. Before Jayson’s
application for permanent residence is refused, we submit that he should be
considered for a temporary resident permit.
[24]
Given
that the Applicant’s request for a TRP relied on the same grounds as those of
his H&C application, it was proper for the Officer to base her conclusions
with respect to both the H&C and the TRP on the same analysis. A failure to
issue a separate set of reasons for the TRP in the present circumstance cannot
constitute a breach of procedural fairness if the Applicant himself has not
advanced any arguments which merit a separate analysis.
[25]
Moreover,
given the exceptional nature of the TRP request, the deference to be afforded
to an officer in making this decision, and the lack of any additional evidence
to suggest that the Applicant’s case was compelling, I find no reason to
conclude that the Officer’s decision was unreasonable.
IV. Conclusion
[26]
This
is an unfortunate situation for the Applicant. While I might have decided
differently, I cannot find grounds upon which to intervene in the discretionary
decision of the Officer.
[27]
For
these reasons, the application for judicial review will be dismissed. Neither
party proposed a question for certification; none will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed;
2.
no question of general importance is certified; and
3.
this decision be filed in both dockets IMM-2831-08 and
IMM-2833-08.
“Judith
A. Snider”
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