Date: 20080625
Docket: IMM-4554-07
Citation: 2008 FC 800
Ottawa, Ontario, June 25,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
RONALD
CONSTANTINE BLAIR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for
judicial review of a decision of Immigration Officer, James Hogan, (the Officer),
dated June 7, 2007, pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act), in which the Officer refused an
exemption from the permanent resident visa requirements on humanitarian and
compassionate (H&C) grounds.
ISSUES
[1]
One
issue is raised in the present application: was the Officer’s decision that
there were insufficient H&C grounds unreasonable?
[2]
The
application for judicial review shall be allowed for the following reasons.
FACTUAL BACKGROUND
[3]
The
applicant is a 68 year old citizen of Jamaica. He first entered Canada in 1988 as a
farm labourer, and then again as a visitor in 1990. He has been in Canada since the
expiration of his visa
without status.
[4]
An
inquiry was held in 1993 regarding his status because he did not have
employment authorization. A warrant was issued for his arrest when he failed to
attend the hearing. The applicant’s irregular immigration status came to the
attention of Citizenship and Immigration Canada (CIC) in 2004 when the Public
Guardian and Trustee (PGT), who was the guardian of his property, made an
inquiry as to his eligibility for medical coverage.
[5]
The
applicant came under the guardianship of the PGT in 2003 after suffering a
cerebral haemorrhage as a result of an aneurysm, which left him with a
cognitive impairment, described as mild memory loss, and chronic renal failure.
He was determined to be incompetent to manage his financial affairs, which are
therefore managed by the PGT.
[6]
The
applicant applied for an exemption from the permanent resident visa
requirements on H&C grounds (H&C application) in July 2004.
[7]
The
applicant has no family in Canada, nor does he have family in Jamaica. He has a
sister in the United
States
with whom he is in contact.
[8]
The
applicant’s H&C application is based on the following grounds:
a) He has no
relatives in Jamaica. He has
established strong friendships and community ties over the eighteen years he
has been present in Canada.
b) He has been
seen on a consultation basis by nephrologists for his chronic renal failure.
Although dialysis is available in Jamaica, his needs are unknown
to specialists there and he may not meet the eligibility criteria.
c) He may suffer
setback due to relocation and renewal of care.
d) He has worked
and paid taxes throughout his time in Canada, and attempted to
redress his status.
DECISION UNDER REVIEW
[9]
The
Officer reviewed the history of the applicant’s file and offered the following
reasons for his decision:
a) The Officer
noted that though the applicant has been in Canada for 17
years, there is little evidence of his activities in the 1990s. The Officer
also noted that he spent his first 52 years in Jamaica.
b) The Officer
noted that the applicant had filed his income tax return between 1999 and 2007.
However, the Officer noted the absence of letters from his employers. He also
noted that the applicant received a small disability pension.
c) The Officer
found that the applicant’s family members were located primarily in the United
States,
namely three of his sisters and his daughter. He has contact with his sister
Daphne. Three other children live in the United Kingdom. The
applicant had a girlfriend in 2003 at the time he was admitted to the hospital.
The Officer concluded that the applicant had no family in Jamaica or in Canada. The Officer
also noted the absence of letters of support and evidence of community
involvement, despite the applicant’s claim that he had established strong
friendships and community ties.
d) The Officer
acknowledged the applicant’s submission that he had supported himself, but
ultimately concluded that the above-mentioned elements of establishment did not
go beyond what is normally expected of someone in the applicant’s situation.
He therefore concluded that the applicant’s degree of establishment did not warrant
granting the H&C application.
e) The Officer
noted that, despite the applicant’s claim that he attempted to regularize his
status in Canada on numerous
occasions, the application under review was the only attempt since his visa
expired in the early 1990s.
f)
The
Officer accepted that the applicant required dialysis three times a week for
renal failure, and that he had cognitive impairments as a result of a cerebral
haemorrhage in 2003. A letter from the Humber River Regional Hospital in
August 2004 stated that dialysis is available in Jamaica, but that
the applicant might not be eligible and would suffer a setback from the
relocation. The Officer contacted the Jamaican Ministry of Health; he was
informed that the applicant might suffer a setback from relocation and renewal
of care. He was also informed that public sector facilities are overwhelmed by
demand, and private sector care is quite expensive. The applicant was given the
opportunity to comment on this information.
g) The Officer
concluded that the situation the applicant would face in Jamaica would not be
different from that faced by any other Jamaican with a similar complaint. The
Officer noted that the care required by the applicant is both limited and
expensive in Jamaica. He noted
that care was also expensive in Canada, and the applicant
failed to demonstrate that he could cover the costs in Canada.
[10]
For
the foregoing reasons, the Officer was not satisfied that the applicant would
suffer unusual, undeserved or disproportionate hardship if he were required to
apply for permanent residence from outside of Canada.
ANALYSIS
Standard of Review
[11]
This
Court has previously held that the review of H&C decisions should be
afforded considerable deference, and that the applicable standard was
reasonableness simpliciter (Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817).
[12]
Following
the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, review of H&C decisions should continue to be subject to
deference by the Court, and are reviewable on the newly articulated standard of
reasonableness (Dunsmuir, at paragraphs 55, 57, 62, and 64).
[13]
For
a decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, at paragraph 47).
Was the Officer’s
decision unreasonable?
[14]
The
applicant takes issue with the following Officer’s conclusion (Tribunal Record,
page 5):
Although I sympathize with Mr. Blair in
his medical problems I am not satisfied that the situation that he faces as a
citizen in Jamaica would be other than what is
faced by any other member of the country with a similar complaint. Although the
type of service he requires is both limited and expensive it is available to
him and provided by the Ministry of Health. I note that Mr. Blair's medical
treatment in Canada is also expensive and there
is insufficient information to indicate that he has the monies to pay for this
service.
[15]
The
applicant contests two findings made by the Officer: first, the finding that
his situation would not be other than that of other Jamaicans in need of renal
care, and second, the finding that renal care would be available to him in Jamaica. It is
submitted that the Officer drew conclusions about the availability of the
medical services needed by the applicant which are contrary to the evidence
before him.
[16]
It
is submitted that the applicant’s limited financial means, his memory loss or
cognitive impairment, the absence of family support, and his extended absence
from Jamaica place the
applicant in a significantly different situation from other Jamaicans seeking
treatment for renal failure. The applicant argues that he is clearly
disadvantaged vis-à-vis
other Jamaicans, and as such would face unusual, undeserved or disproportionate
hardship.
[17]
Further,
the applicant submits that the evidence shows that dialysis would not be
available to the applicant, contrary to what was concluded by the Officer. He
points to the information provided to the Officer that private sector dialysis
care in Jamaica is “expensive”, and
public sector services are “overwhelmed”. It is therefore advanced that the
conclusion drawn by the Officer is unsupported by the evidence.
[18]
The
respondent disagrees and says that it is not open to the Court to reweigh the
evidence before the Officer (Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, at paragraph 11, [2002]
F.C.J. No. 457) and that the Officer’s conclusion was reasonably open to him.
[19]
For
a decision to be reasonable it must be justifiable, transparent and intelligible
(Dunsmuir, above, at paragraph 47). In the case at bar, the Officer’s
decision lacks justification. The Officer clearly failed to address the
applicant’s personal circumstances when considering the availability of
treatment in Jamaica. While it
might be reasonable to conclude that someone with financial, emotional
support, and high adaptability would be able to seek out the life-sustaining
care needed by the applicant in this case, such a conclusion cannot be
justified on the facts. The applicant, who suffers from a cognitive impairment,
and who has no means of financial or emotional support, would have little
possibility of accessing the treatment he requires. For such a conclusion to be
open to the Officer, factual justification is needed. The Court finds
that this is a reviewable error in the context of Dunsmuir.
[20]
No
questions for certification were proposed and none arise.
JUDGMENT
THIS COURT ORDERS
that the application for judicial review is
allowed. The matter is sent back for redetermination by a different
Officer. No question is certified.
“Michel
Beaudry”