Date: 20080116
Docket: IMM-140-07
Citation: 2008 FC 57
Toronto, Ontario, January 16,
2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
COLETTE ROVENA D'SOUZA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
No
matter the outcome of this case, life will never be the same for Colette
D’Souza. She lived, as child and adult, with her parents in Mumbai in
comfortable circumstances. After their father died, her sister Anslette, who
had immigrated here, applied to sponsor their mother. Colette formed part of
that application as a dependant child. The application came to an end when
Mrs. D’Souza died. Anslette then applied to sponsor Colette directly. The
application was denied. This is a judicial review thereof. The problem which
arises is that Colette has Down Syndrome.
[2]
Colette,
who is now 41, benefited from education at private, special needs, schools and from
the loving and financial support of her parents. In recent years, she has been
involved in a creative centre for the mentally challenged. To quote from the
centre “she is given an incentive of Indian RS 50 (fifty), a month in her hand
as a stipend to keep her morale and self-esteem high.” However, the fees of the
training program, and travel expenses, are some 75 times that and are paid from
her mother’s estate.
[3]
Mrs.
D’Souza, twice widowed, had 10 children, four from her first marriage and six
from her second. Colette, Anslette and Sharon (who plays an important role in
this story) are issue of the second. Three of Colette’s full brothers and
sisters live in Canada, and one in the United States.
Sharon’s situation is
unclear. She has, or had, permanent residence status in Canada but returned to
India in 2003 to
care for her mother who suffered a stroke, and then to temporarily care for
Colette. Two of her half-brothers live in Canada, one
half-brother in Qatar and one half-sister, Assumpta, in Mumbai.
These family details are important in the light of a poison pen letter which is
on file, as is Mrs. D’Souza’s Last Will and Testament. That Will provides that
after her husband died intestate, it had been agreed among all family members
that the real estate (two flats in Mumbai) be transferred to her. She
expressed the following concern:
”My daughter Colette is suffering from Down’s
Syndrome and hence she is required to be looked after. My youngest daughter
Sharon is not yet settled down in life.”.
Sharon was given the right to
reside in one of the flats until she is married. At the time of the hearing,
she was still single.
[4]
The
two executors, one of whom is Sharon, are obliged to invest sufficient monies
so that the income can be used for Colette’s maintenance and welfare, with an
encroachment on capital if need be. Otherwise, the estate is to be distributed
equally among all the children. It has not yet been wound up.
The Visa Interview
[5]
Colette
was originally part of a family class sponsorship application. However, that file
was closed following the death of Mrs. D’Souza. This led to a fresh
sponsorship under the orphaned sibling category, based on humanitarian and
compassionate considerations. Anslette specifically requested that the
material in the first application be considered as part of the second. By
letter, Colette was called to an interview at the Canadian High Commission in New Delhi together
with Sharon and Assumpta. Anslette wrote back to say that Colette and Sharon
would be in attendance but that Assumpta was unable to attend. Indeed the
subsequent testimony of Sharon, which is uncontradicted, is that Assumpta, who
is 21 years older than Colette, has distanced herself from this matter.
[6]
The
interview took place February 23, 2006. The Immigration Counsellor who made
the negative decision had in hand an unsigned, undated poison pen letter which was
only revealed when the Minister was required to produce her file under the
Federal Court Immigration Rules. However, the counsellor did tell Sharon and
Colette at the interview that she had some negative information at hand. The
poison pen letter begins:
”We have reason to believe that a false
application is made for immigration to Canada, with intention to abandon the
person to the system, as the person is a Down Syndrome adult.”
It adds:
”Perhaps, Ms. Shetty (Anslette) claims
that her siblings and she will provide and care for the sister, but no one is
prepared to do so, and
already this has caused immense discord
and legal disputes. If the visa should be granted, she will be the
government’s burden.”
The letter also alleged that Sharon had
abandoned Canada with no
intention of returning.
[7]
Following
the interview, the counsellor rendered two decisions March 2, 2006. One, as
expected, was that since Colette was over 18 years of age, she could not be
considered an orphan, member of the family class. That decision is not
contested. In the other decision, the counsellor simply referred to section 25
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and said she had
determined “it would not be justified by humanitarian or compassionate
considerations to grant you permanent resident status or to exempt you from any
applicable criteria or obligation of the Act”.
[8]
She
did not give reasons, but her notes of interview and subsequent analysis serve
as the reasons. It was noted that although Colette has five siblings in Canada she also has
two in India with one of
whom, Sharon, “she resides and appears to have a close relationship.”
Excellent arrangements are in place in India for
Colette’s care including her steady sheltered employment and a full-time
live-in care-giver in her own apartment. She has sufficient financial means to
meet her needs and is emotionally and socially supported both by her sister
Sharon and by the sheltered workshop.
[9]
The
counsellor claimed that no concrete research had gone into how Colette’s need
for additional help might be met in Canada. It was unknown
whether her resources and those of her Canadian siblings would be adequate to
meet her needs. Information in the poison pen letter suggested to her that the
siblings in Canada are not in agreement about their willingness to provide
support for Colette in Canada. After referring to some apparent
disputes relating to Mrs. D’Souza’s will, the counsellor wrote:
“As these issues of inheritance are
apparently not fully resolved, I am not satisfied that PI [Colette] and her
family would have the resources, ability or willingness to provide for PI’s
care in Canada, nor that PI would not, as a result, become a burden in social
services in Canada.”
[10]
She
also went on to say that the siblings in Canada had made their choice to
immigrate here, independent of Colette’s condition and that even if Sharon did
not decide to remain in India, Colette would still have a sibling there and the
possibility of living in a care facility. Finally:
“Given the level of financial means PI
has in India and the evident emotional and social support she receives from her
work environment, her care-giver and her sister Sharon, I am not convinced that
it would be in her interest for her to move to Canada where the level of these
types of support and their cost is unknown and where there is apparent discord
among the siblings in Canada regarding their willingness and ability to provide
emotional, social and financial support to PI.”
Issues
[11]
This
case should be analyzed in the light of the following issues:
a) Standard of Review
b) Did the decision
maker have the entire file before her?
c) As to the poison pen
letter:
i)
Should it have been disclosed? If so, what are the consequences of
non-disclosure?
ii) Was
improper reliance placed upon it?
Standard of Review
[12]
It
is well established in H&C applications that the standard of review is
reasonableness simpliciter (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39.
Was the file entire?
[13]
Once,
as in this case, leave for judicial review of a decision of a tribunal has been
granted, rule 17 of the Federal Courts Immigration and Refugee Protection
Rules, SOR/93-22, requires the tribunal to provide, among other
things, all papers relevant to the matter that are in its possession or
control. The record produced does not contain papers from the first application
which Ms. Shetty specifically incorporated by reference in the second
application. One of these was the letter from the Centre referred to above,
which forms part of the application record. It is important because it deals
with Colette’s bouts of depression when Sharon is away. The
decision should be set aside on the ground that the decision was based on an
incomplete record.
The Poison Pen Letter
[14]
It
is not absolutely mandatory that extrinsic evidence in this form be given to
the applicant. In some instances, putting the allegations from the anonymous
source to the applicant may be sufficient. However, in this case, since Sharon, who was
neither the applicant nor the sponsor, was being interviewed, procedural
fairness demanded that she be shown the actual letter which casts aspersions on
her. This may well have given insight as to its author. This is another ground
for granting judicial review.
[15]
Furthermore,
undue weight was placed on this letter, which flies in the face of other
evidence on file, evidence from those who were not afraid to show their face.
Poison pen letters are inherently unreliable (Canada (Minister of
Citizenship) v. Navarette, 2006 FC 691, 294 F.T.R. 242, [2006] F.C.J. No.
878 at paragraphs 24-27; Ray v. Canada (Minister of
Citizenship and Immigration), 2006 FC 731, [2006] F.C.J. No. 927, at
paragraphs 36-38. The officer was of the opinion that:
Information in the poison pen letter
suggests the siblings in Canada are not in agreement about their willingness to
provide support for PI if she were in Canada….
[16]
Only
five of Colette’s nine siblings are in Canada .What is the
evidentiary basis for referring to the five siblings in Canada, rather than
to all nine? Furthermore, the record shows that one of the five had asked his
Member of Parliament to intervene in support of the application. At the
interview, Sharon told the officer that all nine were in agreement that Colette
should move to Canada, and live with Anslette.
ANALYSIS
[17]
Apart
from procedural fairness, there are other grounds to grant judicial review. I
think it important to state them as a guide to the next Immigration Counsellor
who considers this matter afresh.
[18]
The
counsellor relied upon section 38(1) of the IRPA which provides:
|
38. (1) A foreign national is inadmissible on
health grounds if their health condition
(a) is
likely to be a danger to public health;
(b) is
likely to be a danger to public safety; or
(c)
might reasonably be expected to cause excessive demand on health or social
services.
|
38.
(1)
Emporte, sauf pour le résident permanent, interdiction de territoire pour
motifs sanitaires l’état de santé de l’étranger constituant vraisemblablement
un danger pour la santé ou la sécurité publiques ou risquant d’entraîner un
fardeau excessif pour les services sociaux ou de santé.
|
[19]
As
I understand it, in an application for exemption from criteria, including
health criteria, on humanitarian and compassionate grounds, there is a
two-stage process, a process which the counsellor herself mentioned to Sharon
and Colette. If the counsellor were otherwise of the view that Colette should be
admitted to Canada on
humanitarian and compassionate grounds, then she had no delegated authority to
grant an exemption from an inadmissibility relating to excessive demands. According
to the Citizenship and Immigration Canada Operation Bulletins, at the
present time the case should have been forwarded to the Director of Case Review
for assessment.
[20]
All
the evidence on file, including a letter from a doctor in India, indicates
that Colette is in good physical health, and is not receiving any medication.
[21]
It
is clear, however, that she has special needs. It does not follow that she would
have to be sent out of the home to an external facility. For some years before
her parents died, she stayed at home with them.
[22]
The
counsellor claims that no analysis had been done as to Colette’s needs in Canada, how they
would be met, and at what cost. Sharon said she had no clue as
to the costs of a work shop placement in Canada or a
sitter/caregiver. However, it must be remembered that Anslette is the sponsor,
not Sharon, and that Sharon also said she was aware that Anslette had
looked at workshops and was inquiring about placements. The concern should have
been addressed to Anslette, not Sharon.
[23]
Thus,
there is no evidentiary basis for concluding that Colette’s presence in Canada might
reasonably be expected to cause excessive demand on social services. The recent
decision of the Supreme Court in Hilewitz v. Canada (Minister of Citizenship
and Immigration); De Jong v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, [2005]
S.C.J. No. 58, is most instructive.
[24]
Those
two cases, subject to the same set of reasons, dealt with the predecessor of section
38 of IRPA, but not with humanitarian and compassionate considerations under
section 25.
[25]
Mr.
Hilewitz and Mr. de Jong both applied for permanent residence for themselves
and their families under the investor and self employed classes, which obliged
them to have them to have substantial financial resources. They did, but were
denied admission because of the intellectual disability of a dependent child.
The issue was whether non-medical factors, such as the availability of family
support and the ability and willingness to pay were relevant considerations.
The Supreme Court held that they were and referred the matter back to the
Minister for reconsideration and redetermination by different visa officers.
[26]
The
Court’s historical review of immigration legislation led to the conclusion that
the approach has shifted from categorical exclusions to one calling for
individual assessments. Those cases were decided under the Immigration Act,
now repealed. However, in speaking of section 38 of IRPA, Madam Justice Rosalie
Silberman Abella noted at paragraph 60:
Under this new provision, health impairments need
no longer be those that "would cause or might reasonably be expected to
cause" excessive demands. Only those that "might reasonably be
expected to cause" them are relevant. I see no real significance to the
omission of the words "would cause". The wording is sufficiently
similar to preserve the requirement that any anticipated burdens on the public
purse be tethered to the realities, not the possibilities, of applicants'
circumstances, including the extent of their families' willingness and ability
to contribute time and resources.
[27]
In
this case, by making the decision out of turn, we have no evidence as to what
demand would be placed on the public purse, in this case Ontario’s, and the
cost thereof.
[28]
The
question of financial support was not put to the siblings and half-siblings.
Rather, improper reliance was placed on the poison pen letter.
[29]
As
to whether there would be unusual and disproportionate hardship to Colette if
she were to remain in India, the counsellor took account of the
special centre she attends, and the fact that she lives with Sharon. However,
Sharon’s return to India in 2003 was intended as a stop-gap measure. She
now has a job in another city and so does not live full-time with Colette, who
has a live-in caretaker. If Sharon were to leave, all indications are that
Assumpta would not pick up the slack.
[30]
Sharon was asked if
Colette was depressed. The answer was no. That may well be when Sharon is with her.
However, the counsellor either ignored or did not have before her the letter
from the Creative Centre. The author, who said she has known Colette from the
age of 18 when she was still in school and was her class teacher, says that
Colette has been depressed since her parents died “…and of late for the past
year Colette’s attendance has dropped considerably ever since her sister Sharon
(who lived with her after her parents passed away) had to move to another city.
The maid (caretaker) calls in to say she is depressed and does not want to come
to the workshop… I recommend, wish and pray that her immediate siblings are able
to make up for her losses by letting her be part of their family as soon as
possible because she keeps talking about her brothers and sisters.”
[31]
In
her correspondence Anslette expressed grave concern about putting Colette in an
institution. She was afraid she might be abused, given the lack of regular
visits if Sharon does not
remain in India. Sharon added that
they had considered the possibility, but it was clear that Colette, now that
her parents are gone, would much prefer to be with her siblings. These concerns
were not adequately addressed.
ORDER
THIS COURT
ORDERS that
for the reasons given above, this application for judicial review is
granted. The matter is referred back to another officer for redetermination.
There is no serious question of general importance to certify.
“Sean Harrington”
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