Date:
20130308
Docket:
IMM-1750-12
Citation:
2013 FC 258
Ottawa, Ontario,
March 8, 2013
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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GAUTAM CHANDIDAS,
REKHA CHANDIDAS, KARAN
CHANDIDAS,
KUNAL CHANDIDAS, RHEA CHANDIDAS
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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]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], of the decision
of a senior immigration officer, dated January 12, 2012, which found that the
applicants had not provided sufficient evidence of humanitarian and
compassionate [H&C] grounds pursuant to subsection 25 (1) of the Act to
justify an exemption from the requirement to apply for permanent residence
status from outside Canada.
Background
[2]
The
Chandidas family seeks to remain in Canada, where they have lived since 2007.
While the current application for judicial review relates to the H&C
decision, there have been other immigration proceedings and it is helpful to
canvass the history of the Chandidas’ time in Canada.
[3]
Gautam
Chandidas, the principal applicant, is a citizen of India who arrived in Canada on a visitor’s visa in August 2007. His wife, two sons and daughter arrived in
November 2007.
[4]
The
applicants applied for refugee status in May 2008 based on the principal
applicant’s fear of persecution due to his experience in India. Mr Chandidas, who is Hindu, owned a garment factory in New Delhi that employed many
Muslims. The Muslim employees demanded time off for daily prayers, which he
refused due to production demands. Following a strike, he closed his
factory. In retaliation, he was kidnapped twice and threatened. A fatwa
was issued by a local mosque calling for his execution. Mr Chandidas fled and claims
that he and his family cannot return to India.
[5]
The
Immigration and Refugee Board [the Board] denied the applicant’s claim for
refugee protection finding that his claims lacked credibility, that a fatwa had
not been issued and that the applicants had no subjective fear of persecution.
Leave for judicial review of the negative decision was denied on September 8,
2011.
[6]
In
November 2011, the applicant applied for a Pre-Removal Risk Assessment [PRRA],
which reiterated the risks stated in the refugee protection claim. The
applicant claimed that he and his family had no internal flight alternative due
to his daughter’s medical condition (acute lymphoblastic leukemia) because the
only place for her possible treatment would be in Mumbai, where the applicant
could be found by Muslims seeking to execute the fatwa.
[7]
On
January 12, 2012, the PRRA officer refused the application. Leave to seek
judicial review of the PRRA decision was granted and the application was heard
on October 2, 2012 together with the current application. Separate Reasons for
Judgment have been issued and can be found at Chandidas v Canada (Minister of Citizenship and Immigration), 2013 FC 257.
[8]
In
July 2010, prior to seeking the PRRA, the applicants submitted an application
for permanent residence from within Canada on H&C grounds, i.e. the
applicants requested an exemption from the usual process of having to apply for
permanent residence from outside Canada. The H&C application is based on the
best interests of the child [BIOC] and on their establishment in Canada. The applicants also noted their fear of persecution in India. The H&C
application was refused by the same officer who refused the PRRA application
and on the same day, January 12, 2012.
[9]
On
March 13, 2012, this Court granted the applicants’ motion to stay their removal
from Canada.
Decision
under Review
[10]
The
negative H&C decision at issue in this case summarizes the applicants’
previous applications for refugee status as well as the PRRA application, and
notes the pending PRRA decision. The officer considered and referred to the
applicants’ evidence concerning their degree of establishment and the BIOC and
made preliminary conclusions. The officer then revisited these issues, leading
to his overall rejection of the H&C application.
[11]
The
officer acknowledged that the applicants had become established in Canada through work, school and community involvement since their arrival four years
earlier. Mr Chandidas has succeeded in real estate sales and started his own
management company. The oldest son is in university and the younger son is
completing high school. Mrs Chandidas has pursued further education, studied
French and been employed, but more recently has been devoted to the care of
their young daughter, Rhea, who is being treated for acute lymphoblastic
leukemia [ALL]. The officer noted that this type of establishment would be
expected after four years in Canada.
[12]
The
officer also noted that the applicants have relatives in both Canada and India, and that returning to India would enable family reunification.
[13]
With
respect to the BIOC, Rhea, who was eight years old at the time of the decision,
and who had been treated for relapsed ALL at the Hospital for Sick Children [“Sick
Kids”] in Toronto since August 2009 (after first being diagnosed at the age of
two and a half in India), the officer found that it would be in Rhea’s best interest
to remain with her family.
[14]
The
officer acknowledged the applicants’ submission that the quality of care for
Rhea in Canada is unmatched in India, that the treatment provided by Sick Kids
was optimal, and that she would not have this type of care in India, which could lead to her untimely death.
[15]
However,
the officer noted the report of the India Pediatric Oncology Initiative Meeting
supported by the Jiv Daya Foundation and found that the report was “in no way a
scathing indictment of the Indian medical system with respect to paediatric
oncology”.
[16]
The
officer also noted the letter from Rhea’s treating oncologist, Dr Truong, dated
February 9, 2010 which supported Rhea’s continued treatment at Sick Kids and
which noted, among other information, that cancer outcomes and overall survival
is well known to be higher in developed countries such as Canada. The officer accepted Dr Truong’s diagnosis, but found some of his conclusions to
be “questionable and speculative”, such as the references to cancer outcomes,
the logistics involved in data transfer between Canada and India as well as the
psychological stress and emotional suffering that would be endured by Rhea if
she were returned to India. The officer questioned Dr Truong’s qualifications
to provide a clinical psychological analysis of Rhea and noted that he may have
been making the assessment based on his own experience “but, that not does [sic]
mean that the applicant’s daughter is undergoing any emotional turmoil”.
[17]
The
officer concluded that the applicant had provided “little evidence to
demonstrate that cancer treatment for his daughter’s acute lymphoblastic
leukemia in India is significantly inferior to treatment in Canada” such that it would endanger Rhea’s life.
[18]
The
officer initially stated that there was insufficient information about Rhea’s
current medical status included in the applicant’s submissions. The officer
then clarified that this information had been provided by Sick Kids (Dr Naqvi
and Wendy Shama (social worker)) and delivered to him by counsel for the
applicants on January 10, 2012, two days before his decision was made. The
officer noted that the letter indicates that Rhea completed her active
chemotherapy in December 2011 (the previous month) and continues to attend the
hospital for follow-up care and that it also states that because Rhea had a
relapse of leukemia she is at higher risk and requires active and regular
follow-up at the clinic.
[19]
The
officer then concluded that treatment for Rhea is available in India, as evidenced by her previous successful treatment in India.
[20]
With
respect to the best interests of the applicant’s children, the focus was on
Rhea as the two sons were over 18 years of age. As noted above, the officer
found that the BIOC would be to remain with their parents. The officer also
found that the applicant had not satisfied him that the best interest of Rhea
would be to remain in Canada. This was based on the officer’s findings that
there was insufficient evidence to demonstrate that Rhea would not be able to
get adequate care and treatment for ALL in India; that there was little
evidence to demonstrate that medical procedures in India are inferior such that
they would put Rhea at risk; and, since Rhea had been treated in India
previously, she could be treated there again.
[21]
The
officer acknowledged that the Chandidas family had been in Canada for four years, were well integrated in their community and had done well financially, and that
there would be some hardship for the family to return to India. Still, he was not satisfied that the hardship would be unusual and undeserved or
disproportionate, after taking into account the best interests of the
applicant’s children. Therefore, the compelling circumstances were not
sufficient to merit an exemption under subsection 25 (1) of the Act.
Relevant
provision
[22]
Section
25 (1) of the Act reads as follows:
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25. (1) Subject to subsection (1.2), the
Minister must, on request of a foreign national in Canada who applies for
permanent resident status and who is inadmissible or does not meet the
requirements of this Act, and may, on request of a foreign national outside
Canada who applies for a permanent resident visa, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligations
of this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to the foreign
national, taking into account the best interests of a child directly
affected.
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25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire, soit ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada qui demande un
visa de résident permanent, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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Issues
[23]
The
applicant raises four grounds in support of the application for judicial
review: that the officer breached principles of procedural fairness by
rendering his decision before receiving the Designated Medical Practitioner’s assessment
of Rhea, a report which had been requested by the Minister of Citizenship and
Immigration; that the officer breached principles of procedural fairness by not
providing an opportunity to the applicants to disabuse the officer of his
conclusions regarding Dr Truong’s assessment of Rhea’s psychological state and
the cancer survival rates in Canada and elsewhere; that the officer’s findings
with respect to the BIOC were not reasonable; and, that the officer’s finding
that the level of establishment of the applicants was not sufficient to cause
unusual, and undeserved or disproportionate hardship was unreasonable.
Standard
of Review
[24]
Although
neither party made submissions on the standard of review, there is no dispute
about the applicable standard. The
Supreme Court of Canada has established that there
are only two standards of review; reasonableness and correctness: Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 34 [Dunsmuir]. Procedural
fairness is to be assessed on a standard of correctness. Factual
determinations and mixed questions of fact and law are to be assessed on a
standard of reasonableness.
[25]
It is well established that the role of the court on judicial
review where the standard of reasonableness applies is not to substitute the
decision it would have made but, rather, to determine whether the Board’s
decision “falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir, above, at para 47. Although there may be more than one reasonable
outcome, “as long as the process and the outcome fit comfortably with the
principles of justification, transparency and intelligibility, it is not open
to a reviewing court to substitute its own view of a preferable outcome”: Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1SCR 339 at
para 59 [Khosa].
[26]
The
standard for review of decisions under section 25 is reasonableness: Terigho
v Canada (Minister of Citizenship and Immigration), 2006 FC 835,
2006 FCJ No 1061 at para 6.
Procedural Fairness
The Immigration Medical Examination
[27]
The
applicant submits that the officer made his decision without considering all of
the available medical evidence. The decision was made on January 12, 2012, in
the absence of the results of the Immigration Medical Examination [IME] of Rhea
which was specifically requested on December 11, 2011 by Citizenship and
Immigration Canada [CIC]. That assessment was conducted and provided to CIC on
January 13, 2012. The applicant submits that this is relevant information for
the H&C application that the officer should have taken into account.
[28]
The
respondent submits that the officer had up-to-date information about Rhea’s medical
condition in the January 2012 letter from Sick Kids, which counsel for the
applicant provided.
[29]
The
respondent also notes that the request for the medical examination by a
Designated Medical Professional was not for the purpose of the H&C
application. Rather, it is required under section 38 of the Act to
determine if potential immigrants are medically admissible to Canada. The results of the IME were still pending at the time of the decision, but if the
examination had resulted in a finding of medical inadmissibility, the applicants
would have been given the opportunity to respond.
[30]
The
respondent also submits that the officer did not base his refusal of the
H&C application on a finding of medical inadmissibility, but on his finding
that the applicants would not suffer unusual and undeserved or disproportionate
hardship if returned to India. The H&C application is considered only on
the basis of the evidence provided by the applicants to establish hardship and
the BIOC. Based on these circumstances, the respondent submits that there was
no breach of procedural fairness.
[31]
In
the alternative, the respondent argues that if the failure to consider the
results of the IME amounts to a breach of procedural fairness, the breach was
not material because the decision was not based on potential medical
inadmissibility. In addition, the respondent submits that a breach of
procedural fairness would not automatically result in setting aside the
decision and, where the result would be inevitable, a decision should not be
set aside: Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum
Board, [1994] 1 S.C.R. 202, [1994] SCJ No 14; Correia v Canada (Minister of
Citizenship and Immigration), 2004 FC 782, 2004 FCJ No 964; Cha v Canada
(Minister of Citizenship and Immigration), 2006 FCA 126, [2006] FCJ No 491;
Hassani v Canada (Minister of Citizenship and Immigration), 2006
FC 1283, [2006] FCJ No 1597.
[32]
I
agree with the respondent that there was no breach of procedural fairness
arising from the failure to consider the results of the IME.
[33]
The
record shows that there were two separate requests for similar medical
information about Rhea. A request was sent for an IME on December 13, 2011 by
the Health Branch at CIC. The H&C officer made a request on December 22,
2011, to the applicants to provide a letter from Rhea’s treating physician and oncologist
describing her current medical status and, if applicable, treatment regime, and
to provide this information no later than January 11, 2012. The timing was
coincidental. The requests were made by different officers for different
purposes.
[34]
The
purpose of the IME is to assess whether an applicant’s health renders them
medically inadmissible. No such finding had been made at the time of the
H&C decision and that was not the basis of the H&C officer’s decision.
[35]
The
H&C officer received the information from Dr Naqvi regarding Rhea’s current
medical condition that he had requested and considered it in determining the
H&C application. The applicants were aware of this information as they had
transmitted it to the officer.
Dr Truong’s
letter
[36]
The
applicant submits that the officer had a duty to disclose his concerns about Dr
Truong’s November 2011 letter. The officer found the oncologist’s reasons in
support of the continued treatment of Rhea in Canada to be “questionable and
speculative”. He noted that “[w]hile cancer outcomes and over [sic]
survival is ‘well known’ to be higher in developed countries, he has presented
little evidence to show that this is the case in India, especially since the
barriers to treatment for the majority of patients are based on low socio
economic reasons as per the India Pediatric Oncology Initiative Meeting notes
submitted by the applicant”.
[37]
The
officer also noted “there is little indication that the oncologist is qualified
to make a clinical psychological analysis of the daughter”.
[38]
The
applicant relies on Torres v Canada (Minister of Citizenship and Immigration),
2011 FC 818, [2011] FCJ No 1022 at para 38, where Justice Shore noted that
where credibility, accuracy or the genuine nature of information is in
question, there is a duty to give the applicant an opportunity to disabuse the
officer of any concerns that may arise.
[39]
The
respondent submits that no such duty was owed to the applicant in this case as
the evidence was not extrinsic evidence and did not relate to the credibility
of the applicant’s evidence. Rather, the officer attributed less weight to the doctor’s
opinion, as he was entitled to do.
[40]
I
agree that there was no breach of procedural fairness arising from the officer’s
failure to disclose his concerns, or his conclusions, arising from Dr Truong’s
letter. The letter was known to the applicants and is, therefore, not
extrinsic evidence. The officer does not appear to have questioned Dr Truong’s
credibility. Rather, the officer discounted the information relied upon by Dr
Truong about the need for Rhea to continue her treatment in Canada as opposed to India.
[41]
The
officer’s treatment of this evidence is addressed below with respect to the
reasonableness of the decision.
The Best
Interests of the Child [BIOC] Analysis
[42]
The
applicant submits that the officer was not “alert, alive and sensitive” to the
best interests of the child and did not conduct a proper analysis of these
interests.
[43]
The
applicant also submits that the officer made a number of errors in assessing
Rhea’s best interests, including: he mistakenly found that Rhea had been
successfully treated in India and could, therefore, be treated there again; he
failed to take into account the evidence that relapsed ALL requires a different
level of care; he failed to assess whether it is in Rhea’s best interest to
remain in Canada under the optimal care of Sick Kids, as recommended by the doctors
at Sick Kids, or to return to India and receive a lower standard of care; he failed
to address the inferior treatment conditions and outcomes in India, including
lower cure rates, few trained paediatric oncologists and an increasing number
of patients; he selectively relied on parts of the Jiv Daya Report but ignored
other parts that depicted the troubling conditions for treatment; he
misinterpreted or misunderstood the data and factors that created obstacles to
treatment of childhood cancer in India; he failed to consider parts of the
letter from Dr Truong and misinterpreted other parts; and he failed to consider
that the January 2012 letter from Sick Kids recommended follow-up treatment at
the Sick Kids hospital, not elsewhere.
[44]
The
respondent notes that H&C decisions are highly discretionary and
exceptional and are not designed to eliminate all hardship, but to provide
relief from unusual, undeserved or disproportionate hardship.
[45]
The
respondent submits that the officer applied the correct test and was “alive,
alert and sensitive” to Rhea’s best interests. H&C officers are presumed
to know that a child’s best interests will generally favour granting the
H&C application; their role is to weigh the degree of hardship caused by
the removal of the parent (Hawthorne v Canada (Minister of Citizenship and
Immigration), 2002 FCA 475, [2002] FCJ No 1687 at paras 5-6 (QL) [Hawthorne]).
In the present case, the officer was aware of Rhea’s illness and concluded that
it was in her best interests to remain with her parents. According to the
respondent, there was no evidence before the officer that the treatment for
relapsed leukemia was any different from that of a first diagnosis. The officer
reasonably concluded that the original treatment in India was successful and
could be in the future.
[46]
The
respondent also submits that the officer considered all of the evidence and reasonably
concluded that there was insufficient evidence that Rhea’s failure to receive
treatment at Sick Kids in Toronto “could result in her untimely death”, as
asserted by the applicants.
[47]
I
agree with the applicant that the officer failed to conduct an appropriate
analysis of the BIOC in accordance with the guidance provided by this Court. The
officer misunderstood or failed to consider evidence which highlighted the need
for Rhea to continue her follow-up treatment at Sick Kids and which described the
options for treatment in India as very limited. The officer’s conclusion that
there was insufficient evidence to demonstrate that Rhea would not be able to
get adequate care and treatment for ALL in India was not reasonable.
[48]
The
evidence which was not considered or which was misunderstood was relevant and
important to the analysis of the BIOC. Dr Truong was Rhea’s treating physician
and oncologist. He was the specialist and had the overall picture of Rhea’s
medical condition and the treatment she had received at Sick Kids. As noted
above, the officer found some of Dr Truong’s conclusions to be “questionable
and speculative”, including his references to the cancer outcomes, the
logistics involved in data transfer between Canada and India, as well as the psychological stress and emotional suffering that would be endured by Rhea if
she were returned to India.
[49]
Dr
Truong did not profess to be a psychologist, but he was the child’s treating
physician and he knew Rhea and what she had experienced. He offered his
opinion in that capacity.
[50]
Dr
Troung’s letter indicated that “cancer outcomes and overall survival is well
known to be higher in developed countries such as Canada where there is a
network of excellent pre-hospital care (ie. EMS, ambulance), provision of
supportive care (antibiotics and blood products), and excellent inpatient
hospital services (diagnostic imaging and access to essential medications)”.
[51]
This
statement is not speculative. The officer, however, concluded that this did
not establish that the survival rates were higher here than in India. The officer questioned this statement because he relied on one part of the Jiv Daya Report
which he misinterpreted as indicating that barriers to treatment in India were
due only or primarily to socio-economic reasons.
[52]
Dr
Truong also indicated:
“The treatment of relapsed leukemia is physically
and psychologically demanding on a young child. The chemotherapy is much
more intensive and requires multiple clinic visits and long periods of
hospitalization. The regime is so intense that rarely, a few children will die
while on therapy. Rhea has had a few instances during the treatment
where she has had some life threatening episodes and had to be admitted to the
intensive care unit. The provision of timely and high quality care offered here
has allowed her to recover from those episodes without any complications.
The successful treatment of children with cancer
requires high quality medical care, the availability of specialists in oncology
and other medical specialties, and a multidisciplinary team of personnel that
includes nurses, pharmacists, dieticians and social workers to name a few. It
requires access to diagnostic imaging services such as CT and MRI scanners and
access to essential chemotherapeutic drugs, such as those that Rhea is
currently receiving.”
[emphasis in original]
[53]
The
letter clearly establishes that treatment for relapsed ALL is more intensive,
more risky and more difficult for the patient. It also establishes that optimal
care could be continued at Sick Kids. Although the officer acknowledged that
Rhea had relapsed ALL, he did not consider the impact of the treatment – or of
any future treatment – for this relapse or in the event of a future relapse.
[54]
The
Jiv Daya Report included a summary of the India Pediatric Oncology Initiative Meeting,
which brought together doctors from the United States and India to identify problems and make recommendations. The officer found that the report was
“in no way a scathing indictment of the Indian medical system with respect to
paediatric oncology”. Scathing or not, the report included information that
described the obstacles to treatment for children with cancer in India which the officer failed to take into account.
[55]
The
report indicated that the overall cure rate in India varied between 10 and 25%,
compared to 70% in the United States. The report also indicated that there
were over 40,000 new cases of childhood cancer each year in India and 70% have advanced disease at diagnosis. There are only 55 practicing paediatric
oncologists in India.
[56]
The
officer found that the report indicated that barriers to treatment in India were due to low socio-economic factors. The report does not identify this as the
only or predominant barrier. The report identifies
several areas for improvement, noting, for example, that some patients need
financial assistance for treatment and for travel to treatment and that funding
from the foundation could be used for such purposes. The report states that
“[d]elegates discussed exiting barriers to attaining optimal outcomes; i.e.,
lack of infrastructure, insufficient staff, lack of training, economic
restraints and other challenges related to the delivery of care. The common
issue expressed was the constant influx of patients, inadequate beds to see
them all and not enough staff to treat them” [emphasis added].
[57]
The
January 2012 letter from Dr Naqvi and social worker Wendy Shama, in response to
the officer’s request for a current report on Rhea’s medical condition, notes
the following:
“Since she has already had a relapse of her
leukemia, she is at a higher risk of future relapse and will require regular
and active follow-up from our clinic. If you require any further information,
please do not hesitate to contact us…”.
[58]
The
officer acknowledged the letter but remained of the view that Rhea could
receive her treatment in India. The letter clearly indicates that she is at
higher risk and that the active follow-up required is at “our clinic” i.e.
Sick Kids, where Rhea had been treated for four years.
[59]
The
officer’s conclusion that there would be adequate treatment for Rhea in India is not supported by all
the evidence before him.
[60]
The
Supreme Court of Canada’s decision in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, 174 DLR (4th) 193, set out the basic principles regarding the
obligation to consider the BIOC when making H&C decisions. In a well-known
passage, the Supreme Court held, at para 75:
[F]or the exercise of the discretion to fall within the standard
of reasonableness, the decision-maker should consider children's best interests
as an important factor, give them substantial weight, and be alert, alive and
sensitive to them. That is not to say that children's best interests must
always outweigh other considerations, or that there will not be other reasons
for denying an H & C claim even when children's interests are given this
consideration. However, where the interests of children are minimized, in
a manner inconsistent with Canada’s humanitarian and compassionate tradition
and the Minister’s guidelines, the decision will be unreasonable.
[61]
In
Kolosovs v Canada (Minister of Citizenship and Immigration), 2008 FC 165,
[2008] FCJ No 211, [Kolosovs], the Court commented on the requirements
of being alert, alive and sensitive, noting that the decision-maker (in that
case a visa officer) can only give the BIOC sensitive consideration after
gaining a full understanding of the real-life impact of a negative H&C
decision.
[62]
In
Hawthorne,
above, at para 32,
the Federal Court of Appeal held that a mere statement that the BIOC has been
considered is insufficient:
[A]n officer cannot demonstrate that she has been "alert,
alive and sensitive" to the best interests of an affected child simply by
stating in the reasons for decision that she has taken into account the
interests of a child of an H & C applicant (Legault, at para. 12). Rather, the
interests of the child must be "well identified and defined" (Legault,
at para. 12) and "examined ... with a great deal of attention" (Legault, at para. 31).
[63]
The
Federal Court of Appeal also noted that determining the BIOC should be the
decision-maker’s starting point, as opposed to examining different scenarios
and working backwards to compare their impact on the child: Hawthorne,
above, at paras 41, 43.
[64]
Moreover,
the officer is presumed to know that living in Canada would offer the child
opportunities that they would not otherwise have (Hawthorne, above, at
para 5) and that to compare a better life in Canada to life in the home country
cannot be determinative of a child’s best interests as the outcome would almost
always favour Canada: (Li v Canada (Minister of Citizenship and
Immigration),
2006 FC 1292, [2006] FCJ No 1613 at para 28).
[65]
In Williams v Canada (Minister of Citizenship and
Immigration), 2012 FC 166, [2012] FCJ No 184 (QL) [Williams],
Justice Russell reviewed the principles from the jurisprudence and noted, at
para 64, that there is no ‘hardship threshold’ that must be ‘met’, but
rather that the BIOC is truly the starting point of the analysis:
There is no basic needs minimum which if "met" satisfies
the best interest test. Furthermore, there is no hardship threshold, such that
if the circumstances of the child reach a certain point on that hardship scale
only then will a child's best interests be so significantly
"negatively impacted" as to warrant positive consideration. The
question is not: "is the child suffering enough that his "best
interests" are not being "met"? The question at the initial
stage of the assessment is: "what is in the child's best
interests?"
[italics
in original, underlining added]
[66]
Justice
Russell proposed
a three-step approach as a guideline for decision-makers when assessing the
BIOC (at para 63):
When assessing a child's best interests an Officer must establish first
what is in the child's best interest, second the degree to which the
child's interests are compromised by one potential decision over another, and
then finally, in light of the foregoing assessment determine the weight that
this factor should play in the ultimate balancing of positive and negative
factors assessed in the application.
[emphasis in original]
[67]
This Court has held that Williams, which concerned the
potential removal of a Canadian-born child’s mother from Canada, and whether it
was in the child’s best interest that she be allowed to stay, will not be
applicable to all cases: Webb v Canada (Minister of Citizenship and Immigration), 2012 FC 1060,
[2012] FCJ No 1147 at para 13. That being said, I am of the view that the Williams
framework is applicable here and should be adapted to the
present circumstances.
[68]
The
officer did not apply the principles from the case law; he did not identify and
define the best interests of Rhea and he was not alert, alive or sensitive to
them.
[69]
The
starting point is to identify what is the child’s best interest. The officer
merely stated early in his reasons that it was in the best interests of the
children (which means the best interest of Rhea since the two sons were over 18)
to remain with their parents. That is an odd starting point given that a
nine-year-old girl would never be expected to remain in Canada alone, her status in Canada was tied to that of her family, she was part of a family that was
committed to ensuring her good health, and there was never any suggestion that
she would not remain with her parents. The officer did not identify what was in
Rhea’s best interests other than stating the obvious, that she would remain
with her parents.
[70]
One
would think that the starting point in assessing Rhea’s best interests would be
to consider the best way to ensure her follow-up treatment and ongoing
recovery.
[71]
Following
Kolosovs, the officer should have considered the real-life
impact of a negative H&C decision. In these circumstances, the real-life
impact would be to return to India to attempt to have follow-up treatment at an
unfamiliar hospital, with unfamiliar doctors and to compete with the countless
other patients needing treatment from the very few available doctors and
specialists. This option should have been weighed against the option of
continuing follow-up treatment with the team of oncologists, social workers and
other professionals at Sick Kids who have known and treated Rhea for four years
and whom Rhea knows.
[72]
Following
the Williams framework, the officer should first have
identified Rhea’s best interests, and then considered the degree to which
Rhea’s need for follow-up and complete recovery would be compromised by a
return to India compared to remaining in Canada. Finally, the officer should
have weighed this factor in his overall consideration of the H&C
application.
[73]
As
noted above, it is not the role of this Court, sitting in review, to substitute
its view of the preferable outcome: Khosa, above, at para 59. Rather,
the Court must determine whether the decision is reasonable in that it falls
within a range of possible, acceptable outcomes: Dunsmuir, above, at
para 47. In the present case, the officer’s failure to properly identify Rhea’s
best interests, as mandated in Hawthorne and set out in Williams, renders the decision
unreasonable.
Level of
Establishment in Canada
[74]
The
officer thoroughly reviewed the family’s degree of establishment and referred
to their work, income, family ties, courses taken, schools attended and
community involvement. The officer then states that this is what he would
expect after four years.
[75]
The
applicant submits that the officer’s conclusions regarding the family’s
establishment in Canada are unreasonable. The applicant submits that the
officer failed to weigh the evidence of their establishment – which was
“extraordinary” – and merely states that “I do not find that these factors
[are] sufficient to amount to unusual and undeserved or disproportionate
hardship” but fails to explain why.
[76]
The
respondent submits that the officer reasonably concluded that the applicants
attained the measure of establishment expected after being in Canada for four years and acknowledged that the applicants’ return to India would cause some
hardship. The respondent contends that the applicants are merely asking this
Court to reweigh the evidence.
[77]
In
my view, even after considering the reasons in their entirety, the officer’s
finding with respect to establishment is not adequately explained and, as a
result, is not reasonable. The applicants are not asking the court to reweigh
the evidence; they are asking for the reasons underlying the officer’s
conclusion.
[78]
In
Adu v Canada (Minister of Citizenship and Immigration), 2005 FC 565,
[2005] FCJ No 693, Justice Mactavish held, at para 20:
… in this case, the officer reviewed the evidence
of establishment in Canada offered by the applicants in support of their
applications, and then simply stated her conclusion that this was not enough.
We know from the officer's reasons that she did not think that the applicants
would suffer unusual, undeserved or disproportionate harm if they were required
to apply for permanent residence from abroad. What we do not know from her
reasons is why she came to that conclusion.
[79]
This
reasoning was recently echoed by Justice Rennie in Tindale v Canada (Minister of Citizenship and Immigration), 2012 FC 236, [2012] FCJ No 264
at para 11.
[80]
Similarly,
in the present case, the officer fails to provide any explanation as to why
the establishment evidence is insufficient. The officer reviewed the family’s
degree of establishment in detail, and referred to their work, income, family
ties, courses taken, schools attended, and community involvement in various
passages of the decision. The officer does not indicate what he would consider
to be extraordinary or exceptional establishment; he simply states that this is
what he would expect and that it would not cause unusual and undeserved or
disproportionate hardship if the family were forced to apply for a visa from
outside Canada. While this could be argued to be a reason, it is barely
informative.
[81]
This
Court has described “unusual and undeserved or disproportionate hardship” as
hardship that goes beyond that which is inherent in having to leave Canada: Doumbouya v Canada (Minister of Citizenship
and Immigration), 2007 FC 1186, [2007] FCJ No 1552; Singh
v Canada (Minister of Citizenship and Immigration), 2009 FC 11, [2009] FCJ
No 4 at para 20.
[82]
In
the present case, the officer failed to consider that this family had
established themselves successfully in their community, in their schools, and
in business, during the same period that their young daughter, Rhea, was being
treated for ALL, which required many hospital stays and related appointments
and the entire family’s support, attention and assistance. The officer did not
turn his mind to whether, in these circumstances, their level of establishment
was more than what was expected and that requiring the Chandidas family to
apply for permanent residence from outside Canada would impose hardship going
beyond that which is inherent in having to leave Canada.
[83]
As
such, the officer’s failure to explain his negative conclusion despite the
positive establishment factors he thoroughly reviewed, combined with his
failure to meaningfully consider the Chandidas’ particular situation, render
his determination regarding the family’s level of establishment unreasonable.
Conclusion
[84]
The
officer’s decision does not meet the requirements of justification,
transparency and intelligibility. The officer failed to consider crucial
evidence and misinterpreted other evidence about Rhea’s need for follow-up
treatment and about the limited treatment opportunities in India. The officer did not conduct an appropriate analysis of the BIOC, which is essential
in H&C applications. The officer also failed to consider how Rhea’s illness
and treatment played a role in the family’s establishment in Canada and the officer did not provide adequate reasons for finding that their level of
establishment was no more than expected. Therefore, the
application for judicial review is allowed and the H&C application should
be remitted to a different officer.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is allowed and the H&C application should
be remitted to a different officer.
"Catherine M.
Kane"
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