Docket:
IMM-11411-12
Citation: 2014 FC 315
Ottawa, Ontario, April 1, 2014
PRESENT: The Honourable
Mr. Justice Russell
BETWEEN:
|
LANCELOT BAILEY
|
Applicant
|
and
|
MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This is an
application under s. 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [Act] for judicial review of the decision of a Senior Immigration
Officer [Officer] dated October 15, 2012 [Decision], which refused the
Applicant’s application for an exemption on humanitarian and compassionate
grounds under s. 25(1) of the Act from the requirement to apply for a permanent
resident visa from outside of Canada [H&C Application].
BACKGROUND
[2]
The Applicant is a 60-year-old
citizen of Jamaica though, with the exception of a few months in 2004, he has
not lived in that country for more than 30 years. He spent much of that time in
the United States, but was deported after completing a prison sentence there in
2004. He came to Canada in April 2004 on a false passport, settling in Hamilton
and then Windsor. In October 2006 he was brutally beaten by three men with a
baseball bat because he provided information to the police about drug
traffickers. As a result, he is now a quadriplegic who requires 24-hour care
and support, which he currently receives at a continuing care centre in Windsor. The Applicant has been found to be inadmissible to Canada due to criminal
convictions in the United States, and a removal order was issued against him in
November 2006.
[3]
The Applicant has a
history of drug addiction and criminality. He immigrated to New York in 1981
and married there in 1985, but when that marriage broke down in 1988, the
Applicant got into trouble with the law. He was criminally charged and
convicted for assault and trespass relating to disputes with his ex-wife,
receiving a 6 month prison sentence, and was later convicted of arson for
setting fire to his own car, receiving an 18 month prison sentence. He began a
new relationship in California in 1992, and says his cocaine addiction began
there, as his common law spouse was a cocaine user. In December 1996 he was
convicted of possession with intention to transport cocaine. He says it was for
personal use, but the way the drugs were packaged led authorities to conclude
otherwise. He received an 8 year sentence in view of his prior criminal record,
and when that sentence was completed, he was deported to Jamaica.
[4]
The Applicant says he
sang in a musical band and did photography when he first came to Canada, but could not shake his cocaine habit. He met a woman in Windsor while performing
with his band, and moved there from Hamilton to live with her in or around August
2004. In March 2006, he was found in possession of cocaine during a police raid
of his building, but was told they would drop the charges if he provided information
about his drug provider. He did provide this information, and this apparently
led to some arrests. The Applicant says that two particularly notorious drug
traffickers – “Morris” and “T.K.,” who have since been deported to Jamaica – sent their men to attack him in retaliation, leaving him in his current condition.
He can move his arms somewhat but cannot use his hands. He cannot dress or wash
himself, get in and out of bed or his wheelchair, use the washroom or do many
other tasks without assistance. He can occasionally feed himself with an
adapted spoon attached to his hand with a splint, but typically requires help
to feed himself as well.
[5]
In September 2007,
the Applicant applied for refugee protection, but was found to be excluded from
consideration pursuant to Article 1F(b) of the Refugee Convention (incorporated
into domestic law by s. 98 of the Act) because of his criminality in the United States. He submitted his H&C Application and a Pre-Removal Risk Assessment [PRRA]
application in February 2010. His PRRA application was denied in April 2010.
The PRRA officer observed that his circumstances warranted H&C
consideration, but found this was beyond his or her mandate. On October 15,
2012, his H&C Application was refused in the Decision under review here.
DECISION UNDER REVIEW
[6]
The Officer began by
observing that the Applicant bore the onus of showing that he would experience
hardship that was either unusual and undeserved or disproportionate if required
to obtain a permanent resident visa from outside Canada in the normal manner. The
Officer considered the relevant H&C grounds to be degree of establishment
in Canada, personal relationships or ties in Jamaica and Canada, and fear of discrimination in Jamaica.
[7]
With respect to
establishment, the Officer noted that the Applicant had taken “Peer Support
Volunteer” training to provide support to individuals with a similar level of
injury, and had provided a letter of support from a friend indicating he was a
compassionate person and always concerned for other people. The Officer found
that this evidence did not demonstrate close interdependent relationships that
would suffer hardship if severed. While acknowledging that the Applicant “may
experience some difficulty in re-adapting to life in Jamaica,” the Officer was
not satisfied that he had “integrated into Canadian society to such an extent
that he would experience unusual, undeserved, or disproportionate hardship on
the basis of his establishment… if he were to leave Canada.”
[8]
With respect to
personal relationships, the Officer found there was no indication the Applicant
has developed close personal relationships while in Canada, and that he does
not have family members residing in either Canada or Jamaica. As such, “it is
reasonable to assume that the applicant could return to Jamaica and develop relationships with and grow accustomed to the care facilities and staff in Jamaica, as he has had to do and has done in Canada.”
[9]
The Officer then
considered the Applicant’s “fear of discrimination in Jamaica” and “medical concerns.” Regarding discrimination, the Officer observed that Inland
Processing Manual #5 [IP5 Manual] defines discrimination as a “distinction
based on the personal characteristics of an individual that results in some
disadvantage to that individual,” and that “[i]n order for discrimination to
amount to persecution it is normally repetitive, persistent and has grave
personal consequences such as serious body injury, torture, mistreatment or in
the denial of fundamental human rights.” The Officer noted that the Applicant
fears if he is returned to Jamaica where he has no family he will be “unable to
care for himself … [and] vulnerable to deterioration of his medical condition,
to disease, crime and even death from starvation.” The Applicant had submitted
that discrimination and prejudice against people with disabilities are
widespread in Jamaica.
[10]
The Officer took note
of a letter from Peggy Koelln of the Canadian Paraplegic Association of Ontario
stating that the Applicant is completely dependent on others to take care of
him, and that it was her understanding that services for individuals such as
the Applicant are extremely limited in Jamaica. While this letter contained
“reliable evidence of the applicant’s current physical state,” the Officer
found that it provided “insufficient objective evidence that the applicant will
be likely to be subjected to discrimination that would amount to unusual and
undeserved or disproportionate hardship upon his return to Jamaica,” and that
“Ms. Koelln is not an expert on country conditions in Jamaica.”
[11]
In considering
counsel’s submissions that the Applicant would be discriminated against due to
his disability, and that resources for accommodation and care are limited since
people with disabilities are usually cared for by their families, the Officer consulted
the 2011 U.S. Department of State Human Rights Report on Jamaica [US DOS Report] and quoted it as follows:
Persons with disabilities encountered discrimination in employment and
denial of access to schools. Discrimination in access to education was
particularly pronounced at the primary level. Fewer problems were reported in
secondary schools, and tertiary institutions, including community colleges,
were increasingly drafting policies ensuring full inclusion of persons with
disabilities. Health care reportedly was universally available.
[12]
The Officer
acknowledged that “there are limited government-funded care facilities in Jamaica for those with disabilities,” but found that “there are facilities currently and
aspiring to fill this void.” The Officer continued:
According to the website Mustard Seed Communities for Jamaica, there are two facilities, Jacob’s Ladder and Jerusalem!, currently caring for people with
disabilities and hoping to expand. The website states,
Jacob’s Ladder
Jacob’s Ladder, is located in Moneague on 100 acres of land donated to
Mustard Seed Communities by the bauxite company Windalco. In Jamaica, there are no facilities - governmental or otherwise - available to take care of
individuals with mental and physical disabilities after the age of 18. The
vision for Jacob’s Ladder is to fill this void by providing 500 young adults
with mental and physical disabilities with a home where they can live out their
lives.
This vision is being achieved through the construction of 100 cottages to
house the residents and staff and by establishing an agricultural system;
vegetables, tree crops, animal husbandry, and fish ponds for in-house food
needs and to generate income by selling excess produce in the domestic market.
Our goal is to achieve a self-sustainable facility through farming and other
economic projects.
At present, there are nearly 40 cottages completed and just under 50
residents living at Jacob’s Ladder. There are several greenhouses on the
premises and both farming and animal husbandry are currently underway. Work
continues on future cottages and residents are continually arriving at this
growing apostolate.
Jerusalem!
Located on eight acres in Spanish Town, Jerusalem! serves as a residential
facility for 150 abandoned children and young adults. Jerusalem provides a safe
and nurturing environment for individuals challenged both mentally and physically.
Our residents have illnesses ranging from schizophrenia, and other mental
illnesses to autism, hydrocephalus, cerebral palsy, and HIV/AIDS.
Jerusalem Village caters to older teenage and adult
residents in a setting where several houses make up a small neighborhood. These
homes provide an integrated facility where those considered “normal” and those
with special needs co-exist. Training is emphasized as residents are prepared
for a semi-independent way of life. Training includes exposure to construction,
home economics, farm work and formal education.
The farm at Jerusalem functions as both a therapeutic alternative for the
residents and an income generating project. The farm currently has two fish
ponds, 2000 chickens for egg production, a vegetable garden and a small flock
of sheep. The farm serves the in house protein needs of the residents while the
surplus is sold to neighboring communities.
[13]
The Officer found
that “[t]he above noted documentary evidence demonstrates that the views of Jamaica are evolving with regards to disabled people and their treatment and that there are
current and growing facilities available to care for such individuals.”
[14]
The Officer noted
that the Applicant has not resided in Jamaica “for over eight years, never as a
quadriplegic.” However:
[H]e provided insufficient objective evidence that he would suffer
hardship due to discrimination or be personally discriminated against due to
his disability upon his return to Jamaica. While I accept that it may be
difficult for the applicant to return to Jamaica as a disabled person; however,
he would not be returning to an unfamiliar place, culture or language that
would render re-integration unfeasible.
[15]
The Officer observed
that the Applicant may experience some difficulty in re-adapting to language
and cultural changes and that country conditions are not always favourable.
However, the Officer found that this did not amount to unusual and undeserved
or disproportionate hardship that would warrant an exemption.
[16]
The Officer stated
that he or she had “considered all material presented by the applicant as well
as my own research of publicly available information,” and was not satisfied
that sufficient H&C grounds existed to approve the request for an exemption
from the requirements of the Act.
ISSUES
[17]
The Applicant has raised
the following issues in this application:
a.
Did the Officer err
by ignoring important, probative evidence concerning the lack of long-term
residential care facilities for persons with a severe disability such as the
Applicant’s in Jamaica?
b.
Did the Officer
breach procedural fairness by failing to allow the Applicant an opportunity to
respond to independent research relied upon in rejecting his application?
c.
Did the Officer err
by misconstruing evidence concerning the Applicant’s medical conditions and
needs, and by unreasonably believing the care facilities found on the internet
would be suitable for the Applicant?
d.
Did the Officer err
by relying on evidence of the state’s future hopes and intentions in the
treatment of and care for persons with disabilities?
e.
Did the Officer err
by failing to analyze disproportionate hardship for the Applicant in Jamaica as it relates to his personalized circumstances?
STANDARD OF REVIEW
[18]
The Supreme Court of
Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a particular question
before the court is settled in a satisfactory manner by past jurisprudence, the
reviewing court may adopt that standard of review. Only where this search
proves fruitless, or where the relevant precedents appear to be inconsistent
with new developments in the common law principles of judicial review, must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis: Agraira v Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36 at para 48.
[19]
The question of
whether the Officer unfairly denied the Applicant an opportunity to respond to
the Officer’s independent research raises an issue of procedural fairness that
is reviewable on a standard of correctness: see Canadian Union of Public
Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29 at para
100; Sketchley v Canada (Attorney General), 2005 FCA 404 at para 53. The
Officer’s assessment of the evidence and conclusion regarding whether an
H&C exemption should be granted is reviewable on a standard of
reasonableness: Alcin v Canada (Minister of Citizenship and Immigration),
2013 FC 1242 at para 36; Daniel v Canada (Minister of Citizenship and
Immigration), 2011 FC 797 at para 12; Jung v Canada (Minister of
Citizenship and Immigration), 2009 FC 678 at para 19.
[20]
When reviewing a
decision on the standard of reasonableness, the analysis will be concerned with
“the existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12
at para 59. Put another way, the Court should intervene only if the Decision
was unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
STATUTORY PROVISIONS
[21]
The following
provisions of the Act are applicable in these proceedings:
Application
before entering Canada
11. (1) A
foreign national must, before entering Canada, apply to an officer for a visa
or for any other document required by the regulations. The visa or document
may be issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
[…]
|
Visa et
documents
11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
[…]
|
Humanitarian
and compassionate considerations — request of foreign national
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.
|
Séjour pour
motif d’ordre humanitaire à la demande de l’étranger
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.
|
ARGUMENT
Applicant
Procedural Fairness
[22]
The Applicant argues
that the Officer breached his right to procedural fairness by relying on
information obtained through the Officer’s independent research without
disclosing it to the Applicant, and without providing an opportunity for him to
respond.
[23]
The Applicant points to
sections 5.16, 5.18, and 11.1 of the IP5 Manual as discussing relevant
principles. Section 5.18 relates to “Conducting Research.” It says that
officers may conduct their own research, and that when information is obtained
through Internet research, a copy must be retained in the case file. The officer
has discretion regarding whether a document should be shared with the applicant
prior to rendering a decision if it can be demonstrated that the document is
“publicly accessible,” and such information should come from reliable sources.
It goes on to say that officers “may seek responses from applicants with respect
to relevant external documentation that comes to light, and on which they
intend to rely, and about which the foreign national could not reasonably be
expected to be aware.”
[24]
Section 11.1 relates
to “Procedural Fairness.” It states in relevant part:
Officers must follow procedural fairness when making a decision. Officers
should:
[…]
•
inform the applicant
when extrinsic information is considered and provide the applicant with a
chance to respond;
[25]
Finally, section 5.16
discusses “H&C and hardship: Factors in the country of origin to be
considered.” It states in relevant part:
In order to substantiate an applicant’s claims, the officer may wish to
access reliable, unbiased internet resources for information on medical care
available in the country of origin, for instance:
•
UK Home Office
Country of Origin reports: […]
•
World Health
Organization: […]
•
UNAIDS (for HIV
cases): […]
•
International
Organization for Migration: […]
[…]
Evidence gathered to counter the applicant’s submissions must be disclosed
to the applicant and an opportunity for reply provided.
[26]
The Applicant takes
no issue with the Officer’s use of the US DOS report, which he acknowledges to
be a widely recognized and reliable information source regarding country
conditions that is easily accessible and found in the Immigration and Refugee
Board [IRB]’s documentation package on human rights conditions. However, the
Applicant argues that the information from the Mustard Seed Communities for Jamaica [Mustard Seed] website should have been disclosed to him, and an opportunity to
respond provided. He argues that this information is not of the same category
as the US DOS Report. He points to Mancia v Canada (Minister of Citizenship
and Immigration), [1998] 3 FC 461 (FCA) at para 22 [Mancia] for the
principle that an applicant must be informed of extrinsic country condition
evidence that represents “any novel and significant information which evidences
a change in the general country conditions that may affect the disposition of
the case.” Unlike in Sinnasamy v Canada (Minister of Citizenship and
Immigration), 2008 FC 67 at paras 35-40 [Sinnasamy], the Applicant
argues, the information relied upon here could not be “foreseen to be a source
on which the officer would rely” (see also Al Mansuri v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 22 at paras
47-52). The Applicant notes that other decisions of this Court following the
reasoning in Mancia, above, have placed a great deal of weight on
whether the evidence in question is part of the IRB’s documentation package on
the country in question: see Muhammad v Canada (Minister of Citizenship and
Immigration), 2012 FC 1483; Guzman v Canada (Minister of Citizenship and
Immigration), 2004 FC 838; Placide v Canada (Minister of Citizenship and
Immigration), 2009 FC 1056.
[27]
The information from
the Mustard Seed website is not, the Applicant argues, from a widely known and
established source that the Applicant could have been expected to know of and
address in his submissions. He says that if the Officer had disclosed the
information, he could have explained why the existence of the facilities listed
does not alleviate the profound hardship he would face as a quadriplegic
without family being returned to Jamaica. Moreover, the IP5 Manual, as noted
above, indicates that when the evidence at issue relates to a state’s ability
to provide medical or health care for an applicant, and it runs counter to the
evidence already provided by the applicant, an officer must disclose
this evidence to the applicant and provide an opportunity for a response. Thus,
while the Officer was entitled to conduct independent research, he or she erred
in not informing the Applicant’s counsel of this source and allowing him to
make submissions on it.
Reasonableness of the Decision
[28]
The Applicant argues
that the Officer failed to address probative and relevant evidence that
directly contradicted his or her conclusions, and therefore a reasonable
inference can be drawn that the Officer ignored this evidence: Ozdemir v
Canada (Minister of Citizenship and Immigration), 2001 FCA 331; Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35,
[1998] FCJ No 1425 (TD) [Cepeda-Gutierrez]; Obot v Canada (Minister
of Citizenship and Immigration), 2012 FC 208.
[29]
Specifically, the
Applicant provided a letter from the Jamaica Council for Persons with
Disabilities, an agency within the Jamaican Ministry of Labour and Social
Security, which stated that due to scarcity of resources “services for persons
with quadriplegia are very limited,” and that such persons “are usually
dependent on families for personal care, food, medication, clothing and housing.”
The letter continued:
In Jamaica, there is no government facility dedicated to long term
residential rehabilitation services for adults with severe physical
disabilities. Some privately owned homes/institutions are available but
quite expensive and for someone with quadriplegia the challenge is enormous.
There are a few infirmaries for indigent persons but these are unable to
provide adequate care for quadriplegics and especially if there is no family
support these persons are sometimes lost in the system and eventually become
another statistic.
[Applicant’s emphasis]
[30]
The Applicant argues
that both the source of the letter (a division of the Jamaican government), and
its high degree of relevance make it the kind of evidence one would expect the
Officer to address, but the Officer failed to refer to it in any way. It
supports the Applicant’s submission that he would not have adequate medical
care for his severe disability in Jamaica, which is contrary to the conclusion
reached by the Officer, and the failure to mention or analyze it is a
reviewable error: Cepeda-Gutierrez, above; Bains v Canada (Minister
of Employment and Immigration), [1993] FCJ No. 497, 63 FTR 312 (TD).
[31]
The Applicant also
points to a letter from Mrs. Opal Minott, a social worker at St. John Golding
Rehabilitation Centre in Kingston, Jamaica, stating that a pre-requisite for
admitting patients to that facility is information about a next of kin to whom
they can release the patient upon completion of their term, which averages only
three months. The Applicant says the Officer failed to refer to this letter or
explain why it did not weigh towards a finding of hardship for the Applicant.
[32]
At the same time, the
Applicant notes, the Officer did refer to the letter from Peggy Koelln of the
Canadian Paraplegic Association of Ontario. With respect to Ms. Koelln’s
observation that “Jamaica is extremely limited in terms of services for
individuals such as Mr. Bailey,” the Officer found that the letter provided
“insufficient objective evidence” that the applicant would experience
undeserved or disproportionate hardship, and that Ms. Koelln is “not an expert
on country conditions in Jamaica.” The Applicant says these observations
support the view that the Officer ignored other compelling, objective evidence
dealing with the same issue, from the very persons who are much closer to the
issue and are familiar with those country conditions. The failure to address
this evidence was a reviewable error.
[33]
The Applicant also
takes issue with the Officer’s failure to make reference to the PRRA officer’s observations
that the Applicant’s case “warrants humanitarian and compassionate
considerations,” and that the letters outlined above “weigh heavily on the
applicant’s ability to access adequate medical treatment in Jamaica.”
[34]
In addition to
alleging that the Officer ignored relevant and probative evidence that
contradicted his or her conclusions, the Applicant also argues that the Officer
misconstrued the evidence regarding the severity of his disability and came to
an unreasonable conclusion about the availability of suitable care for him. He
says the Officer treated “disability” as an umbrella term, and did not engage
with his specific circumstances in considering the hardship he would face if
returned to Jamaica. The Applicant is not merely a person with a disability,
but rather a person with a severe disability for which he requires 24-hour care
and support. The Officer’s failure to appreciate the nature and extent of his
disability led the Officer to conclude that there were organizations “currently
and aspiring” to provide the type of care the Applicant will need, when in fact
the two facilities cited as examples are manifestly inadequate to provide care
for someone like him. He is not, for example, someone who can be “prepared for
a semi-independent way of life” through training in construction and farm work,
and the two facilities focus on children and young adults.
[35]
Even if these
facilities could provide appropriate care, the Applicant argues, they provide a
very small number of spots across a broad range of disabilities, and are therefore
unlikely to be available to the Applicant. The Mustard Seeds website itself
notes the absence of other facilities, stating: “In Jamaica, there are no
facilities – governmental or otherwise – available to take care of individuals
with mental and physical disabilities after the age of 18.”
[36]
The Applicant notes
that in support of the conclusion that Jamaica is “evolving” and “aspiring” to
do better in the realm of assisting persons with disabilities, the Officer
quoted a portion of the US DOS Report citing information from the Jamaica
Council for Persons with Disabilities. However, the Officer failed to deal with
the letter provided by the Applicant from the same organization stating
that there were no government facilities providing the kind of care he will
need, and failed to read the US DOS Report in that light.
[37]
The Applicant also
argues that the Officer erred by relying on evidence of future hopes and
intentions regarding care for the severely disabled in Jamaica, rather than real evidence of the current situation. He says this Court’s observations
that intentions and planned improvements are insufficient to demonstrate
adequate state protection in the risk assessment context (see Koky v Canada
(Minister of Citizenship and Immigration), 2011 FC 1407) are equally
applicable to an assessment of hardship: intentions or future plans for
improvement are not evidence that unusual or disproportionate hardship will not
occur if the Applicant is returned to Jamaica now. The fact that two small
non-governmental organizations hope to increase their capacity to care for
persons with disabilities is not sufficient to establish that there will be a
place where the Applicant can go to be cared for.
[38]
The Applicant notes
that section 5.16 of the IP5 Manual states that officers must consider factors
in the country of origin that relate to the hardships that affect a foreign
national, including:
•
Lack of critical medical
/ healthcare;
•
Discrimination that
does not amount to persecution; and
•
Adverse country
conditions that have a direct negative impact on the applicant.
Here, the Applicant argues, the Officer failed to engage squarely with the
issue of the lack of medical care for the Applicant, but focused instead on the
issue of discrimination against people with disabilities in Jamaica. As such, the Officer failed to analyze disproportionate hardship as it relates to
his personalized circumstances. That is, the Officer failed to analyze
his actual disability and care needs and compare them to what actually awaits
him in Jamaica, and the proportionality aspect of the hardship analysis was therefore
deficient. References in country documents to some facilities and
treatment should not be confused with the viability of measures for a particular
applicant: Lemika v Canada (Minister of Citizenship and Immigration), 2012
FC 468 at paras 18-19; Blair v Canada (Minister of Citizenship and
Immigration), 2008 FC 800 at para 20.
[39]
The Applicant argues
that the documentary evidence shows that treatment and medical care for persons
with severe disabilities in Jamaica is dependent on family members who can be
responsible for day-to-day care, and government rehabilitation facilities are
for limited durations only. Since the Applicant has no family to care for him,
the medical care he requires is not available to him in Jamaica
[40]
With respect to the
Officer’s consideration of discrimination, the Applicant argues that the
Officer applied the wrong threshold and relied on evidence that was largely
irrelevant. Moreover, the evidence quoted regarding improvements with respect
to discrimination in education or the fact that “health care reportedly was
universally available” does not apply to the Applicant: he has no intention to
undertake further studies, and did not allege that “healthcare” will not be
available to him due to discrimination. Rather, he asserted that the
appropriate healthcare for his condition in his personal circumstances
is not available for him in Jamaica. Furthermore, while quoting the US DOS
Report in support of the view that things are improving, the Officer failed to
take account of the first two sentences of the very paragraph quoted, namely:
There are no laws prohibiting discrimination against persons with
disabilities or mandating accessibility for persons with disabilities. Although
the government ratified the UN Convention on the Rights of Persons with
Disabilities in 2007, there were no reports of actions taken to implement the
provisions of the convention.
If returned to Jamaica, the Applicant says he will face discrimination
falling short of persecution but amounting to unusual, undeserved and
disproportionate hardship.
[41]
The Applicant also
argues that Jamaica is fraught with gang violence, and that poor and disabled
individuals are naturally the most vulnerable in such a climate. The Applicant
stated in his affidavit that as someone who informed on Jamaican drug dealers
since deported to Jamaica, he would be completely vulnerable to these
individuals and their criminal network. In the absence of residential care, and
with no family, friends or income, he says he will be extremely vulnerable to
violence on the streets as an older man with quadriplegia. He quotes his
counsel’s submissions in his H&C Application that “a quadriplegic beggar on
his own will not likely survive very long on the streets of Jamaica.” He says the Officer failed to deal with the country condition evidence regarding
violence in Jamaica, and how this in combination with the absence of
residential care will affect the Applicant.
Respondent
Procedural Fairness
[42]
The Respondent argues
that whether the Mustard Seed website is an “established source” or “widely
known” is not the test for whether it had to be disclosed to the Applicant in
advance of the decision. Rather, the question is whether anyone with a computer
could have found it and, ultimately, whether the information was “novel and
significant and evidences changes in country conditions”: Yang v Canada (Minister of Citizenship and Immigration), 2013 FC 20 at paras 25-28 [Yang].
Since the information in question did not indicate a change in country
conditions, and there is no evidence that it was novel (in the sense of not
existing at the time the H&C Application was submitted), it need not have
been disclosed prior to the Officer’s reliance upon it.
[43]
The Respondent says
that the language used in other cases cited with approval by the Court of
Appeal in Mancia, above, shows that the Officer did nothing wrong in
relying without notice on the publicly available website that he or she found.
Specifically:
•
“… failure to do so,
unless that evidence is not public and is material… does not breach the rules
of procedural fairness”
•
“… evidence not
readily available to the public ought to be disclosed…”
•
“information to which
the applicants could not have had access…”
•
“… sources available
to the public…”
Mancia, above, at paras 12-13, 20-21.
Reasonableness of the
Decision
[44]
The Respondent argues
that the Officer did not ignore evidence, and no negative inference can be
drawn from the Officer’s failure to specifically mention the documents cited by
the Applicant. The Officer expressly agreed with the letter from the Jamaican
Council for Persons with Disabilities that “there are limited government-funded
care facilities in Jamaica for those with disabilities.” As such, there was no
reason for the Officer to distinguish or note the letter in his or her reasons.
The same is true of the letter from Mrs. Opal Minott. The Officer did not
dispute the limitations of the facility Mrs. Minott works at, but simply
pointed out that two other care facilities not discussed by Mrs. Minott did,
indeed, seem to have long-term care available. The PRRA officer’s statements
cannot be taken out of the limited evidentiary context in which they were made,
as the PRRA officer did not have access to the information on care facilities
that the H&C Officer had.
[45]
While the Applicant
says the Officer failed to cite certain documents by name, the reasons clearly
referred to the evidence in those documents, and this was sufficient, the
Respondent argues: see Cepeda‑Gutierrez, above, at paras 15-16.
The Applicant’s bald assertion that this information was much more
authoritative than the information cited by the Officer should be rejected.
None of the sources was, by itself, determinative. Rather each contributed
pieces to the overall picture, and the weight assigned is not a justiciable
issue on judicial review: Canadian Union of Public Employees, Local 301 v Montreal (City), [1997] 1 S.C.R. 793 at para 85; Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 at para 11.
[46]
The Respondent says
the Officer did not fail to appreciate the severity of the Applicant’s
disability, as he or she expressly noted that the Applicant lives in a
motorized wheelchair, is a quadriplegic and has no use of his hands and limited
use of his forearms. Regardless of the Applicant’s argument that the Jerusalem! facility is not suitable for him because he cannot be semi-independent, there
is the other facility, Jacob’s Ladder. While the Applicant speculates that it
would not have a spot for him because it is “small,” the website clearly states
that “residents are continually arriving at this growing apostolate.” While
acknowledging that the facility appears to be geared to young adults and
children, the Respondent says there is nothing to suggest that older adults are
excluded. The Applicant rests entirely on his own self-interested opinion that
these facilities could not adequately provide for him, unsupported by any objective
evidence.
[47]
Furthermore, the
Respondent says, in pointing out these two facilities, the Officer was clearly
dealing with the current situation and not some future utopia, as the Applicant
suggests. The fact that the organization promises more and better facilities in
the future does not detract from this. It was commendable that the Officer did
not ignore the future potential of these facilities, as it ensured a more
realistic appraisal of them. It is perverse to suggest that wilful blindness
about what lies down the road is better.
[48]
The Respondent says
that while there will always be questions about the care someone can receive
outside of Canada, especially in severe circumstances like those of the
Applicant, he has no right to the superlative care he would receive by staying
in Canada during the processing of his permanent residence application. Doubts
about foreign care, as such, cannot be presumed to result in a positive H&C
decision: Bichari v Canada (Minister of Citizenship and Immigration),
2010 FC 127 at para 28; Gardner v Canada (Minister of Citizenship and
Immigration), 2011 FC 895 at paras 37, 41. H&C applications were never
intended to eliminate all extra hardships, even in aggravated circumstances
such as these.
[49]
Contrary to the
Applicant’s assertions, the Respondent says, the Officer did not fail to
consider his personal circumstances. The Officer considered the long-term
nature of the Applicant’s disability, and found examples of facilities
providing long-term care. While the Applicant now asserts that these would not
work, he did not provide sufficient evidence of this in his H&C Application.
If he failed to make submissions on the matter, this cannot be held against the
Officer, who was left with a very limited, one-sided view of matters. The
burden was not on the Officer to demonstrate that adequate facilities exist in Jamaica, but rather on the Applicant to prove that they do not. The Officer simply found
that the Applicant may well be wrong on this point.
[50]
The Respondent argues
that the Officer’s findings with respect to discrimination and country
conditions were more than reasonable, and that the Decision falls within the
range of possible, acceptable outcomes defensible with respect to the facts and
the law: Dunsmuir, above, at para 47. The mixed record in this case
illustrates that “certain questions that come before administrative tribunals
do not lend themselves to one specific, particular result” but rather “may give
rise to a number of possible, reasonable conclusions: Dunsmuir, above,
at para 47.
Applicant’s Reply Submissions
[51]
With respect to the
Respondent’s argument that the Officer need not have specifically referred to
certain documents because he or she “did not disagree” with them, the Applicant
argues that the issue is not whether or not the Officer agreed with the
evidence in question. Rather, the issue is whether that evidence contradicted
the Officer’s ultimate findings about hardship.
[52]
The Applicant says
the test for whether evidence had to be disclosed to the Applicant prior to the
Officer relying upon it is not whether “anyone with a website could have found
it,” but rather whether the evidence was “novel and significant information
which evidences a change in the general country conditions that may affect the
disposition of the case”: Mancia, above, at para 22. He argues that the
Officer clearly viewed the evidence from the Mustard Seed website as very
important and thought that it did represent a change from the country
conditions presented by the Applicant, as the Officer based his or her
conclusion that the Applicant could be cared for in Jamaica on this evidence.
If the Applicant had been given a chance to respond, the Officer’s analysis
could have taken into account the problems with these facilities for this
Applicant, given his particular disability and circumstances.
[53]
The Applicant argues
that the Yang decision cited by the Respondent is distinguishable, since
in that case the undisclosed evidence obtained through independent research was
“in line with previous documentary evidence”: Yang, above, at para 28.
[54]
Contrary to the
Respondent’s assertions, the Applicant says he did provide sufficient
probative, credible and relevant evidence to support his contention that the
medical care he requires would not be available to him in Jamaica, but the Officer failed to engage with this evidence in any way. The Applicant is
not “now asserting” that the two facilities found by the Officer would not work
for him, as the Respondent suggests; rather, because of a breach of procedural
fairness, he was never provided the opportunity to respond to this evidence.
ANALYSIS
[55]
There is not a great
deal to say about this application except that I agree with the Applicant
regarding most of the points raised for review.
[56]
The Officer accepts
the Applicant’s high state of dependency, acknowledging “that he is now a
quadriplegic, confined to a wheelchair and unable to use his hands but has some
limited movement in his upper arms and uses a motorized wheelchair.”
[57]
It is apparent from
the record that, because of the Applicant’s spinal cord injury “he requires
ongoing medical support which includes 24-hour a day care. He is not able to
dress himself, and is limited to how he can feed himself. He is completely
dependent on others to take care of him” (Decision at p. 4).
[58]
So, the central issue
as regards hardship is whether the care which the Applicant requires is
available to him in Jamaica. On this issue, the Officer concludes as follows:
The Applicant has not resided in Jamaica for over eight years, never as a
quadriplegic, and has provided insufficient objective evidence that he would
suffer hardship due to discrimination or be personally discriminated against
due to his disability upon his return to Jamaica. While I accept that it may be
difficult for the applicant to return to Jamaica as a disabled person; however,
he would not be returning to an unfamiliar place, culture or language that
would render re-integration unfeasible.
[59]
The Applicant
provided important evidence from the Jamaica Council for Persons with
Disabilities dated March 23, 2010, which tells us that “[i]n Jamaica there is
no government facility dedicated to long term residential rehabilitation
services for adults with severe physical disabilities” and that
Due to the scarcity of resources in Jamaica, service for persons with
quadriplegia are very limited. The majority of these persons are deprived of a
livelihood after suffering such misfortune. Persons are usually dependent on
families for personal care, food, medication, clothing and housing.
[60]
In addition, Ms. Opal
Minott, a social worker at St. John Golding Rehabilitation Centre in Kingston, Jamaica, tells us that a pre-requisite for admitting patients to this rehabilitation
centre is information about a next of kin to whom the patient can be released
following their stay, which averages 3 months. Clearly, the patients are
discharged from this centre into the care of their relatives.
[61]
The Officer does not
specifically mention this evidence and relies on her own research (not
disclosed to the Applicant before the Decision is made) which comes from the
website of Mustard Seed Communities of Jamaica. This research caused the
Officer to conclude that “there are two facilities, Jacob’s Ladder and Jerusalem! currently caring for people with disabilities and hoping to expand.” After
citing the information on the website for these two facilities, the Officer
says that the “above noted documentary evidence demonstrates that the views of
Jamaica are evolving with regard to disabled people and their treatment and
that there are current and growing facilities available to care for such
individuals.”
[62]
Given the website
evidence, these conclusions go beyond the unreasonable and enter the realm of
the bizarre. The Jacob’s Ladder entry tells us that:
In Jamaica there are no facilities – governmental or otherwise – available
to take care of individuals with mental and physical disabilities after the age
of 18. The vision of
Jacob’s Ladder is to fill this void by providing 500 young adults with mental
and physical disabilities with a home where they can live out their lives.
[Emphasis added]
[63]
The rest of the entry
makes it clear that residents are expected to work at farming activities: “Our
goal is to achieve a self-sustainable facility through farming and other
economic projects.”
[64]
The evidence is quite
clear that:
(a)
The Applicant is not
a young adult;
(b)
The Applicant cannot
work;
(c)
There is nothing in
the Jacob’s Ladder entry that says the facility wants anything to do with
highly dependent quadriplegics like the Applicant; and
(d)
Jacob’s Ladder has a
“vision” and it is not clear whether that vision could ever assist the
Applicant who will need immediate full-time care if he returned to Jamaica.
[65]
What is even stranger
is that the Jacob’s Ladder entry is clear that “[i]n Jamaica there are no
facilities – governmental or otherwise – available to take care of individuals
with mental and physical disabilities after the age of 18.” This confirms the
Applicant’s own evidence that his needs cannot be met in Jamaica. Yet the Officer comes to exactly the opposite conclusion based, it would appear, on
the mere hope that Jamaica may, at some unspecified date in the future, evolve
into a country that will cease to discriminate against people like the
Applicant and provide the care required. As a quadriplegic, the Applicant will
need 24-hour a day care as soon as he gets off the plane in Jamaica.
[66]
The entry for Jerusalem! says that it “serves as a residential facility for 150 abandoned children and
adults” and that “Jerusalem Village caters to older teenage and adult
residents” who are expected to participate in training in construction, home
economics, farm work and formal education to prepare them for “a
semi-independent way of life.”
[67]
The evidence is clear
that:
(a)
The Applicant is not
an abandoned child or young adult;
(b)
The Applicant is not
an older teenager or an adult who can engage in training for a semi-independent
life;
(c)
There is no
indication that Jerusalem! would have any interest whatsoever in someone in the
Applicant’s position
[68]
The evidence ignored
by the Officer tells us there are no facilities for adults with severe physical
disabilities, and such persons are usually entirely dependent upon families for
personal care, food, medication, clothing and housing.
[69]
So the Officer
entirely ignores clear evidence which tells us that the Applicant’s needs cannot
be met in Jamaica, and bases his or her conclusions upon little more than some
vague hope that all of this may someday change. This is not an even-handed,
reasonable assessment of the hardship that the Applicant will face in Jamaica.
[70]
There are many other
problems with this Decision but my findings above are dispositive, and it must
be returned for reconsideration upon that basis alone. However, without going
into the issue in any detail, I cannot accept – as the Respondent argues – that
the Officer could simply go on the internet and find relatively obscure
information of dubious relevance to someone in the Applicant’s position and
base the entire decision upon it without advising the Applicant and giving him
a chance to respond. The Respondent’s position that the information is “public”
and therefore need not be disclosed because “anyone with an internet connection
can find it” is untenable and was rejected by Justice de Montigny in Sinnasamy,
above, at para 38. As the Respondent points out, Mancia, above, is the
leading authority on this issue. In the present case, the Applicant presented
strong evidence from an authoritative source – the Jamaica Council for Persons
with Disabilities – that services for people with quadriplegia in Jamaica are very limited and usually require family support which the Applicant does not
have. The Officer relies upon website information that says nothing specific
about quadriplegia and which, on its face, does not fit someone with the
Applicant’s needs. The Respondent is asking the Court to accept what was, in my
view, a travesty of procedural fairness in this case. Even if the Applicant had
seen these entries on the internet, they contain nothing to suggest that either
facility could deal with his needs. Had the Officer placed this information
before the Applicant and given him a chance to respond, this would have become
immediately obvious.
[71]
In fact, I find the
Officer’s approach in this Decision very disturbing. Clear authoritative
evidence which says that the Applicant’s needs cannot be met in Jamaica is simply ignored in favour of undisclosed evidence that does not address the
Applicant’s specific medical condition and daily needs. And this with an
Applicant who is physically helpless, extremely vulnerable, has no family or
other support in Jamaica, and who could face death on the streets there. It is
also telling that the officer who considered the Applicant’s PRRA application
pointed out the H&C considerations associated with the Applicant’s needs,
and yet those considerations have not been given a fair or reasonable
assessment. The Officer in this case has simply ignored the Applicant’s
specific medical needs in the context of what Jamaica can presently offer to
meet those needs.
[72]
Counsel argue there
is no question for certification and the Court concurs.