Docket: IMM-6525-13
Citation:
2014 FC 703
Montréal, Quebec, July
17, 2014
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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ANTONY ROUTHLEDGE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
A lack of diligence in respecting properly given
instructions, as required by the legal framework of the immigration system, can
lead to a denial of consideration.
II.
Introduction
[2]
This is an application for judicial review
brought forth under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] for judicial review of a decision by
an Immigration Officer of the Case Processing Centre [CPC] in Vegreville, Alberta, dated June 18, 2013.
III.
Background
[3]
The Applicant, Mr. Antony Routhledge, is a
citizen of the United Kingdom. Prior to coming to Canada he lived in Zambia and South Africa.
[4]
In 2005, he had a daughter, Kristin, with a
common-law spouse, Mrs. Lynette Meyer, in South Africa. The couple eventually
separated and the Applicant began a relationship with Ms. Melanie Boudreau, a
Canadian woman working in South Africa.
[5]
The Applicant traveled with Ms. Boudreau to Canada for a visit, and, in 2009, she sponsored him for landing in the Spouse and Common-law
Partners in Canada Class. In his application for permanent residence, the
Applicant listed his daughter Kristin, who resides in South Africa, as a non-accompanying family member.
[6]
As part of the application process, the
Applicant and his daughter were both required to undergo a medical examination
to determine their medical admissibility into Canada. The Applicant was examined
by a designated doctor in northern Quebec, and his ex-spouse brought their
daughter for an examination by a doctor in Cape Town, South Africa.
[7]
The Applicant’s daughter’s medical report was
subsequently rejected by the CPC as it had not been prepared by a designated
doctor. The Applicant was asked to provide a new medical report for his
daughter from a designated doctor in South Africa.
[8]
On March 15, 2012, the Applicant requested that
his daughter be exempted from having to undergo a medical examination as he
claimed his ex-spouse was not willing to bring her to be re-examined by another
doctor. This request was denied.
[9]
On June 11, 2012, the Applicant’s daughter was
examined by another doctor, this time in Hartenbos, Mussel Bay, South Africa. The medical report was again rejected by the CPC as it had not been completed by a
designated doctor.
[10]
On May 25, 2013, the Applicant wrote to the CPC
informing them of his wish to exclude his daughter from his application.
[11]
On June 18, 2013, the Respondent wrote to the
Applicant that his daughter could not be excluded from the application and that
failure to comply with the requirement to have her examined by a designated
doctor could result in the refusal of the application. The Applicant was given
a further 3 months to comply with the requirement.
[12]
On September 19, 2013, the Officer refused the
Applicant’s application for permanent residence as he had failed to comply with
the requirement.
IV.
Decision under Review
[13]
In his letter dated June 18, 2013, the Officer
denied the Applicant’s request to remove his daughter from his application for
permanent residence, indicating the following:
Regulation 72(1)(e)(i) states a foreign
national in Canada becomes a permanent resident if, following an examination,
it is established that they and their family members, whether accompanying or
not, are not inadmissible.
As you have not been able to provide
documentary evidence that your child(ren) are in the sole custody of another
person, examination for the following family member(s) must continue:
Kristin Jaqueline Routledge DOB 2005 April 14.
…
For your daughter Kristin: Immigration
legislation requires that all applicants for permanent residence and their
family members complete medical examinations. The examination must be
conducted by one of the panel physicians…
…
You have requested that we remove your
dependant Kristin Jaqueline Routledge from your application for permanent
residence. After careful consideration of the circumstances your request has
been denied. The family member you have listed on your application is required
to undergo the Immigration examination. Failure to comply with our instructions
may result in your application for permanent residence being refused.
(Certified Tribunal Record [CTR] at pp 83-84.)
V.
Issue
[14]
Did the Officer breach his duty of procedural
fairness by failing to provide adequate reasons for his decision?
VI.
Relevant Legislative Provisions
[15]
Subsection 42(a) of the IRPA is also
relevant in this matter:
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42. A foreign national, other than a protected person, is
inadmissible on grounds of an inadmissible family member if
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42. Emportent, sauf pour le résident permanent ou une personne
protégée, interdiction de territoire pour inadmissibilité familiale les faits
suivants :
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(a) their
accompanying family member or, in prescribed circumstances, their
non-accompanying family member is inadmissible; or
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a) l’interdiction de territoire frappant tout
membre de sa famille qui l’accompagne ou qui, dans les cas réglementaires, ne
l’accompagne pas;
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(b) they
are an accompanying family member of an inadmissible person.
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b)
accompagner, pour un membre de sa famille, un interdit de territoire.
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[16]
Paragraph 72(1)(e) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 is also relevant in this
matter:
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72. (1) A foreign national in Canada becomes a permanent resident
if, following an examination, it is established that
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72. (1) L’étranger
au Canada devient résident permanent si, à l’issue d’un contrôle, les
éléments suivants sont établis :
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…
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[…]
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(e) except
in the case of a foreign national who has submitted a document accepted under
subsection 178(2) or of a member of the protected temporary residents class,
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e) sauf dans le cas de l’étranger ayant
fourni un document qui a été accepté aux termes du paragraphe 178(2) ou de
l’étranger qui fait partie de la catégorie des résidents temporaires protégés
:
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(i) they and their family members, whether accompanying or not,
are not inadmissible,
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(i) ni lui ni les
membres de sa famille — qu’ils l’accompagnent ou non — ne sont interdits de
territoire,
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VII.
Standard of Review
[17]
It is well established that the issue of the adequacy
of reasons is assessed in reviewing the reasonableness of the decision as a
whole (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).
VIII.
Analysis
[18]
The Applicant submits that the Officer breached
his duty of procedural fairness by failing to explain why his request for an
exemption from a medical examination for his daughter was denied, and by
failing to demonstrate he assessed the matter on a case-by-case basis.
[19]
In the Court’s view, the Applicant's arguments
that the Officer breached his duty of procedural fairness may be disposed of in
a summary way as the Supreme Court of Canada has clearly established that the
inadequacy of reasons given by a decision-maker does not give rise to a breach
provided some reasons are given.
[20]
In Newfoundland and Labrador Nurses’ Union,
above, Justice Rosalie Silberman Abella stated:
[20] Procedural fairness … can be easily
disposed of here. Baker stands for the proposition that “in certain
circumstances”, the duty of procedural fairness will require “some form of reasons”
for a decision (para 43). It did not say that reasons were always required,
and it did not say that the quality of those reasons is a question of
procedural fairness… [Emphasis added.]
[21]
In this case, while the decision letter itself
may be brief, it is clear from the record that the Applicant was repeatedly
made aware of the requirements of the law to have his daughter examined by a
designated doctor and the consequences for failing to do so (CTR at p 87); however,
the Applicant repeatedly demonstrated a lack of diligence in respecting the
proper procedures. Despite having been warned several times about the
procedural requirements of the Regulations, the Applicant proceeded to have his
daughter examined by non-designated doctors. After two attempts at obtaining a
medical report from non-designated doctors, the Applicant finally requested
that his daughter be exempt from having to undergo any further medical
examination. Subsequent to a reading of the entire file, the Applicant
provided no adequate documentation demonstrating that his daughter was in fact
unable to undergo further medical examinations or that his ex-spouse refused to
take her to the examinations. In his request for an exemption, the Applicant
simply stated that his ex-spouse refused to take his daughter for a further
examination. The Court cannot accept that the Officer’s denial of the exemption
comes as a surprise to the Applicant or that it is unclear as to why the
Officer decided as he did.
[22]
The Applicant was the author of his own misfortune
in this matter, and the Court is satisfied that there was no breach of
procedural fairness on the part of the Officer.
IX.
Conclusion
[23]
For all of the above reasons, the Applicant’s
application for judicial review is dismissed.
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