Ottawa, Ontario, November 21, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the respondent’s decision dated January 9, 2006, which denied Mr. Wong’s application on humanitarian and compassionate grounds for an exemption from the requirement to obtain an immigrant visa before coming to Canada as set out in subsection 11(1) of the Immigration and Refugee Protection Act (the H&C application).
Background
[2] The applicant is 48 years old and a citizen of Hong Kong who came to Canada in 1986. He has been diagnosed with chronic schizophrenia and has been institutionalized for approximately 14 years. All of the applicant’s immediate family lives in Canada. His parents and eldest brother live in Vancouver, while his two sisters and his older brother—who has also been diagnosed with a mental illness and is under the care of one of his sisters—live in Richmond Hill, Ontario.
[3] After arriving in Canada to visit his family, the applicant met Rosaria Ng, whom he later married. Ms. Ng sponsored Mr. Wong’s application to remain in Canada. The sponsorship was approved by Citizenship and Immigration Canada, and the applicant was issued a Minister’s Permit on September 15, 1986.
[4] Within one year of the applicant’s marriage, his mental health condition deteriorated. The couple separated and the applicant’s spouse withdrew the sponsorship application. The applicant lived alone after the divorce. His schizophrenia continued to worsen, and in 1992 he was convicted of aggravated assault, mischief and theft under $1000. He was sentenced to two years of imprisonment, which he began at the Millbrook Correction Centre before being transferred to the Penetanguishene Mental Health Centre to serve the remainder of his sentence.
[5] In December 1994, the applicant was transferred to the Queen Street Mental Health Centre in Toronto, now known as the Centre for Addiction and Mental Health (the “Centre”). The Applicant continues to live at the Centre as an inpatient of the Integrated Rehabilitation Unit. On March 3, 1997, the applicant was issued a deportation order due to his criminal convictions.
[6] The applicant first applied for landing based on H&C considerations in November 1996. When he submitted the first application, however, his mental health condition was unstable and he was not yet eligible to apply for a pardon of his criminal convictions. In January 1998, his application was denied.
[7] On February 21, 2005, the applicant submitted the H&C application giving rise to the decision under review. The applicant advised the respondent that he had received a pardon for his previous convictions. On May 24, 2005, the respondent requested further information, namely: a full medical diagnosis and prognosis providing specific information concerning the applicant’s medical treatment and likelihood of release from institutional care, and Notices of Assessment for tax years 2003 and 2004 for the applicant’s parents and siblings. The applicant submitted the requested information.
[8] On January 9, 2006, the respondent advised that the requested exemption would not be granted. The applicant applies for judicial review of this decision.
Decision Under Review
[9] The respondent determined that there was insufficient evidence to show that the applicant would suffer unusual, undeserved or disproportionate hardship if he was to apply for permanent residence from outside Canada. Although the decision acknowledges the presence of the applicant’s immediate family in Canada, the respondent found that the support available from the applicant’s family was no greater in Canada than it would be if he were removed to Hong Kong:
There are no submissions on file that prove any member of the Applicant’s family has ever provided financial support to him during his long stay in Canada. […]
Although there are three siblings who live in the Toronto area, all three live a considerable distance from the institution where their brother is confined. Since no details of the frequency of their visits has been provided, I am not satisfied that the commuting distance allows for frequent--possibly daily--visits when necessary. None of the three has relocated his or her home to the proximity of the institution where the applicant is confined. There is no evidence on file that and effort was made to relocate their brother to an institution closer to their places of residence. I am therefore not satisfied that his siblings will provide an ongoing presence in the applicant’s life. […]
Since the applicant’s family have not satisfied me that they would provide care and financial support for their brother, and have provided little proof that they have played a role in the past, I am not satisfied that the separation from his family members that would result were he to be removed from Canada would be unusual and disproportionate. The family who state that they wish to maintain close contact with him have not proved themselves willing and capable to take on the responsibility of caring for the applicant. Since the parents and brother who live permanently in Vancouver maintain a considerable distance from the applicant I cannot be satisfied that they will be of any greater assistance to him, were he living in Hong Kong rather than in Toronto. […]
[Emphasis added]
[10] The respondent also found at page 4 that the applicant’s continued presence in Canada put an excessive strain on the social welfare system:
It is unreasonable to consider the possibility that the excessive demand that would be borne by the social welfare system is justified. The fact is that during his twenty years as a temporary resident the applicant has already caused a great demand on the social welfare system in Canada.
The respondent concluded that the applicant would receive a similar level of care for his mental illness in Hong Kong and did not, therefore, warrant an exemption from the processing requirements under the Act:
The information provided in the file is that [the Applicant’s family is] unable to financially bear any part of the cost of his care. The principal family members—the parents and the elder brother—are geographically very distant. I am therefore not satisfied that the care he receives in Toronto would be significantly different from the care he receives in his own country. Therefore I am not satisfied that in returning to his country of origin, where he would in all likelihood need the same high level of care as here, there would be unusual or disproportionate hardship.
Issues
[11] The issues raised in this application are as follows:
1. Did the respondent err in failing to process the H&C application in two steps by assessing H&C considerations before assessing the application for permanent residence in Canada?
2. Did the respondent breach the duty of procedural fairness by failing to afford the applicant an oral hearing and failing to apprise the applicant of concerns raised by his application before reaching a decision?
3. Did the respondent err by ignoring relevant evidence or making patently unreasonable findings of fact?
Relevant Legislation
[12] The legislation relevant to this application is the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
Standard of Review
[13] The appropriate standard of review for H&C application decisions, as established by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 62, is reasonableness:
[…] I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter. [Emphasis added]
[14] A decision is unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. This means that a decision may satisfy the standard if it is supported by a tenable explanation even if it is not one that the reviewing courts find compelling: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
Analysis
[15] The decision under review concerns an application under subsection 25(1) of the Act for an exemption on humanitarian and compassionate grounds from the normal processing requirements under subsection 11(1) of the Act. The relevant provisions are as follows:
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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 shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. […]
Humanitarian and compassionate considerations 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la présente loi. […]
Séjour pour motif d’ordre humanitaire
25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient. |
Issue No. 1: Did the respondent err in failing to process the H&C application in two steps by assessing H&C considerations before assessing the application for permanent residence in Canada?
[16] The applicant argues that the respondent’s decision was made contrary to the guidelines issued by the Minister and represents an unreasonable exercise of discretion. The applicant submits that the decision-maker improperly emphasized the applicant’s medical condition and its impact on his potential for establishment within Canada while assessing the humanitarian and compassionate considerations supporting an exemption from the processing requirements under the Act.
[17] The applicant’s medical condition is relevant to the second step of the H&C application insofar as the applicant may be denied permanent residence in Canada on grounds of medical inadmissibility. Subsection 38(1) of the Act provides:
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38. (1) A foreign national is inadmissible on health grounds if their health condition (a) is likely to be a danger to public health; (b) is likely to be a danger to public safety; or (c) might reasonably be expected to cause excessive demand on health or social services. |
38. (1) Emporte, sauf pour le résident permanent, interdiction de territoire pour motifs sanitaires l’état de santé de l’étranger constituant vraisemblablement un danger pour la santé ou la sécurité publiques ou risquant d’entraîner un fardeau excessif pour les services sociaux ou de santé.
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[18] With respect to considerations of potential establishment, the applicant referred the Court to Section 11.2 of the Guideline IP-5, Immigration Applications in Canada made on Humanitarian or Compassionate Grounds: “Officers should not assess the applicant’s potential for establishment as this falls within the scope of admissibility criteria.”
[19] Section 11.2 concerns the separate process for known or suspected inadmissibility of an applicant or his family members:
The relationship between such facts [e.g., medical inadmissibility; H&C application based on a medical condition; receipt of social assistance, etc.] and the H&C decision is important since officers are not making a determination of admissibility at this point. They are looking at all the applicant’s personal circumstances, as provided by the applicant and as known to the Department, to determine if there are sufficient reasons for making a positive H&C decision.
[Emphasis added]
[20] I agree with the respondent’s submission that ministerial guidelines as reflected in the Immigration Manual do not carry the force of law. However, the Court may consider the guidelines in its review of an H&C decision. I adopt Madam Justice L’Heureux-Dubé’s statement in Baker, above, at paragraph 72 concerning the utility of ministerial guidelines in this context:
[… ] As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.
[Emphasis added]
[21] The applicant relies on Mr. Justice O’Keefe’s judgment in Mujiri v. Canada (Minister of Citizenship and Immigration), 2002 FCT 121; 216 F.T.R. 107; 23 Imm. L.R. (3d) 98, where at paragraphs 23 and 24 he stated:
My review of the Officer’s notes indicated that the Officer did not process this application as a two-step procedure but instead combined an assessment of the H&C application with the assessment of the applicants’ right to be landed in Canada, which is the second step of the process. The primary emphasis was on the [applicant’s] condition. […]
It is unfair to put such great emphasis on the medical inadmissibility of the applicant […] at the first stage of the H&C application as the officer at this stage is only assessing the positive and negative factors of this applicant's situation so as to determine whether to let this applicant apply for landing from within Canada. I am satisfied that the officer breached the duty of procedural fairness owed to the applicants by not following the respondent's own guidelines. I might add that since the applicant […] is already in Canada, her medical condition might be considered a positive factor in the H&C application to apply for landing within Canada as she would not have to leave Canada to apply for landing. I am only speaking about step one of the H&C application and not the assessment of the [applicant’s] application for landing.
[Emphasis added]
[22] In my view, Mr. Justice O’Keefe’s statements in Mujiri, above, are both persuasive and relevant to this application. It is clear from the excerpts of the decision quoted above that the decision-maker considered the applicant’s medical inadmissibility because of an excessive demand on Canada’s social system. As in Mujiri, it was inappropriate for the decision-maker to place such emphasis at the first stage of the H&C application. By resting the conclusion to deny an exemption on the applicant’s “excessive demand” on Canada’s social welfare system, the decision-maker exercised his discretion unreasonably and in breach of the respondent’s own guidelines.
[23] Moreover, as was raised in Mr. Justice O’Keefe’s dicta in Mujiri, the applicant’s existing presence in Canada and, in particular, his inpatient status at the Centre in Toronto, might be considered positive factors in the first step of the H&C application. I note, however, that the decision-maker did not acknowledge these factors in his decision.
Conclusion
[24] In deciding whether to grant the applicant an exemption from the processing requirements under subsection 11(1) of the Act, the decision-maker erred in placing undue emphasis on the applicant’s suspected medical inadmissibility and potential for establishment in Canada. The decision-maker’s assessment of these factors ought to have been deferred until the second stage of the H&C application. In light of this conclusion, it is unnecessary to address the remaining issues raised in this application. However, I note that counsel for the respondent acknowledged that the H&C decision did contain erroneous findings of fact which the Court considers material. The decision under review is quashed and remitted for reconsideration by a different H&C officer.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
This application for judicial review of the respondent’s decision dated January 9, 2006 is allowed, the decision is set aside, and the H&C application is referred to another H&C officer for re-determination.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-397-06
STYLE OF CAUSE: PETER WAI TAK WONG v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 9, 2006
APPEARANCES:
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Joanne Lau Toronto, Ontario
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David Joseph Toronto, Ontario |
SOLICITORS OF RECORD:
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Joanne Lau Barrister and Solicitor
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John H. Sims, Q.C. Deputy Attorney General of Canada |