Toronto, Ontario, August 3, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
JYOTSNABEN PATEL
& DHAVALKUMAR PATEL
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the immigration counsellor (the "H & C Officer"), dated June 15, 2004, wherein it was determined that there were insufficient humanitarian and compassionate ("H & C") grounds to warrant processing the applicants' permanent residence application from within Canada and to permit an exemption from subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA")
[2] The applicants seek:
1. an order setting aside the decision;
2. an order that the applicants be granted an exemption for landing within Canada on humanitarian and compassionate grounds and that their landing be finalized and processed from within Canada.
3. any other order that this Honourable Court deems just.
Background
[3] The applicants, Rameshbhai Patel (the father), Jyotsnaben Patel (the mother) and Dhavalkumar Patel ("Dhaval"), collectively referred to as the applicants, are citizens of India. There are two additional adult children in the family that remain in India.
[4] When Dhaval was approximately 11 years old, he started to develop eye problems, developed a rash on his body and ceased growing. He was seen by many doctors, including specialists, in India. He was eventually referred to a clinic in Los Angeles, California where he was treated, but the treatment proved ineffective. He was then referred to Dr. Rootman, the Head of the Department of Ophthalmology, at the University of British Columbia.
[5] The father applied for visitor visas to Canada for himself , Dhaval and the mother, for the purpose of continuing medical treatment for Dhaval. The visitor visas were granted and they arrived in Canada in March 2000.
[6] Dhaval has been under the care of Dr. Rootman and other doctors since that time. The applicants were the subject of an initial negative H & C determination and filed an application for leave and for judicial review on that refusal. The matter was referred back for redetermination on the basis of a consent order.
[7] The applicants provided up-dated medical and other information for the second review. The second H & C decision dated June 15, 2004 was also negative. This is the judicial review of that decision
[8] The H & C officer's decision reads in part:
Hardship:
The applicant himself makes no claim to hardship, sanctions or personalized risk. It is contended that hardship to the son Dhavalkumar and the family would result from return to India given Dhavalkumar=s medical condition. Medical opinion was submitted to support this contention.
As I am not qualified to examine medical information or opinions all medical information or opinions submitted by the applicant were referred to a Medical Officer at Immigration Medical Services, Ottawa for review. All replies received from a Medical Officer were then shared in writing with the applicant and reasonable time granted for reply and further submissions.
The applicant contends that Dhavalkumar=s medical condition is the result of environmental conditions in his home area of residence in India, and that hardship would result in the form of deterioration of his health if he were returned to that home area.
In that regard I rely on the opinion of Medical Officer Dr. Helene Quevillon dated December 11, 2003. In that opinion she states, in part:
... he (Dhavalkumar) has shown some improvement since his arrival... and whether this is a consequence of improved environmental conditions is difficult to (be) established...
She further comments on medical opinion submitted by the applicant that Dhavalkumar suffers from underlying immunologic disease and possible Rosai-Dorfman disease which is self-limiting and of unknown cause:
...It is difficult to ascertain whether the improvement is secondary to environmental conditions or simply the natural course of his illness...
The applicant also directly or indirectly implies that medical treatment for Dhavalkumar=s medical condition is more readily available or somehow superior in Canada to that available in India. In this regard I again rely on the opinion of Medical Officer Quevillon which states:
...medical facilities and qualified practitioners are available in India to provide the needed medical support and treatment required for M. Patel=s medical conditions...
I have considered the applicant=s contention that the environmental conditions in India would result in deterioration of Dhavalkumar=s health if he returned. There is no scientific evidence or medical consensus to support this argument. Further, nothing is submitted to confirm that relocating to another part of India more desirable to the family out of regard for Dhavalkumar=s health is not a viable alternative to returning to their home area.
I have considered the applicant=s direct or implied contention that care and treatment for Dhavalkumar=s medical conditions are better in Canada than India. I am guided by the medical opinion of Dr. Quevillon which indicates facilities and treatment are available in India. The applicant had previously used medical facilities and practitioners in India to obtain diagnosis and referral to the Canadian medical system for Dhavalkumar=s treatment. I am not satisfied that accessibility to the Indian medical system would not now be available to them on return.
Issues
[9] 1. Did the H & C officer breach his duty of procedural fairness by failing to consider the best interests of the child?
2. Did the H & C officer breach the principles of natural justice by:
(a) Misconstruing the evidence, ignoring the medical evidence, failing to consider relevant factors and giving undue weight to irrelevant factors?
(b) Making a decision that was unreasonable based on all of the evidence?
(c) Failing to interview the applicants and particularly, Dhaval Patel?
Applicants'Submissions
[10] Issue 1 (Best interests)
The applicants submitted that in keeping with the values and principles enunciated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, immigration officers should make decisions with respect to children which are consistent with Articles 3.1, 3.2 and 9.1 of the Convention on the Rights of the Child. Namely, when a child is involved, the welfare and protection of the child shall be a primary concern.
[11] The applicants submitted that while in some cases it is possible that there might be negative factors that outweigh the best interests of the child, in this case, there were no negative factors that militated against granting the application. The H & C officer failed to consider the best interest of the child as required. The officer performed a cursory review of the child=s best interest and was not alive, attentive or sensitive to the child=s needs or the hardship he would face if returned to India.
[12] The applicants submitted that the two specialist doctors ("Rootman" and "Schultz") who had personally treated the child were in a better position to make recommendations as to the child=s treatment than the departmental doctor (Quevillon) who had not seen him and whose qualifications are unknown. It was inappropriate and unreasonable for the H & C officer to rely on Dr. Quevillon=s report to the exclusion of the opinions of Drs. Rootman and Schultz.
[13] The H & C officer erred in failing to refer to any of the medical opinions of Drs. Rootman and Schultz that indicated the child should stay in Canada, and that his health would deteriorate if he is returned to India, and also failed to explain why he preferred the opinion of Dr. Quevillon over the other two doctors.
[14] Then applicants submitted that both the H & C officer and Dr. Quevillon failed to identify what investigations or inquiries were made as to the availability in India of the specialized medical attention required by the child. The applicants submitted that the H & C officer had a duty to at least make inquiries as to the medical facilities in India. This was especially important in light of the fact that the child was referred to a doctor in Canada precisely because the doctors in India were not able to help him.
[15] The applicants further submitted that the H & C officer failed to raise the issue of relocation within India with the applicants, nor did he make any effort to ascertain what medical facilities existed in different parts of India. In other words, there was no evidence on which the H & C officer could make the determination he did.
[16] The applicants submitted that the Court has previously granted applications for judicial review on the basis that the officer failed to consider evidence that the child needed the medical treatment provided in Canada (see Leung v. Canada (Minister of Citizenship and Immigration) 2001 FCT 827), and on the basis that an officer failed to assess the conditions of the foreign country to which the child could be sent, and failed to consider the adverse effect on the child=s quality of life due to hygienic conditions, water and other facilities (see Anthony v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1310).
[17] The applicants submitted that the medical evidence is overwhelming that Dhaval=s health will deteriorate in the harsh and polluted environment of India and that he will not have access to complex therapies for his condition which is being investigated.
[18] The applicants submitted that the H & C officer erred in determining that the applicants had not integrated into the community or had insufficient support in the community. The applicants had submitted a petition with over 1,200 signatures in support of the family being allowed to stay in Canada. They also submitted letters of support from various community associations. Similarly, the H & C officer failed to consider that the father had participated in the Immigration and Investment Seminar given by the Government of British Columbia.
Issue 2(a) (Failure to Interview the Applicants)
[19] The applicants submitted that while there is no absolute right to an interview when a humanitarian and compassionate application is made, this was a case where the duty of fairness required an interview. Given the long history of the case, it would have been useful to have had an interview for the H & C officer to make a more thoughtful and considered decision, it would have been appropriate for the H & C officer to hear in the child=s own words the benefits to his health of being in Canada, and it would have afforded the applicants the opportunity to present to the H & C officer people who support the family.
Issue 2(b) (Decision Unreasonable Based on the Evidence)
[20] The applicants repeated arguments already made for this issue.
Respondent=s Submissions
[21] The respondent submitted that contrary to the applicants= submissions the H & C officer did more than just a rudimentary review of Dhaval=s interests. The applicants are arguing that the H & C officer erred in failing to give sufficient weight, or primary consideration to the best interest of the child.
[22] The respondent submitted that the Courts have made the following statements:
(a) the best interests of the child are an important factor that must be given substantial weight;
(b) the best interests of the child are not determinative of the issue of removal to be decided by the Minister;
(c) the best interests of the child are determined by considering the benefit to the child of the parent=s non-removal from Canada, as well as the hardship the child would suffer from either her parent=s removal or her own voluntary departure should she wish to accompany her parent abroad;
(d) the officer=s task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent (see Baker, supra, Legault v. Canada (Minister of Citizenship and Immigration)(2002), 12 D.L.R. (4th) 139 (F.C.A.), Canada (Minister of Citizenship and Immigration) v. Hawthorne 2002 FCA 475).
[23] The respondent submitted that the H & C officer extensively examined the best interests of Dhaval and acknowledged that it would be in his best interest to remain in Canada where it would appear that his medical and physical condition had improved, and that treatment in Canada was beneficial to Dhaval. However, there was no conclusive evidence, given the divergent medical opinions, that improved health was attributable to environmental factors rather than to proper diagnosis and treatment. The H & C officer considered possible hardship of removal to India, but found that India had an accessible medical system with available care and treatment. Further, the applicants have greater ties to India than Canada.
[24] The respondent submitted that the H & C officer carefully considered the medical evidence submitted by the applicants regarding Dhaval=s condition and noted that since coming to Canada, Dhaval=s condition had improved greatly. The medical evidence was referred to a CIC medical officer to provide an opinion with respect to Dhaval=s condition, and whether treatment is available in India. Based on the medical officer=s opinion, which was disclosed to the applicants for comments, the H & C officer was not satisfied that Dhaval will not be able to receive adequate treatment in India now that his condition has been diagnosed and his health is stabilized, or that there were no other areas in India which were less toxic or polluted than their home environment.
[25] The respondent submitted that under section 25 of IRPA, the H & C officer must be alert, alive and sensitive to the interests of the child, but once the officer has well identified and defined this factor, it is up to the officer to determine what weight, in his view, it must be given in the circumstances (see Legault, supra).
[26] The respondent submitted that the onus was on the applicants to persuade the H & C officer that they should be given exceptional treatment and exempted from the general requirements of the law. The H & C officer=s determination that insufficient humanitarian grounds existed to warrant an exemption to the visa requirement was reasonable based on the available medical opinions.
Relevant Statutory Provisions
[27] The relevant sections of IRPA state:
| 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.
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.
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. |
Analysis and Decision
[28] Standard of Review
On the basis of Baker, supra, and the cases that followed it, I am satisfied that the H & C officer's decision should be reviewed on the reasonableness simpliciter standard.
[29] Issue 1
Did the H & C officer breach his duty of procedural fairness by failing to consider the best interests of the child?
The applicants submitted that the H & C officer erred in failing to mention the medical reports of Dr. Rootman and Dr. Schultz and that he also erred by failing to explain why he preferred the opinion of Dr. Quevillon over the other two doctors.
[30] In his decision, the H & C officer stated:
...medical facilities and qualified practitioners are available in India to provide the needed medical support and treatment required for M. Patel=s medical conditions...
This is a quote from Dr. Quevillon's medical report. I have reviewed the record and I can find no evidentiary basis for this statement. In fact, Dr. Schultz, in a letter dated October 11, 2002 stated:
¼ over the next few months we will be re-evaluating as to what this life threatening disorder is and begin to try and implement complex therapies that are only easily offered in Canada.
This evidence was not addressed by the H & C officer.
[31] There was also evidence from Dhaval's doctors to the effect that the Canadian environment helped to improve his health. Dr. Rootman, in a letter dated September 12, 2001 stated:
¼ It is my view that his underlying disorder was made worse by the toxic environment in which he was living and the improvement in his environment has been fundamental to his health. ¼
This evidence was not considered by the H & C officer when speaking about the environment in India.
[32] In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.), Evans J. (as he then was) stated at paragraph 17, concerning evidence not specifically mentioned and analyzed:
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[33] It is my view that the H & C officer's failure to address these pieces of evidence constitutes a reviewable error.
[34] Because of this finding, I need not deal with the other issues raised by the applicants.
[35] The application for judicial review is therefore allowed.
[36] The applicants proposed the following question for consideration for certification if they were not successful on the application:
In a humanitarian and compassionate application where there exists an issue of comparing medical care and facilities in Canada and medical care and facilities in a foreign country, is the decision maker required, at a minimum, to properly consider the evidence with respect to the care and facilities in the foreign country, before finding that they are adequate and in the best interests of the child?
The Respondent did not agree to the certification of the question.
[37] Since the applicants only proposed the serious question of general importance for certification if they were unsuccessful in their application I will decline to certify the question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. No serious question of general importance is certified.
"John A. O'Keefe"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5868-04
STYLE OF CAUSE: RAMESHBHAI PATEL,
JYOTSNABEN PATEL
& DHAVALKUMAR PATEL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 17, 2005
APPEARANCES:
Barinder Sanghera FOR APPLICANTS
SOLICITORS OF RECORD:
Sanghera Virk Sanghera
Surrey, British Columbia FOR APPLICANTS
John H. Sims, Q.C.