Date: 19990107
Docket: IMM-4790-97
BETWEEN:
MERCEDES ACOSTA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Reasons for a decision delivered from the Bench on
Wednesday, January 6, 1999 at Toronto, Ontario)
REED J.:
[1] I am persuaded that the decision under review should be set aside. The applicant has been in Canada for some time as a live-in caregiver. Her husband and son live in a remote area of the Philippines. She applied for landed immigrant status and received approval in principle. Her application was subsequently provisionally denied because a dependant was found to be medically inadmissible. Her son was diagnosed as being mildly retarded and as having cerebral palsy.
[2] The fairness letter that is routinely sent to applicants in such cases, to allow them to respond before a final decision is taken, was sent to her husband in the Philippines, not to her. She states that he does not read English well, that he told her that a letter had been received and that the son was required to have new medicals. The letter is dated January 11, 1996. The husband provided some mew medical information to the Manila office on February 7, 1996, perhaps without her knowledge, and a final decision was subsequently taken refusing her application for landing on March 26, 1996. She was not notified of this decision until October 21, 1997. At that time she attended an interview in Toronto and the medical notification of January 11, 1996 was read to her; she was not given a copy of it. The next day, October 22, 1997, the final refusal letter issued.
[3] The respondent argues that the applicant received notice of the January 11, 1996 letter because the letter sent to her husband carries at the bottom the notation "cc: Your relative in Canada", and the first paragraph of the letter states that it relates "to the application for permanent residence in Canada made by your wife, Mercedes". Secondly, the respondent argues that the applicant received notice because her husband told her a letter had been received and new medical information was provided to the Manila office. Both counsel for the respondent and counsel for the applicant rely on a letter dated June 24, 1997 sent to the Immigration Centre by the Toronto Organization for Domestic Workers' Rights, which refers to the latest medicals that the son underwent, and that these showed that he suffered from cerebral palsy. The letter asked that a decision be made on humanitarian and compassionate grounds to approve the family for landing. Counsel for the respondent refers to this letter as evidence that the applicant knew of the January 11, 1996 letter before October 21, 1997, and understood its contents. Counsel for the applicant refers to the letter as evidence to support his client's claim that she knew her son's medical situation was in issue but that she did not have a full understanding of the matter (the June 24, 1997 letter makes no reference to mental retardation as being a factor).
[4] The applicant states in her affidavit that she has a video of her son engaged in certain activities, including riding a bicycle and playing basketball. She questions whether the doctor who interviewed her son, on behalf of Immigration Canada in Manila, understood him because the two may speak different dialects. (Information concerning the medical examination of her son was obtained by an Access to Information Request of November 14, 1997.)
[5] I am not persuaded that a notation at the bottom of a letter, sent from the Canadian Embassy in Manila to the applicant's husband in the Philippines, showing "cc: Your relative in Canada" can be relied upon as evidence that the applicant received a copy of the letter, particularly, in the face of the applicant's affidavit that she did not. The fairness letter should have been sent to her, not her husband, since she is the principal applicant.
[6] The applicant's assertion in her affidavit that her husband understood they had to wait until further instructions were received and thus no new medical evidence was ever sent, does raise doubts about the veracity of her affidavit, particularly, in light of the February 7, 1996 medical evidence that was actually sent. A legible copy of that document was only received by counsel for the applicant shortly before the hearing - the copy obtained through the Access to Information Request had not been legible. Nonetheless, I decided to give the applicant the benefit of the doubt because of the considerable confusion that exists as a result of the January 11, 1996 letter having been sent to her husband in the Philippines, rather than to her. The decision under review was set aside to ensure the applicant has an adequate opportunity to respond to the medical inadmissibility finding with respect to her son.
"B. Reed"
Judge
TORONTO, ONTARIO
January 7, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4790-97
| STYLE OF CAUSE: MERCEDES ACOSTA |
and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: WEDNESDAY, JANUARY 6, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: THURSDAY, JANUARY 7, 1999
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. E.,
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990107
Docket: IMM-4790-97
Between:
MERCEDES ACOSTA
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER