Date: 20040405
Docket: IMM-5603-02
Citation: 2004 FC 520
Ottawa, Ontario, this 5th day of April, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
TERESITA PASCUAL JAPSON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
MACTAVISH J.
[1] Teresita Pascual Japson's application for permanent residence under the Live-In Caregiver Program (LCP) was denied because her profoundly disabled son was found to be inadmissible on medical grounds. She seeks to have that decision set aside, asserting that the Immigration Officer erred in failing to consider her application on humanitarian and compassionate (H & C) grounds. She also says that the Officer erred in failing to consider her request for a Minister's Permit (now known as a Temporary Resident Permit or TRP) for her son. Finally, Ms. Japson argues that the Officer erred in refusing to allow her to amend her application to delete her son from her application for permanent residence.
[2] In each case, Ms. Japson says that the error results from a misapplication of the applicable legislation, and constitutes an error in law.
Background
[3] Ms. Japson is a citizen of the Philippines, and is the mother of Menard Pascual. Menard is presently 25 years of age, and is profoundly mentally disabled. The uncontroverted medical evidence describes Menard as severely retarded, noting that he functions at the cognitive level of a two year old. He has never learned to speak, and remains entirely dependant on others for the essentials of daily life. He is unable to feed or dress himself, and requires constant care.
[4] While she was still in the Philippines, Ms. Japson cared for Menard herself, with the assistance of her mother. In 1990, Ms. Japson applied to come to Canada under the Foreign Domestic Programme, now the LCP. This decision was supported by her then-boyfriend, now husband, Ricardo Japson, and by her extended family, all of whom assumed the day-to-day care of Menard.
[5] Ms. Japson arrived in Canada on June 3, 1991. She entered the country under what is now the LCP. Since coming to Canada, Ms. Japson has continued to provide for Menard, routinely sending money home for his care.
[6] In the mid-1990s, Ms. Japson submitted an application for permanent residence on behalf of herself, her husband, and Menard. By letter dated December 10, 1996, she was advised that her application for permanent residence was approved in principle, and that landing would be considered, as long as she met the normal immigration requirements.
[7] Considerable correspondence was exchanged between Ms. Japson, her husband, and Canadian immigration authorities over the next few years. A medical assessment was also carried out with respect to Menard. As previously noted, Ms. Japson does not take issue with the findings of that assessment.
[8] By letter dated November 26, 2001, Ms. Japson was advised by Immigration Officer Phinn that it appeared from Menard's medical assessment that he could be medically inadmissible. Ms. Japson was given the opportunity to provide additional medical evidence, in the event that she wished to contest the assessment. In response, Ms. Japson's counsel provided a plan of care, which indicates that Ms. Japson had made arrangements for Menard, such that he would not cause excessive demand on Canadian health and social services in the future. This letter concludes with the following statement:
"In the event that you are not persuaded that Menard will not represent an "excessive" demand on social services ... I am hereby requesting on Ms. Japson's behalf that Menard Pascual be issued with a Minister's Permit that would allow him to enter and remain in Canada".
The Immigration Officer's Decision
[9] By letter dated October 21, 2002, the Immigration Officer informed Ms. Japson that she did not meet the legal requirements of the Immigration Regulations, because her son was inadmissible due to his medical condition.
Issues
[10] As it was originally framed, the principle focus of this application for judicial review was the alleged failure of the Immigration Officer to properly consider the effect that Ms. Japson's plan of care would have on Menard's future need for medical and social services. In light of the decisions of the Federal Court of Appeal in cases such as Hilewitz v. Canada (Minister of Citizenship and Immigration) 2003 FCA 420 and Pigg v. Canada (Minister of Citizenship and Immigration) 2003 FCA 421, this argument is not being pursued. Instead, the focus of Ms. Japson's application is now on the alleged failure of the Officer to consider any of the three alternatives that Ms. Japson says would have allowed her application for permanent residence to succeed. Thus the issues raised by Ms. Japson are:
1. Did the Immigration Officer err in failing to consider Ms. Japson's application for permanent residence on a humanitarian and compassionate basis?
2. Did the Immigration Officer err in refusing to allow Ms. Japson to delete Menard from her application for permanent residence? and
3. Did the Immigration Officer err in failing to address Ms. Japson's request for a Minister's Permit for Menard?
[11] As a preliminary matter, the respondent invokes Rule 302 of the Federal CourtRules, which stipulates that an application for judicial review may only be made with respect to a single decision. As a result, the respondent says, the only question properly before the Court is whether the Immigration Officer acted appropriately in refusing Ms. Japson's application for permanent residence under the LCP, in light of Menard's medical inadmissibility. This issue will be addressed first.
Application of Rule 302
[12] The respondent submits that H & C exemptions and Ministerial permits involve entirely separate processes, each of which should properly have been the subject of an application by Ms. Japson. As such, Rule 302 precludes these matters being rolled into a single application for judicial review. In the respondent's submission, this application should be confined to a consideration of whether Ms. Japson's application for permanent residence under the Live-In Caregiver Program was properly refused.
[13] This is not a case where several discrete decisions were made by different individuals, all of which are sought to be reviewed in a single application for judicial review. As such, the decision in Lee v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1634, may be distinguished. Indeed, the argument advanced by Ms. Japson is that a single Immigration Officer erred in failing to consider any of three possible alternative avenues in disposing of her application for permanent residence. In other words, given the way that Ms. Japson has cast her arguments, it is the actions of a single individual in relation to the manner in which a single application for permanent residence was dealt with that is under scrutiny in this case. In these circumstances, I am satisfied that the matter can properly be dealt with in a single application for judicial review.
[14] The respondent's arguments as to whether it was necessary for Ms. Japson to file a separate application for H & C consideration or for a Minister's permit will be considered in relation to the merits of this application.
Did the Immigration Officer err in failing to consider Ms. Japson's application for permanent residence on a humanitarian and compassionate basis?
[15] I am not persuaded that the Immigration Officer erred in failing to consider Ms. Japson's case on H & C grounds for the simple reason that there is insufficient evidence before me to establish that any such consideration was requested. Of particular significance is the fact that nowhere in Ms. Japson's counsel's June 24, 2002 submission is an H & C exemption requested. Absent such a request, there could be no obligation on the respondent to consider Ms. Japson's case on H & C grounds.
Did the Immigration Officer err in refusing to allow Ms. Japson to delete Menard from her application for permanent residence?
[16] The evidence relating to this issue is found in Ms. Japson's affidavit. This affidavit, which is sworn on the basis of information and belief, refers to telephone discussions between Ms. Japson's counsel and a Mrs. Manias, who was evidently a supervisor at the Mississauga Case Processing Centre. According to Ms. Japson, in the course of one such discussion, her counsel asked Mrs. Manias "whether my son, Menard, might be deleted from my application in view of the fact that he was then almost 23 years of age. Mrs. Manias undertook to inquire into the matter, but pointed out that if I deleted Menard from my application, that I would never be able to sponsor him".
[17] From Ms. Japson's affidavit, it appears that this was one of several options that was discussed during that telephone conversation. It does not appear from the record that this issue was pursued, or that Ms. Japson ever made a formal request to amend her application for permanent residence. In the absence of such a request, I need not consider whether such an option was indeed open to Ms. Japson.
Did the Immigration Officer err in failing to address Ms. Japson's request for a Minister's Permit for Menard?
[18] From Ms. Japson's affidavit, it appears that a question as to the possible availability of a Minister's Permit was raised in the telephone discussion between Ms. Japson's counsel and Mrs. Manias. Ms. Japson deposes that her counsel asked Mrs. Manias whether Mrs. Manias would consider issuing a Minister's Permit, to which Mrs. Manias reportedly responded the 'luxury' of a Minister's Permit was not available to members of the LCP class.
[19] Ms. Japson's request was reiterated in counsel's June 24, 2002 submission, which included an express request that her son be considered for a Minister's Permit.
[20] Officer Phinn's October 21, 2002 letter indicates that Ms. Japson's file had been reviewed, and that her application for permanent residence was being refused because she did not meet the legal requirements of the Immigration Regulations, due to her son's medical inadmissibility. There is no reference made to Ms. Japson's request for a Minister's permit. Similarly, no consideration appears to have been given to the possible issuance of a Temporary Resident Permit under the newly enacted Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[21] The respondent submits that there are specific eligibility requirements for members of the LCP class, one of which is that family members of live-in care givers applying for permanent residence not be inadmissible (Immigration and Refugee Protection Regulations, section114 (b)). In light of Menard's medical inadmissibility, the respondent says, Ms. Japson could not meet the specific statutory requirements of the LCP class. This finding could not be overcome by the issuance of a Minister's Permit or Temporary Resident Permit. As a result, the respondent contends that Ms. Japson was properly refused permanent residence.
[22] Given that the decision in issue was rendered after theImmigration and Refugee Protection Act came into force, I will treat Ms. Japson's request for a Minister's Permit as a request for a Temporary Resident Permit under the new legislation.
[23] A review of the provisions of section 24 of the Immigration and Refugee Protection Act, reveals that the whole point of the Temporary Resident Permit is to allow someone who might not otherwise meet the admissibility requirements of their particular class to come to this country on a temporary basis. My review of the legislation does not disclose anything that would insulate participants in the Live-In Caregiver Program from consideration under section 24.
[24] Further, it is noteworthy that whereas section 66 of the Immigration and Refugee Protection Regulations contains specific provisions governing the form of applications for H & C consideration, sections 64 and 65, which relate to applications for Temporary Resident Permits, contain no such similar requirements.
[25] As a consequence, I am satisfied that the Immigration Officer erred in failing to address Ms. Japson's request for a Temporary Resident Permit. This matter is being remitted to the Mississauga Case Processing Centre for the sole purpose of determining whether a Temporary Resident Permit should be issued to Menard Pascual.
Certification
[26] Neither party has suggested a questionfor certification, and accordingly none will be certified.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. This application for judicial review is allowed, and the matter remitted to the Mississauga Case Processing Centre for the sole purpose of determining whether a Temporary Resident Permit should be issued to Menard Pascual.
2. No serious questionof general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5603-02
STYLE OF CAUSE: TERESITA PASCUAL JAPSON v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 31 , 2004
REASONS FOR ORDER
AND ORDER The Honourable Madam Justice Mactavish
DATED: April 5, 2004
APPEARANCES:
Ms. Judy Welikovitch FOR APPLICANT
Ms. Sally Thomas FOR RESPONDENT
SOLICITORS OF RECORD:
West Toronto Community Legal Services FOR APPLICANT
Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada