HUSBAND'S REFUSAL TO PERFORM MEDICAL RESULTS IN VSIA REFUSAL

This is not uncommon: a spouse abroad becomes lax in performing medical exams, ignores deadlines, and then the applicant argues that there should be more chances to comply. the court does not appear to be pleased, as per its conclusion. The lesson from the case: do not delay, respect deadlines, comply with requests promptly!

Dacuma v. Canada (Minister of Citizenship and Immigration)

Between Maribel Cabucana Dacuma, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1455

2012 FC 1342

Docket IMM-1876-12

 Federal Court
Toronto, Ontario

Zinn J.

Heard: November 1, 2012.
Judgment: November 21, 2012.

(21 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     ZINN J.:-- The applicant, Maribel Cabucana Dacuma, came to Canada from the Philippines in 2002 as a live-in caregiver. Prior to her arrival she started to live with Carlo Pangilinan Canlas whom she married on April 12, 2007. Ms. Dacuma has been a permanent resident of Canada since June 2005. In November 2008, Ms. Dacuma submitted a sponsorship application for her husband.

2     Delay in receiving certain information from Ms. Dacuma regarding her application resulted in the need for the medical examination Mr. Canlas underwent in October 2008 to be updated. On June 16, 2010, after Mr. Canlas was interviewed, medical instructions were mailed to him outlining this requirement.

3     Unfortunately for Ms. Dacuma, Mr. Canlas' subsequent inaction shows that he was not interested in submitting to another medical examination which was required in order that her sponsorship application be assessed.

4     On June 28, 2010, an officer phoned Mr. Canlas to follow up on the medical instructions. Mr. Canlas acknowledged receiving the June 16, 2010, letter and said that he would report for a medical examination the next day, but he did not.

5     On August 12, 2010, the officer phoned Mr. Canlas to inquire about his compliance with the medical instructions. Mr. Canlas said that he was scheduled to be examined on August 16, 2010, and that he did not attend an August 2, 2010, appointment because he was too busy.

6     On October 16, 2010, one of many inquiries into the applicant's sponsorship application was made by the constituency office of Ms. Dacuma's federal Member of Parliament, presumably at Ms. Dacuma's behest. The message from the constituency office stated that Mr. Canlas had attended his medical examination on August 16, 2010, and requested a status update on the file. After searching and concluding that no medical examination had been received, an officer followed up with Mr. Canlas' designated medical examiner to get to the bottom of the matter.

7     On November 25, 2010, St. Luke's Medical Cent er replied that it had no record of any examination of Mr. Canlas on August 16, 2010, but did confirm his previous October 2008 examination and a subsequent chest and pulmonary evaluation in April 2009.

8     On December 16, 2010, an officer phoned Mr. Canlas' landline, which was no longer active, and then his cell phone three times. There was no answer. The following exchange between the Board and Ms. Dacuma sheds light on why Mr. Canlas did not answer his phone:

 

·       Counsel for Respondent [...] They could never get a hold him, why? He never answered his phone. 

 

·       Mrs. Dacuma Yeah, because it shows there. 

 

·       Counsel for Respondent I'm sorry? 

 

·       Mrs. Dacuma Because when someone calls, he knows who is in the phone. 

 

·       Counsel for Respondent So, he didn't want to answer the visa officer's call. Okay. 

9     On December 22, 2010, the officer made one of many replies to the applicant's constituency office, explaining that no record of any examination had been received and that the designated medical examiner could not confirm having examined Mr. Canlas in August 2010.

10     On January 13, 2011, a final notice was sent to Mr. Canlas, giving him 45 days to comply with the medical instructions. As of March 8, 2011, no response had been received from Mr. Canlas. Notwithstanding, the officer did not immediately deny Mr. Canlas' application, as one might reasonably have expected him or her to do.

11     At around the same time, it appears that Ms. Dacuma attempted to take matters into her own hands. She travelled to Manila to physically accompany, one might say force, her husband to attend a medical examination. Unfortunately, when they attended together on March 25, 2011, the examiner would not accept a downloaded version of a certain form. Ms. Dacuma, highly motivated and intent on seeing her husband medically examined, picked up an original copy of this form from the Canadian Embassy in Manila on March 29, 2011. Regrettably for her, it appears that she had to return to Canada before her husband could attend the medical examination. She left it for him to do alone and again he failed to attend.

12     On May 17, 2011, an officer decided to verify if Mr. Canlas had actually followed through with the medical instructions. The following entry dated June 10, 2011, is from the CAIPS notes:

 

·       Called and spoke with sponsor on 26May11. Per notes abv, tried contacting subj thru numbers on file to ffup on meds of applicant. Was not able to speak with subj, called spr instead. Spoke w/ spr thru numbers on file. Asked spr about subj's meds. Spr seemed hesitant to answer. Asked spr again. Spr said that subj has not complied with meds yet. Asked spr if subj has plans to comply with meds. Spr requested that we just talk to subj thru [phone number]. Tried contacting subj, subj is not picking up and we will just talk to her instead. Ask spr again if subj plans on complying with the meds. Spr asked if we could send subj a letter advising such. Informed spr that we already sent a letter and that this is the third time that we will be following up on subj's meds. Asked spr again if subj plans on complying with meds. Spr said that subj felt that nothing was happening with his application and that subk seemed to be less interested. Spr added that subj found it tedious to do the re-meds. Asked spr if subj seems interested to comply with the meds. Spr said that subj will do the meds he's just too busy with work that is why he cant comply with the meds. Advised spr that the medical examination will only take one day and medical instructions were given to him in March. Spr reiterated that subj is busy with work. Advised spr that we will be noting all the information. Spr understood. 

13     The officer decided on June 10, 2011, to close Mr. Canlas' file and on July 19, 2011, sent the refusal letter. Ms. Dacuma appealed the officer's decision to the Immigration Division of the Immigration and Refugee Board.

14     The Board held a hearing on February 1, 2012, issuing written reasons the following day. Ms. Dacuma was not represented. Ms. Dacuma was seeking humanitarian and compassionate ("H&C") relief under section 67(1)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27. The Board first noted that there were no children whose interests had to be considered and it then summarized the events, as set out above, that led to the officer's refusal. The Board noted that the failure to provide the medical examination information had been Mr. Canlas' fault completely. It found that little evidence of hardship had been presented, and dismissed the appeal.

15     Ms. Dacuma submits that the Board "failed to observe the principle of natural justice, procedural fairness or other procedure that it was required by law to observe" in three respects: (1) It did not take into account that Mr. Canlas was in the midst of completing the retake medical exam; (2) it failed to consider that the initial delay, which caused the currency of the first medical examination to lapse, was caused by the officer; and (3) the officer was inflexible in providing more time for Mr. Canlas to "be able" to complete his examination. None of these submissions have merit.

16     The submission that the Board did not take into account that Mr. Canlas was "in the midst" of completing the retake medical exam relies on the correctness of a date noted by the Board - August 16, 2011 - despite the fact that Ms. Dacuma must clearly understand that the date was written in error. The date referred to in the decision is to the thwarted second examination which took place on March 25, 2011; a date before, not after, the sponsorship application was refused. In any case, this wrongly-copied date was not relied upon by the Board in its reasons. More importantly, nothing in the record shows that Mr. Canlas was "in the midst" of completing a second medical examination. On the contrary, the evidence was quite clear that Mr. Canlas could not be bothered to attend another medical examination. The only evidence the Board had was given by Ms. Dacuma at the hearing that her husband "now wants to do his medical."

17     It is simply not true that the initial delay and the lapsing of the medical information were caused by the officer. The record shows that Ms. Dacuma did not reply with the requested information as to the solemnization of the marriage for some time and it was this delay which resulted in the lapsing of the previous medical examination. Ms. Dacuma provided this information only in March 2010 after the officer had requested it initially on February 9, 2009, and followed up with subsequent reminders in June 2009, November 2009, and January 2010.

18     It is also simply untrue that the officer was inflexible in providing more time for Mr. Canlas to complete his medical examination. The Board noted at the hearing that it had "never seen a more compassionate visa officer." Based on my review of the file, the number of times the officer attempted to contact Mr. Canlas, and the numerous extensions of time provided to obtain the required medical information, I agree with the characterization made by respondent's counsel at the hearing that the officer "bent over backwards" for these applicants.

19     Also without merit is Ms. Dacuma's submission that the Board made an unreasonable finding that there were insufficient H&C factors to grant her appeal. The only factor in her favour was family reunification. However, her husband, in refusing to undergo the examination despite the indulgences shown him, appears less anxious to be reunited with his wife in Canada than she does.

20     The Board's conclusion that it "refuses to help the appellant and thereby the applicant when the applicant will not help himself and do that which is required to acquire permanent residence in Canada [emphasis added]" is unassailable. Unfortunately for Ms. Dacuma, her situation is directly attributable to nothing other than her husband's refusal to take the medical examination. Her application must be dismissed.

21     Neither party proposed a question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that this application is dismissed and no question is certified.

ZINN J.

CUSTODY AN ISSUE IN SPONSORSHIPS

The case below highlights an often overlooked issue: those who seek to enter Canada as sponsored spouses must make heir children, even if they have no custody, available for medical examination or prove that is impossible to conduct them in teh circmstances.

Rojas v. Canada (Minister of Citizenship and Immigration)

Between Leobardo Ahumada Rojas, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1407

2012 FC 1303

Docket IMM-1823-12

 Federal Court
Toronto, Ontario

Zinn J.

Heard: November 6, 2012.
Judgment: November 7, 2012.

(19 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     ZINN J.:-- Mr. Ahumada Rojas seeks to set aside a decision of an immigration officer made February 2, 2012, refusing his application for permanent residence under the spouse or common-law partner in Canada class.

2     The application was refused because the officer found that the applicant failed to comply with subsection 72(1)(e)(i) of the Immigration and Refugee Protection Regulations, SOR 2002-227 (the Regulations), which requires a foreign national who seeks to become a permanent resident of Canada to establish that his family members are not inadmissible, whether or not they are accompanying the foreign national.

Background

3     Mr. Ahumada Rojas was born in Mexico. He travelled to Canada in September 2005 as a visitor and in December 2006 met Janice Leona Cotterell, a Canadian citizen. A relationship began and he moved in with Ms. Cotterell and her son in March 2008.

4     On January 6, 2010, Mr. Ahumada Rojas submitted an application for permanent residence under the spouse or common-law partner in Canada class, sponsored by Ms. Cotterell. At that time, Mr. Ahumada Rojas was already married, but he obtained a divorce from his first wife on January 14, 2010. He married Ms. Cotterell on October 10, 2010.

5     In his application, Mr. Ahumada Rojas listed three children from his first marriage - Esteban, Rebeca, and Mariana (born in 1992, 1995, and 1998, respectively) - and stated that all three children were living in Costa Rica with his ex-wife. Mr. Ahumada Rojas did not, however, specify who had custody of them, although he stated that he had no contact with the children since 2009 and that they were estranged from him. Mr. Ahumada Rojas asked to have them excluded as family members for the purpose of his application, acknowledging that this meant that he would not be able to sponsor them at a later date.

6     Mr. Ahumada Rojas' application was refused because he neither provided documentary evidence that the children were in the sole custody of another person nor ensured that they underwent examination.

Issues

7     Mr. Ahumada Rojas raises the following issues:

 

·       a. 

Did the officer err in law by ignoring, misconstruing, or disregarding relevant evidence in arriving at his decision to refuse the applicant's application? 

·       b. 

Did the officer fail to observe the rules of procedural fairness in failing to address key documentary evidence in the applicant's application and/or failing to provide adequate reasons for dismissing said evidence? 

·       c. 

Did the officer err in law by not taking into account the respondent's public policy, which clarifies an otherwise restrictive application of section 72(1)(e)(i) of the Regulations? 

8     The standard of review of the first question is reasonableness: Negash v Canada (Minister of Citizenship and Immigration), 2012 FC 1164, at paras 15-16. The standard of review of the second question, which deals with procedural fairness, is correctness: Foroogh v Canada (Minister of Citizenship and Immigration), 2012 FC 1171, at paras 16-17. The standard of review of the third issue is reasonableness, because the section of the Regulations to be interpreted is neither of central importance to the legal system as a whole nor outside the specialized expertise of an immigration officer: Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC 678,at para 21.

9     Each party filed an affidavit in the application and each object to the other's affidavit. A party cannot introduce new evidence which was not before the decision-maker: Lemiecha v Canada (Minister of Citizenship and Immigration), [1993] FCJ No 1333. As a result, paragraph 9 of the applicant's affidavit and the annexed exhibits I and J, being a letter from Mr. Ahumada Rojas' lawyer in Costa Rica and a money order, are inadmissible in these proceedings. Similarly, a decision-maker cannot tender new evidence relating to his or her decision in an attempt to bootstrap the decision: Kalra v Canada (Minister of Citizenship and Immigration), 2003 FC 941,at para 15. In my view, that is what the officer does in his affidavit and, to the extent that it contains information not in the CAIPS notes or decision letter, it is rejected as evidence in this proceeding.

Analysis

 

·       1. 

Failure to Have Regard for the Evidence as a Whole

10     Mr. Ahumada Rojas submits that the officer failed to have regard to the evidence as a whole. He points to the fact that there is no mention made in the refusal decision of (i) the signed declarations he provided confirming his understanding that failure to have his children examined would lead to their exclusion from the family class in the future, (ii) two separate confirmations from his former immigration consultant that he had not been able to contact the children, and (iii) the fact that the Canadian visa office was equally unsuccessful in locating the children.

11     He says that the officer approached the application with a closed mind, considering only the fact that the children were not examined, and gave no consideration to the documentary evidence that showed that this was not feasible. He further submits that the custody arrangement was irrelevant, as his signed declarations made it very clear that he had no contact with the children and no intention of sponsoring them in the future.

12     There is no dispute that Mr. Ahumada Rojas did not provide proof that he did not have custody of his children. None of the evidence before the officer contains a statement that Mr. Ahumada Rojas does not have custody, or that his ex-wife or some other person has custody. The absence of such evidence or an explanation why it is not available is shocking in light of the fact that the respondent sent two letters informing the applicant of this requirement. In its letter dated July 20, 2011, which was sent after the applicant provided statutory declarations indicating that he understood the consequences of his children not being examined, the respondent wrote: "As you have not been able to provide documentary evidence that your child(ren) are in the sole custody of another person, examination of the following family member(s) must continue ...[emphasis in original]." In its letter dated December 21, 2011, the respondent wrote: "you have not provided documentary evidence of your attempts to contact your children and you have not been able to provide documentary evidence that your child(ren) are in the sole custody of another person. Therefore examination for the following family member(s) must continue [emphasis in original]."

13     Mr. Ahumada Rojas simply says directly and through his representative that he has lost contact with the children. Given the importance for his application of establishing custody and the efforts made to contact them for examination, it was within the range of acceptable outcomes for the officer to find that the applicant had failed to meet his burden of proof.

14     I agree with the submission of the respondent that an officer must be satisfied that an applicant's family members are not inadmissible. Section 23 of the Regulations creates an exception regarding the admissibility requirements for applicants when their children are in the sole custody of a separated or former spouse. In order to take the benefit of that exception, applicants must provide documentary proof of custody arrangements for non-accompanying dependent children. The applicant failed to do this even after repeated requests.

15     Section 23(b)(iii) of the Regulations renders a foreign national inadmissible if, by virtue of a court order, a written agreement, or the operation of law, he or she has custody of the non-accompanying dependent children and they are not confirmed to be admissible. In this case, as a result of the applicant's failure to adduce the necessary evidence, there was no finding by the officer that he did not have custody of these three children. It is only when and if an officer makes such a finding and determines that the children need not be examined, that a request would be made for the declarations which the applicant submitted, purporting to exclude his children from the family class.

 

·       2. 

Procedural Fairness

16     The applicant submits that he was not provided with a reasonable opportunity to respond to the officer's concerns. I am simply unable to accept that submission. The applicant was repeatedly made aware of the precise issue and he was given over a year to provide the requested information or a satisfactory answer as to why it could not be provided. He provided neither. There was no breach of procedural fairness by the officer.

 

·       3. 

Failure to Consider Respondent's Policy

17     The respondent's IP8 Manual specifies that if family members are "genuinely unavailable" an officer may proceed to a statutory declaration. It requires officers to be "open to the possibility that a client may not be able to make a family member available for examination." They are advised to decide on a case-by-case basis, but the IP8 Manual specifies that proceeding without the examination of all family members is to be a "last resort" and the applicant cannot himself choose not to have a family member examined.

18     Absent evidence that the applicant had no custody of the children, I am unable to find that the officer erred or reached an unreasonable decision in finding that the applicant had not arrived at the point of last resort. It was reasonably open to the officer, given the evidence before him or her, to find that the applicant had not exhausted all avenues and to decline to proceed as provided for in IP8.

19     For these reasons, the application is dismissed. Neither party proposed a question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that the application is dismissed and no question is certified.

ZINN J.