Date: 20061108
Docket: IMM-1333-06
Citation: 2006 FC 1350
Toronto, Ontario, November 8,
2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
GINA CURRY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In
the present Application, the Applicant, a citizen of the United Kingdom, challenges
the decision of an Immigration Officer (Officer), dated March 2, 2006, in which
her application for landing from within Canada on humanitarian and compassionate
(H&C) grounds was rejected.
[2]
The
Applicant was admitted to Canada as a permanent resident in 1992. In 2002,
the Applicant was convicted of importing narcotics, and subsequently, a
deportation order was issued against her. The Applicant appealed this decision
to the Immigration Appeal Division, but, by operation of s.196 of the Immigration
and Refugee Protection Act, she was denied a right to appeal because she received
a sentence of two years or more on the criminal conviction. As a result, the
Applicant filed an H&C application. The application was rejected by an officer
in a decision dated November 29, 2004. On judicial review, this decision was
set aside on December 21, 2005 by Justice Gauthier, and the matter was sent
back for re-determination by another Officer. The decision under review in the
present Application is the decision rendered on the re-determination.
[3]
I
find that the primary issue for determination is whether the error, found in
the November 29, 2004 decision, is rectified in the decision under review. Or
expressed another way, is the obligation to give fair and proper consideration
to the psychiatric evidence discharged by the Officer on the reconsideration? In
my opinion, the Officer completely fails in meeting this obligation.
[4]
Justice
Gauthier set aside the November 29, 2004 on the basis of an error expressed in
the following passage from the reasons delivered:
In effect, the decision
contains a reviewable error because the officer ignored or misconstrued the
evidence with respect to the psychological hardship Mrs. Curry would likely
suffer as a result of her deportation.
In the passage cited by the
respondent, the officer appears to have used the fact that Mrs. Curry benefited
from professional psychological assistance as a factor that would assist with
her reintegration in the UK. He seems to suggest that
she is now sufficiently stable emotionally to successfully resettle. He had no
evidence in that respect. On the contrary, the evidence before him pointed to
a completely different conclusion, indicating that resettlement would likely
have a traumatic effect on the applicant.
[…]
As it has been mentioned on
numerous occasions by this Court, immigration officers are not experts in
psychology or psychiatry. They cannot simply discard experts’ opinions without
giving at least one reason that stands to probing examination.
In this particular case, there
is no doubt in my mind that the officer had to accept the evidence that Mrs.
Curry would likely suffer psychological hardship as a result of her
deportation. This was a factor militating against deportation and in favour of
the application. It may or may not be a determining factor, but it still had
to be considered. The officer simply ignored or misconstrued the evidence in
that respect.
[Emphasis added]
(Applicant’s Record, Tab 6)
[5]
With
respect to the issue under consideration, the Officer makes the following
statement in the decision presently under review:
Ms. Currie has had long term
employment in Canada. She demonstrates an
interest in working in the health field. Beyond the health field her training
and experience may be transferable as an administrator or coordinator. This
should make her more marketable when she seeks employment in the United Kingdom. She is also not restricted
to looking for work or settling only in Britain as she can explore live/work
possibilities in other European countries.
I note that the applicant has
some savings and is also a part owner of a home. These assets will be useful
to her in becoming reintegrated in the United Kingdom.
I have read the numerous
letters of reference and support for Ms. Curry. I note that she was an
exceptional prisoner and that her parole worker thought she had a low risk of
re-offending. I acknowledge that she was released from prison on an
accelerated parole system. I acknowledge that she has done [sic] volunteer
work and also donates to charity. I note that she is often asked to train new
staff members in her work place. It is reasonable to expect that these
positive attributes would be beneficial to Ms. Curry in becoming reintegrated
in the United
Kingdom.
Ms. Curry has been receiving
psychiatric counselling from several professionals. There are numerous reports
on file which speak to Ms. Curry’s treatment for among other things, anxiety
and depression. Dr. G. Nexhipi recommends that Ms. Curry stays in contact with
her psychiatrist. I understand that deportation from Canada and separation from her
family and friends will pose psychological difficulties on the applicant. I note that she has been
dealing with the prospect of deportation for a number of years. The
possibility of being deported and the issue of family separation and the
anxiety associated with it is not a new situation for Ms. Curry. In addition
she has had a number of years in which to seek appropriate treatment and
counselling to deal with these issues. Ms. Curry can seek the assistance of
similar professionals in the UK who can provide her with
counselling and therapy.
I have considered all the
evidence presented. I have considered the assessment from Dr. Pilowski. I
have considered the close mother and daughter bond which exists between Donna
Curry and her mother Gina Curry. I acknowledge that Gina raised Donna by
herself and they have always lived together. Donna Curry can submit an
undertaking and sponsor her mother from overseas as family class sponsorship
from within does not extend to parents of Canadians or permanent residents. I
have considered the offer of support and the intent of the sponsorship. By
virtue of this offer, Donna should be willing to support or assist her mother
when she returns to the United
Kingdom. Donna
is also an adult who has a career, a home and other relatives in Canada. She may choose to visit her
mother whenever possible. Also if she is unable to remain in Canada without her mother she may
consider reuniting with her there.
There are numerous positive
factors to be considered and given the appropriate weight. However I cannot
disregard the severity of her offence and the impact on Canadian society. The
hardship outlined by the applicant does not outweigh the seriousness of this
offence.
[Emphasis added]
(Applicant’s Record, Tab 2)
[6]
An
evidentiary factor found in the record considered by Justice Gauthier, which
resulted in her conclusion that the Applicant “would likely suffer
psychological harm as a result of her deportation”, is the opinion of Dr. June
M. Clarke, Psychiatrist, dated November 3, 2004, which states:
Therefore, she would have to make a great
effort to cope with the stress of deportation and the necessity of dealing with
a complete change in her lifestyle, with the result that she would likely have
significant problems coping with functioning in a new country due to metal health
difficulties.
(Applicant’s Record, p. 187)
In addition
to this opinion being on the record before the Officer on the reconsideration,
the record also contains an update on the Applicant’s condition, dated January
24, 2006, which contains the following current opinion:
[Gina Curry] would be unable to cope with
the stress of deportation and the necessity of dealing with a complete change
in her lifestyle, with the result that she would likely decompensate in a new
country due to metal health difficulties.
[7]
In
my opinion, the decision rendered by the Officer is completely unresponsive to
the evidence of Dr. Clarke. The obligation placed by Justice Gauthier on the
Officer, on the reconsideration, was to deal with the significant evidence of
the reality of the weakness of the Applicant’s mental condition. The decision
rendered does not reflect any understanding of this reality. Indeed, it is not
clear whether Dr. Clarke’s January 2006 opinion was even considered. In the
decision, “Section 4” cites the documentation considered; the only reference regarding
Dr. Clarke is “letter from June Clarke
(Specialist in Psychiatry)”. That is, as the citation does not provide a date
for the “letter”, it is uncertain as to whether the January 24, 2006 opinion
even came to the attention of the Officer. In any event, I find that while the
Officer states in the decision rendered that deportation will “pose
psychological difficulties on the Applicant”, this conclusion
in no way deals with the evidence on the record concerning
the extent of hardship that the Applicant will experience if she is deported.
[8]
As
a result, I find that, as was the case with respect to the decision resulting in
Justice Gauthier’s order, the Officer on the reconsideration ignored or
misconstrued the evidence of psychological hardship. Accordingly, I find that
the decision is unreasonable, and, therefore, is rendered in reviewable error.
[9]
The
obligation to give fair and proper consideration to the psychological evidence
arises from Guidelines that the Officer was expected to follow. According to
the Ministry of Citizenship and Immigration’s Inland Policy 5 entitled: Immigrant
Applications in Canada made on Humanitarian
and Compassionate Grounds, it is incumbent upon an immigration officer to
not only consider, but to give careful consideration to, all the
evidence:
5.27
All the
evidence
An officer should consider and
weigh all the relevant evidence and information, including what the applicant
and the officer consider to be important. Officers must not ignore evidence or
place too much emphasis on one factor to the exclusion of all other factors.
They must look at the whole picture. Any information or evidence that is not
relevant or should not be given much weight should be documented appropriately.
[10]
It
appears from the cursory decision rendered by the Officer that, regardless of
any consideration of hardship, all weight is placed on one factor, being the
Applicant’s criminal record. The decision is devoid of any critical analysis
of the evidence of current psychological hardship. It is apparent that this
form of decision-making is contrary to the expectation expressed in the
Guidelines, and, as such, is not fair or proper.
ORDER
Accordingly,
the Officer’s decision is set aside and the matter is referred back to another
immigration officer for re-determination.
“Douglas
R. Campbell”
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