Date:
20121106
Docket:
IMM-106-12
Citation:
2012 FC 1295
Ottawa, Ontario,
November 6, 2012
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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NORA ADRIANA LARA MARTINEZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Nora
Adriana Lara Martinez (the “Applicant”), a citizen of Mexico, submitted an
application for permanent residence on the basis of humanitarian and
compassionate grounds (“H&C Application”) pursuant to section 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The H&C
Application is based on the unusual and undeserved or disproportionate hardship
the Applicant would face in Mexico as a lesbian, on the basis of gender, and as
a person diagnosed with post-traumatic stress disorder (“PTSD”) and major
depressive disorder.
[2]
Ms.
Martinez’s application was rejected by a Senior Immigration Officer of the
Pre-Removal Risk Assessment Office (the “PRRA Officer”) in a decision dated December
9, 2011, and leave was granted to commence an application for judicial review
on May 28, 2012.
[3]
The
Applicant asserts that the PRRA Officer misconstrued the evidence before
him/her and that he/she erred in law in determining whether the Applicant would
face hardship if returned to Mexico. For the reasons that follow, I am of the
view that the decision was unreasonable and must be quashed.
FACTS
[4]
The
Applicant was born on August 10, 1979, in Cordoba, Veracruz. She is a lesbian
and was diagnosed with PTSD and major depressive disorder in a report by
Canadian psychologist Dr. Marta Young, dated December 8, 2010.
[5]
The
Applicant arrived in Canada as a visitor on July 13, 2008, at which time
Mexican citizens did not require a visitor’s visa. Although she planned to
return to Mexico upon expiry of her visitor’s status, Ms. Martinez ultimately
decided to stay in Canada, claiming that she could not stand to go back to work
in Mexico where she would be subjected to unwanted sexual attention, harassment
and discrimination. She submitted a claim for refugee protection on the basis
of her sexual orientation on September 22, 2009, which was denied on September
21, 2010. An application for leave to apply for judicial review was refused on
December 3, 2010. The Applicant made an H&C Application on December 10,
2010, and submitted a PRRA application on February 25, 2011, both of which were
refused by the PRRA Officer on December 9, 2011.
[6]
The
Applicant was raised as a Christian and learned that homosexuality was wrong from
both her family and her church. The Applicant nevertheless started having
feelings towards other girls at a young age and was targeted by classmates in
elementary school who laughed at her because she “looked like a boy”. Despite
trying to hide her feelings for other girls and feeling forced to go out with
boys, the Applicant states that she was subjected first to teasing and later to
unsolicited advances by men. This was a particular problem at university, where
she studied engineering in a male-dominated program and, in addition to
receiving unwanted male attention, was once sexually assaulted by a classmate.
[7]
In
the summer of 2002, the Applicant attempted to commit suicide. The Applicant
describes suffering bouts of depression and experiencing feelings of
self-loathing as a result of her attraction to other women and the harassment
of her male friends and classmates. She states that life was meaningless for
her and that she felt that she faced nothing but a future of hiding her true
self.
[8]
In
2003, the Applicant met Adriana Morales, a woman with whom she fell in love and
commenced a sexual relationship. When the women’s families became aware of the
relationship, they forbade the two women from seeing each other and Ms.
Morales’ brother at one point threatened to kill the Applicant if she did not
stay away from his sister. The Applicant’s mother viewed homosexuality as an
illness to be cured and on several occasions took the Applicant for
psychological treatment. The Applicant has stayed together with Ms. Morales,
but the two continue to hide their relationship from their families to this
day.
[9]
In
2004, the son of the local mayor and a friend of the Applicant’s mother
requested permission to date the Applicant. When the Applicant refused, the man
had her followed by a police officer and discovered her relationship with Ms.
Morales. The Applicant agreed to go out with the man when he threatened that
something bad might happen to Ms. Morales, but ended any relationship when he
forcefully tried to kiss her.
[10]
In
March 2005, the Applicant, Ms. Morales and two female friends were stopped by
police for a “routine inspection” while barhopping in Mexico City. The
Applicant claims that the police were inebriated and that they arbitrarily
detained the girls upon recognizing that they were lesbians. After forcing them
into their car and driving them for approximately 15 to 20 minutes, a police
officer pulled one of them from the car and hit her in the face. The group
managed to escape but never reported the incident as they were too afraid to
make a complaint to the prosecutor’s office.
[11]
From
2006 to 2008, the Applicant held a series of jobs, each of which resulted in
her dismissal or a decision to quit, due either to unwanted male attention or
to harassment triggered by her sexual orientation. In her first job for the
Mayor of Fortin, the Mayor made unwanted sexual advances toward the Applicant
and ultimately fired her when she refused him, saying that he doesn’t like
“those kind of people”. Subsequently, the Applicant suffered various forms of
harassment as a result of her sexual orientation and gender while working first
for a transportation logistics company and then as a supervisor of an entirely
male harvest group. A series of escalating incidents allegedly caused the
Applicant to experience fear and severe stress and resulted in her spending
only short periods of time in each job.
[12]
In
July 2008, the Applicant came to Canada as a visitor, along with Ms. Morales,
who was here to study English. The women’s families were not aware that they
had travelled to Canada together. In Canada, the Applicant states that she felt
completely happy and peaceful and that she was able to go out in public with
Ms. Morales without facing harassment or fearing for her safety. Ms. Morales is
currently completing her studies in Mexico but has visited Canada on two occasions. The Applicant explains that Ms. Morales does not face persecution
in Mexico because “she does not look gay and no one suspects that she is a
lesbian.” In a letter of support dated October 29, 2010, Ms. Morales supported
this description, stating that she does not “live openly as a lesbian in Mexico”. She claims that the Applicant’s life is much more difficult since she “does not
play the ‘docile’ role that women have to play in Mexico.”
[13]
According
to the Applicant, the problems facing women and homosexuals are not specific to
certain cities, but present throughout the country. In addition, she claims
that it is difficult to live as a woman in Mexico without being at risk of
assault, including sexual assault, and alleges that the army is now complicit
in such violence and considered worse than the police. The Applicant states
that, as a single woman in her thirties, she will be socially condemned for not
being married and will have to hide her sexual orientation for fear of the
repercussions of living openly. The Applicant argues that she would face “great
emotional hardship” as a lesbian forced to live in the closet in Mexico.
THE IMPUGNED
DECISION
[14]
After
reviewing the documentary evidence, the PRRA Officer came to the conclusion
that the government of Mexico is taking serious steps to address the issues of
crime, violence and the treatment of sexual minorities. According to the
Officer, the documentary evidence also reveals that Mexican laws are changing
to address societal attitudes towards same sex couples. While the Applicant may
have suffered from the incidents described above, the Officer found that there
was insufficient evidence that these incidents occurred as a result of the
Applicant’s sexual orientation or gender. Since risk is forward-looking, the
Officer determined that the Applicant failed to provide sufficient evidence
that her personal circumstances are such that removal to Mexico would result in hardship that is unusual and undeserved or disproportionate.
[15]
The
PRRA Officer also considered the Applicant’s establishment in Canada and found that she has not provided sufficient evidence of stable employment. While
she participated in numerous professional and linguistic programs in an attempt
to integrate into Canadian society, the Officer noted that it is expected that
a certain level of establishment would take place during the Applicant’s stay
in Canada. The Officer also acknowledged that the Applicant has developed many
friendships during her stay in Canada, but was not satisfied that separation
from these friends would amount to unusual and undeserved or disproportionate
hardship, bearing in mind that she should have been aware of the possibility of
having to return to Mexico as she remained in Canada without status.
[16]
Finally,
the Officer commented on the psychologist’s report in the following way:
I have been provided with a copy of a Psychological
evaluation performed by Dr. Marta Young. In her report, Dr. Young states that
the applicant meets the criteria for Post-Traumatic Stress Disorder (PTSD) and
Major Depressive Disorder. I accept Dr. Young’s diagnosis because it follows
for some part from the health professional’s observations; however, I have been
provided with insufficient evidence to satisfy me that the applicant will be
unable to acquire treatment or that she will be denied treatment for her
disorders in Mexico.
Humanitarian & Compassionate Grounds – Reasons
for Decision, Application Record, p 16.
ISSUES
[17]
In
her written and oral submissions, counsel for the Applicant raises the
following three issues:
i) Is
the PRRA Officer’s assessment of the psychological evidence submitted in
support of Ms. Lara Martinez’s H&C Application reasonable?
ii) Did
the PRRA Officer err by making findings of fact without due regard to the
evidence before him/her?
iii) Did
the PRRA Officer err in his/her analysis of the hardships that Ms. Lara
Martinez would face in Mexico, both in terms of the test applied and in the
assessment of the evidence?
[18]
Counsel
for the Respondent addressed each of these issues in her written and oral
submissions, and I shall in turn deal with them in the following analysis.
ANALYSIS
[19]
Before
turning to the merit of the issues raised by this application for judicial
review, a word must be said of the applicable standard of review. Counsel for
both parties agree that reasonableness is the standard of review applicable to
a decision on an H&C application, and it is indeed the standard applied by this
Court in such cases: see, for example, Frank v Canada (Citizenship and
Immigration), 2010 FC 270 at para 15.
[20]
As
a result, the Court must not interfere with the decision of a PRRA officer
where a decision is justifiable, transparent and intelligible and where it
“falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 47.
[21]
On
the other hand, the issue of whether the Officer applied the proper test in
determining hardship for the purposes of section 25 of IRPA is a legal
question that calls for much less deference from this Court: see, for example, Sahota
v Canada (Minister of Citizenship and Immigration), 2011 FC 739 at para 7; Ambassa
v Canada (Minister of Citizenship and Immigration), 2012 FC 158 at para
24.
i)
Is the PRRA Officer’s assessment of the psychological evidence submitted in
support of Ms. Lara Martinez’s H&C Application reasonable?
[22]
As
previously mentioned, the Applicant submitted in support of her H&C
application a report by Dr. Marta Young, a registered psychologist in Ontario, which diagnoses the Applicant as suffering from PTSD and major depressive
disorder. The doctor concluded her clinical impressions with the following
statement: “Given the many traumatic events that Ms. Martinez endured over the
past decade, I strongly believe that she is likely to experience a significant
exacerbation in terms of her psychological symptoms should she return to Mexico
and that, as a consequence, her mental health will be significantly
compromised” (Application Record, p 79).
[23]
I
have already quoted, at paragraph 16 of these reasons, the PRRA Officer’s
response to that report. The Applicant contends that the Officer erred by
focusing on the availability of mental health care rather than undertaking a
substantive analysis of whether, because of her psychological condition, she
would face undue, undeserved or disproportionate hardship in Mexico. She also
argues that, in addition to ignoring the expert evidence provided, the PRRA
Officer erred in failing to turn his/her mind to the Applicant’s claims
regarding emotional hardships experienced in Mexico and to the fact that
psychologists in Mexico had tried to cure the Applicant of her sexual orientation
rather than treat her for PTSD or depression.
[24]
I
agree with the Applicant that the PRRA Officer does not seem to have considered
the psychologist’s report in its entirety. The Officer accepted Dr. Young’s
diagnosis and, by implication, the doctor’s findings that the Applicant’s
symptoms of PTSD are chronic and that the Applicant continues to have suicidal
thoughts consistent with the diagnosis of major depressive disorder. Yet,
nowhere does the Officer comment on the doctor’s conclusion that the Applicant’s
mental health is likely to suffer and “will be significantly compromised”
should she return to Mexico. Having accepted the doctor’s diagnosis in his/her
decision, the PRRA Officer’s failure to address the doctor’s ultimate
conclusions regarding the effects of the diagnosis is supportive of the
Applicant’s allegation that the Officer has either failed to appreciate the
diagnosis in its entirety or failed to weigh the effect that a return to Mexico
would have on the Applicant’s psychological stability.
[25]
Counsel
for the Respondent tried to argue that the Applicant’s submissions regarding
her mental state were not central to the basis for her application and that the
claims related to her mental condition were dependent on her central argument
that she would ultimately face discrimination as a lesbian. Having concluded
that it was unlikely that the Applicant would continue to experience undue
hardship as a lesbian living in Mexico, the Respondent submits that it was
“unnecessary for the Officer to devote significant attention to the secondary
issue of the applicant’s mental state.” This argument is fraught with major
difficulties.
[26]
First
of all, the submission that the psychologist’s report did not deserve much
attention as the mental state of the Applicant was not central to her claim is
not borne out by the evidence. A whole section of her submission on hardship in
Mexico is devoted to “emotional and mental hardship” (Application Record, pp
109-112). The Applicant takes almost a full page to quote from Dr. Young’s
findings that she suffers from PTSD and major depressive disorder, as a result
of what she has been through in Mexico. Reviewing these submissions and the
evidence filed as a whole, I do not think it is a tenable position to assert
that the Applicant’s mental state was not a central claim in her H&C
Application.
[27]
Moreover,
the Respondent’s proposed explanation as to why the doctor’s report is not
fully discussed is not spelled out in the reasons. It was certainly open to the
Officer to explain why he/she did not give much weight to the psychologist’s
assessment, but no such explanation is provided. It is well established that
counsel cannot obviate this shortcoming by coming up with her own explanation
as to what may be the rationale underpinning the decision under review.
[28]
The
doctor’s conclusions were not contradicted by any other expertise and they
certainly deserve to be dealt with more thoroughly. I find this case to be on
all fours with another case decided by my colleague Justice Mactavish,
in which the Officer similarly said very little about a psychologist report. I
adopt and make mine what my colleague had to say in this respect:
The uncontradicted expert evidence before the PRRA
Officer was that Ms. Davis would be at risk of a complete emotional breakdown
if she were forced to return to St. Vincent, which could well result in her
becoming suicidal. In such circumstances, it was not enough for the Officer to
simply look at the availability of mental health care in St. Vincent. As Ms.
Davis’ counsel put it, even if the health care in St. Vincent was perfect, the
Officer still had to determine whether putting Ms. Davis through all of this
amounted to undue, undeserved or disproportionate hardship. This question was
never really addressed by the Officer, further rendering the decision
unreasonable.
Davis v Canada (Minister of
Citizenship and Immigration), 2011 FC 97 at paras 18-19. See also: Perez
Arias v Canada (Minister of Citizenship and Immigration), 2011 FC 757 at
paras 14-15.
[29]
Counsel
for the Respondent tried to distinguish these two cases on the ground that the
applicants’ psychological conditions were central to their claims of hardship.
There is no way to confirm this, however, and a careful reading of these two
decisions does not allow such an inference to be drawn.
[30]
For
all of the foregoing reasons, I am of the view that the Officer’s treatment of
the psychologist’s report was flawed. This, in and of itself, is sufficient to
render his/her decision unreasonable, and would suffice to allow the
application for judicial review. I shall nevertheless address the other issues
raised by the parties, if only to provide guidance to the PRRA officer who will
eventually make a fresh determination on the Applicant’s file.
ii)
Did the PRRA Officer err by making findings of fact without due regard to the
evidence before him/her?
[31]
The
Applicant disputes the PRRA Officer’s finding that she provided insufficient
evidence to demonstrate that the incidents described in her affidavits and
submissions occurred as a result of her sexual orientation or gender. It is
alleged that the PRRA Officer’s lack of explanation as to why he/she did not
accept Ms. Martinez’s uncontradicted sworn evidence that she suffered incidents
of harassment and discrimination because of her sexual orientation and gender,
and his/her failure to take into consideration the documentary evidence which
corroborates Ms. Martinez’s evidence on this issue, renders the decision
unreasonable.
[32]
I
agree with the Applicant that the Officer’s statement to the effect that there
is insufficient evidence to establish a link between the incidents described by
the Applicant and her sexual orientation or gender is perplexing. The Officer
does not offer any other ground upon which these incidents could be explained.
The fact that she received an education, was able to obtain an engineering
degree and was gainfully employed by several different employers does not in
the least negate the fact that she experienced many incidents of harassment and
discrimination linked to her gender and sexual orientation. Indeed, the
Applicant testified that she lost her various jobs as a result of these
incidents. It may be, as noted by the Officer after reviewing certain
documentary evidence, that Mexican society is becoming more tolerant of
homosexuals and same-sex couples; but nowhere does he/she explain how this
documentary evidence is sufficient to negate the Applicant’s uncontradicted
testimony that she suffered all the incidents reported above as a result of her
gender or sexual orientation.
[33]
Be
that as it may, I agree with the Respondent that even if the Officer erred in
finding that past incidents experienced by the Applicant were not linked to her
sexual orientation or gender, such an error is not determinative. One must not
lose sight of the fact that the assessment of hardship in an H&C
application is forward-looking. Regardless of any incidents that the Applicant
has experienced in the past, the Applicant therefore bears the onus of
demonstrating that she will continue to face undue hardship if forced to return
to Mexico.
[34]
As
a result, any factual error that the Officer may have made in assessing
the hardship suffered by the Applicant before coming to Canada would not be sufficient, without more, to warrant the intervention of this Court.
More to the point is whether the Officer erred in determining that the
Applicant will not continue to face undue hardship if forced to return to Mexico. This is the question I will now turn to.
iii)
Did the PRRA Officer err in his/her analysis of the hardships that Ms. Lara
Martinez would face in Mexico, both in terms of the test applied and in the
assessment of the evidence?
[35]
The
Applicant argues that a statement in the PRRA Officer’s decision finding that
state protection would be available in Mexico were the Applicant to encounter
problems, suggests that he/she applied an improper test for determining whether
the Applicant would face unusual and undeserved or disproportionate hardship
upon return. I respectfully disagree with this submission.
[36]
The
Applicant is correct in stating that state protection is not a determinative
factor in an H&C decision. Yet, state protection may be a relevant
consideration in an assessment of an H&C application, so long as the
analysis does not stop there: see Walcott v Canada (Minister of Citizenship
and Immigration), 2011 FC 415 at paras 63-64. The Officer’s analysis did
not stop with the consideration of state protection in the case at hand. He/she
reviewed the current country conditions in Mexico and found that societal
attitudes towards same-sex couples are evolving, that Mexican laws are being
modernized to address these changes, and that the government is taking serious
steps to address the issues of crime, violence, and treatment of sexual
minorities.
[37]
I
agree with the Respondent that the Officer did not reject the Applicant’s
H&C application only or mainly on the ground that state protection was
available, but rather because his/her assessment of the documentary evidence
led him/her to the conclusion that the Applicant would not experience undue
hardship in the form of discrimination and physical danger as a result of her
sexual orientation if returned to Mexico. In light of this finding, the Officer
merely held that it was unlikely the Applicant would be required to seek state
protection but, if need be, it would be available.
[38]
Upon
reviewing the decision as a whole, I am of the view that the Officer did not
apply the wrong test for hardship. I am also of the view that his/her
assessment that the Applicant would not experience unusual and undeserved or
disproportionate hardship on the basis of her sexual orientation if she were
forced to return to Mexico is not unreasonable, except to the extent that the
PRRA Officer failed to fully consider the mental health aspects of the
Applicant’s submission, as discussed above.
CONCLUSION
[39]
In
light of all of the above, this application for judicial review is allowed, on
the basis of the PRRA Officer’s failure to adequately asses the mental health
aspects of the Applicant’s submission.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
allowed.
"Yves de
Montigny"
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