Date: 20091130
Docket: IMM-2932-09
Citation: 2009 FC 1223
Toronto, Ontario, November 30, 2009
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
PETRA MARIA DAVIS
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of an
Immigration officer dated April 29, 2009, refusing the Applicant’s application
for permanent residence based on humanitarian and compassionate grounds under
subsection 25(1) of the Act.
Factual Background
[2]
The
Applicant is a citizen of St. Vincent and the Grenadines (St.
Vincent) born on April 21, 1971 who claims she has been the victim of physical
abuse, sexual abuse, homelessness, domestic abuse and poverty while in St.
Vincent. The Applicant claims her mother and step-father were the perpetrators
of this abuse when she was a minor, but that she recently experienced ill treatment
at the hands of her former common-law spouse, John Knight.
[3]
The
Applicant began living with Mr. Knight in 1987 and she claims she suffered
domestic abuse from the beginning of the relationship until she left St.
Vincent to come to Canada in March 1995.
[4]
The
Applicant submitted her refugee claim on January 15, 2003 and her claim was
based on her being a victim of domestic violence in St. Vincent. The
Applicant’s refugee claim was rejected by the Refugee Protection Division of
the Immigration and Refugee Board (RPD) on February 3, 2004, on the basis of a
lack of credibility in her story and on the fact that there was adequate state
protection available. The Applicant challenged that decision at the Federal
Court, but the application for leave was denied in June 2004.
[5]
Subsequently,
the Applicant submitted an application under humanitarian and compassionate
grounds (H&C) pursuant to subsection 25(1) of the Act and she was asked to
provide updated submissions in September 2008. The H&C application was
denied on April 29, 2009. The negative H&C determination forms the basis of
this application for leave and judicial review.
[6]
The
Applicant brought motions for stays of the removal orders concerning both her
H&C application and the negative PRRA determination dated April 23, 2009.
On June 15, 2009, this Court granted both stay motions.
Impugned Decision
[7]
The
officer rejected the Applicant’s H&C claim based on the finding that she
did not provide sufficient evidence to demonstrate that her personal
circumstances were such that having to apply for a permanent resident visa from
outside of Canada would create
unusual, undeserved or disproportionate hardship for her.
[8]
The
Applicant has been in Canada for fourteen (14) years. During this time,
a certain level of establishment is expected to have occurred, but the officer
notes that this alone may not amount to the Applicant facing disproportionate
or unusual and undeserved hardship. The factors considered by the officer in
the Applicant’s H&C application include hardship or sanctions upon return
to St. Vincent; spousal, family or personal relationships that would create
hardship if severed; her degree of establishment in Canada; her ties or
residency in any other country and her return to her country of nationality.
[9]
The
officer based his decision on different factors, including the following: In September
2008, Dr. J. Pilowsky conducted a psychological assessment of the Applicant and
concluded that the Applicant is suffering from chronic symptoms of
post-traumatic stress disorder (PTSD) and chronic major depressive episode,
moderate severity. The officer found that although it was concluded that the Applicant
suffers from chronic major depressive episode and experiences symptoms of PTSD,
the assessment did not show future recommended treatment procedures. Also, updated
submissions regarding the Applicant’s therapy, which show that the Applicant has
continued the counselling as recommended, were not provided. The Applicant did
not give details relating to the medical care she may be presently receiving in
Canada.
[10]
The
Applicant also did not provide sufficient documentation indicating that health
care services would not be adequately provided for her in St. Vincent. According
to the World Health Organization (WHO), St. Vincent has had a mental health
policy since in 1998 and district medical officers are trained to handle mental
health issues and are experienced in administering psychotropic medication. The
documentary evidence shows there are medical, psychological, social and legal
services and treatment centres in St. Vincent and the evidence does not support
that the Applicant would be unable to obtain services in St. Vincent if she so
chose.
[11]
It
is alleged that the Applicant has been traumatized by the abuse of her former
common-law spouse and that she fears he will seek her out should she return to St. Vincent. The
Applicant states that her behaviour and personality have been seriously
affected by the abuse and she asserts that she will suffer hardships in St.
Vincent because the prevailing attitude towards women who have been abused has
not fundamentally changed since she departed in 1995. The Applicant submits
that domestic abuse is common in St. Vincent and state protection is
inadequate. She further states there is no reasonable internal flight
alternative (IFA) available because St. Vincent is a small island with a
population of 118,000.
[12]
The
police officers in St. Vincent investigate all complaints from citizens about
assault or other abuse and submit their findings to the police commissioner. The
officer recognized the 2008 Country Reports acknowledge that violence against
women remains a serious problem in St. Vincent. The law does not
criminalize domestic violence, but rather, provides protection for victims. The
cases involving domestic violence are usually charged under assault, battery or
other similar offences. The St. Vincent and the Grenadines Human Rights
Association reports that domestic violence often remains unpunished because victims
choose not to seek assistance from the police for the prosecution of offenders.
Furthermore, many victims decide not to press charges once domestic tensions cool
down. The police are therefore reluctant to follow up on domestic violence
cases in St. Vincent.
[13]
However,
the officer found the Applicant did not show her personal circumstances would
amount to hardship and there is no evidence of her required medical treatment, nor
that her former spouse would seek her in St. Vincent and that state protection
is not available to her in St. Vincent.
Issues
[14]
As
per the hearing, there is only one issue for the Court to decide:
1.
Did
the officer err in relying on extrinsic evidence?
Applicant’s Arguments
[15]
The
Applicant submits the officer breached fairness and denied the Applicant a
meaningful opportunity to participate in the decision making process by using
the World Health Organization Mental Health Atlas published in 2005 (the WHO document)
as the basis for a sweeping finding that mental health issues are taken care of
in St. Vincent. However, the WHO document weighed very heavily on the final
determination of the H&C application, which was refused. The Applicant
submits the officer breached fairness and caused prejudice to the Applicant by
denying her a meaningful opportunity to make submissions regarding this
document (Mark v. Canada (Minister of
Citizenship and Immigration), 2009 FC 364, [2009] F.C.J. No. 451 (QL)
at par. 15-18).
Respondent’s Arguments
[16]
In
Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA
125, [2002 4 F.C. 358, the Federal Court of Appeal considered Suresh v.
Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1
S.C.R. 3, in the context of an H&C matter and held that the weighing of
relevant factors is the responsibility of the Minister or his delegate and it
is not the role of the courts to re-examine the weight given to the various factors
by officers.
[17]
According
to the Respondent, the Applicant simply did not satisfy the officer that she
would suffer unusual, undeserved or disproportionate hardship if she were to
apply for permanent residence from outside of Canada (Operational Manual, IP-5
at sections 5.1, 6.7, and 6.8; Lee v. Canada (Minister of Citizenship and
Immigration) , 2005 FC 413, 138 A.C.W.S. (3d) 350 at par. 11; Uddin v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 937, 116
A.C.W.S. (3d) 930; Owusu v. Canada (Minister of Citizenship and Immigration),
2004 FCA 38, [2004] 2 F.C.R. 635).
[18]
The
Respondent submits that although the Applicant provided two psychologist’s
reports (dated December 2003 and September 2008 respectively) by Dr. Pilowsky
concerning the status of her mental health, the officer noted that the
Applicant did not set out what mental health treatment she had been provided,
is being provided or what mental health treatments are suggested for the
future. In other words, the Applicant did not establish that she is actually in
need of mental health treatment and, even if she had established that she is in
need of mental health treatment, she has not established that she could not
receive adequate treatment in St. Vincent. Therefore, the officer’s
use of the WHO document to find that there is an adequate mental health
infrastructure in St. Vincent did not prejudice the Applicant’s interests.
Analysis
[19]
This
Court has previously held that the review of H&C decisions should be
afforded considerable deference, and that the applicable standard was
reasonableness simpliciter (Baker v. Canada (Minister of
Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193
(S.C.C.). Following the decision of the Supreme Court of Canada in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 90, review of H&C
decisions should continue to be subject to deference by the Court, and are
reviewable on the newly articulated standard of reasonableness (Dunsmuir
at par. 47, 55, 57, 62 and 64).
[20]
For
a decision to be reasonable, there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir at paragraph 47). In Baker,
the Supreme Court ruled that the discretionary power granted to an immigration
officer must be considered with a certain degree of deference (par. 51, 59,
62).
[21]
An
application under H&C grounds offers an individual special and additional
consideration for an exemption from Canadian immigration laws, which are
otherwise universally applied. The decision of an immigration official not to
recommend an exemption takes no right away from an individual (Vidal v. Canada (Minister of
Employment and Immigration), (1999), 41 F.T.R. 118, 13 Imm. L.R. (2d) 123; Chieu
v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Legault).
[22]
The
purpose of H&C discretion is to allow flexibility to approve deserving
cases not anticipated in the legislation, but it is not an alternative stream
for immigration to Canada. A decision made on H&C grounds is an
exceptional measure and, moreover, a discretionary one (Irimie v. Canada (Minister of
Citizenship and Immigration), (2000), 101, A.C.W.S. (3d) 995, 10 Imm.
L.R. (3d) 206; Legault at par. 15).
[23]
In
the case at bar, the officer referred to the WHO document which is a document
that shows the global resources dedicated to people suffering from mental and
neurological disorders. In his decision, the Officer referred to the following
passage of the WHO document:
The World Health Organization reveals
that St. Vincent has a mental health policy
which was initially formulated in 1998. The components of the policy are
advocacy, prevention, treatment and rehabilitation. Further, a national mental
health programme is present in the country. This programme was formulated in
2000 and reviewed and updated every year. The same document informs that there
are budget allocations for mental health; the primary source of mental health
financing is tax based. Accordingly, the country has disability benefits
for persons with mental disorders … patients suffering from severe mental
illnesses receive public disability benefits”
In St. Vincent, district medical officers
are trained to handle mental health issues and are experienced in administering
psychotropic medication. In addition, regular training of primary care
professionals is carried out in the field of mental health. In the last two
years, about 25 personnel were provided training. It is noted that there are
community care facilities for patients with mental disorders; community mental
health services are available in all districts and psychiatric nurses are
involved in these communities.
[24]
The
Court is of the view that the WHO document is a relevant document and it was
relied upon by the officer to conclude that mental issues are taken care of in St. Vincent. However,
the Applicant has argued that the WHO document was not part of the IRB National
Documentation Package for St. Vincent dated March 18, 2009. This statement was
not challenged. Although the Court agrees that the officer does not have to
disclose all documentary evidence that post-dated the Applicant’s submissions (Kaybaki
v. Canada (Solicitor General of Canada), 2004 FC 32, 128 A.C.W.S (3d)
784) the Court is of the opinion that, in the circumstances, the officer erred
in not disclosing the WHO document in order to provide the Applicant with an
opportunity to make submissions.
[25]
The
WHO document entitled “The World Health Organization Mental Health Atlas” shows
global mental health resources remain inadequate. The document is a more technical
than a Human Rights Report and is not commonly referred to. Moreover, the officer
erred in finding that the WHO document seems to support the proposition that
there is adequate level of mental health in St. Vincent. For
instance, a survey in 192 countries shows a slight increase in the number of
psychiatrists from 3.96 to 4.15 per 100,000 people worldwide. In comparison,
the number of psychiatrists is 0.9 per 100,000 per population in St. Vincent. These
data reveal that St. Vincent’s mental health resources available to citizen in St. Vincent can be below
average. In the circumstances, the WHO document is a novel and a significant
document and it was relied upon by the officer in his decision. Fairness
dictates that the Applicant should have had the opportunity to make submissions
with regard to the WHO document.
[26]
Therefore,
the officer erred in not disclosing to the Applicant the WHO document relied
upon in making his decision. For these reasons, the application for judicial
review is granted.
[27]
The
parties did not submit any questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted. No question is certified.
"Richard Boivin"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2932-09
STYLE OF CAUSE: Petra Maria DAVIS v. Minister of
Citizenship and Immigration
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: November
24, 2009
REASONS FOR JUDGMENT: BOIVIN
J.
DATED: November
30, 2009
APPEARANCES:
|
Mr. Michael
Crane
|
FOR THE APPLICANT
|
|
Mr. Michael
Butterfield
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Michael Crane
Barrister
& Solicitor
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.,
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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