Date: 20110127
Docket: IMM-2663-10
Citation: 2011
FC 97
Toronto, Ontario, January 27, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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PETRA
MARIA DAVIS
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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]
Petra Davis based her application for permanent residence on
humanitarian and compassionate grounds on several factors. One of these was the
hardship that she would face if returned to St. Vincent because of her
psychological state. Ms. Davis also asserted that her psychological problems
would be exacerbated if she were separated from her father in Canada, and that
she would be unable to access proper care for her mental health issues in St.
Vincent.
[2]
Ms. Davis’ application was rejected by a PRRA Officer, who found that
she had not established that she would face unusual, undeserved or
disproportionate hardship if she were required to return to St. Vincent in
order to apply for permanent residence.
[3]
For the reasons that follow, I am of the view that this decision was
unreasonable. Consequently, the application for judicial review will be
granted.
Analysis
[4]
Ms. Davis is a failed refugee claimant. Although aspects of her refugee
claim were found not to be credible, the Refugee Protection Division did not
appear to take issue with her claim that she had suffered significant physical
and sexual abuse as a young child. In support of her PRRA application, Ms.
Davis provided the Officer with psychological evidence documenting the negative
impact of this abuse on her mental health.
[5]
This is the second time that Ms. Davis’ H&C application has been
before this Court. The first decision made with respect to her application was
set aside: see Davis v. Canada (Minister of Citizenship
and Immigration), 2009 FC 1223, [2009] F.C.J. No. 1510. Justice Boivin
found that Ms. Davis had been denied procedural fairness when the PRRA Officer
relied upon a document from the World Health Organization dealing with the
availability of mental health care in St. Vincent, without first disclosing the
document to her.
[6]
According to Justice Boivin, the WHO document was not commonly referred
to, and was “more technical” than human rights reports. As a consequence, he
was of the view that Ms. Davis should have been afforded the opportunity to
respond to the document. Justice Boivin also found that the Officer erred in
finding that the WHO document supported the proposition that there is adequate
level of mental health in St. Vincent. He observed that the data contained in
the WHO document showed that the mental health resources available to citizens
in St. Vincent “can be below average”: at para. 25.
[7]
After Justice Boivin’s decision, Ms. Davis’ H&C application was
referred to a different PRRA Officer for reassessment. This Officer provided
Ms. Davis with a copy of the WHO document, and afforded her an opportunity to
respond to it.
[8]
The second PRRA Officer came to the same conclusion as the first with
respect to the availability of mental health care in St. Vincent. In coming to
this conclusion, the second Officer did not, however, simply rely on the World
Health Organization study that had been disclosed to Ms. Davis. The Officer
also chose to rely on a second study – this one from the Pan American Health
Organization. This document was similar in type to the WHO study, but contained
more comprehensive information with respect to the availability of mental
health care in St. Vincent. It was never disclosed to Ms. Davis.
[9]
In other words, the second Officer committed precisely the same error as
the first Officer.
[10]
The second error committed by the PRRA Officer relates to the treatment
of the evidence contained in the Pan American Health Organization document. Based
upon this document, the Officer concluded that “Mental health services are
being integrated in primary care, and ten acute care beds are available the
main referral centre for treatment of the acutely ill psychiatric patient”.
[11]
However, Ms. Davis had put more recent evidence before the Officer
emanating directly from the Ministry of Health in St. Vincent which led to a
very different conclusion. This document stated that the “Integration of mental
health services into primary care is very limited due to inadequate psychiatric
surveillance and support services such as social workers, counselors, and
occupational therapists”.
[12]
The Ministry of Health document went on to observe that there was “no
structured rehabilitation programme offered at any government health
institution”. The document also referred to the availability of mental health
support from non-governmental organizations, but noted that “these programmes
are insufficient to offset the many social problems challenging the society.”
[13]
Where a decision-maker refers to evidence supporting its finding in some
detail, but does not mention evidence leading to the opposite conclusion, the
Court may infer that the decision-maker overlooked the contradictory evidence
when making its finding of fact: Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) [1998] F.C.J. No. 1425, 157
F.T.R. 35 at paras.14-17.
[14]
It was an error for the Officer not to address the Ministry of Health
information, given that this seemingly reliable evidence directly contradicted
a central finding upon which the decision was based.
[15]
The Officer also erred in assessing the hardship that Ms. Davis would
suffer as a result of being separated from her family in Canada. The Officer
noted Ms. Davis’ father’s statement that her well-being was “extremely
dependant on our presence in her life and the ability to remain here in Canada,
a place of safety”. After referring to Ms. Davis’ relationship with her
siblings, the Officer then went on to state that “the evidence before me does
not establish that severing these ties would have a significant negative impact
on her that would constitute an unusual and undeserved or disproportionate
hardship”.
[16]
This finding is problematic, as it flies in this face of the
psychological evidence that was before the Officer. This evidence indicated
that Ms. Davis and her father had a “close-knit, strong attachment” and that
she was “highly dependant upon this man’s presence in her life”. In the opinion
of the psychologist, “breaking such strong bonds would likely be emotionally
devastating for her”. Indeed, it was the psychologist’s professional opinion
that Ms. Davis “would be at very high risk of suicide” if she were required to
leave Canada and the support of her family members behind.
[17]
In light of this evidence it is difficult to discern from the Officer’s
reasons how the Officer came to the conclusion that severing Ms. Davis’
relationship with her family in Canada “would not have a significant negative
impact on her that would constitute an unusual and undeserved or
disproportionate hardship”.
[18]
The final, and perhaps most fundamental concern with the Officer’s
decision as it relates to the mental health aspect of Ms. Davis’ H&C
application is that it focuses almost exclusively on the availability of mental
health care in St. Vincent. No real attention was paid to whether requiring Ms.
Davis to return to St. Vincent to access that care would amount to undue,
undeserved or disproportionate hardship.
[19]
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.
Conclusion
[20]
For these reasons, the application for judicial review is allowed.
[21]
Citing Justice Phelan’s recent decision in Sivapatham v. Canada
(Minister of Citizenship and Immigration), 2010 FC 314, [2010] F.C.J. No.
366, Ms. Davis urges me to direct that her H&C application be re-assessed
by an Officer in any office selected by the Respondent, other than the Niagara
Falls office. While I am satisfied that a different Officer should carry out
the reassessment of Ms. Davis’ application, she has not persuaded me that this
reassessment needs to be carried out in a different CIC office.
Certification
[22]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is allowed,
and the matter is remitted to a different PRRA Officer for re-determination;
and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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