Docket: IMM-1855-11
Citation: 2011 FC 1212
Ottawa, Ontario,
October 21, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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TIGIST DAMTE
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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 ORDER AND ORDER
[1]
For seven years the
Applicant has unsuccessfully maintained her claim for protection as an opponent
of the government of Ethiopia. The last step in this effort is the negative
humanitarian and compassionate (H&C) decision presently under review which
was rendered on February 17, 2011 pursuant to s. 25 of the Immigration and
Refugee Protection Act, SC 2001 c 27.
The essence of the Applicant’s argument is that the decision is unreasonable
because of fundamental evidentiary errors. For the reasons that follow, I have
no hesitation in agreeing with this argument.
[2]
The
Applicant is a 42-year-old Amhara Ethiopian who was trained as a graphic artist
in Germany in 1990. In the mid-1990’s, after earning her diploma, she returned
to Ethiopia where she was arrested by the authorities as a member of the Ethiopian People’s
Revolutionary Party (EPRP) which is in opposition to the Ethiopian government,
was tortured and held in custody for nine days. The Applicant returned to
Germany, completed her graduate studies, and then moved to the United States
where her family had relocated. She was denied asylum in the US and came to
Canada in 2004; immediately upon arrival she made a claim for refugee
protection.
[3]
The history of the
Applicant’s claim discloses a diligent effort to have her claim understood and
accepted.
[4]
The Applicant’s
protection claim is based on two subjective and objective fear elements: fear
of returning to Ethiopia based on her perceived political opinion; and, fear of
the high degree of gender discrimination in Ethiopia. In 2006, on the basis of
a global negative credibility finding, the Refugee Protection Division of the
Immigration and Refugee Board (RPD) denied her claim, and leave to seek
judicial review was denied. In 2007, a first Pre-Removal Risk Assessment
(PRRA) was negatively decided and judicial review of this decision was also
denied. In 2009, a second PRRA was negatively decided, as was a first
application for H&C relief. Upon judicial review of this first H&C
decision, leave was granted, and following a hearing the decision was set aside
and the matter was returned for redetermination on a finding that the
decision-maker failed to consider a key element of the Applicant’s hardship
argument being the acute gender discrimination that she would suffer if she is
required to return to Ethiopia. In February 2011, the Applicant’s second
request for H&C relief was denied. This is the decision presently under
review.
[5]
An
important feature of the Applicant’s life situation is that, upon being
scheduled for removal from Canada following the rejection of her second PRRA
application, first H&C application, and the dismissal of a stay motion, she
was given sanctuary by the Newtonbrook United Church. She has remained in the
Church, without leaving the building, since August 13, 2009. Key evidentiary
support with respect to the redetermination of the Applicant’s second H&C
application are letters of support and explanation from the Church and two
reports from a psychiatrist who assessed the Applicant’s current mental health
condition.
[6]
The negative
H&C decision presently under review was decided according to the
Respondent’s Guideline test as follows:
A positive H&C decision is
an exceptional response to a particular set of circumstances. The hardship of
having to apply for a permanent resident visa from outside of Canada would
pose, in most cases, an unusual and undeserved hardship that was not
anticipated by the Act of Regulations. The hardship in most cases is the
result of circumstances beyond a person’s control. Or, that the hardship would
have a disproportionate impact on the applicant due to their personal
circumstances.
(Reasons for Decision, Application
Record, p.7; IP 5 Operational Manual - Immigrant
Applications in Canada made on Humanitarian or Compassionate
Grounds)
The Officer who rendered the decision determined that the
Applicant would not face an unusual and undeserved or disproportionate hardship
in returning to Ethiopia.
I. Evidentiary Errors
[7]
In my
opinion, the decision is unreasonable on the basis of six evidentiary
reviewable errors.
A. Speculating on the
impact of removal on the Applicant’s marriage
[8]
In 2005, the
Applicant met Mr. Henok Wodaj, a Canadian citizen, when she was involved with
the Ethiopian Evangelical Church and they were married at the Newtonbrook
United Church in June of 2010. He visited her often. Recently the Applicant’s
husband has accepted work in Charlotte, North Carolina. The Church Administrator, Carol Crump, wrote the
following in support of the relationship:
Everything that I have observed in the
relationship between Tigist and Henok points to a match of love, not of
convenience. He is a devoted fiancé. He has visited frequently, spending as
much time as possible with her while in sanctuary. He always seems happy
here. I noticed him one time bringing in a huge bouquet of red roses! When he
brought her some new clothes, he knew exactly what would please her.
[...]
There is absolutely no doubt in my mind
that Tigist and Henok are in love and I hope that they will have every
opportunity to enjoy the happy marriage that they deserve.
(Application Record, p. 317)
[9]
The Applicant, her
husband, the Church administrator, and as described below, the psychiatrist who
evaluated the Applicant’s mental health, provided considerable evidence
indicating the emotional difficulty that both the Applicant and her husband
were encountering as a result of their separation and the strain of sanctuary.
[10]
The Applicant’s
husband expresses the following hope for keeping the marriage intact if the
Applicant is required to return to Ethiopia:
I lived in Toronto until March 16, 2010 when I was hired by
a company called SCI. This company placed me at IBM in Charlotte, North Carolina, USA, where I currently work as a systems
analyst. My contract is for 1 year. If I am able to renew my contract, I am
interested in seeing if it is possible to transfer to a position in Canada with
the same company.
[…]
I intend to sponsor my wife. I am also
considering bringing my wife with me to US if I am not able to transfer to a
position in Canada. I am currently working in the US on a TN visa. If I am
able to acquire an H1B visa, I may be able to sponsor my wife and have her come
live with me in Charlotte until the end of my contract.
(Affidavit of June 2010, Applicant’s
Appendix, Volume 5, p. 894)
With
respect to the practical future viability of the marriage, the Officer cites a
number of concerns but also states a conclusion about the future:
Henok writes that it is his hope that the
applicant can live with him in the US but if that does not work out then he
will look into transferring to IBM Canada. To date submissions are silent as
to possible avenues available to them in this regard.
[...]
The applicant’s husband has not indicated
what possible steps are available to them or what steps he has taken to seek
out sponsorship information. In his most recent letter (undated but submitted
in December 2010) he writes that he is having difficulty both emotionally and
financially coming to visit his wife in Canada but he hopes to see her at
Christmas.
Details of the applicant’s current living
arrangements informs that she continues to live in the basement of the church.
She is provided with an area for sleeping, accommodation for personal hygiene
and access to food. The applicant submits that she has not left the church
since October 2009 for fear of being discovered. She writes of the restrictive
nature of her living arrangements and states that her emotional state has
deteriorated since the wedding. She has not had visits from her parents or
sisters although her husband has visited twice.
[...]
The applicant’s family are residents of
the United States. Her husband has a US visa and is
living and working in the US. He states that he would like her to live with
him in the US. He has not indicated what steps that he has taken to ensure
their future together in that country. He has not indicated how granting the
applicant status in Canada would assist him in getting her status to live in
the US, assist him financially or alleviate his burden of travel. Submissions
from the applicant are silent as to the possibility or willingness of her
spouse to sponsor her from Ethiopia either to live in Canada or the US. The
applicant has not indicated that US policies require her to be a Canadian
resident in order for them to be together in the US. Permanent residency in
Canada does not necessarily guarantee entry to the US. International law
supports the belief that countries have the right to control their own borders
and immigration laws. While the applicant’s husband submits that it was
difficult to move to the US and be separated from his wife, it was nonetheless,
within his control.
[...]
It is reasonable to believe (in the
absence of evidence to the contrary) that she would continue to receive the
emotional support of her husband and family in a long distance relationship.
It is also reasonable to believe that any steps or queries into having the
applicant join her husband in the US would continue. Evidence does not support
that it would not.
[...]
I acknowledge that a spousal separation
is difficult however the hardship of being separated from her husband is based
on a decision to marry someone who continues to reside outside of Canada.
[Emphasis added]
(Reasons for Decision, Application
Record, pp. 10 – 19)
[11]
Thus, while
identifying the obstacles that must be navigated to sustain the marriage if the
Applicant returns to Ethiopia, nevertheless, the Officer concludes that it is
reasonable to believe that a positive immigration outcome will continue to be
pursued, and, in the meantime, the marriage can be sustained. In my opinion
there is no evidence to support this conclusion; the belief is conjecture. It
is also possible to speculate that there is no way that the Applicant and her
husband will ever be reunited given the fact that this hope is completely dependent on success
in navigating the complexities and vagaries of the US or Canadian immigration
systems in anything approaching a reasonable time, and, as a result, the
marriage will be at an end.
B. Mischaracterizing the
psychiatric evidence
[12]
The Applicant
provided the Officer with two reports prepared by Psychiatrist Dr. James
Deutsch who assessed her mental health. The first was as a result of a meeting
with the Applicant in early June of 2010, and the second from a 45-minute
telephone assessment approximately six months later.
[13]
In the first report
Dr. Deutsch concluded that:
Despite the trying circumstances of her
life, Ms Damte presented as generous, giving, desiring to be productive and to
contribute to society in Canada, and to be able to have the basic things in her
life. Her attempt to maintain a semblance of normality, however, is punctuated
with frequent episodes of extreme anxiety consisting of bodily experiences and
reminders of the threats and the torture that she experienced in Ethiopia. Her
family is in North America. There is no remaining family in Ethiopia. They
were all able to escape and find safety.
Ms Damte presents with symptoms that are
quite commonly seen in individuals who have experienced physical and
psychological trauma, dislocation, and prolonged and acute uncertainty and
inability to plan their future. These symptoms do not in themselves imply an
underlying psychiatric disorder, but are frequently understood to be a human
reaction to defined acute and chronic stress. I would however recommend she be
able to see a medical practitioner to rule out the possibility of any physical
condition whose symptoms might overlap.
Were it be required that she return to
Ethiopia, it would involve not only risk to life and limb, but an unbearable
separation from all that matters to her. The psychological pain and trauma
would be devastating to Ms Damte.
(Application
Record, p. 321)
Following
his second discussion with the Applicant, Dr. Deutsch provided the following
update observations:
Ms Damte’s condition has deteriorated
under her current conditions of not knowing what life will bring, and of having
no control or plan.
[…]
Similar to well-described cases of
prisoners of war, she is faced daily with extreme uncertainty, not only for her
physical and psychological safety and continuity, but now as well she is faced
with loss of a primary relationship [with her husband] and of the possibility
of a meaningful future, which she clearly desires, as does any human being. She
dares not hope. The symptoms she describes, though significantly worse than
during her original assessment in June 2010, continue to represent a coping
response to a situation of chronic uncertainty and traumatic past, and do not
appear to represent an underlying mental disorder. I support the availability
of medical monitoring and care as required, given the potential overlap between
her symptoms and those of certain medical disorders. The availability of
emotional support and companionship is essential.
The urgency of her situation is greater
now. It is hoped that a decision can be expedited, in order to prevent further
worsening of her suffering.
(Application
Record, p. 410)
[14]
With respect to the
quality of Dr. Deutsch’s evaluation, the Officer expressed the following
opinion:
He writes that return to Ethiopia would be difficult for the applicant;
[…]
I find the value of the reports to be
low. The analysis of the report conflates the applicant’s anxiety regarding
the possible return to Ethiopia with the anxiety resulting from the applicant’s
self-imposed confinement. Nonetheless, no course of treatment or medication
has been recommended.
[Emphasis
added]
(Reasons
for Decision, Application Record, pp. 10 – 11)
[15]
The Applicant submits
that the Officer mischaracterized Dr. Deutsch’s findings. Dr. Deutsch
determined that the Applicant would suffer “devastating” psychological
pain and trauma if returned to Ethiopia whereas, in the decision, the Officer
concludes that the situation that would be “difficult” for the
Applicant. I agree that this is a mischaracterization and constitutes a
reviewable error. In my opinion
the Officer’s representation of the psychiatric assessment is so underwhelming
that it constitutes a failure to properly consider the evidence (see: De Sousa v MCI, [2008] FCJ No
1506, at paragraph 22 for a similar finding).
[16]
The Respondent
argues that, absent a psychiatric diagnosis, a psychiatric opinion is not
clinical and that to remain within the confines of clinical observation and
psychiatric expertise, the psychiatrist must use only “clinical terms” or
“objective standards.” In my opinion, this argument misses the point of the
evaluation. Dr. Deutsch was
not asked to make a clinical psychiatric diagnosis but to report on the
Applicant’s mental condition from talking to her and observing her. I reject the notion that such
an assessment can only be validated for evidentiary purposes by making a
clinical finding.
C. Questioning
the Psychiatrist’s expertise and methodology
[17]
The Officer’s
understanding of the purpose of Dr. Deutsch’s involvement is expressed in the
following passage from the decision:
He writes that return to
Ethiopia would be difficult for the applicant; however, I note that he has not
indicated on what objective evidence he bases his belief. Dr. Deutsch has not
indicated that he has expertise on Ethiopia or a personal knowledge of the
applicant’s circumstances in that country.
[…]
Information as to how the interview was
conducted has not been provided. Nor is it clear that the assessment is based
on evidence beyond the applicant’s statements.
(Reasons
for Decision, Application Record, pp. 10 – 11)
[18]
I find that the
Officer is mistaken as to the purpose of Dr. Deutsch’s involvement. It is clear
that Dr. Deutsch’s evaluations were tendered, not for proof of the facts
recounted by the Applicant with respect to objective fear of return to
Ethiopia, but to supply evidence of her current state of mind, and its fragility
in the circumstances of her proposed return to Ethiopia. I find there is absolutely
no basis to question Dr. Deutsch’s methodology applied in reaching the opinions
offered or, indeed, the content of the opinions as quoted above. Because the
mistake played a part in little weight being accorded to Dr. Deutsch’s
evaluation, I find that it constitutes a reviewable error.
D. Disregarding evidence supporting
a rational basis for the Applicant’s fear of return
[19]
In considering the
evidence relating to the Applicant’s political activism, the Officer made the
following assessment:
The panel also found that there was no
evidence that photographs of various events were taken or used by the Ethiopian
government.
[…]
While not bound by the finding of the
RPD, I note that the letters relating to her political activism provided in
this application are similar. They support that the applicant has membership in
several Canadian Ethiopian organizations; however, membership in and of itself
does not necessarily mean that the applicant is perceived to be actively
involved in the organization, its programs or its ideology. Letters in support
of her political profile are vague and lacking in personal details. In terms
of references to Ethiopian country conditions I prefer the documentary evidence
found through research of objective country reports. The statements regarding
a risk to the applicant if returned to Ethiopia are generalized, speculative
and not supported by objective evidence.
(Reasons for Decision, Application
Record, p. 12)
[20]
With respect to the
reality of the risk she would suffer upon her return to Ethiopia, the Applicant
tendered evidence to prove a wide spread suspicion that the Ethiopian
authorities routinely videotape anti-government demonstrations abroad
(Applicant’s Application Record, pp. 94 - 136). I agree with the argument that,
regardless of a determination of its reliability, the evidence was required to
be considered to properly evaluate the subjective fear that the evidence has
caused the Applicant. I find that the Officer’s failure to engage this
requirement constitutes a reviewable error.
E. Concluding on health
care in Ethiopia by independent research without notice
[21]
With respect to the
issue of the Applicant’s mental health and her care upon return to Ethiopia, the
Officer considered documentary evidence found through independent research. Specifically,
the Officer consulted the World Health Organization Report on Mental Health
System in Ethiopia, 2006 (Applicant’s Application Record, p. 411) to make the
following accurate factual finding:
The country has 53 psychiatric outpatient
facilities, 6 inpatient facilities and one mental hospital. There is only one
residential facility in the country for the chronically mentally ill and
several other residential facilities, which have mentally ill clients among
their beneficiaries.
(Reasons
for Decision, Application Record, p. 17)
Based
on this finding, the Officer expressed the opinion that “medical care (including
mental health issues) although limited, is reasonably available to [the Applicant]
in Ethiopia” (Reasons for Decision, Application Record, p. 19).
[22]
The Applicant makes
two arguments with respect to this opinion: it is a breach of natural justice for
the Officer to rely on extrinsic evidence without providing notice and an
opportunity for response, and the opinion is unsupported by the evidence. While
I do not accept the natural justice argument because the evidence consulted was
publicly available prior to the Applicant filing her submissions, I agree that
the opinion constitutes a perverse finding. The evidence is that in Ethiopia there
are 0.003 psychiatrists for every 100,000 people, which is the equivalent of 22
psychiatrists for 80 million people. In my opinion, under no circumstances can
this be found to be “reasonably available” care.
F. Failing to accurately
determine the reality of the Applicant’s life upon return to Ethiopia, and to
decide with respect to that reality
[23]
The first
decision with respect to the Applicant’s request for H&C relief was set
aside because of the decision-maker’s failure to consider an important aspect
of the Application: undisputed deep gender discrimination in Ethiopia. The
issue that the Officer in the present Application was called on to address is the
proven results generated by that discrimination: poverty, violence, powerlessness,
and hopelessness experienced by women.
[24]
I find
that, while the discrimination is identified, its depth and effect established
by the evidence are not fairly and accurately portrayed or applied in the
decision under review. In my opinion, the following statement respecting small
gains does nothing to address the evidence of the entrenched reality of women’s
suffering in Ethiopia:
In Amhara, Addis Ababa and
Oromia, Pathfinder has trained and provided resources to women’s associations
that enable members to earn an independent income and develop business skills.
Through these programs, more than 2,400 women have undertaken training in
small-scale business management. Participants have learned vegetable and
horticultural production and marketing, animal husbandry, pottery making,
restaurants and tea shop management and garbage collection and recycling.
Women form their own savings and credit groups supporting one another as they
develop business skills and repay their loans. Six hundred participants
received loans of money generated through a revolving fund in the Oromia region
while another group of commercial sex workers started small business outside
the sex trade, as did 500 who collect firewood … It doesn’t take long for a
young girl to see her future in a whole new light when presented with the
possibility that, instead of marrying an older man she has never met, she can
finish high school and perhaps even continue to university. She can earn her
own money, and – finally – choose her own husband.
(Reasons for Decision, Application
Record, p. 14)
[25]
The
Officer’s consideration of the evidence of discrimination and the overall
framing of the decision on this issue warrants comment. In the decision, the
Officer states:
A review of the documentary
evidence informs that country conditions in Ethiopia are less than ideal.
There are areas of concern with the treatment of women in the country.
Nonetheless, applicant is not named in the documents nor does the information
support that she is similarly situated. The evidence does not inform that she
would expect to return to a rural part of the country nor is she uneducated.
She has not indicated (nor has the evidence indicated) that female genital
mutilation (FGM) is of concern for a person of her age nor has she indicated
that spousal violence is an issue. It is not enough that the applicant show
the existence of discrimination in Ethiopia, she must show how that
discrimination subjects her personally to a hardship that is unusual and
undeserved or disproportionate.
[…]
While finding employment in
her specific field may be difficult in Ethiopia, I am not satisfied that
it is an unusual and undeserved or disproportionate hardship. It is reasonable
to believe (in the absence of evidence to the contrary) that she would continue
to receive the emotional support of her husband and family in a long distance
relationship. It is also reasonable to believe that any steps or queries into
having the applicant join her husband in the US would continue. Evidence does
not support that it would not.
Difficulties may arise for the
applicant in Ethiopia based on her prolonged
absence from that country; her reluctance to secure employment outside her
particular field of study and her lack of family and friends in Ethiopia. However, her own history
informs that she has faced similar difficulties in the past and been adaptable.
She left home and went to study in Czechoslovakia and Germany at a young age,
without her family, friends or employment. She left Germany and moved to the
US where she found employment. She then, left her family and friends and
re-located to Canada where she submitted that she had no family or friends.
[Emphasis added]
(Reasons for Decision,
Application Record, p. 18)
[26]
In my
opinion, these statements disregard the reality presented in the evidence, and
thus constitute a reviewable error. The euphemistic findings that country
conditions in Ethiopia are “less than ideal” and employment “may be
difficult” cloud the truth: the Applicant will return to Ethiopia as a dysfunctional
woman who will face tremendous culturally imbedded gender discrimination with no
viable coping strategy. In addition, the Officer’s reliance upon the
Applicant’s previous history of adaptability certainly disregards the medical
evidence and the Applicant’s present poor mental health.
III. Conclusion
[27]
Dunsmuir
v. New Brunswick,
[2008] 1
SCR 190 at paragraph 47 establishes the test for a reasonable decision:
Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
I find that the decision under review is unreasonable
because evidentiary error renders it indefensible on the facts.
IV. Final Observations
[28]
While they
do not form part of the reasons for setting aside the decision under review, I
have two final observations to make about key features of the present
Application.
A. Questioning
the Church’s intentions in providing sanctuary to the Applicant
[29]
In support
of her Application, the Applicant provided two letters, one from the Church Administrator,
and one from the Reverend of Newtonbrook United Church, as evidence that the
Applicant is a person in need of humanitarian and compassionate relief.
[30]
In his letter,
Reverend Allan Baker states:
Newtonbrook United Church has a long
history of worship and responsiveness to social needs in the immediate
community and beyond. When affordable housing on Yonge Street was demolished to
make room for high-rise, high-priced condominiums, we offered up our
congregational parking lot to provide 53 units of affordable housing.
[…]
More recently, over the past 10 years, we
have responded to the needs of the hungry and homeless initially through the
“Out of the Cold” program, but now expanded to year-round caring for those less
fortunate than ourselves.
[…]
Against this background, we were made
aware of the plight facing Ms. Tigist Damte a person whose application for
refugee status in Canada has thus far been denied. As we studied her situation
in more detail, we felt that she should be given a fair and reasonable
opportunity to have her case reconsidered. We continue to view this as a
justice issue. But what could we do to help in a meaningful way?
This is a new venture for us as a
congregation. What kind of commitment would we be making.... and for how long?
We soon discovered that our fears were primarily fears of the unknown..., and
unfounded. As we have come to know, respect and love Tigist, we are
appreciating her warmth and personality and the many gifts she has brought to
the life and work of Newtonbrook United Church over the past several months. We
have been providing living accommodation to Tigist since November 2009. Within
the confines of our church building, she has become involved with many aspects
of our congregational life and work. She attends Sunday morning Worship
regularly. She is an active volunteer at our Wednesday Drop Inn, serving meals
to our guests. As jobs are rotated, she helps out in many aspects and quietly
but effectively steps in where she sees things need to be done — a good team
player. She is making strong friendships with several members of the
congregation, including myself and my wife.
[…]
Tigist Damte is a woman who, in my
experience, is able to form healthy relationships; share her skills for the
benefit of others, provide care for people who are marginalized, and contribute
in many meaningful ways to our community. Her presence has certainly enriched
our congregation and she is a blessing to those who know her.
(Application
Record, pp. 315 – 316)
[31]
The Officer
acknowledged that the church community does not view its involvement lightly,
and that the Applicant is the first to whom they have offered sanctuary. However, the Officer questioned the
Church’s intentions:
They became involved because they believe
this to be an issue of justice. Details as to how they became involved with
the applicant or her circumstances have not been provided. A guide for
Lutheran/Anglican ministries in offering sanctuary has been submitted but
procedures used by the United Church (the Newtonbrook United Church in
particular) have not been submitted.
[…]
The evidence from the Newtonbrook United
Church congregation does not inform how they came to determine that the
applicant was a person in need of sanctuary […] The evidence does not inform
whether their decision was based on information other than the applicant’s
statements. Documentation is silent as to whether the justice issue raised by
the church is based on the applicant’s personal circumstances or part of a
broader mandate for the church. The justice issue has not been specifically
identified by the church congregation.
(Reasons
for Decision, Application Record, p. 9)
[32]
It appears
that the Officer’s central concern for precision in the expression of the
Church’s motivation for providing sanctuary to the Applicant acted as a barrier
to seeing the obvious: sanctuary was provided out of humanitarian and
compassionate concern for her well being. By missing this point, the Officer
was not impressed with the Church’s thoughtful perspective of the facts of the
Applicant’s situation. There is no question that the Officer did not have to
accept the Church’s perspective as compelling in reaching the decision under
review, but neither is there any basis for questioning the Church’s care and
concern for the Applicant.
B. Credibly determining
humanitarian and compassionate relief
[33]
The Respondent’s
Guideline test for granting H&C relief has been accepted by Justice
L’Heureux-Dubé as a reasonable start
point of analysis in Baker v Canada (MCI), [1999] 2 S.C.R. 817 at
paragraphs 72 and 74:
The guidelines show
what the Minister considers a humanitarian and compassionate decision, and they
are of great assistance to the Court in determining whether the reasons of
Officer Lorenz are supportable. […] The guidelines are a useful indicator
of what constitutes a reasonable interpretation of the power conferred by the
section, and the fact that this decision was contrary to their directives is of
great help in assessing whether the decision was an unreasonable exercise of
the H & C power.
[…]
While deference should
be given to immigration officers on s. 114(2) judicial review applications,
decisions cannot stand when the manner in which the decision was made and the
approach taken are in conflict with humanitarian and compassionate values.
The Minister's guidelines themselves reflect this approach.
[Emphasis added]
The Guideline test applied as
quoted in paragraph 6 of these reasons bears repeating:
A positive
H&C decision is an exceptional response to a particular set of
circumstances. The hardship of having to apply for a permanent resident visa
from outside of Canada would pose, in most cases, an unusual and undeserved
hardship that was not anticipated by the Act of Regulations. The hardship
in most cases is the result of circumstances beyond a person’s control. Or,
that the hardship would have a disproportionate impact on the applicant due
to their personal circumstances.
[Emphasis added]
Thus, the Guideline test requires a subjective as well as an
objective evaluation of hardship: unusual hardship might only require an
objective analysis, whereas undeserved and disproportionate impact hardship
requires both an objective as well as a subjective analysis. A subjective
analysis requires that the facts be viewed from an applicant’s perspective. In
particular, a disproportionate impact analysis must reflect an understanding of
the reality of life a person would face, in body and mind, if forced to leave
Canada. In my opinion, to be credible in determining these essential features,
a decision-maker must apparently, and actually, apply compassion.
[34]
Applying
compassion requires an empathetic approach. This approach is achieved by a
decision-maker stepping into the shoes of an applicant and asking the question:
how would I feel if I were her or him? In coming to the answer, the
decision-maker’s heart, as well as analytical mind, must be engaged.
[35]
With
respect to undeserved hardship, it is apparent that an operating feature of the
negative decision rendered in the present Application is a finding of deserved
hardship:
Her manner of
remaining in Canada was a choice that she made.
(Reasons for
Decision, Application Record, p.11)
Difficulties may
arise for the applicant in Ethiopia based on her prolonged absence from that
country; her reluctance to secure employment outside her particular
field of study and her lack of family and friends in Ethiopia.
[…]
She then, left her family and
friends and re-located to Canada where she submitted she had no family or
friends.
[…]
[…] she decided to remain in Canada after that time was arguably
within her control. That she has taken the unusual step of seeking sanctuary
is also arguably within her control.
[…]
I acknowledge that a spousal
separation is difficult however the hardship of being separated from her
husband is based on a decision to marry someone who continues to reside outside
of Canada.
[Emphasis added]
(Reasons for Decision,
Application Record, pp. 18 - 19)
In reaching these conclusions, negative to the Applicant’s
request for relief, there is no evidence that an attempt was made to consider each
decision the Applicant made from her perspective. For example, sanctuary was
granted to the Applicant by the Church on the basis that it was “just” for her
to have the opportunity to remain in Canada
until her H&C request was completed. The question is: can the Applicant’s
willingness to accept the offer of sanctuary be accepted as reasonable given
her fear of returning to Ethiopia? A compassionate evaluation might result in
the answer being “yes”. This all-important question was not addressed.
[36]
With
respect to disproportionate impact hardship, a decision-maker must ask the
question: how would I feel if I were this person when the door to the plane
opens upon arrival in the country from which I fled? In the present case, the
question becomes: on arrival in Ethiopia what would it feel like to be an
impoverished middle-aged mentally unstable woman racked with immobilizing fear returning
to a punishing political, social, and economic place which has virtually no
mental health care, with no birth family or marriage support, no job, no
prospect of obtaining meaningful work, no place to live; and, indeed, no
future. Heartfelt compassion might require her to not take the first step. There
is no evidence in the decision presently under review that a credible
disproportionate impact analysis was undertaken.
ORDER
For the reasons provided, the
decision is set aside and the matter is referred back to a different H&C
officer for redetermination.
There is no question to
certify.
“Douglas
R. Campbell”
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