Docket:
IMM-3132-13
Citation: 2014 FC 274
Calgary, Alberta, March 20, 2014
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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GERSON
RAMIREZ AGUIRRE
ROSA
MARIA SANDOVAL
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Applicants
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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]
For the reasons that follow, this application
for judicial review is allowed and the decision of an immigration officer,
dated April 2, 2013, determining the Applicants should not be granted a
humanitarian and compassionate exemption under section 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the H&C decision], is set
aside.
[2]
The Applicants are Mexican citizens with a Canadian-born child. They
first entered Canada in June 2007 on the basis of a student visa issued to Mr.
Ramirez Aguirre. In August 2007, the couple returned to Mexico. On October 31, 2007, Mr. Ramirez Aguirre obtained a temporary work permit and
reentered Canada; Ms. Sandoval entered Canada as a visitor in November 2007.
[3]
On October 21, 2008, they had a son, Luis Olegario Ramirez Sandoval. He
is a Canadian citizen by birth and at the time of the H&C decision, was
four and a half years old.
[4]
In August 2009, the couple asked for Canada’s protection as refugees,
claiming persecution due to an incident involving the army and a brutal assault
on Ms. Sandoval’s brothers. She testified that her brothers were attacked by
the Mexican army, doused with gas, and set on fire. One of her brothers died.
The couple claimed they feared the army would persecute and murder them if they
returned to Mexico. The Board accepted their story as credible, but did not
find that the family would continue to be persecuted. The claim was denied on November
10, 2011.
[5]
In February 2012, the couple made their application for an H&C
exemption to permit them to apply for permanent residency from within Canada. They claimed they would face hardship if returned to Mexico. They referenced the
violence in Mexico, the poverty in the areas where they had lived, and the lack
of opportunity to peacefully raise their family. Included with the application
was a letter from a counselor at the Calgary Immigrant Women’s
Association that stated that Ms. Sandoval suffered from post traumatic stress
disorder [PTSD] arising from her brothers’ treatment at the hand of the Mexican
military, and which recommended that she remain in Canada.
[6]
It was further claimed in the H&C application that
the best interests of their Canadian child favoured the family remaining in Canada, because Luis would be forced to endure risk and hardship, and would not have the safe and
secure life he enjoys in Canada.
[7]
The officer determined that the Applicants had not shown undue,
undeserved or disproportionate hardship, and that the hardship to the child was
not determinative. I agree with the officer that the child’s best interest is
not dispositive; however, the officer’s analysis of those best interests and of
the hardship to Ms. Sandoval is otherwise lacking in intelligibility.
[8]
The officer’s examination of Ms. Sandoval’s PTSD
and hardship on her if she were required to return to Mexico is captured in the
following statement: “Objective documentary evidence obtained through
independent research shows that treatment is available for [Ms. Sandoval] in
Mexico and that accessing such treatment would not constitute an unusual and
undeserved or disproportionate hardship.” However, treatment was never the
issue; rather, the focus of the expert opinion which the officer accepted, was
that Ms. Sandoval would suffer psychological harm if returned to the country
that was the cause of her PTSD. This is evident from the following passage in
the opinion letter:
It is my
recommendation that she remains in Canada, where she feels safe and secure. In
Canada, she can restore her ability to make choices, taking back control of
her life and becoming self-reliant. Once she feels safe, she will be able to
continue supporting and contributing positively to her family of origin. The
role of community for healing PTSD survivors is extremely important.
Unfortunately, in Mexico, she won’t be able to find that sense of security and safety
that is crucial for her recovery. If she returns to Mexico, which is where her
family was assaulted, it is almost sure that she will remain in a state of
hyperarousal, hypervigilance and recurrent thoughts which will perpetual [sic]
the traumatic experience. Without this sense of safety and ability to control
her own life, recovery can’t start for Rosa.
[9]
The officer’s failure to properly assess this
evidence is a reviewable error.
[10]
Further, I find that the officer’s assessment of
the child’s best interest also constitutes a reviewable error.
[11]
First, the officer only assessed Ms. Sandoval’s
PTSD through the lens of undue and undeserved or disproportionate hardship, not
through the lens of the best interests of the child. Justice O’Reilly recently
dealt with a similar situation in Perez Alcocer v Canada (Citizenship and
Immigration), 2013 FC 3, where at paras 9 and 10 he stated:
The officer considered a psychological
report in which Mr. Perez Alcocer was diagnosed with Post Traumatic Stress
Disorder (PTSD). She noted that there was no evidence that Mr. Perez Alcocer
was being treated for his condition or that treatment was unavailable in Mexico.
However the officer did not consider
some of the report’s key findings. It states that Mr. Perez Alcocer sleeps
poorly and worries about his family’s safety; he experiences dissociative
behaviour and memories of traumatizing events; if he returns to Mexico, Mr. Perez Alcocer’s condition will worsen because of his fear for his family; the entire
family will feel the psychological effects of a return to Mexico. The officer did not refer to these factors.
[12]
In this case, the officer accepted the professional
opinion that Ms. Sandoval will “remain in a state of hyperarousal,
hypervigilance and recurrent thoughts” but failed to note the other aspects of
the report, set out below, that go to the best interest of the child:
During the first
sessions, she presented anxiety symptoms: constant crying and difficulty
speaking. In addition, she could not keep eye contact. She was experiencing
overwhelming helplessness, terror and guilt. Rosa has been subject to a very
traumatic experience. She has constant nightmares and she presents emotional
detachment. She also shows shame and survivor guilt. She said that she was
constantly alert and worried about safety in general. She also had anxiety
symptoms such as a rapidly beating heart and sweating. These are symptoms of
hypervigilance and hyperarousal which are common of PTSD. Her sense of self
and safety has been shattered. It seems that she is in an existential crisis
where the fundamental assumption about safety doesn’t exist. Regaining in a
sense of safety and basic trust is imperative for her recovery.
Rosa has been working very hard in her recovery. We have established a
very good rapport and a safe environment where she has been able to tell her
story and display emotions. We have worked together to make sense of her
experiences. This has allowed her to reconnect with herself and to be aware of
herself in relation to her experience. She is now able to control some of her
anxiety using breathing and relaxation techniques. She also has been working
on recognizing distorted thinking, and she is more aware of her self talk.
Before she was
very isolated, now she is participating in different programs in the community.
Rosa is able to participate more actively in her son’s life, and she has very
good support from her husband. (emphasis added)
[13]
In the best interests of the child analysis, the
officer overlooks the impact that a relapse of PTSD symptoms in Ms. Sandoval
would have on the Canadian child, and whether this amounts to hardship.
[14]
The Respondent submits that psychological
reports are a form of advocacy, and an officer is entitled to determine the
weight given to it for immigration purposes: Palka v Canada (Minister of Public Safety and Emergency Prepareness), 2008 FCA 165 [Palka]
at para 17.
[15]
Palka is a case
about irreparable harm required for a stay of removal. It was said by the
Federal Court of Appeal at para 17 that:
Jadwiga relies on
a report from a psychologist stating that a return to Poland would cause her psychological harm. In my view, this is an insufficient evidential basis to
establish irreparable harm. First, the report was based largely on what
Jadwiga told the psychologist about her experiences; however, the Board has
found her evidence of spousal abuse to be non-credible, a decision which the
PRRA officer held was not overcome by new evidence. Second, Jadwiga and the
psychologist had only one meeting and there was no evidence of any follow-up
treatment. Third, the report was prepared in 2006 to assist Jadwiga in her efforts
to remain in Canada on H&C grounds and is thus, to an extent,
self-serving. Fourth, stress and depression caused by the prospect of removal
from Canada are of little relevance in this context since they are inherent in
the enforcement of the Act.
[16]
Justice Shore has explained Palka in Roh v Canada (Minister of Public Safety and Emergency
Preparedness), 2011 FC 1273 para 52, as follows:
In addition, Ms. Roh
argues that news of her potential deportation has exacerbated the deterioration
of her mental health and that there would obviously be irreparable harm if she
were to act on her suicidal thoughts upon confirmation of her deportation from
Canada; however, the Federal Court of Appeal has held that psychological
stress, depression or anxiety arising solely from the removal does not
constitute irreparable harm (Palka v Canada (MPSEP), 2008 FCA 165, at
para 17). (emphasis in original omitted)
[17]
The Respondent’s reliance on Palka is
misplaced. It dealt with a psychological report alleging damaging psychological
conditions arising solely from removal, based on a single
interview, designed for an H&C application, and from a non-credible
applicant. In those circumstances the Court of Appeal held that it may be
discounted.
[18]
In this case, the Board found the Applicants
credible in their refugee protection claim. The report, though written to
advocate for Ms. Sandoval in her H&C application, was written after more
than 20 sessions, and does not mention stress solely from removal. The
PTSD in this case is based on the violence perpetrated against Ms. Sandoval’s
family in Mexico and her survivor’s guilt associated with that violence. Palka
does not apply.
[19]
In sum, the officer overlooks the impact that a
relapse of prior PTSD symptoms in Ms. Sandoval would have on the best interests
of the Canadian child, and whether this amounts to hardship.
[20]
The officer also fails to consider and assess
how the child’s best interests would be served on a return to Mexico, given the documentary evidence submitted by the Applicants on violence targeted towards
school children and teachers.
[21]
The Applicants submitted a number of articles,
some of which I will highlight:
•
“Mexican schools appear increasingly vulnerable
to the country’s drug violence, with five human heads dumped outside one school
and threats of a grenade attack on another in the past week alone”: “Fears of
violence shake Mexico schools,” Agence France-Presse (2 October 2011);
•
“Suspected drug hitmen dumped six headless
bodies outside a school in northern Mexico Monday…. Assailants left the
bloodied, beheaded men outside the secondary school in the colonial city of
Durango just before dawn and sprayed threatening messages on a nearby wall,
hours before students were due to put on a show to celebrate Mother’s Day…”:
“Gunmen dump beheaded bodies outside school in Mexico,” Reuters (9 May
2011);
•
“In Mexico’s drug war, children are getting
increasingly sucked into the violent narcotics trade. Middle-school-age kids
are working for the cartels as couriers, lookouts and even assassins. Others are
being killed, injured or orphaned in the crossfire”: “War turning Mexican kids
into targets, killers,” National Public Radio (1 May 2011); and
•
“The demand is the same: teachers have until
Oct. 1 to start handing over half of their pay. If they do not, they risk their
lives”: “As gangs move in on Mexico’s schools, teachers say ‘enough’,” New
York Times (25 September 2011).
[22]
The officer found that it is in the best
interests of the child to get an education, and that Mexico provides free
public education for 11 years. Further, the officer noted that “[n]o country,
including Canada … can provide a guarantee that poverty and hurtful incidents
of a criminal or prejudicial nature will not occur in a child’s lifetime.”
[23]
The decision neglects to mention the grizzly
violence, the use of children for narcotics trafficking, and how such an
environment would affect the Canadian child on moving to Mexico and partaking in the country’s educational system.
[24]
The officer is required to conduct a more
thorough analysis. The officer should have examined the options for the child,
either by remaining in Canada without his or her parents or by returning to Mexico to enter a school and education system which appears over-run with corruption,
extortion, and violence. Merely stating that it is in the best interests of
children to be educated does not explain why the child would or would not face
hardship on return to Mexico. The decision is not justified, transparent and
intelligible; I have no way of knowing whether it is a possible acceptable
outcome. As such, it is unreasonable.
[25]
The decision will be set aside. Neither party
proposed a question for certification.
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