Docket: IMM-4109-13
Citation:
2014 FC 545
Ottawa, Ontario, June 6, 2014
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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LIJIN LI
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of a decision by an
Immigration Officer denying the Applicant’s H&C application. This Applicant
is also the subject of a judicial review of a Refugee Protection Division [RPD]
decision denying her refugee protection in Federal Court File No. IMM‑2287‑13.
[2]
The circumstances of the Applicant’s life are
sad and the treatment of her by both the department and an independent
quasi-judicial tribunal is unpalatable.
II.
Background
[3]
The Applicant is a 26 year old Chinese citizen.
Her mother died in 2005 and the Applicant came to Canada on a student visa. She
suffers from mental illness and has spent approximately two of the past eight
years in shelters; she has also lived on the street and she has had continuing
mental health issues – described by one psychiatrist as an illness now controlled
but not cured.
[4]
Upon arriving in Canada, the Applicant began
practising Christianity. This should have been the central issue in her RPD
decision.
[5]
In respect of this H&C, the Applicant was
admitted in December 2008 to the Toronto General Hospital in-patient
psychiatric unit where she was diagnosed with having a major depressive episode
with psychotic features. Her symptoms included hallucinations and delusions.
She was prescribed medication and released.
[6]
Between December 2008 and September 2010 the
Applicant was admitted to psychiatric wards on five occasions with stays of
between two weeks and one month.
[7]
She subsequently enrolled in college and has
been residing at the home of a senior official in the psychiatric department of
a major Toronto hospital.
[8]
In the Immigration Officer’s decision refusing
the H&C application, the Immigration Officer, in compliance with s 25 (1)
and (1.3) of the Immigration and Refugee Protection Act, SC 2001, c 27,
disregarded the risk factors regarding her Christian faith. However, the
Immigration Officer made three critical findings:
•
that the Applicant’s psychotic depression/lapse
was the result of separation anxiety as a consequence of travelling alone to a
new country and that it was reasonable that her psychosis will diminish “as she is back in her native culture and language and among family
and friends”;
•
that China had sufficient medical resources
reasonably available to the Applicant to treat her mental illness; and
•
that in respect of establishment and hardship,
the Applicant’s separation from her ability to practise her religion was not
hardship which the Immigration Officer could consider. Further separation from
her Canadian social network would not be hardship.
An error on any one
or more of these findings is fatal to the decision.
III.
Analysis
[9]
The only real issue in this matter is whether the
Officer’s findings are reasonable. These findings are reviewable on the
standard of reasonableness (Norbert v Canada (Minister of Citizenship and
Immigration), 2014 FC 409).
[10]
As this matter will be sent back for
redetermination, the Court will not comment on matters beyond that which is
necessary to dispose of this judicial review.
[11]
The Immigration Officer made a fatal error in
coming to his own conclusions on the source of the Applicant’s psychiatric
problems. It was a determination made in the absence of any evidence to support
a finding that this source of the psychiatric problems was the “culture shock”
of coming to Canada.
[12]
There is no basis for amateur diagnosis. The
Immigration Officer has no expertise in this field and there is no medical
evidence to support this diagnosis. Culture shock, on the evidence, exacerbated
the medical problems but was not found to be the root cause.
[13]
Moreover, the conclusion that return to China would be tantamount to a cure is unsupported and bizarre.
[14]
In addition, in considering the evidence of
mental health treatment in China, the Immigration Officer focused exclusively
on services in Shanghai and Beijing. While the evidence of the services there
may not be totally reassuring, the analysis strayed from reasonableness in
failing to link those few facilities identified with the Applicant’s ability to
access them from her home city.
[15]
The Immigration Officer’s review of evidence on
this point was cursory. It may have been influenced by the Immigration
Officer’s unreasonable conclusions on the source of the mental illness and the
likelihood of a cure by returning home.
[16]
There is no need to say anything on the issue of
establishment/hardship other than it lacked depth.
IV.
Conclusion
[17]
For all these reasons, this judicial review will
be granted, the decision quashed and the matter remitted back for a new
determination by a different official.
[18]
There is no question for certification.
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