Docket: IMM-3976-14
Citation:
2015 FC 346
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, March 19, 2015
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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BINTOU WANN
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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 RESONS
[1]
This is an application for judicial review of the
decision of a senior immigration officer (the officer) of Citizenship and
Immigration Canada, dated March 25, 2014, rejecting the application
for permanent residence on humanitarian and compassionate grounds of the applicant,
Bintou Wann. The applicant, an unsuccessful refugee protection claimant, was
seeking an exemption from the regulatory requirements to be able to make her
application from Canada, mainly on the grounds that she is suffering from
severe depression with risk of suicide and would not have access to care in her
country of origin.
[2]
For the reasons that follow, I find that this
application for judicial review must be dismissed.
I.
Facts
[3]
The applicant, a citizen of Guinea, arrived in
Canada on August 9, 2010. Upon her arrival, she claimed refugee protection
on the grounds that her father wanted to force her to marry her cousin, who was
already married. She also claimed that she was no longer a virgin and that she
therefore risked being repudiated by her future husband and ostracized from her
own family.
[4]
The refugee protection claim was rejected by the
Refugee Protection Division (RPD) of the Immigration and Refugee Board on
February 11, 2012, on the grounds that the applicant was not credible
because she had given different versions of her story to Canada Border Services
Agency (CBSA) officers, on her Personal Information Form and during her
testimony before the RPD. In particular, there were contradictions in her story
about her name, her date of birth, her father’s job, and the reason she came to
Canada originally. In her original refugee protection claim, she had mentioned
that she came to Canada from Guinea, but the CBSA discovered that she came from
Spain, where she had been studying for at least a year, and that she had a
valid three‑year study permit for Canada. She had also omitted to report
at the outset that her mother had been driven out of the family home for
refusing to marry. The RPD found this forced marriage story to be implausible,
given that her father had given her freedom to study abroad at his expense, that
he was himself a university professor, and that there was no objective evidence
to corroborate her story. Moreover, the applicant had told the CBSA that her
forced marriage story was made up. For all these reasons, the RPD rejected her
refugee protection claim, and leave to file an application for judicial review
of that decision was denied by this Court on June 7, 2012.
[5]
The applicant then applied for permanent
residence in Canada on humanitarian and compassionate grounds on
July 5, 2012. In support of that application, she provided several
documents to show her establishment in Canada (certificate of employment, letter
confirming her volunteer work, bank statements, electrical and Internet bills,
notice of assessment) and several medical letters and documents to show that
she is suffering from depression requiring care and medication that will not be
available to her in Guinea. Lastly, the applicant also filed several reports
concerning practices of polygamy, arranged and forced marriages, and genital
mutilation that take place in Guinea, as well as a handwritten letter dated
May 8, 2012, allegedly from her mother, that mentions her being
expelled from the family home.
[6]
At the same time as her application for an exemption
on humanitarian and compassionate grounds, the applicant also filed an
application for a pre-removal risk assessment (PRRA), which the officer rejected
on March 24, 2014. No application for leave and for judicial review
was filed in respect of that decision.
II.
The impugned decision
[7]
The officer rejected the application for
permanent residence on humanitarian and compassionate grounds on
March 25, 2014. She first considered the proof of establishment and
concluded that despite the applicant’s efforts to establish herself in Canada,
her establishment was nothing exceptional and did not show that a return to
Guinea would present any unusual and undeserved or disproportionate hardship.
The officer noted that the applicant had spent most of her life in Guinea with
her family and that she had no family ties to Canada.
[8]
The officer then reiterated the conclusions of
the RPD with respect to the three versions of events presented by the applicant
and the resulting lack of credibility. As for the notes from Dr. Billon (emergency
room doctor at the CHUM), Ms. Montesino (intervention officer at the Program
for the Settlement and Integration of Asylum Seekers, or PRAIDA) and
Dr. Beauregard (doctor at PRAIDA), the officer concluded that far from
supporting her forced marriage story, they merely added to the contradictions
already raised by the RPD. She noted in particular the following
contradictions:
- The applicant
allegedly told Dr. Billon that her mother, brothers and sisters were
deprived of food and beaten by her father, an element that she never
mentioned before and which is unlikely since her father invested
considerable funds in her education and accepted her choice to continue
her education in Canada.
- The applicant
allegedly told Ms. Montesino that her mother was a victim of domestic
violence and had left the home because of a dispute with his other wife,
when previously she had said that her mother had been turned out because
of her refusal to marry.
- The applicant
allegedly told Dr. Beauregard that she came to Canada to avoid a
forced marriage when she had always said that she came to Canada to study
and that it was only on arriving in Canada that her father asked her to
return to Guinea.
[9]
As for evidence of her depression, the officer
concluded that it had little probative value. The applicant had claimed that
she would not have access to the care required by her condition in Guinea.
However, the officer pointed out that the applicant was not very cooperative
with respect to the care she was obtaining here since the letter from
Dr. Beauregard indicates that the applicant is “unresponsive to
treatment”, and the notes in the file show that she admitted not taking her
medication and had missed several appointments. In addition, the officer
believes that the findings of her doctors are based on a story of forced
marriage that she admitted to the CBSA to having made up. Accordingly, the
officer ascribed no weight to them.
[10]
The applicant had also submitted a letter from
Dr. Jarvis from the Montréal Jewish General Hospital in which he reported
that the applicant had been diagnosed with major depression including suicidal
thoughts, and that she had attempted suicide by taking a lethal dose of
acetaminophen in early 2013. In this regard, the officer noted that the blood
and urine tests done in the emergency room by Dr. Billon had proven to be
negative, that the applicant had been released the same day and that she had come
to the emergency room on her own, not by ambulance. Accordingly, the officer
ascribed no weight to Dr. Jarvis’ statement that the applicant had
attempted suicide.
[11]
As for what the applicant submitted as being a
letter from her mother, the officer found that there was no way to verify the
identity of the letter’s author and that, in any event, the letter had little
probative value given that her mother is an interested party.
[12]
Lastly, with respect to the documentary evidence
regarding the conditions facing women in Guinea, the officer observed that such
evidence does not explain the many contradictions between the different
versions given by the applicant. Furthermore, the applicant does not have the
profile of a person at risk of being forced into a marriage, as this phenomenon
generally happens to minor girls living in families with conservative values
and little education. This is not the case for the applicant whose father is a
relatively wealthy university professor who allowed his daughter to study
abroad at his expense. The officer therefore believed that the applicant did not
have the profile of a girl mistreated by her parents who has no say in her
future.
[13]
For all these reasons, the officer concluded
that the applicant did not demonstrate that her return would represent unusual
and undeserved or disproportionate hardship and therefore rejected her
application.
III.
Issue
[14]
The only issue in this instance is whether the
decision made by the officer is reasonable given the evidence in the record.
IV.
Analysis
[15]
There is no dispute between the parties that the
applicable standard of review is that of reasonableness. The related case law leaves
no doubt in this regard: see for example Bah v Canada (Minister of
Citizenship and Immigration), 2014 FC 345 at para 19; Daniel v Canada
(Minister of Citizenship and Immigration), 2011 FC 797 at paras 11-12;
Sabadao v Canada (Minister of Citizenship and Immigration), 2014 FC 815
at para 19.
[16]
Moreover, I agree with the respondent that the
letters attached to Exhibit “B” of the applicant’s affidavit (except for the
letter from Dr. Jarvis dated November 19, 2013) constitute new
evidence and must be removed from the applicant’s record. It is well
established that the evidence before a reviewing court is limited to that which
was before the administrative tribunal; in other words, evidence that was not
before the officer and that goes to the merits of the application on
humanitarian and compassionate grounds is not admissible in the application for
judicial review in this Court: Association of Universities and Colleges of
Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 at paras 19-20.
The only exceptions to this principle relate to situations where receipt of
evidence would not be inconsistent with the differing roles of the reviewing
court and the administrative tribunal, for example, when it is a matter of
identifying procedural unfairness. That is not the case here. The documents in
question are dated at least two months after the impugned decision and
essentially seek to show the excessive hardship the applicant would face because
of her mental health issues should she return to Guinea.
[17]
Counsel for the applicant argued that a letter from
the Donka University Hospital Centre to the effect that the applicant could not
receive care for her depression in Guinea had been submitted in support of the
PRRA application. That letter was similar to but predated the letter of
May 27, 2014, filed as part of this application. According to
counsel, the officer erred in not taking that letter into consideration when
reviewing the application on humanitarian and compassionate grounds. In the
absence of evidence that such a letter was indeed part of the PRRA file, I
granted the applicant’s counsel additional time to provide that evidence.
Mr. Sangré took advantage of this opportunity and sent the Court and the respondent
a letter from the University Hospital Centre, dated February 1, 2013,
which is essentially to the same effect as the letter dated May 27, 2014.
However, Mr. Sangaré did not provide any evidence that this document had
actually been submitted to the officer responsible for examining the PRRA
application. Indeed, the affidavit from Ketsia Dorceus, a legal assistant at the
Quebec Regional Office of the Department of Justice Canada, indicates that no
letter from the Donka University Hospital Centre exists in the CBSA file. In
these circumstances, the applicant cannot claim that this letter should have
been considered by the officer as part of her application on humanitarian and
compassionate grounds and must therefore be removed from her file before this
Court.
[18]
After carefully considering the arguments of
both parties, I conclude that the officer did not commit a reviewable error in
considering the evidence of establishment. The officer acknowledged that the applicant
had demonstrated some establishment and that her job constituted a positive
factor. However, she considered that this was not sufficient to establish that
she would experience disproportionate hardships if she returned, given that she
had spent most of her life in Guinea with her family and had no family ties to
Canada. It was up to the officer to weigh the relevant factors, and this Court
may not intervene solely because it would have weighed those factors
differently. Furthermore, it must always be remembered that the issue is not
whether the applicant would make a positive contribution to Canadian society or
would integrate well into Canada. Rather it is the applicant’s responsibility
to prove that the rule requiring her to apply for a visa from outside Canada
would result in her experiencing unusual and undeserved or disproportionate
hardship. The officer could conclude that the start of the applicant’s
establishment in Canada was not sufficient in itself to meet this burden of proof.
[19]
The applicant argued that the officer read her
medical file in a selective, if not biased, manner. I consider this claim to be
unfounded. On the contrary, the officer spent considerable time reviewing the
evidence submitted in this regard and explained why she had given it little
weight. The officer essentially had three reasons for her conclusions:
- The applicant
was not very cooperative, admitted not taking her medication, missed
several appointments and in some cases arrived very late, according to Dr. Beauregard’s
notes;
- No weight can be
ascribed to the psychological assessments, given that the applicant
changed her story based on the person she was speaking with, and she was
deemed not to be credible by the RPD in this regard;
- The applicant’s
suicide attempt must be considered with circumspection, given that the
notes of the doctor who saw her in the emergency room reveal that the
blood and urine tests were negative. Furthermore, she went to the hospital
herself and was released the same day.
[20]
It is clearly the officer’s responsibility to
assess the probative value of medical reports, as is the case for any other
evidence. As part of that exercise, she could rightly take into consideration
the applicant’s lack of credibility: see Mpia-Mena-Zambili v Canada (Minister
of Citizenship and Immigration), 2005 FC 1349 at para 60; Palka v
Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 165
at para 17 [Palka].
[21]
The officer did not err in finding that the
evidence was insufficient to establish that the applicant had ingested a lethal
dose of acetaminophen in March 2013. The notes in her CHUM file of
March 4, 2013, indicate that she arrived at the emergency room herself and
that she was released the next day when the doctor found that her acetaminophen
level was “OK”. It is true that the doctor who received the applicant at the emergency
room noted her passive suicidal thoughts and gave the opinion that she was
perhaps suffering from post-traumatic stress disorder, with probable evolution
to major depression and chronic suicide risk that is no longer active. He also
noted that the applicant was very stressed, notably because of matters relating
to her status in Canada. However, these observations are based on a single
interview with the applicant, and the officer’s reasons for giving little
weight to the other psychological assessments are just as valid for this very
preliminary opinion by the emergency room doctor.
[22]
As for the assessment of the evidence with
respect to the applicant’s cooperation with treatment, it also seems completely
reasonable to me. Dr. Beauregard’s progress notes reveal that the applicant
showed up late and postponed or cancelled several of her appointments. It is
true that Dr. Beauregard, in writing that the applicant was [translation] “treatment resistant” no
doubt wanted to indicate that the treatments did not appear to have an impact
on the illness and not that the applicant herself was not submitting to the
treatments, as the officer implies. It does not change the fact that
Dr. Beauregard encouraged the applicant to translation]
“[remain compliant with her Rx” (Tribunal Record, p. 126) and noted a bit
later that [translation] “Major
depressive disorder improved, possible effect of better compliance with
[treatment]” (Tribunal Record, p. 129). On this basis, the officer could
conclude that the applicant had not always cooperated in the treatment of her
illness.
[23]
There is no question that the applicant suffers
from psychological problems, but it is difficult to determine the exact extent
of them, given the low probative value of the medical reports submitted in
support of her application. However, these problems seem to result more from
her fear of having to leave Canada than from the risks she might face in
Guinea. It is well established that the depression or stress caused by the
prospect of removal from Canada would not be sufficient to establish the
existence of unusual and undeserved or disproportionate hardship. These are the
consequences inherent in the enforcement of the Immigration and Refugee
Protection Act, SC 2001, c. 27; if it were otherwise, section 25
of the Act would open the door to numerous abuses and would make it possible to
easily circumvent the requirements imposed by Parliament to obtain permanent
residence in Canada: see Palka, above at para 17.
[24]
Furthermore, the applicant did not provide
evidence that she would be unable to obtain the care, treatment and medication
that her condition may require in her country of origin. As mentioned
previously, the letter from the Donka University Hospital Centre was not
submitted to the officer, and there is nothing to prove the authenticity of the
two versions of that letter. The burden was on the applicant to establish that
her removal presented unusual and undeserved or disproportionate hardship for
her, notably because of her state of health. In the absence of evidence that
the social and health system in Guinea cannot deal with her, her application
for permanent residence on humanitarian and compassionate grounds could not be
accepted.
[25]
For all these reasons, I find that the
application for judicial review must be dismissed. The parties did not submit
questions for certification, and none will be certified.
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