Docket: IMM-951-15
Citation:
2015 FC 1337
Montréal, Quebec, December 3, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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LEN VAN HEEST
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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.
Nature of the Matter
[1]
This is a judicial review of a decision made by
a Senior Immigration Officer of Citizenship and Immigration Canada (the officer)
rejecting an application for permanent residence from within Canada on
humanitarian and compassionate (H&C) grounds. The decision is dated
February 10, 2015.
[2]
For the reasons set out below, the application
is dismissed.
II.
Facts
[3]
The applicant, Mr. Van Heest, immigrated to
Canada as a baby with his family in 1958. For reasons unknown, he never
obtained Canadian citizenship. The applicant was diagnosed with Bi-Polar
Disorder at age sixteen. This causes him to have manic episodes during which he
becomes agitated and hostile with disorganized thinking, which can result in
him doing harm to himself and to others. The applicant has been certified under
the Mental Health Act, RSBC 1996, chapter 288, and has been hospitalized
numerous times. He also has a lengthy criminal record, for various offences
which he reports have mainly occurred when he has discontinued his medical treatment.
[4]
On January 2, 2008, a removal order was issued
against the applicant for serious criminality pursuant to paragraph 36(1)(a)
of the Immigration and Refugee Protection Act, SC 2001, c 27, because he
had been convicted of an offence for which a term of imprisonment of more than
six months was imposed. On October 7, 2008, he was granted a four-year stay of
removal on conditions. On February 12, 2009, the applicant breached those
conditions by being convicted of uttering threats. The Minister appealed the
applicant’s stay of removal, but on November 30, 2009, the Immigration Appeal
Division ordered on H&C considerations that the applicant’s stay be
continued until December 2012. Between May 2012 and November 2012,
approximately 32 police reports were filed against the applicant. On December
4, 2012, he was convicted of uttering threats and possessing a weapon for a
dangerous purpose, which again cancelled his stay of removal. On October 29,
2014, the applicant submitted an application for permanent residence on H&C
grounds. That application was refused on February 10, 2015. The applicant now
seeks judicial review of that decision.
III.
Decision
[5]
The officer considered the personal
circumstances of the applicant and determined that the hardship he would face
by having to obtain a permanent resident visa from outside Canada in the normal
manner would not be unusual and undeserved, or disproportionate.
[6]
In coming to this conclusion, the officer
considered the applicant’s criminal record in conjunction with his mental
illness. The officer found that the seriousness of the applicant’s criminal
offences weighed heavily against him when considered in totality with the other
factors that the applicant had advanced in his favour.
[7]
The officer considered correspondence from the
applicant’s forensic case manager (Dean Meyerhoff), his outreach worker (John
Leevers), and his psychiatrist (Dr. Mark Tapper), whom the officer noted had
assisted in stabilizing and maintaining the mental health of the applicant.
However, the officer also noted that though the applicant had had access to
these same support services in the past, he had demonstrated non-compliance
with respect to his medication, and had consequently re-offended. The officer
found that the applicant had been aware that further convictions could result
in his removal. The objectives of Canadian immigration law include protecting
the health and safety of Canadians and maintaining the security of Canadian
society. The officer found that, due to the frequency and severity of the
applicant’s criminal behaviour (sometimes involving violence and weapons), he
posed a potential risk to the safety of the Canadian public.
[8]
In relation to the issues of self-sufficiency
and familial support, the officer noted that the applicant had a close
relationship of co-dependency with his mother, and hence separation from her
could be difficult. However, the officer found that these separation issues
were an inherent rather than unusual consequence of removal from Canada that
family members and applicants must bear.
[9]
The applicant submitted that his removal from
Canada would make him unable to manage his mental illness, as he had no family
ties, no means of financial support, and no place to live in the Netherlands.
He was also unable to speak Dutch. In response to these submissions, the
officer considered the evidence provided by F.W. Verbaas, a lawyer in the
Netherlands, who noted that as a Dutch national, the applicant was entitled to
social benefits including housing and health care, though these services would
have to be arranged in advance. Mr. Verbaas also noted that the language
barrier would not be difficult to overcome, as every Dutchman, and especially
doctors and pharmacists, can speak some English. The officer accordingly found
that the hardship faced by the applicant in establishing himself in the
Netherlands would not be unusual and undeserved or disproportionate.
[10]
In conclusion, the officer found that the
applicant had not demonstrated that he would be personally and directly
affected by adverse country conditions which would amount to unusual and
undeserved or disproportionate hardship. The officer accordingly rejected the
applicant’s requested exemption from having to apply for permanent residence
from outside of Canada, as he found that it was not justified on H&C
considerations.
IV.
Issues
[11]
The applicant asserts that the issues are as
follows:
- Whether the
officer erred by concluding that the harm faced by the applicant if he is
removed to the Netherlands is merely incidental to the removal process;
- Whether the
officer erred by ignoring the evidence regarding the medical and social
services accessible to the applicant if he is removed to the Netherlands;
and
- Whether removal
of the applicant would violate his right not to be subjected to cruel and
unusual treatment or punishment pursuant to section 12 of the Canadian
Charter of Rights and Freedoms, Part I of The Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c 11
[the Charter].
V.
Standard of Review
[12]
The parties initially agreed that the first two
issues should be reviewed on a standard of reasonableness.
[13]
However, in his Further Memorandum of Argument,
the applicant nuances his position by arguing that the officer erred in law by
exercising discretion incorrectly with regard to the nature and scope of that
discretion, and that the appropriate standard of review for this issue is
correctness. As support for this latter argument, the applicant cites the case
of Kanthasamy v Canada (Citizenship and Immigration) which was heard by
the Supreme Court of Canada (SCC) on April 16, 2015, and in which the
appropriate standard of review to be applied when determining the nature and
scope of an officer’s discretion was put in issue (Case No. 35990). A decision
on this case is pending.
[14]
In my view, the appropriate standard of review
on the first two issues in dispute is reasonableness: Baker v Canada
(Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 62. Firstly, these
issues turn on the officer’s understanding and application of the relevant
facts. It does not turn on the officer’s understanding of the nature and scope
of his discretion. Secondly, the appropriate standard of review is not changed
by the fact that an argument has been made (but not yet accepted) before the
SCC.
[15]
With regard to the third issue, the applicant’s
Charter violation argument was not raised before the officer in the impugned
decision. Therefore, no standard of review applies to this issue.
VI.
Analysis
A.
Harm Faced by the Applicant if Removed
[16]
The applicant argues that the officer failed to
understand the nature of the applicant’s mental illness, and therefore failed
to give adequate consideration to the harm he faces if removed from Canada.
[17]
There are certainly some statements in the
officer’s decision which seem callous or unsympathetic to the applicant’s
mental illness and the link between that mental illness and his criminality:
- “The applicant … was expected to keep, like any other member of
society, a good civil record.”
- “I find the applicant was aware of the consequences for his
actions. He was cognizant that further convictions could result in his
removal.”
[18]
However, I am not satisfied that the officer
failed to understand the nature of the applicant’s mental illness. He laid out
the facts of the applicant’s diagnosis correctly, and he acknowledged the
applicant’s argument that his criminality is linked to his mental illness. But
he balanced that fact against the number and seriousness of the applicant’s
offences.
[19]
The officer also acknowledged that support from
the applicant’s forensic case manager (Mr. Meyerhoff), his outreach worker (Mr.
Leevers), and his psychiatrist (Dr. Tapper) “have
assisted him somewhat in stabilizing and maintaining his mental health.”
However, the officer observed that this support has not always been sufficient
to ensure that the applicant takes his medications as prescribed and avoids
criminal behaviour.
[20]
After discussing the applicant’s criminal
behaviour and noting the objective of Canadian immigration law to protect the
health and safety of Canadians and to maintain the security of Canadian
society, the officer concluded that the applicant poses a potential risk to the
safety of the Canadian public. This was a reasonable conclusion. Given the
applicant’s history of recidivism (even after repeated stays of removal), it
seems highly likely that he will reoffend.
[21]
The applicant notes that his criminal history
comprises mainly threats and does not include any serious bodily harm. The
applicant notes that he is not as serious threat as his long criminal history
may suggest. This may be, but I cannot conclude that the officer erred in his
analysis in this respect.
[22]
The applicant notes that, if he were removed
from Canada, he would lose the support of his forensic case manager, outreach
worker, and psychiatrist, as well as that of his mother. He argues that the
officer did not properly consider the potential harm to the applicant from this
loss of support. In my view, the officer did reasonably consider this issue.
The officer commented on the relationship of mutual dependence the applicant
has with his mother, as well as the fact that he has never held employment and
relies on social assistance.
[23]
The officer considered the support the applicant
relies on in Canada and the support he can expect in the Netherlands. The
officer acknowledged that the applicant’s separation from his support network
may be difficult, but that such separation was an inherent consequence of
removal. The officer was not satisfied that the harm the applicant could face was
unusual and underserved, or disproportionate, as must be established in an
H&C application. The officer’s statement that the applicant’s separation
from his support network is an inherent consequence of removal may give the
impression that the officer failed to appreciate the nature of the applicant’s
mental illness and the importance of his support network, however, other
portions of the officer’s analysis indicate otherwise. In my view, the
officer’s conclusion was reasonable.
[24]
It should be kept in mind that the impugned
decision is not a removal order, but rather a decision that the applicant is
not entitled to make his application for permanent residence from within Canada
(which is exceptional), instead of making it from abroad as is usual.
[25]
If the applicant could not be removed under
current conditions, in which his mental illness appears to be well-managed,
then it would seem to follow that he could never be removed. Now, the applicant
might well argue that indeed he should never be removed from Canada. For one
thing, Canada is arguably attempting to export a problematic resident and
simply fixing another country with a problem that originated in Canada and
should be dealt with in Canada. That may be the case, but it is not
determinative. I am focused on the reasonableness of the officer’s decision. In
my view, it was inherent in the previous stays of removal of the applicant
(with conditions attached) that violation of those conditions could result in
the applicant’s removal. Those conditions were indeed violated, and the refusal
of the applicant’s H&C application is an unsurprising consequence of that.
B.
Availability of Services in the Netherlands
[26]
The applicant notes that there were two letters
in evidence concerning the availability of medical and social services in the
Netherlands: one from the Dutch lawyer (F.W. Verbaas), and the other from a
Dutch medical doctor named Petra Evers. Though the officer discussed the letter
from Mr. Verbaas, there is no comment on the letter from Dr. Evers. The
applicant argues that the officer’s decision should be set aside because it
misconstrued the information provided by Mr. Verbaas, and completely ignored
the information provided by Dr. Evers.
[27]
With regard to Mr. Verbaas, the applicant argues
that the officer failed to recognize the important administrative steps for the
applicant before he could benefit from medical and social services in the
Netherlands. I disagree. The officer considered these issues, and acknowledged
the challenges of commencing those services. I am not prepared to find that
such consideration was unreasonable. The officer also considered the
applicant’s argument that he would face difficulties in The Netherlands due to
his ignorance of the Dutch language, and reasonably concluded that these would
be manageable because “every Dutchman can speak some
English”. It may be an exaggeration to say that every Dutch
person can speak some English, but this does not merit setting aside the
officer’s decision.
[28]
Dr. Evers’ letter addressed difficulties the
applicant could expect in accessing health care and treatment, including
getting health care insurance in The Netherlands and the importance of regular
treatment for the applicant. Again, it is my view that the officer reasonably
addressed these difficulties. The officer’s decision acknowledged the
challenges of getting started with medical services in The Netherlands as well
as the importance of consistency in the applicant’s taking of his medication.
It was not necessary that the officer make specific reference to Dr. Evers’
letter.
C.
Charter Argument
[29]
In support of his argument that his removal to
The Netherlands would violate his right not to be subjected to cruel and
unusual treatment or punishment pursuant to section 12 of the Charter, the
applicant cites a report of the United Nations Human Rights Committee
concerning a person identified as A.H.G. (Communication No. 2091/2011) a
Jamaican citizen named Audley Horace Gardner who was a mentally ill long-time
resident of Canada and who was removed to Jamaica (after his H&C
application was denied) for serious criminality that was related to his mental
illness.
[30]
The report concluded that Mr. Gardner’s removal
to Jamaica, which abruptly deprived him of the medical and family support in
Canada on which he was dependent “constituted a
violation by [Canada] of its obligation under article 7 of the [International]
Covenant [on Civil and Political Rights].” Article 7 is somewhat similar
to section 12 of the Charter: “No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.”
[31]
Though there are some similarities between the
facts as set out in this report and those concerning the applicant in the
present case, it is critical to note that the report concerns a particular
situation in Jamaica. Whether a person’s removal to Jamaica constitutes cruel
and unusual treatment or punishment is not determinative of whether another
person’s removal to The Netherlands constitutes cruel and unusual treatment or
punishment. For example, I have seen nothing to indicate that the situation of
access to medical services in The Netherlands is at all similar to the
situation in Jamaica.
[32]
The applicant refers to the decision in Canadian
Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 at para
614 [Canadian Doctors for Refugee Care], for a discussion of factors to
be considered in determining whether treatment or punishment is “cruel and
unusual”:
[614] In determining whether treatment or
punishment is “cruel and unusual”, Canadian courts have looked at a number of
factors as part of a kind of ‘cost/benefit’ analysis. These factors include
whether the treatment goes beyond what is necessary to achieve a legitimate
aim, whether there are adequate alternatives, whether the treatment is
arbitrary and whether it has a value or social purpose. Other considerations
include whether the treatment in question is unacceptable to a large segment of
the population, whether it accords with public standards of decency or
propriety, whether it shocks the general conscience, and whether it is
unusually severe and hence degrading to human dignity and worth: [citation
omitted].
[33]
Given all of the circumstances in the present
case, including the applicant’s long history of criminality, his repeated
failure to comply with conditions connected to previous stays of removal that
have been granted to the applicant, and the relatively well-developed system of
medical and social services in The Netherlands, I am not satisfied that the
decision to require that the applicant make his application for permanent
residence from abroad shocks the general conscience or raises concerns in
relation to any of the other factors mentioned in the previous paragraph.
[34]
The respondent argues, among other things, that
(i) the applicant’s Charter violation argument should not be considered because
it was not raised before the officer; and (ii) even if the applicant’s Charter
violation argument is considered, the evidence is inadequate to support it.
[35]
With regard to the threshold question of whether
the applicant’s Charter violation argument should even be considered, I agree
that the Charter issue was not raised before the officer, and so it would not
normally be considered in a judicial review. However, I need not decide this
threshold question because I agree with the respondent that the evidence is
inadequate to allow me to conclude that the applicant’s removal from Canada
would violate his rights under section 12 of the Charter. I would have to be
satisfied that his removal would raise concerns of the kind identified in the Canadian
Doctors for Refugee Care case.
VII.
Conclusion
[36]
For the foregoing reasons, I conclude that the
officer did not make any error meriting the setting aside of the officer’s
decision. Moreover, I am not satisfied that the applicant’s Charter rights have
been violated. The present application for judicial review will be dismissed.
[37]
The applicant argues that his argument of a
violation of section 12 of the Charter raises a serious issue of general
importance that would justify my certifying of a question for appeal. I do not
agree. In my view, the facts of this case are so specific that this issue is
not of general importance. I will not certify a question.
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