Docket: IMM-1513-16
Citation:
2016 FC 1212
Ottawa, Ontario, November 1st, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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HETTY
SUTHERLAND
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CORNEISHA
SUTHERLAND
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CORNEICE
SUTHERLAND
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MICHAEL
SUTHERLAND
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The applicants, Ms. Hetty Sutherland and her
three minor children Corneisha, Corneice and Michael Sutherland, are citizens
of Grenada and St. Vincent & the Grenadines [St. Vincent]. Ms. Sutherland
is the mother of seven children, four of whom are living with her in Canada,
including the three minor applicants in this case and her youngest child Jaydon,
who was born in Canada and has a Canadian father.
[2]
In 2009 and 2010, Ms. Sutherland and her
children filed refugee claims in Canada. In support of their request, Ms.
Sutherland alleged domestic abuse and sexual assault by the two fathers of her
children born in St. Vincent. The Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada rejected the claims, and the
applications for leave and judicial review of the negative RPD decisions were
denied by this Court. Negative pre-removal risk assessments [PRRA] of Ms.
Sutherland and her children were then issued by Citizenship and Immigration
Canada [CIC] in October 2013 and in May 2015, and the judicial review of the
second PRRA was also dismissed by this Court in January 2016.
[3]
In May 2015, Ms. Sutherland and her children
filed an application under subsection 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], stating that their personal
circumstances justified the granting of permanent resident status on
humanitarian and compassionate [H&C] grounds. Ms. Sutherland based her
application for permanent residence on several factors, including the hardship
that she and her children would face if returned to Grenada or St. Vincent,
because of her psychological state. In March 2016, an immigration officer of
CIC [the Officer] dismissed their H&C application. The Officer was not
satisfied that the country conditions in Grenada and St. Vincent, the limited
establishment of Ms. Sutherland and her children in Canada, the best interests
of Ms. Sutherland’s children and her mental health condition were such that an
H&C exemption should be granted.
[4]
Ms. Sutherland and her children have applied to
this Court for judicial review of the Officer’s decision. They argue that the
decision is unreasonable because the Officer erred in her assessment of the
expert reports regarding Ms. Sutherland’s mental health and in her analysis of
the best interests of Ms. Sutherland’s children. They ask this Court to quash
the Officer’s decision and to order another immigration officer to reconsider
their H&C application.
[5]
I agree that the Officer’s decision was
unreasonable as it failed to analyze and weigh the impact that the removal from
Canada would have on Ms. Sutherland’s mental health. This suffices to put the
Officer’s decision outside the limits of possible,
acceptable outcomes and to justify this Court’s intervention. I must, therefore, allow this application for judicial review and
send the matter back for redetermination.
[6]
While Ms. Sutherland and her children presented
other issues, the Officer’s treatment of the expert psychological evidence
regarding Ms. Sutherland’s mental health is determinative and is the sole issue
that I need to address in considering this application.
II.
Background
A.
The Officer’s Decision
[7]
In her decision, the Officer retained “adverse country conditions” in Grenada and St.
Vincent, “establishment”, “best interests of the children” and “other issues” related to Ms. Sutherland’s medical
condition as the factors to consider in her analysis. The Officer also
reiterated that a positive H&C application is exceptional, and that the
onus is on the applicants to prove that their personal circumstances are such
that they justify the granting of the application. The Officer’s reasons in
support of her decision are extensive and detailed.
[8]
In her analysis of “other
issues”, the Officer considered two reports, one from a psychotherapist
(Ms. Riback) and another from a psychologist (Dr. Devins), both indicating that
Ms. Sutherland had some mental health issues caused by the domestic violence
and sexual assaults she encountered while in Grenada and St. Vincent. The
psychotherapist’s report mentioned that “[i]f Ms.
Sutherland and the children were to remain in Canada, a plan of medical and
therapeutic care could be implemented”. While the Officer acknowledged
the clinical opinion of Ms. Riback, she noted that no evidence was provided
indicating that a medical or therapeutic care plan had been implemented as
recommended. Turning to Dr. Devins’ psychological evidence, the Officer noted
that this report confirmed the diagnosis of major depressive disorder of
moderate severity and stress-related disorder with prolonged duration requiring
mental health treatment. This psychologist’s report further mentioned that “[i]f refused permission to remain in Canada, [Ms.
Sutherland’s] condition will deteriorate”. Again, the Officer
acknowledged the medical opinion of Dr. Devins but concluded that, similar to
Ms. Riback’s report, no evidence was adduced to the effect that Ms. Sutherland
could not receive the medical or therapeutic care she needed in either Grenada
or St. Vincent, should she choose to seek it.
[9]
The Officer then analyzed the status of mental
health care in Grenada and St. Vincent and determined that Ms. Sutherland would
be able to obtain treatment for her psychological condition in those two
countries should she need it.
[10]
The Officer concluded that the return of Ms.
Sutherland and her children to Grenada or St. Vincent was feasible. The Officer
found that “[a]lthough there will inevitably be
difficulties associated with a requirement to leave Canada, the fact that the
applicants find Canada to be a more desirable place to live than their country
of return is not determinative of an H&C application”. The Officer
added that the test in H&C applications “is not
whether the applicants would be, or are, a welcome addition to the Canadian
community”, and that it is “not designed to
eliminate all difficulties” that a person might encounter. As a result,
the H&C application was denied.
B.
The Standard of Review
[11]
It is well settled that the purpose of H&C
applications made under section 25 of IRPA is to seek an exemption from
Canadian immigration laws that are otherwise universally applied (Chieu v
Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at para 57; Paramanayagam
v Canada (Citizenship and Immigration), 2015 FC 1417 at para 12). This
relief sits outside the normal immigration classes or refugee protection
streams by which foreign nationals can come to Canada permanently, and it is thus
only available for exceptional cases.
[12]
Decisions taken on H&C applications made
under subsection 25(1) of IRPA are highly discretionary and the standard of
review applicable to such decisions is reasonableness (Kanthasamy v
Canada (Citizenship and Immigration), 2015 SCC 61[Kanthasamy] at
para 44; Canada (Minister of Citizenship and Immigration) v Legault,
2002 FCA 125 at para 15). More specifically, the analysis of clinical opinions
and psychological reports in H&C applications needs to be assessed under
the reasonableness standard (Sitnikova v Canada (Citizenship and
Immigration), 2016 FC 464 [Sitnikova] at paras 17 and 37).
[13]
This means that deference should therefore be
shown by this Court unless the Officer’s decision is not justifiable,
transparent and intelligible within the decision-making process. The Officer’s decision should not be
disturbed as long as the decision “falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47). In conducting a reasonableness review of factual findings, it is
not the role of the Court to reweigh the evidence or the relative importance
given by the decision-maker to any relevant factor (Kanthasamy v Canada
(Minister of Citizenship and Immigration), 2014 FCA 113 at para 99).
III.
Analysis: Was the Officer’s Assessment of the
Evidence regarding Ms. Sutherland’s Mental Health Unreasonable?
[14]
Ms. Sutherland submits that the Officer erred in
her assessment of the expert reports regarding her mental condition, as she
failed to properly consider the impact that her removal from Canada would have
on her mental health, as required by the Supreme Court in Kanthasamy.
[15]
Ms. Sutherland claims that the issue before the
Officer was not whether she had sought treatment in Canada or whether she could
receive one in her country of origin, but whether her mental condition would
deteriorate if she was removed to Grenada or St. Vincent. Ms. Sutherland pleads
that the reports from both Ms. Riback and Dr. Devins affirmed that her mental
health would worsen if she was removed, and that this factor was wrongfully
ignored by the Officer. Ms. Sutherland complains that, while the issue was
mentioned, the Officer did not engage with these statements, nor did she
provide her own analysis of the consequences of a potential removal on Ms.
Sutherland’s mental health.
[16]
I agree with Ms. Sutherland, and I find that the
failure of the Officer to properly address this issue suffices to render the
decision unreasonable. The two psychological reports expressly stated that Ms.
Sutherland needed mental health treatment and warned about the adverse effect
the removal would have on Ms. Sutherland’s mental health condition, and on her
children. This is an obvious component of any hardship analysis in an H&C
application, and the Officer overlooked it.
[17]
I acknowledge that the Officer did not err in
finding that Ms. Sutherland had not sought treatment in Canada and in
determining that the treatments she needed could be available in Grenada or St.
Vincent. However, that was not enough. When psychological reports are
available, indicating that the mental health of applicants would worsen if they
were to be removed from Canada, an officer must analyze the hardship that
applicants would face if they were to return to their country of origin. An
officer cannot limit the analysis to a determination of whether mental health
care is available in the country of removal (Kanthasamy at para 48; Ashraf
v Canada (Citizenship and Immigration), 2013 FC 1160 at para 5; Davis v
Canada (Citizenship and Immigration), 2011 FC 97 [Davis] at para
19).
[18]
The approach taken by the Officer in this case
squarely contradicts the teachings of the Supreme Court in Kanthasamy. It
is worth reproducing paragraphs 47 and 48 of that decision. They read as
follows:
[47] Having accepted the psychological
diagnosis, it is unclear why the Officer would nonetheless have required
Jeyakannan Kanthasamy to adduce additional evidence about whether he did
or did not seek treatment, whether any was even available, or what treatment
was or was not available in Sri Lanka. Once she accepted that he had
post-traumatic stress disorder, adjustment disorder, and depression based on
his experiences in Sri Lanka, requiring further evidence of the availability of
treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had
the problematic effect of making it a conditional rather than a significant
factor.
[48] Moreover, in her exclusive focus on
whether treatment was available in Sri Lanka, the Officer ignored what the effect
of removal from Canada would be on his mental health. As the Guidelines
indicate, health considerations in addition to medical inadequacies in
the country of origin, may be relevant: Inland Processing, s. 5.11. As
a result, the very fact that Jeyakannan Kanthasamy’s mental health would likely
worsen if he were to be removed to Sri Lanka is a relevant consideration that
must be identified and weighed regardless of whether there is treatment
available in Sri Lanka to help treat his condition: Davis v. Canada
(Minister of Citizenship and Immigration), 2011 FC 97 (CanLII), 96 Imm.
L.R. (3rd) 267 (F.C.); Martinez v. Canada (Minister of Citizenship and
Immigration), 2012 FC 1295 (CanLII), 14 Imm. L.R. (4th) 66 (F.C.). As
previously noted, Jeyakannan Kanthasamy was arrested, detained and beaten by
the Sri Lankan police which left psychological scars. Yet despite the clear
and uncontradicted evidence of such harm in the psychological report, in
applying the “unusual and undeserved or disproportionate hardship” standard to
the individual factor of the availability of medical care in Sri Lanka — and
finding that seeking such care would not meet that threshold — the Officer
discounted Jeyakannan Kanthasamy’s health problems in her analysis.
(Emphasis added)
[19]
Kanthasamy
involved a young Sri Lankan Tamil who suffered from post-traumatic stress
disorder and depression as a result of his experiences in Sri Lanka, the
country where he had been detained and tortured. In assessing Mr. Kanthasamy’s
H&C application, an immigration officer accepted the doctors’ diagnosis,
but nevertheless concluded that Mr. Kanthasamy had provided insufficient
evidence to show that he would be unable to obtain medical care in Sri Lanka.
However, the immigration officer gave no consideration to medical evidence
indicating that Mr. Kanthasamy’s condition would deteriorate if he were forced
to return to Sri Lanka, the location of his mistreatment. As the Supreme Court
expressly stated, the very fact that Mr. Kanthasamy’s mental health would likely
worsen if he were to be removed to Sri Lanka was a relevant consideration that had
to be identified and weighed regardless of whether there was treatment
available in his country of origin. Furthermore, CIC’s administrative
guidelines governing the treatment of H&C applications provide that both health
considerations in addition to medical inadequacies in the country of
origin may be relevant to an H&C
determination (Kanthasamy at para 48).
[20]
In the present case, the uncontradicted
psychological evidence before the Officer showed that, similarly to the Kanthasamy
case, returning Ms. Sutherland to Grenada or St. Vincent would exacerbate her
mental health problems and that her mental health condition would suffer if she
were removed from Canada. The reports expressly discussed why Ms. Sutherland’s
condition would deteriorate if she was to be removed, and the Officer
acknowledged the two medical diagnoses. In such circumstances, it was not
enough for the Officer to simply look at the availability of mental health care
in Grenada or St. Vincent. The Officer needed to expressly take into
consideration “the effect of removal from Canada would
be [on her] mental health” (Kanthasamy at para 48).
[21]
Counsel for the Minister ably tried to argue
that this case is distinguishable in that, unlike the officer in Kanthasamy,
the Officer in the case at bar did not “accept”
the psychological diagnosis on Ms. Sutherland. The Officer instead indicated
that she “acknowledge[s] Dr. Devins’ medical opinion”
with regard to Ms. Sutherland’s mental health issues. She also stated, after
reviewing the report of Ms. Riback, that she is “[a]cknowledging
this clinical opinion”. When questioned on this point, counsel for the
Minister argued at the hearing before this Court that there is a difference
between accepting a diagnosis, and simply acknowledging it. I do
not agree.
[22]
I instead conclude that “acknowledging”
and “accepting” an expert report have the same
meaning in the present context, and that this case undoubtedly triggers the
application of Kanthasamy. In The Oxford English Dictionary, 2d
ed, the verb “acknowledge” is notably defined as
follows: “[t]o own the knowledge of; to confess, to recognize
or admit as true”, and “[t]o own as genuine, or
of legal force or validity; to own, avow, or assent, in legal form, to (an act,
document, etc.) so as to give it validity”. In the Oxford’s Compact
Thesaurus, the following synonyms were provided for the verb “acknowledge” in the context of the example “the government acknowledged the need to begin talks”:
admit, accept, grant, allow, concede, confess, own, recognize.
[23]
I therefore fail to see how “acknowledging” a medical or clinical opinion, as the
Officer did in this case, can be materially different from “accepting” it, and not as equally supportive of such
opinion. This is not a situation where the Officer criticized or did not accept
the psychological reports and diagnoses before her. The Supreme Court’s
reasoning from Kanthasamy must therefore apply.
[24]
Of course, an immigration officer does not need
to agree with psychological reports submitted with an H&C application and can
decide to give them little weight, as long as the officer provides clear and
well-founded explanations. For example, in Sitnikova, a post-Kanthasamy
decision, the Court found that case to be distinguishable as the officer did
not appear to have accepted the psychological diagnosis (Sitnikova at
paras 35-37). This is clearly not the case here.
[25]
It is also true that the Kanthasamy
decision concerned a minor child. However, I am of the view that its
prescriptions on the treatment of health issues in H&C applications do also
extend to situations where the applicant is not a child but an adult. Recent
decisions of this Court have in fact applied Kanthasamy without making a
distinction based on the age of the applicant (Sitnikova at para 1; Tabatadze
v Canada (Citizenship and Immigration), 2016 FC 24 at para 10). Indeed, in Kanthasamy,
in the part of the decision discussing mental health problems and the assessment
of psychological reports, the Supreme Court referred to prior decisions of this
Court involving adult applicants, such as Davis and Lara Martinez v
Canada (Citizenship and Immigration), 2012 FC 1295.
[26]
Counsel for the Minister also made a valiant
effort to find a passage in the Officer’s decision suggesting that the effect of
Ms. Sutherland’s removal was obliquely considered by the Officer in her “Conclusion”, even though the words “mental health” or “mental
condition” appear nowhere in this section. In these conclusions where she
summarized her weighing exercise of the various H&C factors at stake, the
Officer underlined that her exercise of discretion on H&C grounds “should be something other than that which is inherent in
removal after a person has been in a place for a period of time”
(emphasis added). Counsel for the Minister asks me to see in this passage an
expression of the Officer’s consideration and assessment of the impact of
removal on Ms. Sutherland’s mental health issues.
[27]
I do not share the Minister’s interpretation and
I do not accept counsel’s invitation to adopt such a creative reading of the
Officer’s decision. I cannot find even a remote relation to Ms. Sutherland’s
mental health in this statement of the Officer. Indeed, in the very next
sentence, the Officer mentions that the fact that “a
person would be leaving behind friends, perhaps family, employment or a
residence is not necessarily enough to justify the exercise of discretion”.
This, in my view, is the something “inherent in
removal” to which the Officer meant to refer to in the sentence singled
out by the Minister. The passage identified by the Minister clearly does not
encompass the mental health issues of Ms. Sutherland.
[28]
In fact, there is no mention whatsoever in the “Conclusion” section of the Officer’s decision,
whether directly or indirectly, of the mental health condition of Ms.
Sutherland.
[29]
Finally, I do not subscribe to the Minister’s
suggestion that the Officer’s error changes only one aspect of the numerous
factors she weighed in her H&C assessment and that, looking at the decision
as a whole, this single factor would not change the ultimate outcome.
[30]
It is true that, pursuant to subsection 18.1(3)
of the Federal Courts Act, RSC 1985, c F-7, this Court is exercising a
discretionary power on judicial reviews such as this one, and “may” “(a) order a federal
board, commission or other tribunal to do any act or thing it has unlawfully
failed or refused to do or has unreasonably delayed in doing; or (b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal”.
[31]
The Supreme Court has stated in MiningWatch
Canada v Canada (Fisheries and Oceans), 2010 SCC 2 [MiningWatch]
that “the fact that an appellant would otherwise be
entitled to a remedy does not alter the fact that the court has the power to
exercise its discretion not to grant such a remedy, or at least not the entire
remedy sought”, when the error would not have changed the result (MiningWatch
at para 52). Even when a material error is found, if the error could have made
no difference in a decision, the Court can decide to refuse to set it aside (Canada
(Minister of Citizenship and Immigration) v Patel, 2002 FCA 55 at para 13).
However, the Court’s discretion must be “exercised with
the greatest care”, and “balance of convenience
considerations” must be taken into account in the exercise of such
discretion (MiningWatch at para 52).
[32]
I do not find that this is a situation where I should
exercise my discretion to refuse to send the matter back for redetermination by
a different immigration officer. In the present case, the Officer analyzed various
factors in Ms. Sutherland’s H&C application, namely the adverse country
conditions in Grenada and St. Vincent, her establishment, the best interests of
her children, and her mental health. There was an error with regard to one of
those four factors, the analysis of Ms. Sutherland’s mental health, and I
observe that, in the weighing of the factors in her “Conclusion”,
the Officer was completely silent on the impact of this element.
[33]
It is therefore impossible for me to determine
whether, when the impact of the removal on Ms. Sutherland’s mental health will
be properly considered by CIC, the balancing and weighing exercise will lead to
a different conclusion on the H&C application submitted by Ms. Sutherland
and her children. I am aware that by sending the case back to CIC, the result
may be the same after a new review is conducted in light of my decision.
However, this is an assessment that CIC, not this Court, must conduct and to
which Ms. Sutherland and her children are entitled in the treatment of their application
for permanent residence on H&C grounds. It is possible that, informed by
these reasons of the error committed by the Officer and of the assessment that
should have been made in considering the hardship to Ms. Sutherland and her
children, another immigration officer might nevertheless come to a similar
conclusion. However, this other officer might also come to a different
conclusion. I cannot say that the case leans so heavily against granting Ms.
Sutherland’s request for permanent residence on H&C grounds that sending
the case back to CIC would serve no useful purpose (Lemus v Canada
(Citizenship and Immigration), 2014 FCA 114 at para 38).
IV.
Conclusion
[34]
The Officer improperly discounted the psychological
evidence put forward by Ms. Sutherland and failed to consider it in accordance
with the Kanthasamy decision. Accordingly, the Officer’s conclusion did
not represent a defensible outcome based on the facts and the law. I must therefore
allow this application for judicial review and order another officer to
reconsider the H&C application of Ms. Sutherland and her children.
[35]
Neither party has proposed a question of general
importance for me to certify. I agree there is none.
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