Docket:
IMM-423-13
Citation: 2013 FC 1160
Calgary, Alberta, November
14, 2013
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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MOHAMMAD ASHRAF
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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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REASONS FOR ORDER AND ORDER
[1]
The present Application concerns a challenge to
the November 21, 2012 decision of a Senior Immigration Officer (Officer)
rejecting the Applicant’s application for permanent residence on humanitarian
and compassionate grounds pursuant to s. 25 of the IRPA.
[2]
The Applicant is a citizen of Pakistan who
suffers acute medical problems. With respect to these problems, the Officer
made the following findings:
HEALTH
CONSIDERATIONS
The
applicant suffers from post-traumatic stress disorder (PTSD) and depression.
The applicant has submitted four letters In support of his condition. Two
reports from psychologist Hap Davis, dated 15 January 2009 and 17 December
2010, and two letters from Dr. Safeen Khan, dated 07 November 2011 and 27
August 2012.
The
reports from Dr, Davis indicate that the applicant has been diagnosed with
"co-morbid PTSD and major depression." The reports focus on providing
reasons why the applicant may have seemed not to be credible to the RPD during
his hearing. Dr. Davis states that the applicant's "illnesses combine with
his compromised cognitive capacity to render him incapable of functioning
independently in Canada; it is not likely that he would be able to do any
better in a return scenario in Pakistan." I find this statement to be
speculative in nature. The applicant indicates he currently resides by himself
in Canada. Further, it would be reasonable to assume that should the applicant
be unable to function independently that reuniting with his family in Pakistan
would be beneficial to his condition. The applicant states "I do not
believe my family will be able to help me as I understand that my condition is
likely to become much worse if I return to Pakistan." The applicant does
not indicate why he believes his family will be unable to help him or that they
would be unwilling to help him.
The
letters from Dr. Khan indicate that the applicant continues to require treatment
and has been prescribed anti-depressant medications. The letters state that the
applicant misses his family. Dr. Khan states, "I hope to see a significant
improvement in his [the applicant] mental status when his refugee status will be
settled." Dr. Khan does not indicate on what basis he believes this to be
true.
While the applicant has been receiving treatment and medication in
Canada, he has not provided evidence to demonstrate that he is not able to
receive treatment or medication for his condition in Pakistan. The onus is on the applicant to confirm from health authorities in
Pakistan attesting that acceptable treatment is unavailable for him or that it
would be a hardship for him to access such treatments, should he require them.
Further, reports indicate that the applicant may have trouble functioning independently.
Lacking evidence to the contrary, it is reasonable to assume that reuniting the
applicant with his family in Pakistan would be advantageous in this regard.
[Emphasis
added]
(Decision,
pp. 3-4)
[3]
Counsel for the Applicant makes the following
statement of what is expected of an immigration officer’s approach in an
H&C determination in addressing an applicant’s health condition:
According
to the case law, if an application for Permanent Residence on H&C grounds
includes a psychological report, the immigration officer has a duty to consider
whether the report establishes that removing the applicant to his/her home
country would result in psychological hardship (Gaya v. Canada (M.C.I.),
[2007] F.C.J. No. 1308; Mughrabi v. Canada (M.C.I.), [2008] F.C.J. No.
1115). The case law has also established that when a psychological report
indicates that the applicant's removal from Canada is likely to exacerbate
his/her existing psychological problems, the officer must directly address this
evidence and it is not sufficient for the officer to simply cite the
availability of mental health care in the applicant's country of origin as a
remedy to this hardship (Martinez v. Canada (M.C.I.), [2012] F.C.J. No.
1388).
(Applicant’s
Memorandum of Fact and Law, para. 18)
[4]
As a result, Counsel for the Applicant argues
that in rendering the decision the Officer was functioning under a fundamental
misunderstanding with respect to the Applicant’s treatment needs and determined
those needs in error:
Instead
of addressing Dr. Davis and Dr. Khan's conclusions regarding the consequences
of removing the Applicant from Canada, the officer focused his/her Reasons on
the availability of mental health care in Pakistan. The officer stated that the
Applicant had failed to provide evidence that he would not be able to access
treatment for his psychological condition in Pakistan. This comment is eminently
unreasonable as Dr. Davis had clearly stated in his reports that the
Applicant was not a candidate for treatment, making the availability of such
treatment in Pakistan completely irrelevant. Dr. Davis identified the
Applicant as a brain-injured person with PTSD and cited "fMRI
research" indicating that such individuals are "especially treatment
resistant". Dr. Davis further explained that the Applicant's experience is
consistent with this research because despite taking antidepressant
medications, the Applicant "still wakes from fitful sleep, sometimes
shouting which is an indication that the psychiatric mediations are not
effective" (emphasis added in the original).
As
Dr. Khan stated in his most recent report, although the Applicant continued to
take antidepressant medications, his condition had not only persisted but
worsened. Dr. Davis stated in the 2009 report that the Applicant
"functions in Canada without a treatment response to medical interventions
and his survival would not depend on such treatment in a return". He ended
the report stating that the Applicant's "psychiatric treatment for PTSD
and depression has been ineffective in Canada and would not be expected to
assist him in any return scenario". The necessary inference from this
evidence is that even if the Applicant had access to mental health care in
Pakistan, he would not be able to benefit from this treatment. It was therefore
unreasonable for the officer to discount the psychological evidence on the
basis that the Applicant had failed to establish that he would not be able to
access treatment in Pakistan.
In
any event, following the ruling in P.M.D., even if the Applicant was in a
position to benefit from treatment and even if mental health care in Pakistan
was perfect, the officer still had a duty to: 1) consider the expert evidence
that returning the Applicant to Pakistan would exacerbate his psychological
problems, and 2) determine whether subjecting the Applicant to this would
amount to undue, undeserved or disproportionate hardship. Having failed to
discharge these duties, the officer committed a reviewable error.
[Emphasis
added]
(Applicant’s
Memorandum of Fact and Law, paras. 25-27)
[5]
I agree with Counsel for the Applicant’s
argument. The Applicant’s serious mental condition was the main feature of his
plea for humanitarian and compassionate consideration. In my opinion a
reasonable disposition of this plea must disclose, not only an accurate
understanding, but also a humanitarian and compassionate understanding of the
hardship that the Applicant would suffer if he were to return to a very
uncertain future in Pakistan. Such an understanding was not applied in the
decision rendered, and, as a result, I find the decision is unreasonable.
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