Docket: IMM-3017-16
Citation:
2017 FC 293
Ottawa, Ontario, March 20, 2017
PRESENT: The
Honourable Madam Justice McVeigh
|
BETWEEN:
|
|
ABDEL NABI
CHEHADE
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is a judicial review of a negative
humanitarian and compassionate [H&C] decision for a now 19 year old citizen
of Lebanon. Abdel Nabi Chehade arrived in Canada through the United States as
an unaccompanied minor on November 25, 2013. His parents sent him from Lebanon
in the hopes of claiming refugee status and finding a better life.
[2]
For the reasons that follow, I find the decision
reasonable and will dismiss the application.
II.
Background
[3]
Mr. Chehade has been under the custody of Family
and Child Services since his arrival to Canada. He is the youngest of seven
children and is the only member of his family who does not reside in Lebanon. Mr.
Chehade’s parents decided to send him, then fifteen, unaccompanied to Canada
via the United States after an alleged incident in which Hezbollah attempted to
force him to join their organization. His parents intended him to live with an
aunt when he arrived in Canada. However, the Canadian authorities were not
satisfied with the arrangements when he arrived at the border. As a result, Mr.
Chehade has resided in a group home in Welland, Ontario.
[4]
On February 13, 2014, Mr. Chehade’s refugee
claim was denied as was his appeal to the Refugee Appeal Division. An
application for leave and judicial review of that decision was refused by the
Federal Court. On August 13, 2015, at age 17, Mr. Chehade submitted an
application for H&C relief. The application was refused but then sent back
for re-determination by consent of the parties. A term of the settlement was
that the best interests of the child would be considered because he was 17 at
the time of application. In a decision rendered June 23, 2016, Mr. Chehade’s re-determined
H&C application was rejected which forms the decision currently under
judicial review.
III.
Issues
[5]
Mr. Chehade raises the following issue in this
application:
- Was the
officer alert, alive and sensitive to the best interests of the child?
IV.
Standard of Review
[6]
The standard of review to make this
determination is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]).
V.
Analysis
[7]
Mr. Chehade argues that the officer came to an
unsubstantiated conclusion based on a selective reading of a psychotherapist
report submitted on his behalf. Specifically, the psychotherapist’s clinical
impression highlights that Mr. Chehade’s anxiety and depression are due to the
threat of being removed to Lebanon and that removal would likely cause
deterioration in his mental health. Mr. Chehade’s position is that since the immigration
officer is not a trained medical professional, it was not open to him to
conclude contrary to the psychotherapist’s report.
[8]
Mr. Chehade submits that the officer conducted
no analysis of the impacts returning him to Lebanon would have. This is despite
the psychotherapist’s firm conclusion that returning him to Lebanon would have
permanent, negative implications and cause severe emotional suffering. Mr.
Chehade concludes that given Mr. Chehade’s diagnosis, special vulnerability as
a child, and the country condition documentary evidence, it is submitted that
the officer was not alert, alive and sensitive to the best interests of the
child.
[9]
In assessing H&C submissions, the decision
makers must be “alert, alive and sensitive” to
the best interests of the child (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817) and should bear in mind that “[c]hildren will rarely, if ever, be deserving of any
hardship” (Hawthorne v Canada (Minister of Citizenship and
Immigration), 2002 FCA 475 at para 9). As children may experience greater
hardship than adults faced with a comparable situation, circumstances which may
not warrant H&C relief when applied to an adult, may nonetheless entitle a
child to relief (Kanthasamy v Canada (Citizenship and Immigration), 2015
SCC 61 at para 41 [Kanthasamy]).
[10]
Generally, factors relating to a child’s
emotional, social, cultural and physical welfare should be taken into account
when raised. Some examples of factors that applicants may raise include but are
not limited to (Kanthasamy, above, at para 40):
- the age of the child
- the level of dependency between the child
and the H&C applicant
- the degree of the child’s establishment in
Canada
- the child’s links to the country in
relation to which the H&C assessment is being considered
- the conditions of that country and the
potential impact on the child
- medical issues or special needs the child
may have
- the impact to the child’s education
- matters related to the child’s gender.
[11]
An officer must balance competing priorities,
including but not limited to the best interests of the child, when determining
whether to grant an exemption on H&C grounds. If an officer is alert, alive
and sensitive to the best interests of the child, it is open to them to refuse
an application for H&C relief.
[12]
A senior immigration officer reviewed Mr.
Chehade’s application and came to the conclusion that it was in his best
interests to reunite with his family in Lebanon. The officer noted that Mr.
Chehade had resided in Canada for a little over two and a half years. He
observed that while this would be a short period of time for an adult, it is
relatively lengthy for a teenager who has been away from his parents and
siblings. The officer also noted that Mr. Chehade continues to experience
significant anxiety and depression. The report by the psychotherapist observed
that his emotional state had intensified due to the insecurity of his
immigration status. However, the psychotherapist report notably failed to
mention Mr. Chehade’s family, the frequency of their contact and what impact separation
from them was having on him.
[13]
Mr. Chehade argues that the officer overlooked
the conclusions contained in the psychotherapist report and just quoted from
the overview section. I do not agree.
[14]
The report was from a psychotherapist, who after
one appointment concluded that “it would be in Mr.
Chehade’s best interest to allow him to remain in Canada where he can build
upon the life he now has which is helping him to learn and thrive.” She
then goes on to say that if he stayed then a plan could be made to help him
work through the “depression, anxiety and trauma he
currently feels.”
[15]
A physiotherapist cannot usurp the role of the
officer. In this case contrary to Mr. Chehade’s arguments, the officer did
consider the report’s conclusions which are almost a repetition of the
overview. There is a concern that someone who is: 1) not a psychiatrist or psychologist;
2) only has one appointment with a person; 3) writes about their “clinical impressions” rather than a diagnosis; 4) has
no treatment plan or follow-up for the individual; and 5) bases a report
specifically drafted for CIC on what they are told by the person should be the
definitive answer on whether someone should remain in Canada. The officer must
of course consider the report but it is not supportable that to disagree with
the clinical impressions or weigh the comments in the report with other factors
makes the decision reviewable.
[16]
The officer assessed Mr. Chehade’s educational
prospects both in Canada and in Lebanon. Attention was paid to Mr. Chehade’s
academic achievements while he has been in Canada. The officer concludes that
Mr. Chehade would be able to pursue his studies in Lebanon given the quality of
their universities and the availability of financing for student loans there.
[17]
The officer did not find that Mr. Chehade’s
family has been significantly affected by sectarian violence but assigns some
weight to this factor nonetheless. In fact, his parents and six other siblings
still live in Lebanon. Also, research was assessed which indicates that
contrary to Mr. Chehade’s claim, Hezbollah use enticement and rewards for
recruitment rather than force. The officer concluded that Mr. Chehade would not
be forcibly recruited into Hezbollah were he to be returned to Lebanon.
[18]
At the hearing, counsel for Mr. Chehade argued that
it was not possible for the officer to know Mr. Chehade’s family is loving, as
he had no evidence before him to that effect. Mr. Chehade provided little
evidence regarding his family in Lebanon and there is no mention of his family in
the Basis of Claim and the psychotherapist’s report. The omissions regarding is
large family remaining in Lebanon seems to be a conscious decision.
[19]
I cannot fault the officer’s assessment of the
family relationship. The evidence before the officer was that Mr. Chehade works
to send money home, that according to the Refugee Protection Division (RPD) decision,
he spoke to his family regularly, that his parents sent him to Canada because
they wanted the best for him, and according to the group home he had loving
parents. The officer’s assessment is reasonable, thoughtful, and balanced as
can be seen in the following:
It must have been very frightening for the
Applicant traveling abroad on his own and being placed in a group home in a
foreign country. I have no doubt that his group parents are kind and caring and
that the Applicant is close to them; however, they cannot replace his parents
who clearly love the Applicant very much and want him to have a bright future.
[20]
The officer balanced Mr. Chehade’s circumstances
and determined that an exemption based on H&C considerations was not
justified. The officer assessed the best interests of the child by giving due
and reasonable consideration to Mr. Chehade’s age, medical reports,
psychological assessments, educational achievements/goals, current country
conditions in Lebanon, establishment in Canada and Lebanon, and ties to Canada
and Lebanon. The officer reasonably determined that H&C considerations were
not in favour of Mr. Chehade remaining in Canada.
[21]
For the reasons above, I find that the decision exhibits
justification, transparency and intelligibility and is within the range of
possible, acceptable outcomes, defensible in fact and law (Dunsmuir; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12).
[22]
No questions for certification were raised.
Email this Content