Docket: IMM-2110-17
Citation:
2017 FC 1081
Ottawa, Ontario, December 1, 2017
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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OXANA SITNIKOVA
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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
[1]
Oxana Sitnikova is a Russian citizen who sought
refugee protection in Canada based upon the risk that she claimed to face in
Russia as a result of her sexual orientation. Ms. Sitnikova claimed to be
at risk from the father of a former lover, who was a powerful police official
who continues to seek her out in order to harm her for having been sexually
involved with his daughter.
[2]
The Refugee Protection Division of the
Immigration and Refugee Board rejected Ms. Sitnikova’s refugee claim,
finding that much of her evidence was not credible, and that she had not
established that she was in fact a lesbian.
[3]
Ms. Sitnikova subsequently filed an
application for permanent residence on humanitarian and compassionate grounds,
as well as an application for a Pre-removal Risk Assessment. Both of these
applications were refused. These reasons relate to Ms. Sitnikova’s
application for judicial review of the negative H&C application.
[4]
Ms. Sitnikova submits that the Officer erred in
discounting the evidence that she provided to establish that she was a lesbian,
and in his treatment of the evidence regarding her mental health.
[5]
For the reasons that follow, I have concluded
that Ms. Sitnikova’s application for judicial review should be granted.
I.
Background
[6]
This is the third time that Ms. Sitnikova’s
H&C application has been considered. Her application for judicial review of
the first refusal of her H&C application was settled out of court, and the
second refusal was quashed on judicial review by Justice Zinn: Sitnikova v.
Canada (Citizenship and Immigration), 2016 FC 464, 45 Imm. L.R. (4th) 298 (Sitnikova
#1).
[7]
The only documentary evidence that Ms. Sitnikova
provided to the Refugee Protection Division to confirm her sexual orientation
was a letter from a woman she claimed to have dated in Canada, a photograph of
the couple eating dinner, and a letter from the 519 Church Street Community
Centre confirming that Ms. Sitnikova attended an LGBTQ refugee support
group. The RPD was not satisfied that this evidence was sufficient to overcome
its concerns with respect to her credibility.
[8]
Ms. Sitnikova produced a number of
additional documents in support of her H&C application in an effort to
establish that she was a lesbian. These included two letters from a different woman,
with whom Ms. Sitnikova had been involved in a two-year, live-in
relationship in Canada, as well as letters from two former girlfriends and a
gay male friend, all of whom were still living in Russia. Ms. Sitnikova
also provided statements from her mother, sister and neighbours of her mother’s
in Russia, all of whom confirmed incidents of police harassment, allegedly at
the behest of the father of Ms. Sitnikova’s former girlfriend.
[9]
Ms. Sitnikova also submitted dental x-rays
that she says corroborated her claim that her tooth was broken during a beating
that she suffered in Russia on account of her sexual orientation. Finally, Ms. Sitnikova
provided the Officer with medical evidence relating to her current mental
health.
[10]
The Immigration Officer considering Ms. Sitnikova’s
H&C application accepted that members of the LGBTQ community are currently
at risk of persecution in Russia. The Officer was not, however, satisfied that Ms. Sitnikova
was a lesbian.
[11]
In coming to this conclusion, the Officer
ascribed little weight to the letters and statements from Ms. Sitnikova’s
family and friends, much of which was proffered to confirm that Ms. Sitnikova
was indeed a lesbian. This led the Officer to conclude that this evidence was
insufficient to overcome the Refugee Protection Division’s negative credibility
concerns.
[12]
Having concluded that Ms. Sitnikova had not
established that she was a lesbian, the Officer found that it had not been
demonstrated that she would face hardship in Russia by reason of her sexual
orientation, and her application for H&C relief was refused.
II.
Analysis
[13]
Before addressing the issues raised by Ms. Sitnikova,
I would start my analysis by noting that this Court has previously commented on
the inherent difficulty of proving one’s sexual orientation, given that the acts
and behaviours that would establish an individual’s homosexuality are
inherently private: Ogunrinde v. Canada (Public Safety and Emergency
Preparedness), 2012 FC 760 at para. 42, 413 F.T.R. 211.
A.
The Officer’s Treatment of the Letters from Ms. Sitnikova’s
Family and Friends
[14]
I understand the parties to agree that the
weight to be ascribed to evidence in the H&C context is subject to review
on the reasonableness standard. I agree: Thandal v. Canada (Citizenship and
Immigration), 2008 FC 489 at para. 7, [2008] F.C.J. No. 623.
[15]
Ms. Sitnikova asserts that the refusal of
her H&C application was unreasonable, in part, because the Officer erred by
discounting the probative value of letters provided by her family, friends and
neighbours on the basis that these individuals were close to her. She contends
that the Officer erred in choosing to give little weight to this evidence
simply because it came from individuals who may have been inclined to support
her. This is especially true, she says, where, as here, the evidence in issue
is of a personal nature, and could thus not be expected to have come from
disinterested strangers.
[16]
The Minister points to various short-comings in
the documentary evidence, including the fact that none of the witness statements
were taken under oath, and some of the documents were lacking in detail. As
Justice Zinn noted in Sitnikova #1, these could be valid reasons for a
decision-maker to give less weight to documentary evidence in some cases: at
para. 26. However, while similar concerns were voiced by the Officer in
relation to the PRRA decision, these were not the reasons cited by the Officer
in this case for discounting the probative value of the documentary evidence
produced by Ms. Sitnikova in relation to her H&C application.
[17]
In choosing to give little weight to the letters
and statements provided to establish her sexual orientation, the Officer noted in
the H&C decision that “all the writers [were] close
family or friends” of Ms. Sitnikova’s. Because of this, the Officer
found that this evidence was insufficient to overcome the Refugee Protection
Division’s credibility concerns. This was the sum total of the reasons cited
by the Officer in the H&C decision for discounting the probative value of
this evidence.
[18]
It is clear from the jurisprudence that evidence
should not be ignored solely because it comes from individuals who are
connected to the person concerned: see for example, Kanto v. Canada
(Citizenship and Immigration), 2014 FC 628 at para. 16, [2014] F.C.J. No.
689; Ugalde v. Canada (Minister of Citizenship and Immigration), 2011 FC
458 at paras. 26-28, [2011] F.C.J. No. 647; Gilani v. Canada (Citizenship
and Immigration), 2013 FC 243 at paras. 26-28, [2013] F.C.J. No. 240.
Having failed to cite any other reason for ascribing little weight to the
documentary evidence, the Officer’s conclusion that this evidence was
insufficient to establish that Ms. Sitnikova was indeed a lesbian was
unreasonable.
[19]
The Officer also stated that little weight would
be given to evidence that related to incidents of harassment and threats to Ms.
Sitnikova’s family in Russia that occurred after her refugee hearing because
all of the writers were close family or friends of Ms. Sitnikova’s. However,
while the handwritten letter from the three neighbours of Ms. Sitnikova’s
mother confirms that they had known Ms. Sitnikova’s family for some time, there
is nothing in the record to suggest that Ms. Sitnikova’s mother’s neighbours
were close friends of either Ms. Sitnikova or her family.
[20]
While these findings are sufficient to dispose
of this application, I will also deal briefly with the Officer’s treatment of
the medical evidence, as this evidence will have to be addressed in the
re-determination of Ms. Sitnikova’s H&C application.
B.
The H&C Officer’s Treatment of the Psychological
Evidence
[21]
In support of her application for humanitarian
and compassionate relief, Ms. Sitnikova provided the Officer with
psychiatric assessments from 2012 and 2015. The 2012 psychiatric report stated
that Ms. Sitnikova suffered from complex post-traumatic stress disorder,
as well as depression characterized by anxiety and suicidal ideation. This
report also found that Ms. Sitnikova required treatment with
antidepressants, cognitive behavioural therapy, and interpersonal therapy. It
concluded that Ms. Sitnikova would suffer irreversible psychological and
emotional damage if she were required to return to Russia, and that she would
face a serious risk of suicide.
[22]
The 2015 psychiatric report stated that Ms. Sitnikova’s
clinical condition had deteriorated significantly since she had been told that
she was not going to be permitted to stay in Canada. The psychiatrist further
stated that she was concerned about Ms. Sitnikova’s psychiatric state,
given her extreme hopelessness and multiple risk factors for suicide. The
doctor further stated that in her current condition, Ms. Sitnikova was
unable to execute basic daily activities, and that it would be highly unlikely
that she would be able to advocate for herself in Russia in order to access
mental health care there. The doctor concluded that if Ms. Sitnikova was
forced to return to Russia, she would be “at serious
risk of psychological collapse and suicide”.
[23]
The Officer noted that the 2012 psychiatric
assessment stated that Ms. Sitnikova required intensive treatment in order
for her to be able to regain her mental health, and that the psychiatrist had
indicated in her 2015 report that she would be making arrangements to monitor Ms. Sitnikova’s
condition. However, the Officer noted that no evidence had been provided to
show that Ms. Sitnikova was receiving ongoing treatment. The Officer
further stated that although there is less support available in Russia than in
Canada for those requiring care for mental health conditions, medical care
would be available to Ms. Sitnikova in Russia.
[24]
The Officer also noted that Ms. Sitnikova
had provided evidence (presumably the photographs in the record) “showing her as happy and active in her community”.
The Officer concluded his analysis of the psychiatric evidence by stating that “[i]f there are any safety issues related to the Applicant’s
removal from Canada, the Removals Officer will address them”.
[25]
The duty of Officers considering mental health
evidence in the context of H&C applications was canvassed by the Supreme
Court of Canada in Kanthasamy v. Canada (Citizenship and Immigration),
2015 SCC 61, [2015] 3 S.C.R. 909. There the Supreme Court found that once an
H&C Officer accepted a psychiatric diagnosis, it is unreasonable for the
Officer to discount a psychiatric report because an individual did not seek
follow-up treatment for the mental health concerns identified in the report. However,
that is precisely what happened here.
[26]
While noting that the psychiatrist’s diagnoses
were based on information obtained from Ms. Sitnikova, the Officer did not
question the validity of the psychiatrist’s diagnoses. The Officer then
discounted the probative value of the psychiatric evidence because Ms. Sitnikova
had failed to seek follow-up treatment for the mental health concerns that had
been identified by her psychiatrist. This was contrary to the teachings of the
Supreme Court in Kanthasamy, and was thus unreasonable.
[27]
The reasonableness of the Officer’s finding is,
moreover, undermined by the fact that Ms. Sitnikova stated that she had in
fact been receiving treatment from Dr. Stern at Unison Health and Community
Services, a fact which was supported by a brief letter from Dr. Stern dated
June 14, 2016.
[28]
Finally, without expressly rejecting the
psychiatrist’s opinion, the Officer minimized the significance of the
psychiatric evidence relating to the effect that removal could have on Ms. Sitnikova’s
mental health condition, observing that “it is normal
to suffer from anxiety and depression during times of uncertainty”. The
Officer appears to have discounted the psychiatrist’s opinion that Ms.
Sitnikova was at risk of psychological collapse and suicide if she were
returned to Russia on the basis that “that concern is
based on [Ms. Sitnikova’s] statements made during an assessment that took place
as a result of a referral by her lawyer”, and because there was no
evidence before the Officer to show that Ms. Sitnikova had sought further
treatment from the doctor. The Officer then left it to a Removals Officer to
address “any safety issues” that might arise in
conjunction with Ms. Sitnikova’s removal from Canada.
[29]
However, the Supreme Court made it clear in Kanthasamy
that where, as here, an Officer does not reject a psychiatric diagnosis, the
Officer must consider evidence as to the effect that removal from Canada would
have on the mental health of an individual: at para. 48.
[30]
The fact that Ms. Sitnikova’s mental health
would likely worsen if she were to be removed to Russia was clearly a relevant
consideration that had to be addressed, regardless of whether treatment would
be available to Ms. Sitnikova in Russia for her psychiatric conditions: Kanthasamy
above at para. 48.
III.
Conclusion
[31]
For these reasons, the application for judicial
review is allowed. I agree with the parties that the case is fact-specific and
does not raise a question that is suitable for certification.
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