Date: 19981027
Docket: IMM-548-98
BETWEEN:
ISHAN STEPHEN WIJEWARDANA DE SILVA, BASHINI
ERANGIKA PUSHPAMALI WIJEWARDANA DE SILVA,
THARINDARA AKHILA STEPHEN WIJEWARDANA DESILVA (a minor)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of an immigration officer, denying the Applicant, his wife and his son permanent residence based on insufficient humanitarian and compassionate ("H & C") grounds.
[2] The Applicant and his family are citizens of Sri Lanka who arrived in Canada in August, 1995. He is Sinhalese and his wife is Tamil.
[3] The Applicant secured full-time employment as a car salesperson within three months of their arrival. His income tax forms, for the year previous to the Officer"s decision, indicate a yearly income in excess of $40,000. He is recognized by his employer as among the top 200 salespeople in Canada.
[4] Numerous letters of support were submitted on the family"s behalf, stating that both the Applicant and his wife are active participants in their community and attesting to his abilities on the job.
[5] The file contains the notes of immigration officer Le, who recommended a refusal of the De Silva"s claim. Officer Le"s recommendation reads as follows:
| Upon a complete review of the file information, it appears Mr. Wijewardana de Silva and his family have not provided sufficient reasons to warrant approval on Humanitarian and Compassionate grounds. They have not been in Canada very long and have not shown exceptionally strong evidence of establishment or long term financial stability. They have not provided evidence of regular pattern of savings and have not taken education upgrading. Furthermore, they have had refused refugee claims and appleals [sic] were denied. They also had a negative PCDO review and have not presented sufficient reason to believe that they are personally returning to a life threatening situation. They have relatives remaining in Sri Lanka to return to. |
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| Based on the above information, I would recommend refusal of 114(2) application for subject, Ishan Wijewardana de Silva, his wife, Bashini Erangika and his son, Tharindra Akhila.1 |
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[6] At the time of the application, the Applicant"s wife was pregnant with their second child and suffered from post traumatic stress disorder, as a result of being raped in Sri Lanka. This diagnosis was confirmed by two doctors, whose letters were attached to the H & C application.
| Did the immigration officer err in refusing to grant H & C relief to the Applicant under section 114(2) based on the evidence before him? |
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[7] In order for an applicant to succeed in attacking the exercise of discretion for a section 114(2) exemption, he or she must demonstrate that the decision-maker erred in law, proceeded on some wrong or improper principle, or acted in bad faith.2 The duty of procedural fairness still applies, but its content is minimal. One important element, however, is that an officer reviewing such an application must consider all of the evidence in support of the application. For instance, in Éttienne,3 Reed J. found that all of the evidence had not been considered or not considered properly.
[8] In the case at bar, the immigration officer completely ignored and/or unreasonably misconstrued the evidence with respect to the medical condition of one of the applicants.
[9] There are three medical letters contained in the file which attest to the fact that Ms. De Silva currently suffers from post traumatic stress disorder, yet the immigration officer states in his recommendation that she has recovered.
[10] Dr. Paquette explains that Ms. De Silva suffers from post traumatic stress syndrome, resulting from a rape in Sri Lanka. She goes on to state that relocation at this time could be extremely detrimental to Ms. De Silva"s mental and even physical health.
| She now suffers from POST TRAUMATIC STRESS SYNDROME. Relocating to the United States, no matter if there is competent medical help available will cause enormous mental stress and strain at a time that is already extremely stressful. She in fact could decompensate and become extremely depressed (which is extremely likely), she could become suicidal or even psychotic.4 |
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[11] Dr. Simmons also diagnosed Ms. De Silva with post traumatic stress disorder and recommended against relocation to Sri Lanka.
| Ms. DeSilva now has post traumatic stress disorder in that she has flashbacks, nightmares, startles easily and is afraid to be alone. ... To be forced to move back to Sri Lanka would certainly be detrimental to Ms. DeSilva"s mental health.5 |
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[12] The immigration officer, however, appears to disregard this evidence. In fact, he goes so far as to find that Ms. De Silva has recovered, contrary to the evidence in the file.
[13] Although it may have been possible for the immigration officer, after careful consideration, to disregard the evidence of the doctors, based on his discretionary powers, it is certainly not open to him to substitute his own medical diagnosis.
[14] In addition to the above error, which on its own is sufficient to justify overturning the decision, the immigration officer also applied an inappropriate burden of proof on the applicant. In his recommendations, he states that the applicants "have not provided exceptionally strong evidence of establishment or long term financial stability".
[15] In the case of Ettienne,6 Reed J. allowed the application for judicial review, because the immigration officer had applied a burden of proof which was akin to beyond a reasonable doubt, among other errors.
[16] In the present case, the implied requirement that the applicants produce not just evidence, but "exceptionally strong evidence" of establishment and long term financial stability, appears to invoke a standard of proof akin to beyond a reasonable doubt. This is an inappropriate standard, which amounts to an error of law.
[17] The application for judicial review is allowed. The decision of the immigration officer is quashed and the matter is referred back to the respondent for reconsideration.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
October 27, 1998.
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1 Application Record at 12.
2 Williams v. Canada (M.E.I.) (1994), 84 F.T.R. 194 (T.D.) and Shah v. Canada (M.E.I.) A-617-92 (24 June 1994) (F.C.A.).
3 Éttienne v. Canada (M.E.I.), 24 Imm. L.R. (2d) 88 (F.C.T.D.).
4 Letter Dr. Lise Paquette to Ms. Kuderian, Senior Immigration Officer, Citizenship and Immigration Canada dated 6 November 1997.
5 Letter Dr. M.C. Simmons dated 15 October 1997.
6 Supra note 3.
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