Date:
20120813
Docket:
IMM-7392-11
Citation:
2012 FC 988
Ottawa, Ontario, August 13, 2012
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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NABILA MOUNIR AZER
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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]
Ms.
Nabila Mounir Azer, the Applicant, applies for judicial review of the September
13, 2011 decision of the Immigration Officer refusing the application to have
her application for permanent residence processed from within Canada on humanitarian and compassionate (H&C) grounds.
[2]
The
Applicant is a social worker by training who said she left Egypt following threats made against her life by Muslim fundamentalists. The Applicant has a long
history in the Canadian immigration system having been unsuccessful in a
refugee claim and having received two negative PRRA assessments. She applied on
humanitarian and compassionate grounds to make an application for permanent
residence visa from within Canada which was refused and is the subject of this
judicial review application.
[3]
The
Officer determined that the Applicant would not face unusual, undeserved or
disproportionate hardship if she were to apply for permanent residence from Egypt. The Officer separated the reasons for refusal under two broad categories: the first
deal with the Applicant’s medical conditions and her establishment in Canada; the second concern the risk or hardship relating to her previous problems in Egypt and the present conditions in Egypt. The Applicant has only raises issues with the Officer’s
findings regarding her medical conditions and establishment in Canada.
[4]
The
Officer gave little weight to the psychiatric medical opinion because the
doctor’s language was sympathetic rather than professional. The Officer was not
persuaded the diagnosis was objective and accurate. The Officer accepted the
Applicant had emotional problems in addition to non-psychological medical
problems but found the reasonable treatment or help would be available to the
Applicant in Egypt. The Officer did not give the Applicant’s medical conditions
significant weight for or against her H&C application.
[5]
The
Officer also considered the Applicant’s establishment in Canada as neutral or slightly positive since, while the Applicant was in Canada for more than ten
years, much of that was during her pursuit of a non-credible refugee claim.
[6]
The
Supreme Court of Canada held in Dunsmuir v New Brunswick, 2008 SCC 9
that there are only two standards of review: correctness for questions of law
and reasonableness involving questions of mixed fact and law and fact. The
Supreme Court also held that where the standard of review has been previously
determined, a standard of review analysis need not be repeated.
[7]
The
appropriate standard of review for a decision on H&C grounds is
reasonableness. Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817. A heavy burden rests on applicants to satisfy the Court that
the decision under section 25 requires the intervention of the Court. Mikhno
v Canada (Minister of Citizenship and Immigration), 2010 FC 386.
[8]
The
Applicant submits the Officer inferred that the psychiatrist’s medical opinion
was neither valid nor credible. The Applicant argues that this is an error as
the Officer is not a psychiatrist and is therefore not qualified to challenge
the validity of Dr. Edward’s professional assessment and ignore his diagnoses
of major depression and PTSD.
[9]
The
Applicant also submits that the Officer refused to accept the Applicant’s claim
in light of the Officer’s conclusion that the RPD’s negative credibility
finding was a strong negative factor in the Application. The Applicant submits
that while the RPD are experts in assessing credibility, it should be noted
that they did not have the benefit of the psychiatrist’s medical report. The
Applicant argues the Officer had this report yet refused to give this
assessment the appropriate weight it deserved.
[10]
The
psychiatrist’s opinion is clear in stating the Applicant suffered from PTSD and
a major depressive disorder. The Officer is not a psychiatrist and is
therefore not qualified to challenge the validity of the doctor’s professional
assessment without evidence that it was incorrect. Lozano Pulido v Canada (Minister of Citizenship & Immigration), 2007 FC 209.
[11]
On
the other hand, the Officer is entitled to weigh the psychiatric report. The
Officer provided clear and detailed reasons as to why she gave little weight to
the medical evidence. The Officer accepted that the Applicant has both
psychological and non-psychological medical problems, but that the Officer
found that the information before her did not suggest reasonable treatment or
help would be unavailable to the Applicant in Egypt.
[12]
It
is open to the Officer to expect factual underpinnings to support the medical
opinion formed. Solomon v Canada (Minister of citizenship and Immigration),
2004 FC 1252 paras 10 – 14. The Officer gave the report little weight for three
reasons: first, the doctor’s choice of language cast doubt on the professionalism
of the report; second, the doctor did not refer to any standardized tests he
administered upon which to base or confirm his diagnosis; and third, the doctor
accepted without question the Applicant’s account of how she was treated in
Egypt, an account which the RPD found as not credible.
[13]
The
psychiatrist’s medical opinion of PTSD relies on the Applicant’s tale of
persecution in Egypt. This account was not accepted by the RPD which is tasked
with assessing credibility and has expertise in country conditions. The burden
is on an applicant in a refugee claim to make a case before the RPD. The
Applicant here did not submit a psychiatric report before the RPD at her
refugee hearing and it is not open for this Applicant to now attribute a
current psychiatric report back to her refugee hearing.
[14]
Considering
all of the foregoing, I am satisfied the Officer was entitled to consider the
RPD’s negative assessment of the Applicant’s claim of persecution in Egypt.
[15]
I
also am satisfied the Officer is entitled to note the medical opinion letters
make no reference to tests used to determine diagnosis. The letters suggest a
sympathetic analysis and the Officer is entitled to look to see if that opinion
is supported by appropriate testing.
[16]
In
result, I consider the Officer’s decision to give the psychiatric reports
little weight falls within a range of possible, acceptable outcomes.
[17]
The
Applicant submits she has been in Canada since 2000 and in the over 11 years
that she has been here, she has become well established. The Applicant submits
the Officer acknowledged the Applicant’s establishment in Canada. The Applicant argues no reasonable line of analysis exists that could have led to
the Officer’s conclusion that the Applicant remained in Canada improperly which affected the weight given to her strong level of establishment. The
Applicant submits that the Officer erred in giving only slight positive weight
to the Applicant’s establishment.
[18]
This
Court has held that almost anyone who has been here for a significant period of
time can develop strong relationships and ties to Canada, but the test is
whether an applicant has adduced sufficient evidence of likely unusual and
undeserved or disproportionate hardship to warrant the exceptional grant of
Ministerial discretion contemplated in s. 25.
[19]
The
Officer considered those factors that weighed in the Applicant’s favour such as
the presence of her brother, her volunteer church involvement, her work and
friends and the departmental delays in handling her application. The Officer
also appropriately considered factors that she felt weighed against the
Applicant’s establishment in Canada which was the Applicant’s long immigration
history of including her refugee claim that was found to be non-credible, two
PRRA applications, two H&C applications, several applications to the
Federal Court, and a failure to appear for a PRRA interview with a subsequent
warrant issuing.
[20]
In
my view, the Officer considered all the factors in assessing the Applicant’s
establishment in Canada. The Applicant has failed to demonstrate that the
Officer’s decision is unreasonable as the Officer’s determination is falls
within the range of possible outcomes referred to in Dunsmuir.
[21]
Neither
party has submitted a serious question of general importance for certification.
[22]
The
application for judicial review is dismissed.
ORDER
THIS
COURT ORDERS that:
1. The
application for judicial review is dismissed.
2. No
question is certified.
“Leonard
S. Mandamin”
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