Date:
20121210
Docket: IMM-2496-12
Citation: 2012 FC 1459
Ottawa, Ontario, December 10, 2012
PRESENT: The Honourable Madam Justice
Gleason
BETWEEN:
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SUTHAKARAN
KANAGARATNAM
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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 JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of
the February 29, 2012 decision of the Director, Case Determination, Case
Management Branch of Citizenship and Immigration Canada, finding there were insufficient
humanitarian and compassionate [H&C] grounds to justify granting the
applicant an exemption from the requirement of applying for permanent residency
from abroad.
[2]
The applicant is a citizen of Sri Lanka. In a decision dated April 16, 2010, the Immigration Division of
the Immigration and Refugee Board found him to be inadmissible to Canada
pursuant to paragraph 34(1)(f) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] by reason of his involvement with a terrorist
organization, the Liberation Tigers of Tamil Eelam or LTTE. Accordingly, the
applicant was ordered deported from Canada.
[3]
In August of 2010, the applicant applied for
permanent residence in Canada and sought an exemption on H&C grounds from
the normal requirement that permanent resident applications must be made from
abroad. Such an application, however, is foreclosed to the applicant, by reason
of the inadmissibility determination. The H&C application, therefore, would
have the effect of waiving the applicant’s inadmissibility.
[4]
The applicant’s wife, Mrs. Suthakaran, was
granted refugee status in 2011 based on the risk associated with being the wife
of an LTTE member in Sri Lanka. The couple’s two children had previously been
granted refugee status in 2004, based on their risk of being forced into LTTE
recruitment. Mrs. Suthakaran’s story changed through the years: when she
arrived in Canada, without the applicant, she highlighted the various actions
the applicant undertook as an LTTE member and relied on this evidence in
support of her refugee claim. However, when her husband arrived in Canada in 2007 and was then subject to inadmissibility proceedings, she tried to recant
this testimony. Not surprisingly, she was not believed.
[5]
The applicant and his family reside with the
applicant’s mother-in-law, brother-in law and his family. The evidence before
the Director indicated that relationships in the extended family household were
tense and that the applicant’s brother-in-law intended to have the applicant’s
family move out of the house. The applicant’s wife is currently suffering from
depression. The applicant filed two relatively brief notes from his wife's
treating psychiatrist in support of his H&C application, which indicate
that Mrs. Suthakaran has difficulty carrying out day-to-day chores and in
caring for her children, is taking medication, and that the applicant has been
ensuring that she takes her medication. The treating psychiatrist expressed the
view that if the applicant were deported, Mrs. Suthakaran may not comply with
the intake of her prescribed medication, stating that he was “very concerned
that she may come to feel so profoundly hopeless that she may harm herself”.
[6]
The applicant's children are in their late teens
and depend to a large extent on their father for care, guidance and support,
given their mother's illness. The applicant is the sole breadwinner in the
family, with his wife currently being incapable of working. She has not worked
outside the home in the past.
[7]
The applicant argued before the Director that in
light of his wife’s illness and the needs of his children, he should be
afforded H&C consideration. The Director disagreed, holding that there were
insufficient H&C grounds to warrant waving the applicant’s inadmissibility.
[8]
The standard of review applicable to the
Director’s decision is that of reasonableness (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 DLR (4th) 193 at para
62; Prashad v Canada (Minister of Citizenship and Immigration), 2011 FC
1286 at para 26, 208 ACWS (3d) 387; Paz v Canada (Minister of Citizenship
and Immigration), 2009 FC 412 at paras 22-25, [2009] FCJ No 497).
[9]
The applicant argues that the Director’s
decision is unreasonable and should be set aside because the Director:
1.
made findings based on speculation and ignored
evidence in finding that the applicant’s wife might recover from her depression
and be able to care for the children and hold gainful employment. The applicant
argues in this regard that the Director erred in relying on information from
the website of the Centre for Addiction and Mental Health [CAMH] in preference
to the evidence from Mrs. Suthakaran’s psychiatrist;
2.
failed to properly assess the best interest of
the applicant’s children, who will effectively be left without a guardian,
given their mother’s incapacity; and
3.
considered the H&C factors in isolation.
In my
view, none of these submissions has merit.
[10]
In assessing the reasonableness of the
Director’s decision, it must first be borne in mind that the reasonableness
standard of review is an exacting one, particularly in the case of a
discretionary decision. The reasonableness standard, as noted by Justice
L’Heureux-Dubé in Baker, above, at pp 857-858, requires that “[…] considerable
deference should be accorded to immigration officers exercising the powers
conferred by the legislation, given the fact-specific nature of the inquiry,
its role within the statutory scheme as an exception, the fact that the
decision-maker is the Minister, and the considerable discretion evidenced by
the statutory language.” As such, the role of this Court is a limited one.
[11]
Secondly, it must be recalled that the burden is
on an applicant to establish grounds for the exercise of H&C consideration
and that where, as here, an officer is called upon to balance national security
concerns with the personal circumstances of an applicant or his family, an
applicant is required to put forward significant H&C considerations to
warrant an exemption. As Justice Zinn wrote in Qureshi v Canada (Minister of Citizenship and Immigration), 2012 FC 335 at paras 30 and
33:
The granting of an
exemption for humanitarian and compassionate reasons is exceptional and highly
discretionary, thus deserving of considerable deference by the Court […] Where
there has been a finding of inadmissibility, any humanitarian and compassionate
factors must be balanced against the public interest in excluding inadmissible
persons from Canada.
[…]
…H&C
considerations [have] to be significant when balanced against the reasons for the
inadmissibility.
[12]
Insofar as concerns the treatment of the medical
evidence, contrary to what the applicant asserts, the Director did not base her
decision on speculation or ignore evidence concerning Mrs. Suthakaran’s
condition. In this regard, it was not inappropriate for the Director to have
considered information on the CAMH website, which is a credible source
regarding psychiatric conditions. Moreover, the information the Director
considered was disclosed to the applicant (and his counsel) for comment. There
is no suggestion that the Director did not fairly summarize the information
contained on the CAMH website, which does indicate that depression may often go
into remission, particularly with psychotherapy and medication. The information
from Mrs. Suthakaran’s psychiatrist, on the other hand, contrary to what
counsel for the applicant asserts, did not indicate that Mrs. Suthakaran would
not recover from her depression if the applicant were deported. Rather, to put
the doctor's notes at their highest, they stated merely that there was a risk
that Mrs. Suthakaran might cease taking her medication if her husband were
removed to Sri Lanka and that the psychiatrist had a concern that she might
deteriorate and contemplate suicide.
[13]
The Director fairly summarized the evidence from
both these sources in the decision, and determined that “[…] it seems that
people can return to their normal routines with appropriate treatment.
Moreover, the evidence suggests that if Mrs. Suthakaran continues with her
treatment; accepting the protocol recommended by her psychiatrist, it is likely
that she will be able to resume more parental and household duties.” In coming
to this decision, the Director afforded greater weight to the information from
the CAMH website as opposed to that from Mrs. Suthakaran’s psychiatrist. The
weighing of such evidence is at the heart of the specialized expertise of
H&C officers, and it is inappropriate for this Court on judicial review to
reweigh the evidence (see e.g. Japan Electrical Manufacturers Assn v Canada
(Anti-Dumping Tribunal), [1982] 2 FC 816 (CA) at p 818; Buchan v Canada
(Attorney General), 2007 FC 1141 at para 29). That, in effect, is what the
applicant seeks to have me do in the present case.
[14]
This case is distinguishable from Volniansky
v Canada (Minister of Citizenship and Immigration, 2005 FC 1597, Kambo
v Canada (Minister of Citizenship and Immigration, 2012 FC 872, Romans
v Canada (Minister of Citizenship and Immigration), 2003 FC 1157 and Gillespie
v Canada (Minister of Citizenship and Immigration, [2000] FCJ No 545,
relied on by the applicant, as in those cases, unlike here, there was no
evidence before the officers to support the conclusions reached regarding the
claimants’ mental health status or treatment available to them abroad. Here, on
the other hand, the evidence from the CAMH website does support the Director’s
conclusions. In Damte v Canada (Minister of Citizenship and Immigration),
2011 FC 1212, also relied upon by the applicant, the officer was found to have
engaged in a series of perverse findings. Again, that is not the situation in
the present case.
[15]
Insofar as concerns the Director’s treatment of
the best interests of the applicant's children, as counsel for the applicant
argued, to a large extent, the Director’s reasoning on this point builds upon
her reasoning regarding the possibility of Mrs. Suthakaran’s recovery.
If she recovers, she will be able to care for her children. As I have found the
Director’s reasoning on this point to be sustainable, it follows that her
treatment of the best interests of the children is not unreasonable.
[16]
Moreover, contrary to what the applicant
asserts, the children will not be left without emotional support even if Mrs.
Suthakaran remains depressed, as they do have an extended family in Canada and there is no evidence that Mrs. Suthakaran lacks the capacity to be their legal
guardian, as opposed to presently facing difficulty in carrying out daily
tasks. While the boys’ uncle filed a statutory declaration indicating that he
would not be able to support the children financially, it does not follow that
he and (and others in the family) would not provide the children with emotional
support. In addition, as the Director noted, the boys are in their late teens
and thus holding that they would be able to access transit and potentially find
part-time jobs like many other Canadian teenagers is not unreasonable.
[17]
As concerns finances, as the Director stated, if
Mrs. Suthakaran continues to be unable to work, social assistance would be available
to her and the children. The fact of needing to resort to social assistance
does not necessarily warrant H&C consideration, since the family would be
on all fours with many other families in Canada.
[18]
Finally, it is erroneous to suggest that the
Director viewed the H&C factors in isolation from each other. The Director
considered each of the arguments put forward by the applicant and balanced all
the various interests to decide if H&C consideration was warranted and held
that the H&C considerations did not outweigh the applicant’s
non-admissibility on security grounds pursuant to paragraph 34(1)(f) of the
IRPA.
[19]
In short, the Director determined that two short
notes from a psychiatrist, which indicated that Mrs. Suthakaran suffers from
depression, did not justify granting an LTTE member the right to remain in
Canada as a permanent resident. I cannot find this conclusion to be
unreasonable, particularly in light of the evidence regarding the likelihood of
recovery from depression with proper treatment. In addition, it appears that -
at least to a certain extent - the shifting stories that have been related in
the various proceedings about the degree of the applicant’s involvement in the
LTTE have led to the situation in which the applicant and his wife now find
themselves. Thus, this cannot be said to be a situation where they are facing
undeserved hardship. This application will accordingly be dismissed.
[20]
No question for certification under section 74
of the IRPA was suggested and none arise in this case, which is entirely
fact-specific.
JUDGMENT
THIS COURT’S JUDGMENT is that
1.
This application for judicial review is
dismissed;
2.
No question of general importance is certified;
and
3.
There is no order as to costs.
“Mary J.L. Gleason”
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