Date: 20110121
Docket: IMM-3645-10
Citation: 2011 FC 60
Ottawa, Ontario, January 21, 2011
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
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EDWIN WISDOM
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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 decision of an officer of
Citizenship and Immigration Canada (the officer), dated April 30, 2010,
refusing the applicant’s request for an exemption from the requirement to
obtain a permanent resident visa from outside Canada based on humanitarian and
compassionate grounds (H&C) filed under subsection 25(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA.)
[2]
The
application for judicial review will be allowed for the following reasons.
[3]
The
applicant’s identity has not been established but he claims to have been born
in 1987 in Sierra Leone.
[4]
He
came to Canada on May 3, 2004, when he was 17 and made a claim for refugee
status. Before coming here, he had lived briefly in the Netherlands and Brazil,
where he made refugee claims which were denied. He had left Sierra Leone in
1997 with his mother and spent time in Nigeria and Gabon before fleeing to
Brazil. His mother died when they were in Gabon.
[5]
The
Immigration and Refugee Board (the IRB) rejected his refugee claim on August 1,
2006. Despite having determined that the applicant had not proved his identity
or his nationality, the IRB found that he was inadmissible under article 1F (a)
and (c) because of the tattoo on his arm. This tattoo is worn by a group of
rebels responsible for serious crimes against humanity in Sierra Leone. The IRB
found that the applicant’s explanations on this subject were contradictory and
that the applicant was not credible.
[6]
Approximately
six months after the IRB’s decision, the applicant was hospitalized for five
months in a psychiatric ward.
[7]
The
subject of this judicial review is the negative decision of the officer made in
April.
[8]
In
refusing the request, the officer placed a great deal of importance on the fact
that the RPD did not have proof of the applicant’s identity. He found that the
applicant had not made the efforts necessary to provide that proof, despite the
fact that he had been here for six years.
[9]
His
integration to Canada had not been adequately demonstrated because the
applicant had not submitted all of the necessary supporting documents.
[10]
The
officer did not give much weight to the letters of reference detailing the
applicant’s personal qualities as they did not establish that the applicant
would experience unusual and undeserved or disproportionate hardship if his
request was denied.
[11]
The
findings of the social worker and the psychiatric report with respect to the
applicant’s state of health were also given little weight.
[12]
The
standard for judicial review of a tribunal’s evaluation and weighing of the
evidence is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190, at paragraph 47.)
[13]
The
Court is of the opinion that the officer in this case placed far too much
weight or emphasis on the question of the applicant’s identity (tribunal
record, page 4, paragraph 4) and that this was a deciding factor in the reasons
given for disregarding the psychological report (tribunal record pages 271-272)
and the findings of the social worker (tribunal record, pages 264-265.)
[14]
While
it is true that the evidence provided by the applicant with respect to his
identity was not conclusive, the question before the officer was whether there
were sufficient humanitarian and compassionate grounds to grant an exemption.
[15]
From
the first paragraphs of the IRB’s analysis it is obvious that the Board member,
with reason, questioned the behaviour, attitude and mental state of the
applicant at the hearing (tribunal record, pages 40-41.)
[16]
He
reached the opinion that the applicant was a liar and manipulator. Was he
right? We now know that the applicant was hospitalized and under psychiatric
care for a very long period, barely six months after the IRB decision.
[17]
The
Court is of the opinion that the officer committed a reviewable error in
largely disregarding the psychiatric report because no objective evidence had
been filed corroborating the hospitalization dates.
[18]
The
Court is not claiming that the officer was bound by the psychiatrist’s findings
or by those of the social worker. Nevertheless, a more complete analysis is
necessary.
[19]
No
question was submitted for certification. There is no question to be certified
in this case.
JUDGMENT
THE COURT
ORDERS that the application for judicial review be allowed. The matter
is referred for redetermination by a different officer. There is no question to
be certified.
“Michel Beaudry”
Certified
true translation
Monica
F. Chamberlain
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