Date:
20130905
Docket:
IMM-10821-12
Citation:
2013 FC 847
Ottawa, Ontario, September 5, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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CARLOS ARMANDO MELGAR REYES
MIRIAN ISABLE MELGAR ESPINOZA
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Applicants
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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
I. Overview
[1]
Mr
Carlos Armando Melgar Reyes and Ms Mirian Isable Melgar Espinoza, originally
from El Salvador, applied for permanent residence in Canada on humanitarian and
compassionate grounds (H&C). An immigration officer denied their
applications, finding that they would not face unusual, undeserved or
disproportionate hardship if they returned to El Salvador.
[2]
The
applicants argue that the officer’s decision was unreasonable because it failed
to take proper account of their psychological evaluations. The officer gave
little weight to Ms Espinoza’s evaluation and did not refer to Mr. Reyes’ at
all. The applicants ask me to overturn the officer’s decision and order another
officer to reconsider their applications.
[3]
I
agree that the officer failed to give adequate consideration to the
psychological evidence presented by the applicants and, accordingly, rendered
an unreasonable decision. I must, therefore, allow this application for
judicial review.
[4]
While
the applicants presented other issues, I need only consider the question whether
the officer’s decision was unreasonable in light of the failure to address the
psychological evidence.
II. Factual Background
[5]
The
applicants claimed to fear criminals in El Salvador who had threatened them and
killed Mr Reyes’ cousin. In 2004, their claim for refugee protection was
dismissed for a lack of credible evidence and because state protection was
available to them in El Salvador.
[6]
In
2005, the applicants submitted their H&C applications and detailed the past
trauma they endured in El Salvador and the psychological hardship facing them
if they returned there. They each provided the officer with a psychologist’s evaluation.
The psychologist diagnosed both applicants with Post Traumatic Stress Disorder
(PTSD) based on their past experiences and fear of returning to El Salvador. The psychologist further recommended that they receive psychotherapy, and
suggested that Ms Espinoza would benefit from certainty regarding her future
safety.
III. The Board’s Decision
[7]
The
officer considered the degree to which the applicants had established
themselves in Canada and the best interests of their two children – one in El Salvador and one in Canada. The officer also considered the psychological report indicating that
Ms Espinoza suffered from PTSD based on her past war experiences in El Salvador and her fear of being killed on return. However, the officer gave the report
little weight because it was based on Ms Espinoza’s unsworn and
uncross-examined evidence about her experiences in El Salvador. In other words,
it was hearsay. Further, the officer noted the lack of evidence that treatment
was unavailable for Ms Espinoza’s psychological issues in El Salvador.
IV. Was the officer’s
decision unreasonable?
[8]
The
applicants argue that the officer’s decision was unreasonable because the
officer had no grounds on which to discount the significance of Ms Espinoza’s
psychological report. In addition, the officer apparently did not consider Mr
Reyes’ psychological report at all.
[9]
I
agree.
[10]
The
psychologist’s reports only amounted to hearsay in respect of the precise
source of the applicants’ fear. Specifically, the reports could not be used to
establish that the applicants had actually been threatened.
[11]
However,
the reports did not constitute hearsay in respect of the psychologist’s expert
opinion regarding the applicants’ mental health. The reports provide the
psychologist’s expert opinion regarding the mental health of the applicants, a
critical component of their H&C application. In this respect, the reports
to not constitute hearsay. Therefore, the officer’s rationale for discounting
the evidentiary value of the reports was unsound (Lainez v Canada (Minister of Citizenship and Immigration), 2012 FC 914).
[12]
Further,
since the officer gave the psychological evidence little or no weight, finding
that there was no evidence that treatment was unavailable for Ms Espinoza in El Salvador, the officer did not consider the nature or degree of the psychological hardship that Ms
Espinoza or her husband would face if removed from Canada.. As their
allegations of psychological harm represented the core of their applications,
the officer’s failure to give the evidence appropriate consideration resulted
in an unreasonable decision.
V. Conclusion and
Disposition
[13]
The
officer improperly discounted the psychological evidence put forward by Ms
Espinoza and failed to consider the evidence regarding Mr Reyes. Accordingly,
the officer’s conclusion did not represent a defensible outcome based on the
facts and the law. I must allow this application for judicial review and order
another officer to reconsider the applicants’ H&C applications. Neither
party proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed and the matter is referred back to
another officer for reconsideration.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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