Docket: IMM-2315-16
Citation:
2016 FC 1366
Ottawa, Ontario, December 9, 2016
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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ANNETTE MARIA
FRANCIS
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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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JUDGMENT AND REASONS
[1]
This is the judicial review of a negative
decision by a senior immigration officer (“Officer”) of Citizenship and
Immigration Canada dated May 19, 2016 refusing Ms. Francis’ (“Applicant”)
application for permanent residence on humanitarian and compassionate
(“H&C”) grounds.
Background
[2]
The Applicant is 66 years of age and a citizen
of Grenada. She entered Canada on November 9, 2014 to visit her daughter. She
subsequently sought refugee protection on the basis of the years of abuse she
had suffered at the hands of her former spouse in Grenada, and abuse she
experienced from the community in Grenada because of her daughter’s sexual
orientation. The Applicant’s claim for refugee protection was rejected on
March 25, 2015, an appeal to the Refugee Appeal Division (“RAD”) was also
rejected, and her subsequent application for leave to judicially review the
RAD’s decision was dismissed by this Court on April 13, 2016.
[3]
The Applicant applied for permanent residence
from within Canada on H&C grounds in November 2015 on the basis of hardship
in her home country, establishment in Canada, and her mental health condition. Her
application was rejected the Officer on May 19, 2016, and that decision is the
subject of this judicial review.
Decision Under Review
[4]
Because the Applicant’s risk allegations had
already been assessed under ss. 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (“IRPA”) in her refugee application, the
Officer did not consider them in the H&C application, but stated that he
would consider her allegations in the broader context of their degree of
hardship.
[5]
The Officer acknowledged the prior abuse that
the Applicant had suffered at the hands of her former spouse but stated that
the Applicant’s ex-husband, if still alive, would be 72 years old, that they
had been divorced for more than 14 years, and that, since then, she had resided
in Grenada until 2014 without being abused by him. The Officer concluded that
the Applicant had submitted insufficient evidence to persuade him that her
ex-husband would abuse her in “any shape or form after
being divorced from her for the past 14 years”.
[6]
The Officer then considered the evidence that
the Applicant had submitted to corroborate her mental illness, which included a
letter indicating hospitalization for mental health episodes on four occasions
when she resided in Grenada. The Officer found this to be evidence that she
was able in the past to receive treatment in Grenada. He also noted that she
has a daughter, three sisters, and a brother in Grenada who have assisted her
in the past to overcome her illness. The Officer also considered evidence from
Canadian doctors stating that the Applicant has post-traumatic stress disorder
(“PTSD”) and the Officer accepted this as fact. The Officer noted that this
condition could have been triggered by the rejection of the Applicant’s refugee
claim.
[7]
The Officer stated that he was empathetic to the
Applicant’s health problems and acknowledged the immigration process can be a
stressful experience. However, he noted that the purpose of the H&C
process is to provide relief from unusual, undeserved or disproportionate
hardship caused if an applicant is required to leave Canada and apply for
permanent residence from abroad in the normal fashion. The Officer found that
the Applicant had not submitted sufficient evidence to demonstrate this level
of hardship should she be forced to return to Grenada.
[8]
The Officer considered the importance of family
reunification, but also noted that this could be achieved through other
possibilities within the immigration system, such as the existing family class
program, or the eligibility for a Super Visa. The Officer also acknowledged
that the Applicant may face some difficulties in readjusting to life in
Grenada, but noted that she has spent the majority of her life there.
[9]
Ultimately, the Officer stated that, having
considered all the information and evidence, he was not persuaded that the
Applicant’s case was deserving of an exemption for the in-Canada selection
process as he was not of the opinion that such an exemption was justified on
H&C considerations.
Issues and Standard of Review
[10]
In my view, the sole issue is whether the
decision was reasonable. The standard of review applicable to an officer’s
findings of fact in assessing an H&C application is reasonableness (Kanthasamy
v Canada (Citizenship and Immigration), 2015 SCC 61 at para 45 (“Kanthasamy”);
Taylor v Canada (Citizenship and Immigration), 2016 FC 21 at paras 16-18).
Analysis
[11]
The Applicant submitted that she had provided a
letter from her psychiatrist, Dr. Pink, dated March 22, 2016 which indicates
that she has a history of multiple admissions to hospital in Grenada for
psychotic episodes, and that since her arrival in Canada, she has been admitted
to the hospital twice for psychotic decompensation. The second admission, for
a period of three weeks in October 2015, yielded a diagnosis of
schizophreniform disorder. Dr. Pink stated that the Applicant was treated
successfully with Paliperidone 6 mg daily, that she continues to be compliant
with her medications, and that there is no further evidence of psychotic
symptoms. The Applicant had reported to Dr. Pink that, of all of the
medications she has been on in the past, this was the most effective.
[12]
Dr. Pink also stated that she had been in
contact with Ellen Gabriel, a representative of the Ministry of Health in Grenada,
to inquire about the availability of Paliperidone in Grenada and was informed
that the medication was not on their formulary. Dr. Pink concluded that, in
her opinion, the Applicant should remain on that specific medication
indefinitely to prevent further relapse of her psychotic symptoms. If she were
to return to Grenada, where it is not available, there is a high likelihood
that she would have further psychotic episodes.
[13]
The Applicant submits that the Officer failed to
mention this important piece of evidence in his decision. However, the
Respondent submits that the fax confirmation page illustrates that counsel for
the Applicant sent the letter to the wrong number and, as a result, it was
never received by the Officer. I note that the Applicant does not contest this
nor is there any evidence that her counsel sought a reconsideration from the
Officer when the error came to light. Additionally, the letter does not appear
in the Certified Tribunal Record. In these circumstances, the Officer’s
failure to consider the letter is not an error.
[14]
That being said, even without that letter from
Dr. Pink, there is evidence in the record indicating that the Applicant’s
mental health will likely deteriorate if she is removed from Canada. In a letter
dated March 3, 2015, a social worker, who is the Applicant’s counselling
therapist at Access Alliance, expresses the opinion that the Applicant is
living with complex PTSD and, based on the minimal personal support systems
available to the Applicant other than those in Canada, the belief that the
Applicant’s welfare is at risk of acute worsening should she be forced to leave
the country. In a letter dated February 14, 2015, clinical psychologist Dr.
Gerald Devins states: “If refused permission to remain
in Canada, her condition will deteriorate (e.g. possible major depressive
episode)”.
[15]
In the Officer’s reasons, although he accepts
that the Applicant has PTSD, he does not consider the impact of removal on her
mental health. Rather, he bases his refusal on his finding that the Applicant
has submitted insufficient evidence to demonstrate that she does not have
access to health treatment in Grenada, and that her family in the past has
assisted her to “overcome her illness”. In my
view, this approach is not in alignment with the Supreme Court of Canada’s
decision in Kanthasamy which held that the fact that an applicant’s
mental health would likely worsen if he/she were removed from Canada is a
relevant consideration that must be identified and weighed regardless of
whether there is treatment available in their home country to help with their
condition. Moreover, there was no evidence before the Officer that the Applicant
has previously “overcome” her illness. She was admitted to a mental hospital
in Grenada on several occasions, but the evidence clearly shows that her mental
health issues have persisted, if not deteriorated, since then.
[16]
Availability of treatment is not the only factor
to be considered and, in this matter, there is uncontested evidence in the
record that the Applicant’s mental health will likely deteriorate if she is
removed from Canada. The Officer failed to address this point and thereby
committed a reviewable error.
[17]
In my view the Officer also erred in his
treatment of the evidence pertaining to the abuse suffered by the Applicant at
the hands of her ex-husband. The Officer refers to the January 28, 2015
letter from Dr. Les Richmond and notes that the doctor states that the
Applicant was assaulted by her husband sometime in and around the 1990’s. The
Officer concludes that the Applicant “has resided in
Grenada until 2014 without being abused by her ex-husband” and that she
had submitted insufficient evidence to persuade him that her 72-year-old
ex-husband from whom she had been divorced for the past 14 years would abuse
her. However, in his letter, Dr. Richmond not only described the assault
in the 1990’s which resulted in her right tibia and fibula at her the right
ankle being broken but also stated that sometime in and around 2013, she was
again assaulted by her husband who hit her with a piece of wood causing her to
sustain a fracture of her left tibia and fibula at the left ankle. The doctor
described the scars for both her right and left ankles and he found they were
consistent with her history of trauma and surgery.
[18]
Thus, the Officer’s conclusions are directly
contradicted by the evidence in Dr. Richmond’s letter and no
acknowledgement of, or explanation for this is provided by the Officer.
Although the risk allegations were previously considered under ss. 96 and 97 of
the IRPA, the Officer stated that he would consider them in the broader context
of their degree of hardship. Given the failure to address this contradictory
evidence, I am not persuaded that the Officer did so. The failure to consider
this significant contradictory evidence is a reviewable error (Cepeda-Gutierez
v Canada (MCI), (1998), 157 FTR 35, at para 17, Mora Gonzalez v Canada
(MCI), 2014 FC 750, at paras 54 and 59).
[19]
Given my above findings, it is not necessary to
address the Applicant’s other submissions as the decision is unreasonable.
This is because the errors render it impossible to determine if the decision
falls within the range of possible, acceptable outcomes which are defensible in
light of the facts and the law (Dunsmuir v New Brunswick, 2008
SCC 9 at para 47).
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