Docket: IMM-1398-16
Citation:
2016 FC 1039
Vancouver,
British Columbia, September 13, 2016
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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JUDITA SULEK
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT
AND REASONS
Reasons delivered orally at Vancouver on
September 12, 2016
[1]
Judita Sulek seeks judicial review of the
decision of the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board cancelling the stay of removal that had been made against her.
[2]
Ms. Sulek is a citizen of Austria. She is
also a permanent resident of Canada and has lived in this country (with one
brief interruption) since 1984. During her time in Canada, Ms. Sulek has
accumulated a lengthy criminal record, with her convictions dating back to
1993. She has also been diagnosed as suffering from bipolar disorder, as well
as a generalized anxiety disorder and substance abuse.
[3]
In 2006, Ms. Sulek was convicted of three
counts of using stolen credit cards. As a result of these convictions, she was
reported as being inadmissible to Canada for serious criminality. In 2011,
the Immigration Division of the Immigration and Refugee Board issued a removal
order against Ms. Sulek.
[4]
Following an appeal to the IAD, Ms. Sulek’s
removal was stayed for a period of three years, subject to certain conditions.
Amongst other things, Ms. Sulek was required to not commit any further
criminal offences, and she was ordered to comply with all of the parole
conditions that had been imposed upon her.
[5]
Subsequent to the granting of the stay,
Ms. Sulek breached several of the conditions that had been imposed on her
by the IAD. Of particular importance, Ms. Sulek amassed six more criminal
convictions, including one count of possession of cocaine, one count of theft
under $5000 and four counts of failing to comply with conditions of her parole.
As a result, the Minister applied to the IAD for reconsideration of the stay of
Ms. Sulek’s removal order.
[6]
Following a hearing, the IAD determined that the
stay of Ms. Sulek’s removal should be cancelled. In coming to this
conclusion, the IAD had regard to the factors established by the Immigration
Appeal Board in Ribic v. Canada (Minister of Employment and Immigration),
[1985] I.A.B.D. No. 4 (QL). The IAD concluded that the negative considerations
in Ms. Sulek’s case outweighed the positive considerations, and there were
insufficient humanitarian and compassionate considerations to justify a further
stay of her removal.
[7]
Ms. Sulek contends the IAD’s decision was
unreasonable for two reasons. First, she says that having found her testimony
to be “generally disjointed and confused”, it
was unreasonable for the IAD to rely on her testimony as the sole basis for
finding that Ms. Sulek would have the support of her family should she be
returned to Austria. Second, Ms. Sulek submits that the IAD erred by
failing to properly consider the impact that her removal from Canada would have
on her mental health, as required by the Supreme Court of Canada in the Kanthasamy
case (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61,
[2015] 3 S.C.R. 909).
[8]
Dealing first with the issue of family support,
Ms. Sulek was asked at her IAD hearing whether she could expect to receive
assistance from her family in Europe in re-establishing herself in Austria.
Ms. Sulek clearly stated that if she was returned to Austria, she expected
that her mother and brothers would probably help her get settled. Her evidence
on this point was neither disjointed nor confused.
[9]
Ms. Sulek argues, however, that it was
unreasonable for the IAD to have selectively relied on her testimony on this
point to find that she would indeed have family support in getting established
in Austria. I do not accept this submission.
[10]
Ms. Sulek was represented by counsel at her
IAD hearing, and a designated representative was also appointed to represent
her interests before the IAD. There was no suggestion at any point that
Ms. Sulek was not competent to testify, nor is there any such suggestion
in any of the three letters from her psychiatrist that were provided to the
IAD.
[11]
Nor was there any suggestion in counsel’s
submissions to the IAD that Ms. Sulek’s testimony on this point was
unreliable. Indeed, counsel for Ms. Sulek made specific reference to her
evidence on this issue in the written submissions that were filed on
Ms. Sulek’s behalf after the IAD hearing was completed. Counsel simply
argued that the support that Ms. Sulek could expect to receive from her
family would be insufficient to meet her needs.
[12]
Finally, although not specifically mentioned by
the IAD, it is apparent from a review of the record that Ms. Sulek’s
evidence on this point was consistent with the evidence that she had provided
to the IAD in 2011, at least in so far as her contact with her mother was
concerned.
[13]
In these circumstances, it was entirely
reasonable for the IAD to have regard to Ms. Sulek’s testimony in relation
to the issue of the availability of family support for her in Austria.
[14]
For the same reason, I am not persuaded that the
IAD erred in relying on Ms. Sulek’s testimony regarding the alleged drug
use of her roommate (and former romantic partner), and the psychological abuse
that she allegedly suffers at his hands. It was not unreasonable for the IAD to
have concerns about Ms. Sulek’s living situation and the impact that this
would have on her prospects for rehabilitation, particularly in light of the
fact that she continued to reoffend by using cocaine and drinking alcohol after
her removal was stayed by the IAD in 2011.
[15]
This takes us to the IAD’s alleged failure to
have regard for the impact that Ms. Sulek’s removal from Canada would have
on her mental health.
[16]
Ms. Sulek submits the Supreme Court of
Canada held in Kanthasamy that it was an error in a humanitarian and
compassionate assessment to only consider the availability of medical treatment
in the country of removal, and not to consider the impact that removal would
have on the mental health of the individual in question. The facts of this case
are, however, readily distinguishable from the facts in Kanthasamy.
[17]
Kanthasamy
involved a young Sri Lankan Tamil who suffered from Post-Traumatic Stress
Disorder and depression as a result of his experiences in Sri Lanka - the
country where he had been detained and tortured. In assessing Mr. Kanthasamy’s
H&C application, an immigration officer accepted the doctors’ diagnosis,
but nevertheless concluded that Mr. Kanthasamy had provided insufficient
evidence to show that he would be unable to obtain medical care in Sri Lanka.
However, the immigration officer gave no consideration to medical evidence that
indicated that Mr. Kanthasamy’s condition would deteriorate if he were forced
to return to Sri Lanka, the location of his mistreatment.
[18]
In contrast, the psychiatric evidence that was
before the IAD in this case, does not suggest that returning Ms. Sulek to
Austria would exacerbate her mental health problems. Moreover, the IAD accepted
that Ms. Sulek would indeed suffer some hardship if she were returned to
Austria, but found that medical care for her would be available if she needed
it.
[19]
In the absence of medical evidence suggesting
that Ms. Sulek’s mental health would suffer if she were removed from
Canada, her argument based on the Supreme Court’s decision in Kanthasamy
must therefore also fail.
[20]
Consequently, Ms. Sulek’s application for
judicial review is dismissed. I agree with the parties that this case does not
raise a question that is suitable for certification.
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