Docket: IMM-1856-16
Citation:
2016 FC 1345
Ottawa, Ontario, December 6, 2016
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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JINETH MONTERO
CARDONA
CARLOS
LANDAZURI CANO
MARIAN
LANDAZURI MONTERO
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Applicants
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And
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND
THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
[1]
The Applicants, Jineth Montero Cardona, Carlos
Landazuri Cano, and Mariana Landazuri Montero [the Applicants], challenge a
senior immigration officer’s [the officer] decision dated March 24, 2016, that
an exemption under humanitarian and compassionate [H&C] grounds was not
warranted.
I.
Background
[2]
The Applicants are citizens of Colombia and came
to Canada in September of 2013. Their refugee claim was rejected by the Refugee
Protection Division [RPD] on August 19, 2014. Having found the Applicants to be
credible, the determinative issue before the RPD was the availability of state
protection in Colombia.
[3]
The RPD found that the Applicants did not go to
the authorities about threats made against them and the Applicants failed to
demonstrate that the state was unable to protect them. Despite a minor error in
procedural fairness, the RPD decision was upheld at the Federal Court on July
2, 2015.
[4]
The Applicants’ pre-removal risk assessment
[PRRA] was rejected on March 24, 2016. On the same day they received a refusal
of their application for H&C relief which is the subject of this judicial
review.
II.
Issue
[5]
The issue to decide is whether the officer reasonably
balanced the appropriate factors in the H&C application?
III.
Standard of Review
[6]
The applicable standard of review for H&C
applications is reasonableness (Baker v Canada, [1999] 2 S.C.R. 817 at para
62 [Baker]).
IV.
Analysis
[7]
I am granting this application for the reasons
that follow.
[8]
The RPD found that the female Applicant was
sexually assaulted in 2010. Her assailant was convicted and sentenced to eleven
years and four months incarceration. As a result, she was diagnosed as having post-traumatic
stress disorder [PTSD] by a psychologist as well as other mental health challenges
including possible suicidal tendencies. The officer found her claims of poor
mental health caused by the traumatic events that occurred in Colombia to be
credible. The Applicants filed several medical reports that spoke to her
diagnosis and evidence to how removing her back to Colombia would
negatively affect her mental health.
[9]
The Supreme Court of Canada [SCC] in Kanthasamy
v Canada, 2015 SCC 61 [Kanthasamy], provided guidance on how an officer
is to assess an H&C application. The applicant in that instance was a 17
year old male Tamil from Sri Lanka. The applicant had been found credible but
did not fit within a risk profile so his H&C application was denied. The
officer determined that the applicant had “not
satisfied [them] that return to Sri Lanka would result in hardship that was unusual
and undeserved or disproportionate”.
[10]
The SCC, in Kanthasamy, above, at
paragraph 23, confirmed earlier decisions of this court that “There will inevitably be some hardship associated with being
required to leave Canada. This alone will not generally be sufficient to
warrant relief on humanitarian and compassionate grounds under s. 25 (1): see
Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463, at para
13 (CANLII); Irmie v. Canada (Minister of Citizenship and immigration) (2000),
10 Imm. LR 206 (FCTD) at par 12.”
[11]
The court said that the words “unusual, undeserved or disproportionate” hardship
test in the Guidelines (Citizenship and Immigration Canada, Inland
Processing, “IP 5: Immigrant Applications in Canada
made on Humanitarian and Compassionate Grounds” (online) s. 5.10) is
merely to provide assistance to officers and are not intended as a hard and
fast rule that would fetter their discretion. The equitable underlying
principal in section 25 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] led the court to say that those three words should be
treated as descriptive and not new thresholds. Officers must consider the
totality of the evidence.
[12]
In Kanthasamy, the medical reports were
unreasonably discounted in contrast to clear uncontroverted evidence of
discrimination and as a result the officer did not do the requisite analysis in
light of the humanitarian nature of s. 25, the “evidence
as a whole justified relief” which fettered the officer’s discretion and
made the decision unreasonable.
[13]
The Applicants argued that as in Kanthasamy,
the officer erred in the treatment of the female Applicant’s health issues. As
well, the Applicants argue that the best interests of the child [BIOC] analysis
was cursory and not given the serious consideration required. The Applicants
submit that the officer failed to assess in the BIOC, if they were sent back to
Colombia, how the female Applicant’s mental health issues would affect her then
3 1/2 year old child and her ability to care for the child given the
uncontroverted evidence that her PTSD would worsen if returned to Colombia where
the violent trauma occurred.
[14]
The Applicants rely on Kanthasamy, and
argue just as happened in Kanthasamy, the officer unreasonably
discounted the medical and psychological reports with uncontroverted evidence
of the harm that would happen if the female Applicant returned to Colombia.
[15]
The Respondent equally relies on Kanthasamy
for support that some hardship cannot be avoided when individuals are removed
from Canada. They argue that the officer weighed all of the factors including giving
significant weight to the BIOC and in doing so made a reasonable decision.
[16]
There was argument presented by the Applicants that
the officer could have used a step approach as stated in Williams v Canada
(Minister of Citizenship and Immigration), 2012 FC 166 [Williams]. The
Respondent, relying on Legault v Canada (Minister of Citizenship and
Immigration), 2002 FCA 125 [Legault], submitted that there is no
magic formula to be used in determining an H&C application. According to
the Respondent, it is sufficient that the officer is alert, alive and sensitive
to the BIOC and give it considerable weight. Both agree that a child’s best interests
do not outweigh all other considerations.
[17]
Kanthasamy did
not confirm the step approach advocated in Williams, above. I agree with
the Respondent that there is no magic formula but that the officer must be
alert, alive and sensitive to the BIOC and give it considerable weight but not
such that it always outweighs all other factors.
[18]
The Applicants argue that the female Applicant’s
medical evidence was dismissed without proper consideration. The Respondent counters
that the officer acknowledged her situation may deteriorate but that she could receive
protection and treatment in Colombia at women shelters and hospitals.
A.
Mother
[19]
The medical reports before the officer were: Dr.
Devins, Clinical Psychologist, July 17, 2014 and September 7, 2015; Dr. K.
Asayesh, Psychiatrist, September 7, 2015, September 21, 2015, October 7, 2015; Sarah
Kipp, Nurse Practitioner, dated August 31, 2015, November 17, 2015. There was
also a report from Karla Velis, Nurse Practitioner, dated September 16, 2015,
that was not mentioned at all in the decision.
[20]
A summary of the medical findings in the reports
filed that relate to this issue follow. Dr. Gerald M. Devins filed a detailed five
page report that concludes with the doctor’s clinical impression that the
female Applicant “satisfies diagnostic criteria for major
depressive disorder of moderate severity (296.22 [F32.1], posttraumatic stress
disorder (309.81 [F43.10]), and acquired genito-pelvic pain/penetration disorder
with moderate distress (302.76 [F52.6] in the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders)”.
The report said that the female Applicant requires mental health treatment that
may include stress-management training, behavioural activation,
cognitive-behavior therapy as well as other treatments. The doctor concluded
that if she does not stay in Canada “her condition will
deteriorate; suicide risk will increase.”
[21]
The psychiatrist report (Dr. K. Asayesh) to the
referring doctor indicated that her husband expressed her condition to him at
the meeting but she did not express her feelings. As a result, the psychiatrist
indicated he had to conduct a thorough interview with the female Applicant with
the assistance of a Spanish interpreter. After that second interview, the
psychiatrist found her story to be genuine and indicates he needs to see her
again with the interpreter and then offer a treatment plan for her. In his
final report, after another session with the female Applicant, he indicates
that she is still “having bad dreams mostly about her
daughter being threatened, harmed or killed; as well as about her own rape”
as well as getting flashbacks at least once a week, especially at night if her
husband is working shift work. The psychiatrist concluded that “[t]his lady has been subject to severe sexual and emotional
trauma and still clearly suffering from Post-Traumatic Stress Disorder. She is
afraid that if she and her family return to their home country they will most
likely be targeted for harassment and violence by the same people ‘because of
the information we have about them.’ Unfortunately, she is probably correct.”
[22]
In the Karla Veils report dated September 16,
2015, she indicated the female Applicant is followed for symptoms of
depression, anxiety and PTSD. That report says the female Applicant states that
she is scared and is living in fear for her safety but “most
important her daughter’s safety”. Further it states that the female Applicant
is “seeing a psychiatrist due to her current mental
health status for further assessment and treatment.” Sarah Kipp on
November 17, 2015, relates that “her ability to manage
her symptoms is negatively impacted by her anxiety related to her fear of being
deported to her country of origin where she feels unsafe.” The report
says the female Applicant is on pharmacotherapeutic treatment but is continuing
to experience significant anxiety.
[23]
The doctors’ assessment of risk of harassment
and violence faced by the Applicants is of no probative value as that is not their
expertise or role. However, their assessment of psychological risk is well
within their field of expertise and Nurse Practitioners and should be
considered.
[24]
In Kanthasamy, the officer accepted that
the applicant had PTSD but asked for additional evidence about whether the
teenager sought treatment or whether treatment was available in Sri Lanka. The
SCC said this made the factor conditional rather than significant. The officer
ignored the effect removal to Sri Lanka would have on the mental health of the
applicant. The SCC found that a worsening of the applicant’s mental health if
removed to Sri Lanka was a consideration that should have been weighed by the
officer whether treatment was available or not.
[25]
In this case the officer does accept that the
female Applicant’s condition may have worsened in November 2015, but dismisses
the lack of specific detail concerning the treatment plan, medications and
prognosis. The officer acknowledged that if removed to Colombia the female Applicant’s
risk of suicide would increase. The officer stated that this was taken into
consideration but that redress options are available in Colombia. What remains
unclear is why the officer required additional evidence about what treatment
was or was not available in Colombia. Once the officer accepted that the female
applicant had PTSD and a risk of suicide based on her experiences in Colombia,
requiring further evidence of the availability of treatment, either in Canada
or in Colombia, undermined her assessment. It made the female Applicant’s
mental health a conditional rather than a significant factor.
[26]
Furthermore, in the officer’s focus on whether
treatment was available in Colombia, he ignored what the effect of removal from
Canada would be on her mental health. Regardless of whether treatment is
available in Colombia, the very fact that the female Applicant’s mental health
would likely worsen were she removed to Colombia is a relevant consideration
that must be identified and weighed.
[27]
The SCC has said that it is not reasonable to
focus on whether treatment was available making it a pre-condition type factor
rather than one of many factors to weigh.
[28]
In conclusion, the officer minimized the risk to
the female Applicant’s health were she returned to Colombia, on the basis that
she could access victim services. The officer does canvas objective documentary
evidence but given the uncontroverted evidence of several well trained medical
experts, the officer’s reliance solely on the use of redress was unreasonable.
B.
Best Interests of the Child
[29]
The Federal Court of Appeal [FCA] has directed
that it is insufficient to merely state that the BIOC have been taken into
account (Hawthorne v Canada (Minister of Citizenship and Immigration),
2002 FCA 475 at para 32 [Hawthorne]). Quoting Legault, above, the
FCA stated that an officer must examine the BIOC with a great deal of attention
in light of all the evidence; it should be treated as a significant factor.
Unusual and underserved hardship is inapplicable to the assessment of the
child’s interests, children will rarely, if ever, be deserving of any hardship.
A decision is unreasonable if the interests of children affected by the
decision are not sufficiently considered (Baker, above, at para
75).
[30]
The officer’s reasons in total regarding the
BIOC are :
I have also been alert, alive and
sensitive in regards to the best interests of the children in this
application and conclude that Mariana`s interests would be best serve if she
remains with her primary caregivers and maintains positive and close
relationships with her aunt, uncle and cousins in Canada. Similarly, I find
that the interests of Paul and David LANDAZURI would be best served if they
continue the close bond they have with the applicants. I have given this consideration
some weight. However, to this end, I find that although not perfect, the
close relationships can still be maintained through alternative channels such
as email, Skype and telephone communication.
[Emphasis added]
[31]
Simply stating that the officer is alert,
alive and sensitive to the BIOC is insufficient (Hawthorne, above, at
para 32). Here the officer did an analysis of the BIOC but failed to accord it
with “serious weight and consideration” (Baker,
at para 65). The gives “some weight” to the BIOC
rather than the serious weight it deserves.
[32]
In Kanthasamy, the SCC found that the
officer took a narrow approach to the assessment and failed to consider the
applicant’s circumstances as a whole. The SCC instructed that the evidence as a
whole is to be weighed when doing a BIOC and looked at in total.
[33]
On our facts, the officer failed to address how
the very young daughter will be affected given the medical evidence that their
mother’s mental health will deteriorate upon return to Colombia. The officer further
fails to mention how the death threats against the child could impact the child
or the mother’s mental health.
[34]
I am aware that the onus is on the Applicants to
provide evidence and it is not for the officer to extrapolate the evidence. However,
evidence was included in the H&C application that the daughter had been
threatened. This evidence included a condolence card in July 2013 for the
daughter regarding her death. The child was also subject to a direct threat by
FARC when she was born. The medical report of Karla Velis dated September 15,
2016, was not mentioned by the officer even though it speaks directly to the
fear the female Applicant has for her child’s safety. The reports of Sarah Kipp
also speak to the fear the female Applicant has regarding her daughter’s safety
and welfare. The daughter’s safety is noted in several of the medical reports
as being a trigger or certainly a factor in the female Applicant’s PTSD. The
medical reports indicate that the exacerbation of the symptoms the mother exhibits
would impact the care of her very young child.
[35]
Even though the written submissions did not specifically
address the effect on then 3 1/2 year old child if her mother’s mental health deteriorates
further if removed from Canada the evidence was before the officer. The medical
reports indicate that the mother is very fearful of her daughter’s safety in
Colombia and the symptoms the mother exhibits would impact the care of her very
young child. Nowhere does this aspect of the BIOC appear in the officer’s
analysis nor is this evidence considered in the officer’s assessment.
[36]
I do not find that the officer was alert, alive
and sensitive to the BIOC. The significant weight accorded to the BIOC should
be weighed against countervailing factors and then a final determination made.
The officer’s consideration of the BIOC was unreasonable.
[37]
Reasonableness requires that the decision must
exhibit justification, transparency and intelligibility within the decision
making process and also the decision must be within the range of possible,
acceptable outcomes, defensible in fact and law (Dunsmuir v New Brunswick,
2008 SCC 9; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12).
[38]
The decision was not reasonable in the treatment
of the medical evidence of the mother or the BIOC. As a result, I am granting
the application.
[39]
In granting this application, the Applicants
will be able to file additional material if they choose to that will be
considered in the reconsideration.
[40]
No certified question was presented and no question
will be certified.
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