Docket: IMM-4179-16
Citation:
2017 FC 316
Ottawa, Ontario, March 28, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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NER ADAM
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YVETA CHARLES
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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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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA, the Act] of a decision [Decision] by an immigration officer [the
Officer], dated September 12, 2016, refusing the application for permanent
residence [PR] status based on humanitarian and compassionate [H&C] grounds
pursuant to subsection 25(1) of the IRPA.
[2]
The Applicants, Mr. Ner Adam and Ms. Yveta
Charles, aged 50 and 30, are citizens of Haiti. They are married and have a
one-year-old Canadian-born daughter. Mr. Adam also has a son, born in 2009, who
remains in Haiti. The H&C application addressed establishment in Canada,
best interest of their children, political and gender-based persecution, and
general hardship in returning to Haiti. The Officer, in refusing the H&C
application, found that the Applicants had failed to demonstrate that their
personal circumstances were sufficient to justify an H&C exemption to the
requirements of the Act. Given the Officer’s unreasonable assessment of certain
evidence provided by the Applicants, the judicial review will be allowed.
II.
Preliminary Matter
[3]
As requested by Applicants’ counsel, and agreed
to by the Respondent, the style of cause is amended to read “Ner Adam” rather than
“Adam Ner”, as indicated on the initial Statement of Claim.
III.
Analysis
[4]
This Decision is subject to a reasonableness standard
of review (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). The
Applicants identify three issues, which I will address in the Order that they
were raised in written and oral argument.
Issue 1: Best Interests of
the Canadian-born child
[5]
The Officer found that the Applicants did not
explain how the well-being of their children would be affected, or how the
issues raised in the objective documentation directly impact them. Ultimately,
the Officer found that insufficient information had been provided to make a
positive finding based on best interests of the child, relying, in part on Owusu
v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 [Owusu].
[6]
The Applicants argue that this conclusion was
unreasonable: Owusu is a very different case, confined to its own
specific facts, which involved the impact on a child living abroad. Here,
although one of the two children lives abroad (with the Applicants’ extended
family in Haiti), the youngest child lives with the Applicants in Canada, and
it was her best interests that were unreasonably addressed.
[7]
I neither find the Decision to be unreasonable
with respect to best interests of the children, nor do I find any error was
made in relying on Owusu. Instead, I find that the Applicants failed to
furnish sufficient information – whether by way of written arguments and/or
supporting evidence – for this component of the H&C submissions. Few submissions
were provided to the Officer, as Applicants’ counsel acknowledged at the
hearing. The Officer did not even know if the Applicants were going to leave
the child in Canada, which was possible as they live here with a relative, and
the other child lives abroad with family members. Simply arguing that the
child’s best interest is remaining in Canada is not determinative in granting
an H&C exemption: Hawthorne v Canada (Minister of Citizenship and
Immigration), 2002 FCA 475 at paras 5-6.
Issue 2: The Hardship of returning to Haiti
[8]
The Officer decided that the Applicants failed
to demonstrate that their difficulties were prejudicial to the point of not
being able to return to Haiti to apply for PR outside Canada, such that they
should benefit from the subsection 25(1) exemption. The Applicants assert that
in considering hardship, the Officer applied the wrong legal test: instead of
referring to undue, underserved or disproportionate hardship the Applicants
would face upon returning to their country of origin, the Officer wrongly
applied the hardship test based on individual versus general hardship.
[9]
Specifically, the Applicants argue that the
Officer wrongly imported into the section 25 H&C analysis, a section 97
requirement that an applicant should not face a risk generally faced by other
individuals in that country. The Applicants rely on Diabate v Canada (Citizenship
and Immigration), 2013 FC 129 [Diabate] where Justice Gleason held
that “the frame of analysis for H&C consideration
has to be that of the individual him or herself, which involves consideration
of whether the hardship of leaving Canada and returning to the country of
origin would be undue, undeserved or disproportionate” (at para 36).
[10]
I disagree that the Officer employed the wrong
test. Her approach was consistent with Kanthasamy v Canada (Citizenship and
Immigration), 2015 SCC 61 [Kanthasamy] at para 56. Here, unlike in Diabate,
the Officer did not require that the Applicants establish that the hardship
they would be exposed to in Haiti was not generally faced by other Haitians;
had that indeed been the case, then I would agree with the Applicants that the Officer
had applied the wrong test (see Lauture v Canada (Citizenship and
Immigration), 2015 FC 336 at para 31).
Issue 3: Discounting the medical and psychological reports
[11]
While there was nothing unreasonable about the
hardship test applied by the Officer, I cannot say the same for some of the
evidence considered under that test. Specifically, the Officer unreasonably
considered two health professionals’ reports which could have impacted on the
outcome of the hardship analysis. The Officer addressed these two reports – one
from a doctor in Haiti, and the other, a psychotherapist in Toronto – as
follows:
[…] Le médecin de service y affirme que la
demanderesse aurait eu un dérangement au niveau des parties génitales car elle
aurait été violée par des bandits. J’estime qu’il n’appartient pas au médecin
de statuer sur les circonstances dans lesquelles la demanderesse aurait eu ces
lésions et qu’il relate donc de faits qui lui ont été rapportés. Le rapport
psychologique est daté du 9 décembre 2014 et a été rédigé par une
psychothérapeute du Centre Francophone de Toronto. L’évaluation est basée sur
une seule rencontre et si la psychothérapeute fait mention des événements en
question, c’est qu’ils lui (sic) été racontés par la demanderesse.
Compte tenu de la subjectivité de la preuve, je n’y accorde qu’un poids
relatif. (CTR at p 8).
[TRANSLATION] The medical report submitted
into evidence is dated March 16, 2012. The on-duty doctor states therein that
the female applicant allegedly had a disturbance in her genital area apparently
as the result of a rape by criminals. I find that it is not up to the doctor to
rule on the circumstances in which the female applicant allegedly sustained
injuries and that he is therefore describing the facts that were reported to
him. The psychological report submitted is dated December 9, 2014, and was
drafted by a psychotherapist and the Francophone Centre in Toronto. The
evaluation is based on a single meeting, and if the psychotherapist mentions
the events in question, it is because the female applicant had described them
to her. In light of the subjective nature of the evidence, I grant it only
relative weight (CTR at 15).
[12]
These comments are problematic. Kanthasamy at
para 49 clearly comments on the inappropriateness of rejecting
professionals’ evidence (or similarly reducing its probative value) on the sole
basis of hearsay:
And while the
Officer did not “dispute the psychological report presented”, she found that
the medical opinion “rest[ed] mainly on hearsay” because the psychologist was
“not a witness of the events that led to the anxiety experienced by the
applicant”. This disregards the unavoidable reality that psychological reports
like the one in this case will necessarily be based to some degree on
“hearsay”. Only rarely will a mental health professional personally witness the
events for which a patient seeks professional assistance. To suggest that
applicants for relief on humanitarian and compassionate grounds may only file
expert reports from professionals who have witnessed the facts or events
underlying their findings, is unrealistic and results in the absence of
significant evidence. In any event, a psychologist need not be an expert on
country conditions in a particular country to provide expert information about
the probable psychological effect of removal from Canada.
[13]
Likewise, in this case, the Officer gave little
weight to the reports due to the hearsay statements they contained. Contrary to
the guidance provided in Kanthasamy, the Officer did not analyse what
the reports did contain. Kanthasamy establishes that medical reports
may contain some background information recounted by a patient, and to the
extent the Officer concluded against the Applicant otherwise, this aspect of
the decision is not defensible in respect of the law, and is therefore
unreasonable.
IV.
Conclusion
[14]
The Officer, absent other valid reasons for
diminishing weight, should have considered the non-hearsay parts of the medical
and psychological reports. Since that did not occur here, and could have had
an impact on the outcome, the Decision is unreasonable and the application must
accordingly be returned for reconsideration by a different decision-maker.
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