Docket: IMM-7641-24
Citation: 2025 FC 586
Ottawa, Ontario, April 1, 2025
PRESENT: The Honourable Madam Justice Strickland
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BETWEEN: |
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JAIRO ALEJANDRO ACOSTA FERNANDEZ |
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ANA VERONICA GARCIA GARCIA |
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ANDREA ISABELLA ACOSTA GARCIA |
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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 |
JUDGMENT AND REASONS
[1] This is the judicial review of the decision of a senior immigration officer [Officer] rejecting the Applicants’ application for permanent residence on humanitarian and compassionate [H&C] grounds.
Background
[2] Jairo Alejandro Acosta Fernandez [Principal Applicant] is a citizen of Colombia. His spouse, Ana Veronica Garcia Garcia, is a citizen of Venezuela and a permanent resident of Colombia. Their child, Andrea Isabella Acosta Garcia [Minor Applicant], is a citizen of both Colombia and Venezuela [collectively, the Applicants].
[3] In February 2020, the Applicants fled Colombia and ultimately claimed refugee protection in Canada. They alleged that they fear they would be killed by a Colombian terrorist organization, the National Liberation Army. The Refugee Protection Division [RPD] refused the Applicants’ refugee claims on November 12, 2021, finding they have a viable internal flight alternative [IFA] within Colombia.
[4] In August 2022, the Applicants filed their H&C application, which was refused on April 18, 2024. That refusal is the subject of this judicial review.
Decision Under Review
[5] The H&C application summary indicates that the Applicants sought permanent residence on H&C grounds based on their establishment in Canada, best interests of the child [BIOC], and adverse country conditions.
[6] Regarding establishment in Canada, the Officer summarized the facts and evidence submitted by the Applicants and gave some positive consideration to the Applicants’ establishment. However, the Officer noted that this was one factor under consideration for the application and that they did not find the Applicants’ establishment to be exceptional. The Officer found that there was insufficient evidence to satisfy them that the Applicants’ overall establishment in Canada justifies granting an exemption on H&C grounds.
[7] Regarding risk and adverse country conditions, the Officer again summarized the facts and evidence put forward by the Applicants. The Officer found that the submissions relating to hardship in Colombia largely reflected matters raised in the Applicants’ refugee claim. And, concerning adverse country conditions, the Officer acknowledged that Colombia’s conditions might not be favourable, but found that insufficient evidence was provided to satisfy them that the Applicants’ fundamental rights would be denied. Further, that although the environment in Colombia may have different economical, medical and financial aspects, and thus is not comparable to Canada, this was not an exceptional circumstance justifying a positive exemption.
[8] Regarding the BIOC analysis, the Officer noted that while this factor was an important one, it was not necessarily determinative. The Officer noted the Applicants’ submission that the Minor Applicant is suffering from mental health concerns, that she suffers from post-traumatic stress disorder [PTSD], and that a psychological evaluation was submitted to support the claims. The Officer accepted that the Minor Applicant is experiencing medical and mental health issues and found that in the event Applicants return to Colombia, her well-being and, in particular, her mental health, may possibly deteriorate. However, that this factor alone did not outweigh all other factors and was not determinative.
[9] The Officer found that there was little objective documentary evidence to demonstrate that the treatment and assistance the Minor Applicant requires is unavailable, inaccessible and/or inadequate in Colombia. Further, that there was insufficient evidence to demonstrate that the Minor Applicant would experience a direct negative affect as a result of the Colombia healthcare system. The Applicants had furnished no objective documentation suggesting that health care plans in Colombia are prohibitively expensive and, although the healthcare system in Colombia is less adequate than in Canada, the Officer stated that they were not provided sufficient objective evidence to support that the Minor Applicant would be denied access to such treatment. The Officer was not satisfied that remaining in Canada was the only recourse and remedy available to the Minor Applicant for her mental health condition. In regard to the BIOC, the Officer acknowledged that the Minor Applicant wants to attend post-secondary school in Canada and is employed as a swimming instructor in Canada. However, the Officer ultimately determined that there was insufficient evidence to support that the Minor Applicant would not successfully adapt or reintegrate in Colombia or that her return there would have a significant negative impact on her best interests.
[10] The Officer went on to note that while the Applicants may find it difficult to return to Colombia after spending time in Canada, they had spent time in Colombia before. They have family in that country and there was no evidence to suggest that their family would be unable to assist them with resettlement and reintegration into the community. Nor would the Applicants be returning to an unfamiliar place, language, culture, or place devoid of familial network.
[11] In conclusion, the Officer stated that they had performed a global assessment of the H&C factors presented. And, having considered the grounds put forward by the Applicants, their submissions and personal circumstances, and having reviewed the factors and evidence presented, the Officer concluded that a positive exemption was not warranted on H&C grounds.
Issue and Standard of Review
[12] The sole issue arising in this matter is whether the Officer’s decision was reasonable.
[13] The parties submit and I agree that the standard of review is reasonableness. Reasonableness review asks this court to: “develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
(Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 99 [Vavilov]).
Preliminary Matter
[14] The Applicants had argued in their written submissions that the Officer erred by applying the incorrect legal test to the overall assessment of a H&C application, specifically concerning the Officer’s use of the word “exceptional”,
and that the Officer also erred by adopting a “silo”
approach when assessing their H&C factors rather than assessing all factors globally. However, at the commencement of the hearing, counsel advised that the Applicants were not pursuing these arguments. Accordingly, those issues are not further addressed in these reasons.
Analysis
Applicants’ position
[15] The Applicants submit that the Officer’s BIOC analysis lacks transparency and is unintelligible. The Officer unreasonably concluded that the Minor Applicant is unlikely to experience negative mental health outcomes on the basis that she has been uprooted before, successfully adapted to life in Canada and because she could potentially obtain mental health treatment in Colombia. This, and the Officer’s assessment of the psychological evidence concerning the Minor Applicant, is irrational and contrary to the jurisprudence (citing Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paras 47–48 [Kanthasamy]). The Applicants submit that the evidence overwhelmingly suggests that the Minor Applicant would suffer serious mental health consequences if she is forced to return to Colombia. Moreover, whether significant hardship would befall the Minor Applicant is not the starting point of the BIOC analysis. An officer’s focus must be on identifying the child’s best interests, assessing how their decision would impact those interests, and weighing that impact against the other positive and negative factors in the application. The Officer did not engage with this analysis. Instead, the Officer assessed the Minor Applicant’s best interests exclusively through the lens of hardship and, through that lens, concluded that the Minor Applicant’s symptoms could be mitigated on return to Colombia. Even if it were appropriate to conduct a BIOC analysis through the lens of hardship, the Applicants submit that the Officer’s hardship analysis is unreasonable and lacks coherence, in particular, in light of the psychological evidence and the Officer’s finding as to the Minor Applicant’s ability to re-adapt to life in Colombia. Ultimately, the deterioration of the Minor Applicant’s mental health, inherent in removal to Colombia, was never considered and weighed as an independent factor in support of the H&C application.
Respondent’s position
[16] The Respondent submits that the Applicants fail to show any reviewable error in the Officer’s BIOC analysis. The Officer expressly accepted and was deeply sympathetic to the Minor Applicant’s mental health issues, and was mindful that if she were returned to Colombia her well-being and, in particular, her mental health, might deteriorate. However, the Officer found that this factor alone did not outweigh the other factors.
Analysis
[17] Section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] states:
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35, 35.1 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35, 35.1 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
[18] As I have previously stated in Febrillet Lorenzo v Canada (Citizenship and Immigration), 2019 FC 925 [Febrillet Lorenzo]:
[14] Section 25(1) of the IRPA gives the Minister discretion to exempt foreign nationals from the ordinary requirements of the Act if the Minister is of the opinion that such relief is justified by H&C considerations relating to the foreign national, taking into account the best interest of a child directly affected. An H&C exemption is an exceptional and discretionary remedy, which discretion the Supreme Court of Canada has described as intended to provide a flexible and responsive exception to the ordinary operation of the IRPA, or, a discretion to mitigate the rigidity of the law in an appropriate case (Kanthasamy at para 19).
[15] The onus of establishing that an H&C exemption is warranted lies with the applicant (Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 45). This means that the applicant must provide sufficient evidence to convince the officer to grant this exceptional remedy. What warrants relief will vary depending on the facts and context of each case, but officers making H&C determinations must substantively consider and weigh all relevant facts and factors before them (Kanthasamy at paras 24–25).
[19] In assessing applications on H&C grounds, an officer must always be alert, alive and sensitive to the best interests of the child. Those interests must be well identified and defined, and examined with a great deal of attention in light of all the evidence. A decision under s 25(1) of the IRPA will be unreasonable if the interests of the child affected by the decision are not sufficiently considered. While the child’s interests must be given substantial weight and be a significant factor in the H&C analysis, they are not necessarily determinative of a H&C application (Singh v Canada (Citizenship and Immigration), 2025 FC 404 at para 10, citing Kanthasamy, at paras 35, 38–41). Moreover, while there is no specific formula or rigid test prescribed for a BIOC analysis, the analysis must address the “unique and personal consequences”
that removal from Canada would have for a child affected by the decision (Kaur v Canada (Citizenship and Immigration), 2025 FC 351 at para 22, citing Semana v Canada (Citizenship and Immigration), 2016 FC 1082, at paras 24–27).
[20] In my view, the Officer erred in their treatment of the evidence pertaining to the Minor Applicant’s mental health. This is a reviewable error.
[21] The jurisprudence has held that when psychological reports are available, indicating that the mental health of applicants would worsen if they were to be removed from Canada, officers must analyze the hardship that applicants would face if they were to return to their country of origin. Officers cannot limit the analysis to a determination of whether mental health care is available in the country of removal (Kanthasamy, at para 48; Febrillet Lorenzo, at para 22; Saidoun v Canada (Citizenship and Immigration), 2019 FC 1110 at para 21; Moreno Ramirez v Canada (Citizenship and Immigration), 2022 FC 1744 at paras 23, 25–27).
[22] In this case, the Applicants submitted a six-page psychiatric assessment by Dr. Parul Agarwal, concerning the Minor Applicant. Counsel for the Applicants asked Dr. Agarwal to assess the Minor Applicant with regard to the impact of her life experiences on her emotional and mental health and to comment on how her emotional and mental well-being would be affected if she and her parents were not allowed to remain in Canada. The assessment took place on May 20, 2022, through video link.
[23] Much of the assessment sets out the Minor Applicant’s depiction of her life in Venezuela, Colombia and Canada. This included her parents’ long work hours in Venezuela; leaving Venezuela for Colombia; being bullied and treated poorly at school in Colombia; and, the eating disorder she developed, which led to her hospitalization for about three days. She reported that she felt very anxious all of the time and was constantly worried about her parents, even though they never told her what was going on. Her father has now told her that he was being threatened in Colombia and she is even more afraid of return. Upon moving to Canada, although the initial transition was difficult, she has made a group of friends, has joined her school’s swim team and is doing well academically.
[24] The psychiatric assessment states that the Minor Applicant’s diagnosis is complex PTSD. Her “stressors”
were stated to be: feeling very alone and sad as a child in Venezuela because of her parents’ very long working hours; having to adapt to life in Colombia as a ten-year-old child; the experience of bullying and exclusion at school in Colombia because she was seen as an immigrant there; sensing her parents’ fear and worry in Colombia and not knowing the reason behind it; feeling constantly afraid that something will happen to her parents when she went away at swim meets in Colombia; having to uproot herself again at the age of fifteen, come to Canada and adapt to another culture and language; and, fear of her and her family being forced to return to Colombia where she fears her father will become targeted again and her life will become extremely restricted and unsafe once more. Her complex PTSD symptoms are described as including a long history of feeling sad, anxious and lonely; separation anxiety from her parents in Colombia; sleep disturbance; low self-esteem and low self-confidence despite her high achievements in competitive swimming; a pervasive feeling of being unsafe in Colombia even though she was not fully aware of what was happening to her family; difficulty trusting people in Colombia and difficulty making friends there because of the constant bullying and exclusion; being hyper-vigilant; not being able to focus in school in Colombia; avoidance of thinking and talking about the past; and, emotional distress when reminded of the past.
[25] In terms of treatment of complex PTSD, the assessment states that “the first prerequisite is to create a safe and healthy living environment for the individual where they feel safe not only within their home but in the community. [The Minor Applicant] feels safe in Canada for herself and her parents. At this point her biggest concern is having to uproot her life once again and having to go back to Colombia where she felt excluded and bullied by her peers at school and was very worried about her parents’ safety. It is my opinion that this uncertainty about her and her parents’ future is an important maintaining factor for her trauma based symptoms.”
Further, in terms of treatment, the Minor Applicant had been referred to a youth counsellor and that “[t]hese supports are necessary for her to be able to bear the burden of her current symptoms and her uncertainty about her and her parents’ future and to be able to function better. However, it is my opinion that true healing cannot begin for her or for any trauma survivor until they start to feel safe on a permanent basis.”
[26] The Officer acknowledged the psychiatric assessment and stated that they accepted and were sympathetic to the Minor Applicant’s medical and mental health issues, and recognized that it must be extremely difficult for her. The Officer found that if the Minor Applicant were to return to Colombia, “her well-being, in particular, her mental health, may possibly deteriorate.”
However, that this factor was not determinative and was alone not enough to outweigh all of the other factors. The basis for this conclusion was that there was insufficient evidence that treatment was not available in Colombia
[27] In my view, the Officer’s analysis runs afoul of Kanthasamy and the jurisprudence that follows it, which holds that where a mental health diagnosis is accepted, the fact that an individual’s mental health would likely worsen if they were removed to their country of origin is a relevant consideration that must be identified and weighed – regardless of whether there is treatment available in that country. Officers cannot limit their analysis to a determination of whether mental health care is available in the country of removal (see Kanthasamy, at para 48; Khorsand v Canada (Citizenship and Immigration), 2025 FC 540 at para 5; Prado v Canada (Citizenship and Immigration), 2024 FC 136 at para 14).
[28] Nor do I agree with the submission of the Respondent that the Officer was merely making statements of fact with respect to the mental health care available in Columbia in response to the Applicants’ submissions on that point. The record does not support this argument.
[29] The Officer does go on to say, in regards to the Minor Applicant’s best interests, that the Minor Applicant wishes to stay in Canada, that there was no indication that she could not continue competitive swimming and education there, and that there would be a period of difficulty in adjusting back to life in Colombia. However, that she would have the assistance of her parents and was returning to a familiar country. The Officer states that they had “not been provided with sufficient evidence to support that she would not successfully reintegrate in Colombia be it educationally, socially or otherwise”
and that “[b]ased on the evidence before me, I am not satisfied that returning to Colombia would have a significant negative impact on the best interests of the child. I am not persuaded that the child would be unable to adapt or reintegrate or that her best interests would be compromised in Colombia.”
[30] However, the Officer fails to consider what impact returning to Colombia would have on the Minor Applicant’s PTSD symptoms – beyond suggesting that this could be mitigated by medical treatment available in that country. The Officer’s conclusion that returning to Colombia would not have a significant negative impact on the best interests of the child also appears to ignore or to be internally inconsistent with the Officer’s own finding that the Minor Applicant’s health could possibly deteriorate if she is removed. Put differently, this finding is unintelligible. Further, the psychiatric assessment describes the Minor Applicant’s past difficulties with integrating into life in Colombia – both socially and educationally – but the Officer does not explain why things would be different this time to support their conclusion that re-integration would not be detrimental to the Minor’s Applicant’s best interests.
[31] That said, the psychiatric assessment has its frailties. This includes that it does not explicitly say that the Minor Applicant’s mental heath will deteriorate if she is returned to Colombia (although the Officer accepted the potential of this happening) and does not seem to factor in that the Minor Applicant is now older, has completed school, and can understand the circumstances of removal, including the fact that the family would be returning to an IFA. That said, nor did the Officer raise or weigh these factors in the BIOC analysis.
[32] In conclusion, for the reasons above, the Officer’s BIOC analysis was deficient, rendering the decision unreasonable.
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