Toronto, Ontario, November 8, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] In the present Application, the Applicant, a citizen of the United Kingdom, challenges the decision of an Immigration Officer (Officer), dated March 2, 2006, in which her application for landing from within Canada on humanitarian and compassionate (H&C) grounds was rejected.
[2] The Applicant was admitted to Canada as a permanent resident in 1992. In 2002, the Applicant was convicted of importing narcotics, and subsequently, a deportation order was issued against her. The Applicant appealed this decision to the Immigration Appeal Division, but, by operation of s.196 of the Immigration and Refugee Protection Act, she was denied a right to appeal because she received a sentence of two years or more on the criminal conviction. As a result, the Applicant filed an H&C application. The application was rejected by an officer in a decision dated November 29, 2004. On judicial review, this decision was set aside on December 21, 2005 by Justice Gauthier, and the matter was sent back for re-determination by another Officer. The decision under review in the present Application is the decision rendered on the re-determination.
[3] I find that the primary issue for determination is whether the error, found in the November 29, 2004 decision, is rectified in the decision under review. Or expressed another way, is the obligation to give fair and proper consideration to the psychiatric evidence discharged by the Officer on the reconsideration? In my opinion, the Officer completely fails in meeting this obligation.
[4] Justice Gauthier set aside the November 29, 2004 on the basis of an error expressed in the following passage from the reasons delivered:
In effect, the decision contains a reviewable error because the officer ignored or misconstrued the evidence with respect to the psychological hardship Mrs. Curry would likely suffer as a result of her deportation.
In the passage cited by the respondent, the officer appears to have used the fact that Mrs. Curry benefited from professional psychological assistance as a factor that would assist with her reintegration in the UK. He seems to suggest that she is now sufficiently stable emotionally to successfully resettle. He had no evidence in that respect. On the contrary, the evidence before him pointed to a completely different conclusion, indicating that resettlement would likely have a traumatic effect on the applicant.
[...]
As it has been mentioned on numerous occasions by this Court, immigration officers are not experts in psychology or psychiatry. They cannot simply discard experts’ opinions without giving at least one reason that stands to probing examination.
In this particular case, there is no doubt in my mind that the officer had to accept the evidence that Mrs. Curry would likely suffer psychological hardship as a result of her deportation. This was a factor militating against deportation and in favour of the application. It may or may not be a determining factor, but it still had to be considered. The officer simply ignored or misconstrued the evidence in that respect.
[Emphasis added]
(Applicant’s Record, Tab 6)
[5] With respect to the issue under consideration, the Officer makes the following statement in the decision presently under review:
Ms. Currie has had long term employment in Canada. She demonstrates an interest in working in the health field. Beyond the health field her training and experience may be transferable as an administrator or coordinator. This should make her more marketable when she seeks employment in the United Kingdom. She is also not restricted to looking for work or settling only in Britain as she can explore live/work possibilities in other European countries.
I note that the applicant has some savings and is also a part owner of a home. These assets will be useful to her in becoming reintegrated in the United Kingdom.
I have read the numerous letters of reference and support for Ms. Curry. I note that she was an exceptional prisoner and that her parole worker thought she had a low risk of re-offending. I acknowledge that she was released from prison on an accelerated parole system. I acknowledge that she has done [sic] volunteer work and also donates to charity. I note that she is often asked to train new staff members in her work place. It is reasonable to expect that these positive attributes would be beneficial to Ms. Curry in becoming reintegrated in the United Kingdom.
Ms. Curry has been receiving psychiatric counselling from several professionals. There are numerous reports on file which speak to Ms. Curry’s treatment for among other things, anxiety and depression. Dr. G. Nexhipi recommends that Ms. Curry stays in contact with her psychiatrist. I understand that deportation from Canada and separation from her family and friends will pose psychological difficulties on the applicant. I note that she has been dealing with the prospect of deportation for a number of years. The possibility of being deported and the issue of family separation and the anxiety associated with it is not a new situation for Ms. Curry. In addition she has had a number of years in which to seek appropriate treatment and counselling to deal with these issues. Ms. Curry can seek the assistance of similar professionals in the UK who can provide her with counselling and therapy.
I have considered all the evidence presented. I have considered the assessment from Dr. Pilowski. I have considered the close mother and daughter bond which exists between Donna Curry and her mother Gina Curry. I acknowledge that Gina raised Donna by herself and they have always lived together. Donna Curry can submit an undertaking and sponsor her mother from overseas as family class sponsorship from within does not extend to parents of Canadians or permanent residents. I have considered the offer of support and the intent of the sponsorship. By virtue of this offer, Donna should be willing to support or assist her mother when she returns to the United Kingdom. Donna is also an adult who has a career, a home and other relatives in Canada. She may choose to visit her mother whenever possible. Also if she is unable to remain in Canada without her mother she may consider reuniting with her there.
There are numerous positive factors to be considered and given the appropriate weight. However I cannot disregard the severity of her offence and the impact on Canadian society. The hardship outlined by the applicant does not outweigh the seriousness of this offence.
[Emphasis added]
(Applicant’s Record, Tab 2)
[6] An evidentiary factor found in the record considered by Justice Gauthier, which resulted in her conclusion that the Applicant “would likely suffer psychological harm as a result of her deportation”, is the opinion of Dr. June M. Clarke, Psychiatrist, dated November 3, 2004, which states:
Therefore, she would have to make a great effort to cope with the stress of deportation and the necessity of dealing with a complete change in her lifestyle, with the result that she would likely have significant problems coping with functioning in a new country due to metal health difficulties.
(Applicant’s Record, p. 187)
In addition to this opinion being on the record before the Officer on the reconsideration, the record also contains an update on the Applicant’s condition, dated January 24, 2006, which contains the following current opinion:
[Gina Curry] would be unable to cope with the stress of deportation and the necessity of dealing with a complete change in her lifestyle, with the result that she would likely decompensate in a new country due to metal health difficulties.
[7] In my opinion, the decision rendered by the Officer is completely unresponsive to the evidence of Dr. Clarke. The obligation placed by Justice Gauthier on the Officer, on the reconsideration, was to deal with the significant evidence of the reality of the weakness of the Applicant’s mental condition. The decision rendered does not reflect any understanding of this reality. Indeed, it is not clear whether Dr. Clarke’s January 2006 opinion was even considered. In the decision, “Section 4” cites the documentation considered; the only reference regarding Dr. Clarke is “letter from June Clarke (Specialist in Psychiatry)”. That is, as the citation does not provide a date for the “letter”, it is uncertain as to whether the January 24, 2006 opinion even came to the attention of the Officer. In any event, I find that while the Officer states in the decision rendered that deportation will “pose psychological difficulties on the Applicant”, this conclusion in no way deals with the evidence on the record concerning the extent of hardship that the Applicant will experience if she is deported.
[8] As a result, I find that, as was the case with respect to the decision resulting in Justice Gauthier’s order, the Officer on the reconsideration ignored or misconstrued the evidence of psychological hardship. Accordingly, I find that the decision is unreasonable, and, therefore, is rendered in reviewable error.
[9] The obligation to give fair and proper consideration to the psychological evidence arises from Guidelines that the Officer was expected to follow. According to the Ministry of Citizenship and Immigration’s Inland Policy 5 entitled: Immigrant Applications in Canada made on Humanitarian and Compassionate Grounds, it is incumbent upon an immigration officer to not only consider, but to give careful consideration to, all the evidence:
5.27 All the evidence
An officer should consider and weigh all the relevant evidence and information, including what the applicant and the officer consider to be important. Officers must not ignore evidence or place too much emphasis on one factor to the exclusion of all other factors. They must look at the whole picture. Any information or evidence that is not relevant or should not be given much weight should be documented appropriately.
[10] It appears from the cursory decision rendered by the Officer that, regardless of any consideration of hardship, all weight is placed on one factor, being the Applicant’s criminal record. The decision is devoid of any critical analysis of the evidence of current psychological hardship. It is apparent that this form of decision-making is contrary to the expectation expressed in the Guidelines, and, as such, is not fair or proper.
ORDER
Accordingly, the Officer’s decision is set aside and the matter is referred back to another immigration officer for re-determination.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1333-06
STYLE OF CAUSE: GINA CURRY v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 8, 2006
APPEARANCES:
Ms. Krassina Kostadinov FOR THE APPLICANT
Mr. Tamrat Gebeyehu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT