Ø Introduction
The Federal Court reviewed the refusal of an H&C
application by a mother and her three minor children from Grenada and St.
Vincent.
The Court overturned the refusal because the officer
acknowledged psychological evidence showing that the applicant’s mental health
would deteriorate if she were removed from Canada, but failed to properly assess
and weigh the impact of removal on her mental health.
Ø Key Principle
In an H&C application, an officer cannot limit a
health-related assessment to whether medical treatment is available in the
country of return.
Where credible psychological evidence indicates that an
applicant’s mental health will deteriorate because of removal, that consequence
itself is a relevant H&C factor that must be identified, analyzed, and
weighed.
This principle applies to adult applicants as well as
children.
Ø Background
The applicant had two children born in Canada and three
minor children who remained with her in Canada. Her H&C application relied
on country conditions, establishment, the best interests of her children, and
her mental health.
She provided reports from a psychotherapist and
psychologist. The reports identified mental health conditions arising from
domestic violence and sexual assaults and stated that her condition would deteriorate
if she were removed from Canada.
The officer acknowledged the medical opinions but focused on
whether appropriate mental health treatment was available in Grenada and St.
Vincent. The officer concluded that treatment was available and refused the
H&C application.
Ø Court Findings
The Federal Court found the officer’s assessment
unreasonable.
The Court held that the officer did not adequately address
the central issue raised by the psychological evidence: what effect removal
itself would have on the applicant’s mental health.
The Court relied heavily on Kanthasamy, which
established that an officer cannot focus exclusively on the availability of
medical treatment in the country of return while ignoring evidence that the
applicant’s condition would worsen upon removal.
The Court rejected the distinction between the officer “acknowledging” and “accepting” the psychological reports. In the circumstances, the
officer had not rejected or criticized the diagnoses and therefore was required
to meaningfully address the evidence concerning deterioration upon removal.
The Court also rejected the argument that this principle
applied only because Kanthasamy involved a child. The same approach
applies where the H&C applicant is an adult.
Because the officer was completely silent about the impact
of removal on the applicant’s mental health in the final balancing of the
H&C factors, the Court could not determine whether properly considering
that factor might have changed the outcome.
Ø Outcome
The Federal Court allowed the application for judicial
review, quashed the H&C refusal, and returned the application to a
different immigration officer for reconsideration.
Case Citation:
Sutherland v. Canada (Citizenship and Immigration), 2016 FC 1212 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
