Tuesday, September 20, 2011

Davis—failure to assess hardship, ignoring psychological evidence

Davis v. Canada (Citizenship and Immigration), 2011 FC 97 (CanLII)

Judge: Justice Mactavish

Date heard: January 26, 2011

Date decided: January 27, 2011

Counsel for Davis: Michael Crane

Counsel for Minister: Laoura Christodoulides

Place of Hearing: Toronto, Ontario

The Applicant was a failed refugee claimant from St. Vincent; the RPD did not take issue with the history she presented of “significant physical and sexual abuse as a young child” (paras. 1-4). Her H&C/PRRA, which included psychological reports, argued that she would suffer a deterioration of her mental health if removed and if separated from her father who lives in Canada.

A previous application had been denied, and that decision was overturned on judicial review in 2009 (paras. 5-7). That decision was overturned because the officer had relied on a WHO document not put to the Applicant.

In this second decision, the new officer “committed precisely the same error as the first Officer” (para. 9). The second officer relied on a different report, this one from the Pan American Health Organization, which was sufficiently detailed and technical that it ought to have been put to the Applicant (paras. 8-10). This was implicitly contrasted with human rights reports which are general and do not need to be put to the applicant.

Furthermore, the Applicant had put evidence before the PRRA officer which was both more recent and more direct, as it came from the St. Vincent government (paras. 10-14).

Furthermore, the officer ignored evidence of the Applicant’s emotional dependence on her father, drawing conclusions in direct opposition to the psychological evidence (paras. 15-17).

Finally, the officer erred in focusing on the availability of mental health care in St. Vincent, without assessing “whether requiring Ms. Davis to return to St. Vincent to access that care would amount to undue, undeserved or disproportionate hardship.” (paras. 18-19)


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