Thursday, March 16, 2017

Danyi: discounting psychological assessments

Danyi v. Canada (Public Safety and Emergency Preparedness), 2017 FC 112

Boswell J., 30 January 2017, online at: http://canlii.ca/t/gxhhr

Decision under review: Refusal to defer removal

For Applicants: Richard Wazana (Wazana Law, Toronto)

For Respondent: Tamrat Gebeyehu, Dept. of Justice (Toronto)

The Applicants were a Roma family, citizens of Hungary, who had exhausted all avenues for protection under ss.96/97, but had a pending humanitarian and compassionate application (H&C), based in large part on a psychological assessment of one of the Applicants, a child, which concluded that return to Hungary would be harmful to him (paras. 3-4). His mother also suffered from PTSD and would have difficulty caring for him as a result (paras. 4 and 5). The Applicants cited Tiliouine,[1] for the position that a Removals Officer must consider whether the removal itself will cause harm.

The Applicants also challenged the standard position that a Removals Officer need only look at the short-term best interests of a child involved in terms of what they would face in the country of removal: “The Applicants also submitted to the Officer that Alex’s best short-term interests would be protected by deferring removal until after his overall best interests had been fully assessed in the context of the pending H&C application” (para. 4). Other grounds on which the deferral was requested was interruption of the child’s education and (non-psychological) medical treatment one of the Applicants was undergoing (paras. 4 and 6).

On standard of review, the Court noted that overall the test was reasonableness (paras. 14-15), but that the case law was not clear as to whether the standard of review on whether the Removals Officer fettered discretion would be reasonableness or correctness (paras. 16-18). The Court found that is was not necessary to answer the question.

The Court reiterated the standard line of cases on the narrowness of the Removals Officer’s discretion on deferral, and that Removals Officers need not perform “mini” H&Cs or other types of detailed assessments (paras. 28-32). The Court also reiterated the case law stating that Removals Officers need only conduct limited, short-term assessments of best interests of the child (paras. 33-35).

However and despite this, the Court found that the Removals Officer’s consideration of the child Applicant’s psychological assessment was unreasonable:

In this case, the Officer’s assessment of Alex’s mental health condition is problematic. Because enforcement officers must assess the short-term BIOC, the Officer was required to reasonably consider the psychiatric evidence about Alex’s short-term interests. The psychiatric assessment states that Alex’s return to Hungary would deprive him of his current sense of safety and stability since his past experiences there were highly traumatizing and hostile. The assessment found that his return would cause a relapse of his PTSD symptoms and would compromise his parents’ ability to meet his emotional and physical needs. Given the psychiatrist’s findings, the Officer’s conclusion that removal “may cause a period of adjustment” for Alex cannot be justified because it is not responsive to Alex’s short-term and present emotional, social, and psychological interests.

Although the Officer stated that his limited discretion was centered on evidence of “serious detrimental harm”, the Officer unreasonably minimized and discounted the serious detrimental harm evidenced and identified by the psychiatrist whose report concerning Alex clearly and unequivocally stated that: “…return to an environment that he and his parents have experienced as highly traumatizing and hostile…will cause a relapse of his symptoms of PTSD as well as compromise his parents’ ability to meet his emotional and physical needs.” In the face of this psychiatric evidence, it cannot be said that Alex would suffer merely a period of adjustment upon return to Hungary. In this case, the Officer did not reasonably consider or adequately assess the fact that removal itself would trigger or cause psychological harm to Alex. (paras. 36-37)

The Court also found that the Removals Officer’s assessment on the mother’s psychological assessment was also unreasonable, based on the Supreme Court’s analysis in Kanthasamy:

Although Kanthasamy involved an H&C application, unlike the present case which concerns a request to defer removal, in my view the Supreme Court’s foregoing comments are equally applicable in the context of this case. The Officer in this case, like the officer in Kanthasamy, unreasonably discounted the psychologist’s finding concerning Veronika’s mental health. The Officer faulted the psychologist’s report for being dated and not stating whether Veronika currently suffers from suicide ideation or is currently at risk for suicide. The Officer in this case, much like the officer in Kanthasamy, also found “insufficient medical evidence … to indicate that Veronika has sought or received mental health treatment, as recommended” and that “insufficient evidence was presented to indicate that Veronika could not pursue mental health treatment upon her return to Hungary.” The Officer did not reasonably consider or adequately assess the fact that removal itself would trigger or cause further psychological harm to Veronika, and his treatment of the medical evidence concerning Veronika, in view of Kanthasamy, is unreasonable. (para. 39)

 


[1] Tiliouine v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1146 (http://canlii.ca/t/glhwl); see e.g. at para. 11: “…where, as here, there is evidence of irreparable psychological harm resulting from the removal itself, it is not enough for the removal officer to simply examine the availability of health care and treatment in the home country (Sha v. Canada (Citizenship and Immigration), 2011 FC 1269 at para. 58; Davis v. Canada (Citizenship and Immigration), 2011 FC 97, at para. 19).”

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