By Sukhram Ramkissoon 

According to a recent Federal Court decision, a 32-year-old citizen of Mexico was recently successful in having his negative humanitarian application decision set aside by the Federal Court and was granted a second review of the said application.  I will refer to him as Valdez which is not his real name.

Valdez first came to Canada in June 2016 on a temporary resident visa. After returning to Mexico briefly in November and December 2017, he continuously remained in Canada. While he was able to secure a study permit in 2017, he then fell out of legal temporary status in Canada. He lives with his mother and his sister, who are both permanent residents of Canada.

In June 2020, he applied for permanent residence in Canada on humanitarian and compassionate grounds and based his application on his establishment in Canada and the hardship that would be caused to him and to his mother if he were required to return to Mexico.

His application in April 2021, soValdez applied for judicial review of the officer’s decision and contended that the decision is unreasonable.

Subsection 25(1) of the IRPA authorizes the Minister to grant relief to a foreign national seeking permanent resident status who is inadmissible or otherwise does not meet the requirements of the Act. The Minister may also grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations under the Act only if the Minister “is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national.” This discretion to make an exception provides flexibility to mitigate the effects of a rigid application of the law in appropriate cases.

It is well-established that the merits of an H&C decision should be reviewed on a reasonableness standard according to case law.

The judge in his reasons stated, “I am satisfied that the applicant has established that the officer’s decision is unreasonable in a key respect.”

In support of Valdez’s submission, he provided a report from a clinical psychologist who diagnosed him as suffering from a major depressive disorder (“MDD”). The report discussed the risks of significant decompensation on Valdez’s part if he returned to Mexico as well as the treatment options in Mexico for his condition. Considering the nature of Valdez’s mental health condition, its causes, and the high degree of codependency between him and his mother, the psychologist predicted a significant risk of decompensation if Valdez returned to Mexico. Citing an empirical study of mental health treatment in Mexico, the psychologist also stated that mental health treatments for depression are inadequately delivered in that country. The psychologist therefore concluded that “it is not recommended that Valdez return to Mexico with any expectation that psychotherapy or psychiatric treatment would offset the effects of his chronic MDD or that treatment, apart from his mother, would enable a restoration of his functional fitness.”

The officer accepted that Valdez suffered from mental health issues, but assigned only some value in the assessment and made other conclusions without further documentary evidence to support the statements. 

The officer’s concerns appeared to relate primarily to the information Valdez provided to the psychologist about “the circumstances of his life,” including past experiences, which the officer characterized as “not objective since it is likely based on information that was provided to the assessor by the applicant and/or his mother. As a result, the officer attributed some weight to the Valdez’s mental health as a negative component of the application.

Valdez submitted that the officer’s failure to address the unavailability of appropriate mental health treatment in Mexico calls into question the reasonableness of the decision. 

The Minister’s respondent acknowledged that the officer did not address this factor but submits that it is implicit in the reasons that, the officer did not find it to be sufficient to warrant relief.

The judge found that given that the officer accepted that Valdez has mental health issues, and given the psychologist’s evidence of a risk of decompensation if Valdez returned to Mexico; which the officer gave some weight to; and, given the psychologist’s evidence that Valdez would not be able to access appropriate mental health treatment in Mexico, the Officer was required to make a determination and explain how this factor weighed in the overall analysis.   

A decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it, found the judge. 

The application for judicial review was allowed, and the decision of the officer dated April 27, 2021, was set aside; the matter was remitted for redetermination by a different decision maker.

In my view, the officer fettered its decision by placing “some weight” and “negative” weight on the psychological report. I also agree that in this case the officer failed to contend with the central argument of Valdez’s personal circumstances both in Canada and abroad, which was relevant in his request for an exemption from the permanent resident visa requirement.

Good luck Valdez!

SUKHRAM RAMKISSOON  is a member of CICC and specialises in Immigration Matters at No. 3089 Bathurst Street, Toronto, Ontario. Phone 416 789 5756.