RAIHANA OSMANI Applicant v. THE MINISTER OF CITIZENSHIP, 2022 FC 647

Date: 20220503 Docket: IMM-641-21 Citation: 2022 FC 647 St. John’s, Newfoundland and Labrador, May 3, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:RAIHANA OSMANIApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent REASONS AND JUDGMENT [1] Ms. Raihana Osmani (the "“Applicant”") seeks judicial review of the decision of an Officer refusing her application for permanentresidence on Humanitarian and Compassionate ("“H and C”") grounds, pursuant to subsection 25(1) of the Immigration and RefugeeProtections Act, S. C. 2001, c. 27 (the "“Act”"). [2] The Applicant is a citizen of Afghanistan.

She has resided in Canada since December 2016. She submitted her H and C application inSeptember 2019. She based her application upon establishment in Canada, family ties to Canada, the best interest of children, and thehardship of return to Afghanistan. Included under the last factor are concerns about her mental health, that were supported by a letterfrom a Nurse practitioner who has treated the Applicant in Canada. [3] The decision of the Officer is reviewable on the standard of reasonableness, following the decision in Canada (Minister ofCitizenship and Immigration) v.

Vavilov (2019), 2019 SCC 65 , 441 D.L.R. (4th) 1 (S.C.C.). [4] In considering reasonableness, the Court is to ask if the decision under review "“bears the hallmarks of reasonableness – justification,transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on thatdecision”"; see Vavilov, supra at paragraph 99. [5] The Applicant argues, generally, that the decision is unreasonable. [6] The Minister of Citizenship and Immigration (the "“Respondent”") argues that the decision is reasonable and there is no basis forjudicial intervention. [7] Upon considering the contents of the Certified Tribunal Record, the affidavit of the Applicant filed in support of this application, andthe written and oral submissions of the parties, I find that the Officer unreasonably dealt with the evidence presented about theApplicant’s mental health. [8] The Applicant provided a report from a Nurse Practitioner that gave a clear diagnosis of the Applicant’s mental health and thepotential for deterioration if she were to be removed to Afghanistan.

The Officer did not explicitly reject these aspects of the report butfocused on the lack of evidence about the Applicant’s treatment in Canada and the lack of evidence about the unavailability of mentalhealth assistance in Afghanistan. [9] These were the only reasons given by the Officer for discounting the letter from the Nurse Practitioner. I refer to the decision inKanthasamy v.

Canada (Minister of Citizenship and Immigration), 2015 SCC 61 , [2015] 3 S.C.R. 909 at paragraph 48 wherethe Supreme Court of Canada said the following: Moreover, in her exclusive focus on whether treatment was available in Sri Lanka, the Officer ignored what the effect ofremoval from Canada would be on his mental health. As the Guidelines indicate, health considerations in addition to medicalinadequacies in the country of origin, may be relevant: Inland Processing, s. 5.11.

As a result, the very fact that JeyakannanKanthasamy's mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that mustbe identified and weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition: Davis v.Canada (Minister of Citizenship & Immigration) 201196 Imm. L.R. (3d) 267 (F.C.); Martinez v. Canada (Minister ofCitizenship and Immigration) 201214 Imm. L.R. (4th) 66 (F.C.). … [10] I also refer to the decision in Jang v.

Canada (Immigration, Refugees and Citizenship), 2017 FC 996 at paragraph 32, where theCourt said the following: Finally, I would also note that as the Supreme Court observed in Kanthasamy, it is unreasonable for an H&C Officer todiscount evidence as to the effect of removal from Canada on the mental health of an individual because of the availabilityof treatment in the individual's country of origin: Kanthasamy at para. 48. [11] The Officer’s reasons do not meet the required test of justification, transparency and intelligibility, and are unreasonable. [12] In the result, this application for judicial review will be allowed, the decision will be set aside and the matter remitted to another

officer for redetermination. No question is proposed for certification. JUDGMENT in IMM-641-21 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter remitted to another officer for redetermination. No question for certification is proposed. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-641-21 STYLE OF CAUSE: RAIHANA OSMANI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE BETWEEN TORONTO, ONTARIO AND ST.

JOHN’S, NEWFOUNDLAND AND LABRADOR DATE OF HEARING: APRIL 12, 2022 REASONS AND JUDGMENT: HENEGHAN J. DATED: MAY 3, 2022 APPEARANCES : Djawid Taheri FOR THE APPLICANT Hillary Adams FOR THE RESPONDENT SOLICITORS OF RECORD : Taheri Law Office Barrister & Solicitor Toronto, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT