2021 FC, 2021 FC 1398

Date: 20211211 Docket: IMM-9065-21 Citation: 2021 FC 1398 Ottawa, Ontario, December 11, 2021 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: YOHANNA DAVID CHOL Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Mr. Chol brings a motion for the stay of his removal to South Sudan, scheduled for December 13, 2021. He alleges that the removal officer failed to consider evidence that, given his mental health condition, his removal would expose him to inhumane treatment or even death in South Sudan.

I am granting his motion, because the removal officer should have recognized that the risks associated with Mr. Chol’s mental health condition were never properly assessed and that the evidence showed that there is a serious risk of inhumane treatment or death. I. Background [ 2 ] Mr. Chol was born in 1986 in Khartoum, Sudan. Nevertheless, because his parents were originally from a region that seceded in 2011 to become South Sudan, the Canada Border Services Agency [CBSA] considers that Mr. Chol is now a citizen of the latter country. Mr.

Chol came to Canada in 2003 as a sponsored Convention Refugee. [ 3 ] Since his arrival in Canada, Mr. Chol has been convicted of multiple criminal offences, including assault, drug trafficking, theft, forced entry, and failure to comply. Some of these offences carry a maximum penalty of ten years’ imprisonment, which renders Mr. Chol inadmissible to Canada for serious criminality, pursuant to section 36(1) (

a) of the Immigration and Refugee Protection Act , SC 2001, c 27 [the Act ]. In 2014, Mr. Chol lost his status as permanent resident as a result of his multiple criminal convictions. However, because Mr. Chol is a protected person according to

section 95 of the Act , the principle of non-refoulement enshrined in

section 115 of the Act prohibits his removal to a country where he would be “at risk of torture or cruel and unusual treatment or punishment” unless the Minister is of the opinion that he poses a “danger to the public in Canada.” On March 3, 2016, Mr. Chol was informed that CBSA would seek such a “danger opinion” from the Minister. Given the doubts regarding Mr. Chol’s citizenship, the request pertained to both Sudan and South Sudan. [ 4 ] Mr.

Chol responded with submissions related to the risks he would face as an ethnic Shilluk if returned to Sudan or South Sudan, and laid out the difficulty of accessing mental health services in those countries. [ 5 ] In preparing these submissions, counsel for Mr. Chol sought to access his medical records, as there were indications that he was suffering from mental health issues. For various reasons, including the necessity to obtain her client’s written consent and the lockdown measures in place at the Ottawa-Carleton Detention Centre [OCDC] at the time, counsel faced multiple hurdles in obtaining copies of Mr.

Chol’s medical records. [ 6 ] Counsel received Mr. Chol’s medical records on December 30, 2016, and January 9, 2017. These records indicated that Mr. Chol had been diagnosed with schizophrenia, anxiety and depression and that he has been prescribed eleven medications. [ 7 ] The Minister’s delegate, however, had already issued his danger opinion. The opinion is dated December 28, 2016 and was communicated to counsel on January 3, 2017. Given his criminal record, Mr. Chol was found to be a danger to the Canadian public. The Minister found that the risks to which Mr.

Chol would be exposed in Sudan overweigh the danger he poses to the public in Canada. In contrast, with respect to South Sudan, the Minister concluded that these risks were less serious. Thus, he authorized Mr. Chol’s removal to South Sudan. [ 8 ] Mr. Chol submitted a request for reconsideration shortly thereafter based on the newly disclosed medical evidence, which was not before the decision maker at the time the danger opinion was issued. The medical evidence identified Mr. Chol’s multiple diagnoses and medications related to his psychiatric treatment.

He also raised his mental health issues as a new ground of risk, based on additional evidence regarding conditions in South Sudan. [ 9 ] The request for reconsideration of the positive danger opinion against him remains outstanding since January 2017. [ 10 ] Since January 2017, Mr. Chol has been in and out of immigration detention. He committed new offences, which resulted in a new period of incarceration. During this time, his mental health condition deteriorated.

He experienced two episodes of suicidal ideation causing suicide attempts, both of which resulted in periods of hospital admission. [ 11 ] On November 25, 2021, Mr. Chol was served with a Direction to Report for removal to South Sudan, presently scheduled for December 13.

[12] Mr. Chol submitted a deferral request based on the outstanding request for reconsideration of the danger opinion. On December 7,2021, Mr. Chol was informed that his deferral request was denied. That same day, he filed an application for leave and judicial reviewbefore this Court challenging the reasonableness of the removal officer’s decision to reject his request for deferral, and brought a motionfor a stay of his removal. [13] The removal officer who denied Mr. Chol’s deferral request determined that he did not submit sufficient evidence to establish thathis risk assessment warranted reconsideration.

He further determined that there was insufficient evidence to show that Mr. Chol wouldbe unable to access the medical treatment or medication required for his mental health condition in South Sudan. The officer thereforeconcluded that removal to South Sudan was unlikely to expose Mr. Chol to the risk of death, extreme sanction, or inhumane treatment. II. Analysis [14] In Gill v Canada (Public Safety and Emergency Preparedness), 2020 FC 1075 [Gill], I reviewed the legal framework governingrequests for deferral and motions for stay of removal.

I refer the reader to that case and I will not repeat the discussion here. In a nutshell,the applicant must show (1) that the underlying application for judicial review shows “quite a strong case;” (2) that the applicant’sremoval would cause irreparable harm; and (3) that the balance of convenience favours the applicant.

Where the underlying applicationconcerns a decision to refuse deferral, I noted that the issue often boils down to a single question: “whether the CBSA officerunreasonably failed to take into consideration harm that fits into a recognized category, which counterbalances the obligation to effectremoval as soon as possible”: Gill, at paragraph 22. A. Serious Issue [15] Mr. Chol’s application for judicial review is based on the removal officer’s failure to recognize that the new evidence regarding hismental health condition had never been assessed. In practice, Mr.

Chol submits that he cannot be removed to South Sudan until thedanger opinion against him is reconsidered in light of the medical evidence related to his mental health conditions. [16] It is well established that an officer must defer removal if a new risk, not assessed by previous immigration decision-makers, hasarisen: Savunthararasa v Canada (Public Safety and Emergency Preparedness) 2016 FCA 51 at paragraph 7, [2017] 1 FCR 318;Atawnah v Canada (Public Safety and Emergency Preparedness), 2016 FCA 144 at paragraph 22, [2017] 1 FCR 153 [Atawnah].

Thisprinciple not only applies to new events (for example, a coup in the country of removal), but also extends to new evidence of risks thatwere previously assessed: Abdulrahman v Canada (Public Safety and Emergency Preparedness), 2018 FC 842 at paragraphs 15–16;Nayeb Pashaei v Canada (Public Safety and Emergency Preparedness), 2021 FC 212 at paragraphs 15–16; Mohammadpour v Canada(Citizenship and Immigration), (FC); Obaseki v Canada (Public Safety and Emergency Preparedness), 2021 FC 936at paragraph 7. [17] In fact, the Federal Court of Appeal in Atawnah noted that a removal officer’s duty to examine allegations of risk of death, extremesanction or inhumane treatment is necessary to ensure compliance with

section 7 of the Canadian Charter of Rights and Freedoms,which guarantees everyone’s right to life, liberty and security of the person. See also Kopalakirusnan v Canada (Public Safety andEmergency Preparedness), 2013 FC 330 (unavailable on CanLII); Bouaza c Canada (Sécurité publique et Protection civile), 2018 CF1028. [18] In the danger opinion, the Minister’s delegate did not assess the risk related to Mr. Chol’s mental health condition, but ratherconsidered this issue under the heading of humanitarian and compassionate considerations.

After summarizing the evidence thenavailable, the Minister’s delegate wrote: Considering the facts, I accept that Mr. Chol may have a mental health issue. However, without any professional diagnosis,it is unclear how it affects his risk of return to Sudan or South Sudan. Mr. Chol may be suffering from low-end depression,or from deeper depression, or from another ailment.

There is no evidence he is currently under medication and while Irecognize the fact that the subject was rejected for a substance abuse program, no submissions demonstrating that effortswere made to CBSA or to the OCDC to have the subject assessed privately (by bringing a psychologist for a visit, forexample) were submitted. Concretely, the evidence shows that while Mr. Chol is not understanding the immigrationproceedings against him, he is not currently hospitalized and is not under medication, and therefore the weight given to thisargument is diminished. [19] In support of his request for deferral, Mr.

Chol brought new evidence that was not considered in the danger opinion. A significantportion of this new evidence was submitted in support of the request for reconsideration of the danger opinion in January 2017. This newevidence first included the professional diagnosis the Minister’s delegate acknowledged was lacking from the record before him, whichshows that Mr. Chol has suffered from schizophrenia, anxiety and depression as early as 2015 to the present day.

The new evidence alsoindicated that he is prescribed 11 medications to manage his pain, anxiety, stomach issues, ADD, depression, sleep issues andschizophrenia. [20] The new evidence also pertained to the availability of mental health services in South Sudan. The two main pieces are reports by theInternational Medical Corps [IMC] (2013) and Amnesty International (2016).

The Amnesty report, titled Our Hearts Have Gone Dark:The Mental Health Impact of South Sudan’s Conflict, paints a grim picture of the treatment of persons with mental health disorders.Some of its findings in this regard deserve quoting in full: Whilst the health system as a whole in South Sudan is in a deeply worrying state, mental health services remain practicallynon-existent. The Juba Teaching Hospital is the only public medical facility that provides psychiatric care. During a visit tothis hospital in April 2015, Amnesty International found just 12 beds in the facility’s inpatient psychiatric ward.

Due toinadequate resources, the ward itself is run down and in dire need of renovation and new equipment.

[…] There is a dire shortage of trained mental health professionals. There are only two practising psychiatrists in the country, both of whom are in Juba and neither of whom see patients on a full-time basis. […] The routine use of prisons to house individuals with mental health conditions is a stark manifestation of the inadequacy of mental health treatment, stigma about mental disorders and the deficit of facilities and trained staff. Individuals with mental health conditions deemed to pose a danger to themselves or others often end up arbitrarily detained in prison, even if they have not committed any crime.

They may be transferred to prison from medical facilities or taken directly to prison by family members who feel unable to care for them. […] In prison, people with mental health disorders receive insufficient medical care, if any at all. Although general living conditions in South Sudan’s prisons are extremely poor, inmates with mental disorders are often naked, chained or held in solitary confinement.

Between January and May 2016, four inmates with mental disorders died in Juba Central Prison due to insufficient food and treatable illnesses such as malaria and diarrhoea. [ 21 ] The IMC report also mentions that, in 2013, the only psychotropic drug available with some regularity was diazepam, used to sedate patients. A more recent news

article and Amnesty’s 2020 country report for South Sudan confirm that the above information is still current, except that there is now a third psychiatrist in the country—for a population over 10 million. While it was not included in Mr. Chol’s deferral request, I note that the United States Department of State report on human rights practices in South Sudan, available in the national documentation package maintained by the Immigration and Refugee Board, confirms that “persons with mental disabilities were often held in prisons.” [ 22 ] On this basis, and given his serious mental health issues, Mr.

Chol argued that his removal to South Sudan would expose him to a risk of death or inhumane treatment, and that this risk was not properly assessed in the danger opinion. [ 23 ] In response to these submissions, the removal officer wrote: While I am sympathetic to Mr. Chol’s mental health and I realize that the conditions in South Sudan are far from ideal, insufficient evidence has been provided to show that Mr. Chol would be unable to access mental health services or the medication required. Also, due to the Covid pandemic, the world has increased the amount of services available online.

This is an option for mental health services for Mr. Chol, if he is able to obtain the services of a professional here in Canada, or elsewhere. I note that as an Inland Enforcement Officer, my discretion is extremely limited and it is not within my authority to assess the merits of a decision made by the Danger opinion decision maker. I may assess whether removal at this time would expose the applicant to risk of death, extreme sanction or inhumane treatment.

Based on the submissions to this office and the information provided, I am unable to conclude that removal to South Sudan at this time would expose the applicant to risk of death, extreme sanction or inhumane treatment. [ 24 ] If there was ever an “erroneous finding of fact … made in a perverse or capricious manner or without regard for the material before [the decision-maker]” (the language used in

section 18.1(4) (

d) of the Federal Courts Act , RSC 1985, c F-7 ), this is it. In particular: • It is difficult to understand how Mr. Chol could produce additional evidence of the unavailability of mental health services in South Sudan and why the voluminous Amnesty and IMC reports, each of which was prepared after thorough investigation in the country, are considered insufficient to prove this unavailability. • The assertion that Mr. Chol could benefit from online mental health services is purely speculative. Once removed to South Sudan, he would no longer be eligible to services provided in Canada.

Moreover, the officer failed to turn his mind to the availability of Internet service in South Sudan. • Mr. Chol is currently detained because he is a danger to himself and the public. In South Sudan, according to Amnesty and other sources, such persons are likely to be housed in prisons and treated in a manner that can only be described as inhumane.

The only explanation I can find for the officer’s decision to the contrary is that he has not read the evidence. [ 25 ] Most importantly, the removal officer failed to recognize that none of this evidence was before the Minister’s delegate who issued the danger opinion. It is no excuse to say that he could not assess the merits of the danger opinion.

He could not shirk from his duty, established in Atawnah and similar cases, to determine whether a new risk arose or new evidence of risk was put forward. [ 26 ] Therefore, in light of the evidence establishing the likelihood of risk of death or inhumane treatment as a result of his mental health conditions, Mr.

Chol has “quite a strong case” that the removal officer’s decision was unreasonable. [ 27 ] In reaching this conclusion, I acknowledge that inadequacy of health services in the country of removal, alone, is not sufficient grounds to defer removal: Gill , at paragraph 19 ; Bastien v Canada (Citizenship and Immigration) , 2021 FC 926 at paragraph 25 ; Kalaba v Canada (Public Safety and Emergency Preparedness) , 2021 FC 959 .

What is at stake here, however, is of an entirely different nature: in South Sudan, persons with severe mental health issues are likely to be subjected to what can only be described as inhumane treatment. [ 28 ] Moreover, while removal officers may consider only the short-term aspects of certain issues, such as medical conditions or the best interests of children, the limitation does not apply to issues of death, extreme sanction or inhumane treatment, which have always been at the core of removal officers’ discretion: Wang v Canada (Minister of Citizenship and Immigration) , 2001 FCT 148 at paragraph 48 ,

[2001] 3 FC 682. In reality, the category of “death, extreme sanction or inhumane treatment” closely parallels the right to life, liberty and security of the person guaranteed by

section 7 of the Charter . [ 29 ] Relying on Forde v Canada (Public Safety and Emergency Preparedness) , 2018 FC 1029 , counsel for the Minister suggested that a deferral could not be granted because, as the removal officer noted, there is no indication that “a decision on the reconsideration is imminent or overdue.” In this regard, the removal officer quoted a message from the

section tasked with preparing danger opinions to the effect that they were not able to provide a timeline for review of the reconsideration request. Given that a decision has been rendered on this case and there are no impediments to removal, it is not a case that we are likely to prioritize over others where no decision has been made. [ 30 ] This, in my view, is highly problematic. An officer tasked with assessing the risk of removal cannot justify a refusal to act by the fact that the person concerned is ready to be removed. This amounts to a disguised refusal to reconsider the initial decision.

The removal officer cannot then rely on such a statement as an excuse not to defer removal. Someone has to assess the risk, and must do so before removal. [ 31 ] Thus, the first prong of the test for granting a stay is satisfied. B. Irreparable Harm [ 32 ] The second prong of the test for granting a stay is irreparable harm. As I noted in Gill , at paragraph 22 , in a case such as this, the first two prongs of the test largely overlap.

A risk of death, extreme sanction or inhumane treatment, which removal officers are tasked to assess, constitutes by definition irreparable harm. [ 33 ] In light of the evidence reviewed above, I have no difficulty finding that Mr. Chol’s removal to South Sudan would expose him to irreparable harm. C. Balance of Convenience [ 34 ] This brings me to the third prong of the test for granting a stay, namely, the balance of convenience.

At this stage of the RJR test, the Court assesses whether the harm to which the applicant is exposed outweighs the public interest in the timely enforcement of the Act . [ 35 ] I acknowledge that there is a public interest in the timely removal of foreign nationals who have lost their right to remain in Canada. In this regard, my colleague Justice William F.

Pentney stated that “the prompt removal of persons who have no right to be in Canada is an element in maintaining the integrity of the immigration and refugee system, and public confidence in it:” Surmanidze v Canada (Public Safety and Emergency Preparedness) , 2019 FC 1615 , at paragraph 26 [ Surmanidze ] .

The public interest in prompt removal is even weightier where the applicant is inadmissible for serious criminality: see for example, Bentamtam v Canada (Public Safety and Emergency Preparedness) , 2019 FC 984 . [ 36 ] Yet, there is also a public interest in ensuring that foreign nationals not be removed to countries where they are at risk of inhumane treatment or death.

In this regard, in Surmanidze at paragraphs 57-58 , Justice Pentney wrote: On the other hand, Canada has an important interest in ensuring that it respects fundamental rights and freedoms, including the fundamental right to have one’s risks assessed in a manner that respects the principles of fundamental justice.

This includes ensuring the fulfillment, in a substantive and meaningful way, of the obligations Canada has undertaken both through the Canadian Charter of Rights and Freedoms and by its adherence to international human rights obligations, most particularly here the Convention Relating to the Status of Refugees . That is done, in the circumstances of cases such as this, by an officer assessing the risks alleged in the context of a deferral decision. That is a legal requirement on officers where the risks have not been assessed by a prior decision-maker. It was not done here.

The balance of convenience lies with the Applicant. [ 37 ] This applies with equal force in the present case. The removal officer turned a blind eye to evidence, not considered by previous decision-makers, indicating that Mr. Chol’s removal to South Sudan will expose him to a risk of death or inhumane treatment. The public interest is not served by short-circuiting the safeguards aimed at ensuring everyone’s right to life, liberty and security of the person. The balance of convenience favours Mr. Chol. III.

Disposition [ 38 ] To summarize, the removal officer unreasonably failed to take into consideration evidence of a risk of death or inhumane treatment, which counterbalances the obligation to effect removal as soon as possible. The three prongs of the test for a stay are satisfied. Thus, I will grant Mr. Chol’s motion for a stay of removal. ORDER in IMM-9065-21 THIS COURT ORDERS that the applicant’s removal from Canada is stayed until the disposition of the application for judicial review.

"Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-9065-21 STYLE OF CAUSE: YOHANNA DAVID CHOL v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: December 10, 2021 ORDER AND REASONS: GRAMMOND J. DATED: December 11, 2021 APPEARANCES : Ayesha Kumararatne For The Applicant Emma Gozdzik FOR THE RESPONDENT SOLICITORS OF RECORD : Ayesha Kumararatne Barrister and Solicitor Ottawa, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario FOR THE RESPONDENT