Federal Court overturns immigration officer’s finding that sexual assault is ‘not unconscionable’

The case concerns a permanent residence application based on humanitarian and compassionate grounds

Federal Court overturns immigration officer’s finding that sexual assault is ‘not unconscionable’

The federal court has overturned a senior immigration officer’s finding that sexual assault experience is “not unconscionable” that would warrant an exemption to an application for permanent residence from within Canada on humanitarian and compassionate grounds.

In Clarke v. Canada (Citizenship and Immigration), 2023 FC 756, Elma Clarke is a St. Vincent and the Grenadines citizen. She applied for permanent residence from within Canada based on humanitarian and compassionate grounds (H&C) under s. 25 of the Immigration and Refugee Protection Act (IRPA).

In support of her H&C application, she provided submissions of her establishment in Canada, health issues, and hardship she faced in her home country. Clarke claimed that she came to Canada in 2000 at 21 for “a fresh start” after being raped at 16 years old by a teacher. She said she attempted to file a police report, but the local authorities did not take her complaint seriously. She also claimed that she has lived with depression ever since the assault.

After reviewing Clarke’s evidence and submissions, a senior immigration officer concluded that Clarke had failed to demonstrate that her situation was sufficient to warrant the exemption on H&C considerations. Clarke raised the matter to the federal court, asserting that the officer’s decision was unreasonable for finding that Clarke’s experience of being raped and ignored by the police in St. Vincent and the Grenadines was “not unconscionable.”

The IRPA grants the immigration minister discretion to exempt foreign nationals from the ordinary requirements of the act and grant permanent resident status in Canada if the minister believes that H&C considerations justify such relief. The federal court stressed that an H&C determination is global, where all the relevant considerations are to be weighed cumulatively to determine if relief is justified in the circumstances.

The federal court, citing case law, said, “Relief is considered justified if the circumstances would excite in a reasonable person in a civilized community a desire to relieve the misfortunes of another.”

The court explained that reasonableness is the applicable standard of review of an H&C decision. Under this standard, the court focuses on the decision made by the decision maker, including both the decision maker’s reasoning process and the outcome. The court must ask itself whether the decision bears the hallmarks of reasonableness and whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision.

The federal court found that the immigration officer made an error in assessing the hardship Clarke faced upon returning to St. Vincent and the Grenadines. In their decision, the immigration officer acknowledged the sexual abuse faced by Clarke when considering the hardship, she faced in returning to the site of her childhood trauma.

The officer wrote, “The past difficulties described by the applicant are ones many unfortunately experience in their lives. I do not find the events described as unconscionable.”

The officer found that Clarke could obtain counselling or other treatment for her mental health needs in St. Vincent and the Grenadines. The officer concluded that Clarke’s situation was not exceptional and gave little weight to the hardship of return to St. Vincent and the Grenadines.

The federal court disagreed with the officer’s finding, stating that “The Officer’s finding that the applicant’s sexual assault was ‘not unconscionable’ is not only insensitive but inexcusable. The sexual assault of a minor by an authority figure is most certainly unconscionable.”

The officer found that Clarke’s hardship was lessened because she is a caring person with medical training and understands her mental health. The federal court found this conclusion unreasonable. The court said that the officer’s suggestion that Clarke’s training and experience as a personal support worker nurse would reduce the hardship she would face upon return to St. Vincent and the Grenadines is speculative and illogical.

Furthermore, the court also found that the officer’s generalized comparative approach improperly minimized and disregarded the hardship of Clarke’s removal because it is not “exceptional” compared to other unidentified people in similar circumstances.

The court concluded that the errors committed by the officer made their decision unreasonable. The court set aside the officer’s decision and remitted the matter to a different officer for redetermination.

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