July 13, 2018

Deferral of Removal Requests and Expert Evidence

Failing to properly assess expert reports regarding mental health could constitute a reviewable error on judicial review of a deferral of removal request refusal. In Gama Sanchez (2018 FC 713), a recent Federal Court ruling, the Honourable Justice Shore concluded that the decision to not grant an administrative stay of removal was unreasonable because the Officer had failed to turn his mind to significant aspects of the evidence, including an expert report related to the Applicant’s 12-year-old son who had thoughts of self-harm and suicidal ideation.

The report from the psychologist noted that any major disruption such as the Applicant’s removal from Canada would be emotionally detrimental to the 12-year-old son who had recurrent suicidal thoughts and required ongoing psychological treatment and support. The court held that the Officer’s failure to engage with the expert evidence and silence on the issue was a reviewable error, in and of itself, that had no justification in law. Further, in obiter, the court commented that “serious risk to life and psychological health are to be taken seriously” in removal proceedings. Although removal officers are generally not required to engage in a full assessment of the best interests of the child, this decision reinforces the obligation upon an officer to consider the short-term best interests of the child as well as any circumstances that could put the child’s health at serious risk if removal is executed.