Date: 19980320
Docket: IMM-272-97
BETWEEN:
POORAN DEONARAINE BUDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant sponsored his father's application for landing, which application was denied. That denial was appealed to the Appeal Division of the Immigration and Refugee Board ("IAD"). The dismissal by the IAD of that appeal and the refusal by the IAD to exercise its discretion to allow the father's landing on humanitarian or compassionate grounds is the subject of this judicial review.
[2] Subsection 77(3) of the Immigration Act provides that:
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(3) Subject to subsection (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds: |
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(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
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(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief. |
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Subsection (3.1) is not relevant for present purposes.
Facts
[3] The applicant's father was refused admission to Canada because it was determined that his admission might reasonably be expected to cause excessive demands on health and social services. The medical opinion, signed by Dr. James Baltrain, on April 29, 1994, and concurred in by Dr. A. Bernstein on June 15, 1994, reads:
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Applicant has evidence of schizophrenia (chronic paranoid type) which has required admission to hospital on at least two occasions with the most recent episode being in February to March, 1993. The Applicant appears to have no insight into his condition, has not complied with recommended medical follow up in the past and is currently not apparently receiving any treatment for his condition. He is expected to cause an excessive demand on health care and social services. He is therefore inadmissible under section 19(1)(a)(ii) of the Immigration Act. |
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[4] The visa officer who signed the letter of refusal, dated July 5, 1994, indicates that in addition to the opinion of medical inadmissibility, he had serious concerns about the father's ability to become self supporting because he had a very low education and employment skills and had been unemployed for the previous four years in Guyana. He also indicated that no evidence had been submitted to show that there had been any meaningful contact between the sponsor and his father since 1983. Thus, humanitarian and compassionate grounds were not sufficiently compelling to make a recommendation to facilitate the applicant father's admission to Canada.
[5] It is conceded that the father's ability to become self-supporting is not relevant since he is a sponsored applicant. Also, the conclusion that there had been no meaningful contact was not correct. The applicant and his two siblings, all of whom are resident in Canada and Canadian citizens, gave evidence before the IAD about the constant and frequent contact they had with their father. The applicant's mother, who is also a Canadian citizen and resident here, also gave evidence in support of her ex-common-law husband's application. The applicant's mother had immigrated to Canada in 1980. The applicant and his two sisters came in 1986. The father remains in and is a resident and citizen of Guyana.
[6] The applicant's father, who is now 53 years old, developed schizophrenia in his late 40s, that is, after his children and ex-common-law wife had left Guyana. He was hospitalized for about ten days in 1988. His schizophrenia was not properly diagnosed at that time; he was diagnosed as being an alcoholic. He was hospitalized again, in February of 1993, for one week. At that time, the schizophrenia was diagnosed. He was prescribed medication and referred to a psychiatric clinic for follow-up treatment. He did not stay on his medication, nor attend the psychiatric clinic.
[7] The father had filed his sponsored application for landing in October 1990. Sometime before December 17, 1993, he was interviewed by a Ms. Johnson in Guyana. She prepared a report for the medical officers in Ottawa. She reported that he had been hospitalized twice during the previous five years for psychiatric observation, and that he had stated that he had received out-patient psychiatric treatment from two doctors. She stated that he appeared to have been leading the life of a vagrant during the past ten years. She described his work history as having been one in which he had worked at approximately eight jobs during the past 25 years, the majority lasting for less than one month. The report was dated December 17, 1993.
[8] She prepared a second report, dated March 1, 1994. That report described the applicant's father's behaviour as she observed it and as it had been reported by "his landlady". She concluded that he showed no insight into the nature of his illness, that he was not described as being violent (although this was contradicted by his hospital records) and that his problem "seems to be exacerbated by an alcoholic lifestyle and a long standing refusal to work to support himself and shoulder his adult responsibilities". [Counsel before me questioned Ms. Johnson's qualification because, although she submitted the two psychological assessments, there is nothing to show what training she had in that field. The degree she lists after her name is an Ed. D.]
[9] A third report was also prepared for the use of the medical officers. It was dated March 3, 1994, and was prepared by Dr. Shurv, Hospital Administrator, Georgetown Hospital, Guyana. Dr. Shurv reported on the circumstances surrounding the hospital admissions of 1988 and February 1993, including that threats of violence were a factor in those hospitalizations. He also noted that the father had not reported in March 1993 to the psychiatric clinic to which he had been referred.
[10] The applicant's father was hospitalized again around the end of 1993, for three weeks. He was again put on medication and referred to a clinic for follow-up treatment. He presumably followed those instructions for some time. The medical officers who made the section 19(1)(a)(ii) decision had before them, when they made their decision, the two reports of Ms. Johnson and the report of Dr. Shurv. They did not know of the late 1993 hospitalization, nor the treatment the father received subsequent thereto. They also did not know that Ms. Johnson's description of the father's work history was incorrect.
[11] On the basis of the three reports, as well, presumably as their knowledge of the medical condition that was described, Drs. Baltrain and Bernstein issued the medical opinion of June 15, 1994, which led to the refusal letter of July 5, 1994.
[12] Dr. Bernstein was subsequently asked to review the decision that had been given, by reference to two additional medical reports: one by a Dr. McRae; another by a Dr. Bogo. Dr. McRae is a psychiatrist in Georgetown, Guyana. She reports that she began treating the applicant's father in November 1995 "due to a relapse in his condition (III episode)". Dr. McRae's letter was dated January 27, 1996. At that time, she appears to have only been treating the father for a few months. She notes that his daughter, who was in the country at the time to check up on him, had accompanied him.
[13] Dr. McRae stated that the father's insight into his condition was slowly developing, and that on each of the three occasions when he had had an attack (i.e., February 1993 (erroneously referred to as some time in 1992), the end of 1993 and prior to November 1995), he displayed a tendency towards depression not hostile or aggressive behaviour. She stated that in order "to maintain the remission and avoid future relapses, the father requires regular medical care", and that "hospitalization can be avoided once he respects his treatment" (emphasis added). Both Dr. McRae and Dr. Bogo stated that the prognosis for long term remission would be better in Canada, where the father would have the active support of his family, than in Guyana.
[14] Dr. Bogo is a psychiatrist in Canada who had access to Dr. McRae's report and knew that Dr. Bernstein had declined to alter his opinion after reviewing it. Dr. Bogo's "report" is dated April 15, 1996. He notes that the prognosis for late onset schizophrenia can be better than is the case when the disease manifests itself at an earlier age. He noted that the patient's previous work history has been a stable one. Dr. Bogo expressed the opinion that individuals with a condition such as the father's require only brief hospitalizations and short visits to a physician once or twice a month, which he estimates cost between $20.00 - $50.00 per visit.
[15] Dr. Bernstein responded to both these opinions, saying that they did not change his opinion. He noted that his decision that the applicant's father could be expected to make excessive demands on health care services was independent of whether or not the father remained compliant with the medical directions given to him. Dr. Bernstein stated that the father would require, in any event, regular specialist care and specialized health care services, both of which are often in short supply. He was also of the view that the father would require a variety of social services. He wrote: "even were the applicant to remain compliant, his needs for utilization of health and social services ... would still be expected to create excessive demands on such services". In response to the reference to a stable work history in Dr. McRae and Dr. Bogo's letters, Dr. Bernstein reiterated the opinion found in Ms. Johnson's March 1, 1994 report, that the father's problems were exacerbated by an alcoholic lifestyle and a long standing refusal to work.
IAD Decision - Validity of Visa Officer's Decision
[16] I turn then to the IAD decision. That decision has two prongs. The first is whether the refusal letter of July 5, 1994, was a valid decision. The second is whether, nevertheless, there were compassionate or humanitarian considerations that warranted approving the father for landing. The IAD found the visa officer's decision to be reasonable and valid. The IAD member found that the diagnosis had not been successfully challenged as inaccurate and that the potential for excessive demand to be placed on Canada's health and social services arose because of the potential for the individual to be non-compliant and require hospitalization.
[17] In coming to his decision, the IAD member stated that "the individual schizophrenic must be relied upon to self-medicate" and that if they do not do so "they may relapse into another psychotic episode" (emphasis added). He concluded that "therein lies the potential, the real possibility that there might reasonably be expected to be excessive demands placed on health and social services of Canada" (emphasis added). Counsel argued that the IAD member applied the wrong test, when making his decision, that he was required to find a probability not a possibility that the conduct would occur. I am not persuaded that the IAD member applied an incorrect test. One must consider the quoted comments in the context of the decision as a whole. The test for excessive demand is "might reasonably be expected to cause". This is the test that the IAD member applied.
[18] Also, even though Drs. Baltrain and Bernstein may not have known, when they made their June 1994 decision, that the father had been hospitalized around the end of 1993 and was perhaps by June 1994 being compliant, and that his pre-1987 work history was different from what Ms. Johnson had reported, I could not conclude that the IAD decision with respect to the validity of the refusal, insofar as it was based on medical inadmissibility, was of a type that falls within subsection 18.1(4)(c) or (d) of the Federal Court Act. I could not conclude that the decision was made on the basis of an error of law or without regard to the material on the record.
IAD Decision - Compassionate or Humanitarian Considerations
[19] I turn then to the IAD's decision that discretion would not be exercised to allow the applicant's appeal on humanitarian or compassionate grounds. A wider range of considerations becomes relevant, and evidence relating to events that post-date the medical decision is admissible.
[20] Counsel for the applicant challenges the IAD decision on this aspect of the appeal on two grounds: (1) the IAD decision-maker held preconceived ideas about the behaviour of schizophrenics, and relied upon those views in making his decision when there was no evidence before him to support them; (2) the decision that was made is not logical. (The first reason would also operate to taint the decision as to the validity of the refusal order but I have chosen to consider it only in relation to the exercise of discretion.)
[21] With respect to those concerns, the IAD member, at the beginning of the hearing, characterized the issue before him as:
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... the whole essence of this appeal is the likelihood of causing excessive demands on Health or Social Services with someone who has been diagnosed with a mental illness, paranoid schizophrenic chronic condition, obviously the concern is is the person going to stay on their medication or are they going to go off it like we know they do and then end up causing -- ending up on the streets and causing a little bit of ruckus sometimes and being just generally a nuisance ... or doing something stupid like getting a machete and brandishing it and yelling at a whole bunch of people so that a policeman shoots him to death or something like that? |
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(underlining added)
When giving his reasons for the decision reached, he stated:
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... I would take official notice that it would appear that alcohol and other drugs have been employed by schizophrenics as a form of self-medication during psychotic episodes, and which substances do not control, but may worsen the severity of the episode. I am satisfied that Mr. Budhu and his sisters have kept in constant and close contact with their father and they have been able to visit him regularly over the years. While visiting their father in Guyana is indeed costly in terms of airfare and time off work, there is nothing to indicate that they are not able to continue to do so in order to maintain their relationship with their father. ... |
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(underlining added)
[22] It is argued that the IAD member's comments at the opening of the hearing, and the taking of judicial notice of matters that are not properly the subject of such, would lead a reasonably informed observer to conclude that in assessing whether the prospective behaviour of the particular individual outweighed the goal of family unification, stereotyping played a significant role.1 I agree.
[23] With respect to the illogical conclusion, as I understand the argument, it is that the IAD reached the conclusion that compassionate or humanitarian considerations did not exist because the applicant's father might go off his medication and end up in hospital for two or three weeks. The relevant part of the reasons reads:
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While family reunification is a stated policy objective of the Immigration Act. In the particular circumstances of this case, that factor, along with the establishment of Mr. Budhu and his two sisters, and along with the plans they have made for his care and accommodation in Canada are insufficient to override or over come the legal validity of the refusal. There is simply too great a risk that Mr. Budhu may go off his medication in Guyana or in Canada and thereby end up in a hospital for two to three weeks. ... |
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(underlining added)
[24] Counsel for the applicant argues that it is illogical to say that the cost of two or three weeks hospitalization outweighs the compassionate considerations. Had the decision been based on a conclusion that the applicant's father, when experiencing an attack, might be a danger to others the decision would not be illogical.
[25] The IAD member had before him, the summary by Dr. Shurv of the father's hospital records, which contained a description of the circumstances under which the father was admitted to hospital in 1988 and February 1993. He had Ms. Johnson's report stating that the father was not described as violent (although the hospital records indicated otherwise). He had the evidence of Dr. McRae stating that the father's reaction had been one of depression not violence. He had the evidence of the children that they were not afraid or reluctant to have their father live with them despite the diagnosis of paranoid schizophrenia. No express evaluation was made of this evidence.
[26] The children's evidence was that they considered their father to be normal. I do note, in this regard, that it is strange that the children said that in their view he was normal, yet a daughter, when visiting the country to check up on him, appears to have accompanied him when he went to see Dr. McRae, around the end of November 1995, as a result of relapse.
Conclusion
[27] In any event, I do not find it necessary to decide whether the IAD decision was illogical, but I am forced to conclude that the comments that were made at the opening of the hearing and the taking into consideration by way of judicial notice evidence that was not properly the subject of such, would leave a reasonably well informed observer with the impression that stereotyping and irrelevant considerations had played a significant role in the decision. The decision will therefore be set aside and referred back for reconsideration by a different panel of the IAD.
Certification of a Question for Appeal?
[28] Counsel asked for an opportunity to consider whether submissions should be made with respect to the possible certification of a question for appeal. Counsel for the respondent shall have seven days from the date of the issuance of these reasons to make such submissions, either in writing, or by telephone conference. If such are made in writing, counsel for the applicant shall have seven days within which to respond. Again, such response can be made either in writing or by request for a telephone conference.
Judge
OTTAWA, ONTARIO
March 20, 1998
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1 See Yusuf v. Minister of Employment and Immigration (A-116-90, October 24, 1991) (F.C.A.) for a comparable case but with respect to gender stereotyping.
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