Date: 20031006
Docket: IMM-5678-01
Citation: 2003 FC 1157
OTTAWA, ONTARIO, this 6th day of October 2003
Present: The Honourable Justice Dolores M. Hansen
BETWEEN:
STEVEN ROMANS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] The applicant was issued a deportation order pursuant to subsection 27(1)(d) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act"). The Appeal Division of the Immigration and Refugee Board dismissed the applicant's appeal from the deportation order. The applicant's judicial review of this decision was dismissed as was the subsequent appeal.
[2] As the Appeal Division was bound by the Federal Court of Appeal decision in Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605 at the time it heard the appeal, in the exercise of its equitable jurisdiction, it could not consider issues surrounding the conditions of the country to which the applicant would be deported, namely, Jamaica. The applicant adopted one of the mechanisms suggested in Chieu, supra, and applied for consideration on humanitarian and compassionate grounds. He requested consideration on the basis that all of his family ties are in Canada and the absence of any family or other ties to Jamaica; and on the potentially life-threatening consequences of being returned to Jamaica. The applicant now seeks judicial review of the immigration officer's decision denying his request.
Background Facts
[3] The applicant is a thirty-seven year old citizen of Jamaica. He came to Canada with his parents and two brothers when he was 2 years old. His family members are now Canadian citizens.
[4] The applicant began to display symptoms of mental illness as a teenager. He was diagnosed with chronic paranoid schizophrenia in 1990. The applicant began committing criminal offences in 1987 and has a record of 37 offences committed over a period of eleven years. Although some of these offences are serious, the lengthiest sentence imposed on the applicant was six months incarceration.
[5] In support of the application for humanitarian and compassionate consideration, the applicant submitted a letter from the Jamaican Consulate General stating that Bellevue Hospital is the only health facility in Jamaica which accommodates chronically mentally ill patients. The letter also notes that there are very limited opportunities for rehabilitation and that the hospital is usually filled to capacity. The applicant also submitted documents and newspaper articles describing the political atmosphere and treatment of the mentally ill in Jamaica; clinical notes, discharge summaries, and psychiatric assessments completed by the Wellesley Central Hospital and the Queen Street Mental Health Centre; a psychological report prepared by Dr. J. Pilowsky; and letters from the applicant's parents and his brothers.
[6] Both of the applicant's parents attended the interview with the immigration officer as did the applicant's counsel. At the interview, the applicant's parents argued strenuously against the applicant's removal from Canada. They explained the onset of the applicant's mental illness, the link between his mental illness and his difficulties with the law, his problems with substance abuse and the attempts they have made to obtain treatment for their son. The applicant's mother told the officer she had met with the Jamaican Consul. The Consul informed her that upon his return to Jamaica, the applicant would be taken to Bellevue Hospital. However, since Bellevue was not a forensic facility, the applicant could not be forced to remain at the hospital against his will.
[7] The applicant's mother explained that since her son could not be forced to remain at Bellevue, in all likelihood he would end up on the streets or in prison. She emphasized that due to his mental illness and the lack of any treatment in Jamaican prisons, the applicant would be the victim of abuse in prison. If he was living on the streets, given the violent nature of the society and the lack of any protection for the mentally ill, in all probability he would not survive for very long.
[8] The applicant's mother also informed the officer of plans to ensure that her son would remain hospitalized in Canada and receive treatment.
Decision Under Review
[9] Because the applicant left Jamaica as a small child and did not have any family ties there, the officer was satisfied that the applicant would encounter some degree of hardship if returned to Jamaica. The officer noted that the applicant's parents and brothers resided in Canada. Regarding the availability of treatment, the officer observed that while there are limited facilities for the treatment of persons with mental illness, they are not non-existent. The officer added that she also considered the applicant's medical conditions, his history of criminal activity and the "implications to the Canadian public". The officer stated that having "weighed the perceived hardship in returning to his homeland against the other factors" she was "not satisfied that the hardship he would encounter outweighs the criminal and medical problems together".
[10] The officer referred to the applicant's diagnosis as a schizophrenic; his criminal record; his hospitalizations, incarcerations and stays in group homes and boarding houses; his destructive and violent behaviour; and his receipt of public support. The officer observed that "little tangible evidence was provided showing family support". Further, that "the parents now state that they want subject in an institution however, there is no indication that anything is being done about getting him into one."
[11] The officer concluded that there were insufficient grounds to warrant humanitarian and compassionate consideration.
Issues
[12] The applicant raised the following issue which, in my opinion, is determinative of this application: Was the officer's decision unreasonable because she failed to assess the totality of the evidence before her?
Submissions of the parties
[13] The applicant submits the officer's decision was unreasonable for two reasons. First, the applicant submits the officer erred in finding that the applicant lacked family support. The applicant argues that this finding is not supported by the evidence. Further, in making this finding the officer ignored evidence clearly indicating both past and ongoing strong family support.
[14] Second, the applicant submits the officer failed to consider the totality of the evidence in reaching her decision. The applicant argues that the officer was provided with all of the relevant information regarding the risk associated with a return to Jamaica. The applicant maintains that although the officer noted that she reviewed all of the relevant evidence, she did not consider the psychological report submitted by Dr. Pilowsky, the documentary evidence filed, nor the information provided by the applicant's parents. The applicant argues that the officer's failure to acknowledge the information put forward concerning the potential consequences of a return to Jamaica and the failure of the officer to take this evidence into account constitutes a reviewable error. The applicant takes the position that the officer did not even consider the issue of risk to be a factor for consideration. In support of this assertion, the applicant points to the officer's responses to certain questions in the standard form questionnaire. In response to the question "Is risk a factor for consideration in this case?", the officer marked "No". In response to another question "Was a risk assessment completed and an opinion rendered previously?", the officer marked "No". In response to a third question "Are NEW risk factors, which were not assessed previously, being presented as part of this application?", the officer again marked "No".
[15] The respondent's position is that the officer's notes indicate she considered all of the relevant evidence, including the submissions of the applicant's family members, the submissions of counsel, the medical evidence and the evidence of conditions in Jamaica. In particular, the respondent maintains that the officer's references to the "limited" treatment facilities, and the concerns of the parents clearly demonstrate that the officer was cognizant of the relevant issues and did not ignore relevant evidence.
[16] With respect to Dr. Pilowsky's report, the respondent argues that the report simply addresses the fact of the applicant's mental illness. As this fact was not in issue and the officer did not make any finding regarding the illness, the fact that the officer did not refer to the report is immaterial.
[17] The respondent denies that the officer failed to weigh the evidence of risk. The respondent submits that if the decision is examined in its entirety, it is evident that the officer did assess the risk to the applicant. However, the officer concluded, on balance, that the risk alleged did not amount to hardship which would outweigh the normal operation of the Act. The respondent takes the position that the applicant is asking the Court to re-weigh the issues of risk against criminality. As the Supreme Court of Canada stated in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, it is not the Court's function to re-assess or re-weigh the various factors taken into account when reviewing the exercise of ministerial discretion.
Analysis
[18] The parties agree that the applicable standard of review is reasonableness simpliciter. Further, as stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, considerable deference should be accorded to immigration officers exercising their discretion in the context of an application for consideration on humanitarian and compassionate grounds.
[19] With respect to the officer's finding concerning the lack of family support, the following documents that were before the officer are relevant to this discussion. A discharge summary from the Queen Street Mental Health Center dated August 17, 1995 states that the applicant's "parents have been very supportive and he has been able to stay at home whenever he could not find a place to live". The clinical notes resulting from his stay at the Health Centre state that "both his parents are alive and he does have a good relationship with them". The notes also indicate that, while the applicant is always welcome at home, he prefers staying at Seaton House and he finds that "he can relate to the people there". The applicant's psychosocial assessment states that "he appears to have very supportive parents and the relationship seemed good". A social worker concludes that a key element of the applicant's treatment plan is to "continue to liaise with parents for support and education".
[20] Dr. J. Pilosky provided an opinion on the impact of possible deportation on the applicant's schizophrenic condition. Dr. Pilosky also interviewed Mrs. Romans. With respect to schizophrenia generally, Dr. Pilosky stated that recent research has produced breakthroughs in the treatment of the disorder when family members are enlisted for support, information gathering, and crisis intervention. Further, "therapists work with families to enlist their support and to teach them certain crisis intervention methods to help the afflicted family member". With paranoid schizophrenia, Dr. Pilosky was of the view that patients do relatively well when monitored and institutionalized, and the applicant would benefit from his mother receiving some "co-therapy". With respect to Mrs Romans specifically, Dr. Pilosky stated the following:
Mrs. Romans, Steven's mother presented as very depressed at the prospect of Steven being deported. She reports "loving him enormously" and fearing for his life, as he will have no family or supports at all in Jamaica... Both Mrs. Romans and her husband work, and she seems to be a committed, responsible mother.
...
I certainly perceive Mrs. Romans as a responsible mother who would do whatever she could to help her son. Her struggle to help him for all the years of his disease is obvious. To say that Steven has "been on the streets" several times, Mrs. Romans has cared enough to know his whereabouts, it would seem, and she has attempted to provide whatever support she can. I feel that with additional support from the mental health community, Mrs. Romans could function as an even greater support for her son here in Canada...
[21] The letter written by the applicant's brothers states that the applicant's mental illness has been "very hard on the family". It notes that the applicant's parents did all they could to get him the help he needed but nothing seemed to work. The letter continues by stating that, although the situation has been "heartbreaking" for the family, they love their brother very much and they hope that he will get well and be able to lead a productive and fulfilling life.
[22] A letter dated January 8, 2000 and signed by the applicant's parents, states that the prospect of the applicant's deportation has been devastating for the family. It continues to state that "Steven's mental illness has been the major issue and concern as it has precipitated him avoiding prolonged family contact, living in shelters or on the streets and involvement with the criminal justice system. We've been able to keep frequent contact with most of the resources Steven utilizes in the downtown core so we were aware of how he was doing....". Further, the applicant's parents state that "the knowledge that our son is ill and living in tragic circumstances has hurt me and my family beyond belief. I hadn't believed that the pain could have gotten any worse. It has. At least I had the sense that my son was accessible and during those times when he was more lucid and not frightened that we might hurt him he'd spend time at home. During those times he'd apologize for his previous thoughts and acknowledge his love for us". Mr. and Mrs. Romans detail the history of their son's illness and state that in the early days they "would try to keep him at home but it wouldn't work". They state that their son was too paranoid and always believed they were harming him. The letter explains that the applicant's parents have continually believed that the applicant needs to be institutionalized in a protected setting where he can be kept safe and receive treatment. It concludes by noting how their son's illness has coloured everything in their lives.
[23] It should also be noted that the applicant's parents attended at the interview with the officer. At the interview, they argued strenuously against the applicant's removal from Canada. They explained the onset of the applicant's mental illness, the link between his mental illness and his difficulties with the law, his problems with substance abuse and the attempts they had made to obtain treatment for their son.
[24] On my reading of the record, there is no support for the officer's finding that there was "little evidence of family support". In fact, the record shows both past and ongoing strong family support.
[25] Before turning to the applicant's argument that the officer ignored relevant evidence, I will deal with the applicant's submission that the officer did not even consider risk to be a factor. Although the officer answered "no" to the question regarding the existence of new factors which had not been assessed previously, in response to the second part of the question, "If YES, provide details", the officer states:
Counsel states that subject would be at risk in Jamaica because of his mental condition and the lack of facilities in Jamaica to treat his condition. However, the only evidence to substantiate this claim is a letter from the Jamaica consulate which does not support that there is no facility but that such facility is very limited.
[26] In my opinion, this response indicates that the officer was aware that risk was an issue. The question remains, however, whether the officer ignored relevant evidence in her assessment of the risk.
[27] The applicant's parents identified and provided information regarding those factors which, in their view, would result in life-threatening consequences for the applicant should he be returned to Jamaica.
[28] The record reveals the significant challenges associated with the treatment of chronic paranoid schizophrenia, a disease that by its very nature causes the afflicted individual, at times, to reject treatment and support. It also discloses the need for monitored and institutionalized treatment and the importance of family involvement to provide support, information gathering and crisis intervention. While the officer's reference to the existence of a treatment facility demonstrates an awareness of a need for treatment generally, it does not reflect a consideration of the information provided by the applicant's parents with respect to their son's specific mental illness, his treatment requirements, and the adequacy of the facility to address those needs. Nor does it address the consequences flowing from the adequacy of the available treatment.
[29] It is not the function of this Court to weigh the various factors. However, having regard to the basis for the request for humanitarian and compassionate consideration, the failure of the officer to consider this relevant information in light of the applicant's particular circumstances constitutes reviewable error.
[30] The application for judicial review is allowed and the matter is remitted for reconsideration by a different immigration officer.
[31] As the question submitted for certification is unrelated to this determination, no question will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed, the November 29, 2001 decision is set aside and the matter is remitted for reconsideration by a different immigration officer.
2. No question will be certified.
"Dolores M. Hansen"
J.F.C.C.
FEDERAL COURT
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-5678-01
STYLE OF CAUSE: Steven Romans v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 12, 2002
REASONS FOR ORDER AND
ORDER OF: THE HONOURABLE MADAM JUSTICE HANSEN
DATED: October 6, 2003
APPEARANCES:
Ms. Krassina KostadinovFOR THE APPLICANT
Mr. David TyndaleFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Waldman and AssociatesFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada