IMM-3323-96
B E T W E E N:
APRIL GRACE MARY DIMACALI-VICTORIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
These reasons arise out of an application for judicial review of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board wherein the IAD dismissed an appeal by the applicant brought pursuant to paragraph 77(3)(b) of the Immigration Act1. The decision is dated the 4th of July, 1996.
Subsection 77(3) of the Immigration Act reads as follows:
| (3) Subject to subsections (3.01), (3.02) and (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: |
| (a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
| (b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief. |
Subsections (3.01), (3.02) and (3.1) are irrelevant for the purposes of this matter.
The applicant is a Canadian citizen. She sponsored an application for landing made by her father. An immigration officer refused the application for landing on the grounds that the applicant's father does not meet the requirements of the Immigration Act and Regulations in that the applicant's father, in the terms of subsection 19(1) of the Immigration Act, is a person who, in the opinion of a medical officer concurred in by at least one other medical officer, by his admission, would cause or might reasonably be expected to cause excessive demands on health or social services. The applicant's father has, for many years, been diagnosed as suffering from a chronic psychotic schizophrenic disorder. The applicant did not challenge the legal validity of the refusal. Thus, the appeal before the IAD was not grounded on paragraph 77(3)(a). Rather, it was grounded solely on paragraph 77(3)(b), that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
As indicated earlier, the appellant is a Canadian citizen. She was born in the Philippines in 1964. In about 1973, the appellant's mother clandestinely separated from the appellant's father and took the appellant and her siblings to their grandmother's home in the Philippines, approximately one hour by air from where their father lived. For many years thereafter, the children were allowed no further contact with their father, although apparently some very limited clandestine contact in writing occurred. In 1975, the appellant, together with her mother and her siblings, immigrated to Canada without notice to the appellant's father.
The appellant is now married, has three children, is employed and is well established with her husband and family in the Toronto region.
In 1992, the appellant returned to the Philippines to see her father. She considered him not to be well-looked after. She and her grandmother, who travelled with her, arranged for a maid to look after her father. They also took steps to ensure that he had medical help, including psychiatric help. The appellant formed the desire to sponsor her father to come to Canada and obtained the support of her siblings and aunts, sisters of her father, and her grandmother. The appellant's mother refused her support.
The appellant returned to the Philippines to visit her father in 1995.
The IAD wrote:
| The appellant acknowledged that her account of what she saw of and did with her father during her 1995 visit to the Philippines reflects that the [father] was happy and well familiar with his surroundings. |
| The medical evidence ... indicates, among other things, that the [father] is living a sheltered, simplified and structured life. |
| It also indicates, among other things, that throughout the years from the 1970s the applicant gardened, played the piano, read the newspaper, listened to the radio or watched T.V. for news and information about community life. [The medical doctor] found the applicant to be oriented as to time, place and person. He [the father] correctly stated that his doctor is a friend of the family. The doctor also stated that except for surprise and tearful exhalations upon seeing his daughter a few weeks ago, his prevalent mood is that of blunted depression, boredom, or indifference. |
| In Dr. Santiago's medical report following upon his August 2, 1995 interview of the [father], [the information in the foregoing paragraph is from a late 1993 report], he indicated that the applicant seems to be able to take better care of himself because he now eats without supervision, is less stubborn and follows his daily routine without being reminded. He also indicated that the applicant sleeps regularly, ... that he is used to being alone, that he considers his doctor who visits monthly is his friend, that he no longer does gardening but does pick fruit, that he walks only around his yard because he believes his neighbourhood is dangerous, that he has developed a close relationship with his maid, that he will feel bad if he is not permitted to emigrate, and that some suicidal and paranoia tendencies were demonstrated. |
The IAD correctly noted in its decision that the onus is on the appellant to establish on a balance of probabilities that there are compassionate or humanitarian considerations which would warrant special relief. It noted two concerns on the facts of this matter. It wrote:
| The first matter is the concern [the IAD] has that it may have heard only part of the story. None of the witnesses were prepared to give specific details as to the [father's] conduct which resulted in his wife in effect kidnapping his children away from him, moving them away from him within the Philippines and then taking them abroad to Canada and thereafter preventing him from having any contact with them. |
As to its second concern, the IAD wrote:
| The other area of concern is that as schizophrenia is an illness which can be adversely affected by stress, and as the [father's] removal from his present environment may cause substantial changes in his life, the same may cause him substantial stress, and thus aggravate his illness. |
For the IAD's latter concern, there was adequate basis in the documentary evidence before it.
On the first concern, the IAD was clearly dissatisfied with the evidence before it. It appears to fear that violence had been the root of the family break-up in 1973 and that, if that was the case, it might arise again if the family were reunited. Testimony before it indicated that the response of the appellant's mother to the proposed family reunification was that "... she was petrified."
On the second issue, the tribunal wrote:
| Notwithstanding, the recommendation of Dr. Santiago in his November 20, 1993 report that the milieu the applicant is existing in, and any changes to it should be appraised and determined as to its suitability to his condition; and modified, if necessary, as per professional advice, appears not to have been followed through by the family. In this regard, there does not appear to be any persuasive evidence that the family did have an assessment made as to how the change of lifestyle of the applicant in Canada would likely effect both the applicant in respect to his illness and his family's ability to cope with the problems associated with his illness. The absence of persuasive evidence in this regard is important. |
| Without professional opinion in this regard the [IAD] cannot be satisfied on the balance of probabilities that special relief is warranted. If both the appellant and/or her family on the one hand, and the [father] on the other hand were unable to cope one with the other because of the stresses created by the new circumstances occasioned by the change in the [father's] life in Canada, then it would neither be compassionate nor humanitarian to either the [father] or appellant to effect the change. The wrong decision could be catastrophic for the [father] and he might as a result undergo a relapse necessitating institutionalization in Canada and the appellant and her family might suffer accordingly. |
| Not only is there no persuasive evidence in the form of an expert opinion as to the effects on the [father] and his family if he moved in with his daughter as contemplated by her, there is no persuasive evidence that the appellant, her husband, and the nanny who will be looking after the [father] have taken family therapy courses to ameliorate or reduce the risk for relapse. There is evidence that they are aware of the benefits of such courses, but it would appear that neither the appellant nor her nuclear family have undertaken such courses. |
Thus, on both concerns, the IAD was dissatisfied with the evidence before it. It concluded:
| In the circumstances, the [IAD] is not satisfied on the balance of probabilities that there are compassionate or humanitarian considerations that warrant the granting of special relief within the meaning of section 77(3)(b) of the Act. The appellant has not satisfied the onus of proof resting with her in this regard. |
On judicial review of a decision such as this, I am satisfied that the burden on the applicant is a heavy one. In Boulis v. The Minister of Manpower and Immigration2, the Supreme Court of Canada had a not dissimilar appeal before it. In that case the validity of an outstanding deportation order made against the appellant was not contested on the appeal to the Immigration Appeal Board. Rather, that Board was asked to exercise its exceptional jurisdiction under section 15 of the Immigration Appeal Board Act, the relevant portions of which at that time read as follows:
| 15.(1) Where the Board dismisses an appeal against an order of deportation or makes an order of deportation pursuant to paragraph (c) of section 14, it shall direct that the order be executed as soon as practicable, except that |
| ... |
| (b) in the case of a person who is not a permanent resident at the time of the making of the order of deportation, having regard to |
| (i) the existence of reasonable grounds for believing that if execution of the order is carried out the person concerned will be punished for activities of a political character or will suffer unusual hardship, or |
| (ii) the existence of compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief, |
| the Board may direct that the execution of the order of deportation be stayed, or may quash the order or quash the order and direct the grant of entry or landing to the person against whom the order was made. |
While the Supreme Court was there concerned with an appeal under subparagraph 15(1)(b)(i) rather than (ii), I am satisfied that the following quotation from the reasons of Abbott J. are here on point:
| In my opinion however, such an appeal [there an appeal to the Supreme Court of Canada from the decision of the Immigration Appeal Board under subparagraph 15.(1)(b)(i)] can succeed only if it be shown that the board (a) has refused to exercise its jurisdiction or (b) failed to exercise the discretion given under s. 15 in accordance with well established legal principles. As to those principles, Lord MacMillan speaking for the Judicial Committee said in D.R. Fraser and Co. Ltd. v. Minister of National Revenue, at p. 36: |
| The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise. |
| [citation omitted] |
By analogy, I am satisfied that the following comments by Hugessen J.A. in Shah v. Minister of Employment and Immigration3, apply. There he wrote:
| The decision in question ... was that of an immigration officer charged with making a recommendation to the Governor-in-Council as to the exercise of the latter's discretion to grant an exemption to the applicant from the requirements of s. 9(1) of the Immigration Act ... on humanitarian or passionate grounds. The power to grant such exemption resides in s. 114(2) of the Act ... . The decision itself is wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome. |
| [underlining added by me for emphasis] |
Here, while the decision of the IAD is not a preliminary step as in a recommendation under subsection 114(2), it does involve what I am satisfied is a discretionary grant of an exemption from the ordinary requirements of the Immigration Act that an individual such as the applicant's father is not admissible to Canada. I am satisfied that the determination of the IAD under paragraph 77(3)(b) is, like the decision in question in Shah, "... wholly a matter of judgment and discretion and the law gives [persons such as the applicant herein who was the appellant before the IAD] no right to any particular outcome."
Against the foregoing considerations, I am satisfied that the IAD made no reviewable error. It was not alleged before me that the IAD refused to exercise its jurisdiction. I am satisfied that it exercised its discretion in accordance with well established legal principles, that is to say in a bona fide manner, uninfluenced by irrelevant considerations and not arbitrarily or illegally. The concerns that it took into consideration were clearly relevant to the determination that it was called upon to make.
For the foregoing reasons, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
Judge
Ottawa, Ontario
August 29, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3323-96
| STYLE OF CAUSE: APRIL GRACE MARY |
| DIMACALI-VICTORIA |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: AUGUST 12, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: AUGUST 13, 1997
APPEARANCES:
Mr. Jeffry A. House
For the Applicant
Ms. Bridget O'Leary
For the Respondent
SOLICITORS OF RECORD:
Jeffry A. House
303-489 College Street
Toronto, Ontario
M6G 1A5
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-3323-96
Between:
APRIL GRACE MARY
| DIMACALI-VICTORIA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2
2 [1974] S.C.R. 875
3 (1994), 170 N.R. 238 (F.C.A.)