BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This is an application for judicial review of a decision of an Officer of Citizenship and Immigration Canada dated August 25, 2004 wherein the Applicant's application for landing within Canada on humanitarian and compassionate grounds was refused.
[2] The Applicant Evelynn Volniansky was born in Israel and is a citizen of that country. She is now almost twenty-two years of age. The Applicant came to Canada in December 1997 with her mother and one sister until she returned to Israel in July 2001 in a failed attempt to live with her father there. In August 2001 the Applicant returned to Canada where she remains.
[3] The Applicant has had a long history of learning disabilities and mental illness. She has great difficulty in coping with even the simplest of life's ordinary tasks and appears to function at the level of about 11 years.
[4] The evidence submitted in support of the Applicant's application included the report of a psychiatrist, Dr. Doan, dated July 8, 2002 which stated, in part:
It is my opinion that Evelyn's psychotic symptoms will fade with continued medication treatment that might eventually involve use of more powerful medications. Nonetheless, she will remain vulnerable to exacerbation of her psychosis when faced with increased levels of stress and significant changes in her life circumstances. Most likely her intellectual limitations will be her major barrier to achieving a completely independent adult lifestyle. Despite the shortcomings of the intellectual testing obtained, it is clear that Evelyn (apart from her psychosis) functions at the level of a 10 to 12 year old child.
Evelyn is capable of enjoying a purposeful, emotionally rich life. However, she will require sustained medical treatment and a network of social supports. For instance, she will undoubtedly need professional assistance in living independently, and most likely will only be able to work in a highly supervised setting, such as a sheltered workshop or with the ongoing assistance of a job "coach".
Evelyn is extremely vulnerable to stress and change given her intellectual deficits and her psychiatric illness. She is easily overwhelmed and has very poor coping skills, despite her best effort.
Evelyn will likely be able to form a working relationship with counsel, but her ability to plan a legal strategy will be severely limited by her intellectual abilities. She is certainly motivated to testify on her own behalf, but could become overwhelmed by emotion and/or become psychotic under the stress of same. She can understand the proceedings concerning her in a very rudimentary fashion. As mentioned above, she appears to have the intellectual strengths of a 10 to 12 year old.
I have known many individuals such as Evelyn to enjoy a high quality of life in Canada, but they require sustained professional and social assistance to flourish.
[5] The evidence indicates that the Applicant's father at some time in about 2004 came to Canada but his whereabouts is unknown. The evidence is that her mother wants nothing to with her, having literally left her at the doorstep of Covenant House, a Toronto charity. There is no evidence that any family has had, or wants any contact with her. This person is among the most wretched of God's human creatures; she is at the mercy of charity and the Canadian government.
[6] In submissions made on the Applicant's behalf by letter dated March 10, 2003 from her counsel, this was said:
Risk of Return to IsraelDue to Health Problems
As already mentioned, Ms. Volniansky suffers from numerous mental health problems. This is a factor that directly affects this young woman's safety and well-being should she be required to apply for permanent resident status from outside of Canada. Ms. Volniansky is extremely concerned that if she were required to return to Israel, her mental stability will deteriorate and as a consequence, her life will be in jeopardy. Her fears are exacerbated due to the escalating conflict between Israelis and Palestinians.
Due to the stress associated with being removed from Canadaand lack of support in Israel, Ms. Volniansky would suffer severe physical and mental hardship if required to leave Canada.
Submission of Counsel
To allow Ms. Volniansky to remain in Canadawould ensure that she continue to receive the medical treatment she requires, and would alleviate her fear of returning to Israel, where support is unavailable to her.
For these reasons, I respectfully request that you consider allowing this unfortunate young woman to remain in Canadaon humanitarian and compassionate grounds. It is submitted that the circumstances of this case warrant the exercise of your discretion in favour of Ms. Volniansky.
[7] The evidence further indicates that the Applicant speaks Russian as her first language, an unidentified language as her second, and English as her third language making communication difficult.
[8] The Officer's decision as to whether the Applicant should remain in Canada while pursuing her application on humanitarian and compassionate grounds, after reciting many of the facts, concluded as to why the decision was made that the Applicant could not stay in Canada:
Counsel states that her mental stability will deteriorate as a consequence if she were required to return to Israel. No documentary evidence has been presented to substantiate that schizophrenia cannot be treated in Israel.
I sympathize with the medical diagnosis of this young woman, however, I am not satisfied that she could not find the same kind of treatment in her country of birth. In his report dated July 8, 2002, Dr. Doan states that testing was hampered by the fact that it was conducted in Evelyn's third language. If Evelyn returned to Israeland received treatment there, it would be in her own language and perhaps be better understood by her than in Canada.
Dr. Doan goes on to state in his report that she may enjoy a high quality of life but would require sustained professional and social assistance.
I have read and considered the report of July 10, 2002, which summarized that she has a great deal of difficulty following even the most simplest tasks, that of preparing a meal for herself, and as a result she would have difficulty living independently. It goes on to state that she may be a danger to herself if living alone with examples sited of using a knife or operating a stove.
Based on the evidence before me and in foss, I find there to be insufficient evidence under humanitarian and compassionate grounds as well as hardship to warrant the waiver in this case, while at the same time sympathizing with her. She has family members born in Canada, Hollandand Israel. She has difficulty in English in this country and may be better served with a social network in her home country where she can communicate in her mother tongue.
[9] Counsel for the parties are both agreed that a review of the Officer's decision should be based on reasonableness simpliciter that is, will it withstand a somewhat probing examination. Counsel are also both agreed that the Applicant bears the onus of demonstrating that a humanitarian and compassionate exception should be made in her case.
[10] Counsel for the Applicant made submissions on two issues which can be stated essentially as:
1. Was the decision unreasonable simpliciter in that several matters were overlooked or misunderstood; and
2. Did the Officer fail to take into consideration that the Applicant was a "child" not in years, but in intellectual ability.
[11] On the first ground the Officer in the decision made a number of errors critical to the issue such that the decision cannot bear a somewhat probing examination. Included are:
1. That the Applicant could find the same kind of treatment in Israel. There was no evidence that such treatment could be found in Israel, in fact Applicant's counsel submitted that there was none. The evidence of Dr. Doan was that changes in life's circumstances would exacerbate the Applicant's psychosis and that she required sustained professional and social assistance to flourish.
2. The Officer found that the Applicant had family members in Canada, Holland and Israel. She failed to state, and clearly did not give consideration, or proper weight, to the fact that her father left Israel apparently for an unknown address in Canada, her mother and sister in Canada had abandoned her, and that she does not know where her sibling in Holland is, or siblings in Israel are. There is no family support anywhere. Only a Toronto charity offers support.
3. TheOfficer found that the Applicant's poor English meant that Israel would better serve her where she could communicate in her native language. The evidence only shows that the Applicant's first language is Russian, we do not know what her second language is.
4. The Officer referred to a "social network" in the Applicant's home country, Israel. There is no evidence that such network exists. The only evidence as to a social network available to the Applicant is that offered by a Toronto charity.
5. The Officer commented that the Applicant was taking some upper level high school courses which led to the belief that the Applicant functioned at a level higher than a 10 or 11 year old. There is no evidence to show that such a person could not attend such courses. Dr. Doan's evidence is clear and uncontradicted.
[12] Clearly there was no proper assessment of the evidence or proper weighing thereof.
[13] As to the second issue, could the Applicant who is clearly "childlike" be treated as a "child". IRPA does not define "child" although at least one pertinent Convention defines "child" as a person under eighteen (18) years. This issue does not need to be addressed in this circumstance. However, in considering compassion the Officer in dealing with the question of onus should be sensitive to the fact that this person has intellectual disabilities that prevent her from properly assembling her case and instructing counsel.
[14] The application is allowed. There is no question for certification. There is no order as to costs.
"Roger T. Hughes"
Toronto, Ontario
November 25, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7984-04
STYLE OF CAUSE: EVELYNN VOLNIANSKY
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: November 22, 2005
APPEARANCES:
Jonathan Otis
Neeta Logsetty
SOLICITORS OF RECORD:
OTIS & KORMAN
Barristers & Solicitors
Toronto, ON
John H. Sims, Q.C.
Deputy Attorney General of Canada