Thursday, July 28, 2011

Sökmen–misapprehending medical evidence and failing to consider ability and willingness to pay for treatment

Sökmen v. Canada (Citizenship and Immigration), 2011 FC 47 (CanLII)

Judge: Justice Martineau

Date heard: December 6, 2010

Date decided: January 17, 2011

Counsel for Sökmen: Nicole Goulet

Counsel for Minister: Agnieszka Zagorska

Place of Hearing: Ottawa, Ontario

The Applicant was a Turkish national whose family’s application for permanent residence had been rejected by the visa officer in Ankara under sections 38(1)(c) and 42 of IRPA (para. 1). The VO had decided that the Applicant’s son, Bariş, had a health condition that would reasonably be expected to cause excessive demand (para. 2).

Bariş has a congenital heart disease, for which he has been treated in France (para. 6). The family plans to have him continued to be treated by his physician there, and they have the funds to support this course of treatment. His condition is currently stable and controlled by inexpensive and common medication (paras. 7-8).

Why then did the medical officer recommend, and the VO find, that excessive demand was an issue? The initial immigration medical in Turkey placed the son in category B, to wit: “Findings that require periodic specialist following care but which normally can be handled without resorting to repeated hospitalizations or the provision of social services” (paras. 11-12). That report was forwarded to the Paris Embassy, where a medical officer requested reports from the French specialist; these reports noted that the boy’s condition was controlled, and that some surgical or other medical intervention might be necessary in the future, but not the next five years (paras. 13-17).

In making his assessment, the medical officer Dr. Hindle exaggerated the boy’s condition and the expected future requirements (para. 18-19). This was compounded by the VO’s further errors, for instance in believing that Bariş would require excessive intervention within the next five to ten years (para. 19-20).

The regulations specifically refer to excessive demand as occurring within the first five years, unless there is evidence that they will occur later, in which case the maximum period is 10 years (para. 21).

Justice Martineau was critical of Dr. Hindle’s report as well, noting that it failed to deal with the Applicant’s proposed plan to arrange and fund their son’s care privately; he further concluded that “Dr. Hindle’s analysis is biased and incomplete. Dr. Hindle goes so far as to state that the prognosis is negative and that Bariş’ condition will deteriorate, which directly contradicts the medical evidence in the record.” (paras. 24-25) Dr. Hindle’s report is flawed in that it introduces future problems not raised by the expert physician most familiar with the boy’s case, and outright contradicts that physician’s reports while claiming to be based on them (paras. 25-29). It was open to the medical officer to disagree with the specialist, but only by doing so explicitly and with stated reasons (para. 29).

Even aside from the impugned medical report, the VO’s decision “is not supported by the evidence in the record and is speculative” (para. 33). There is no analysis of the Applicant’s proposal to alleviate an “excessive demand” his son’s condition might cause; the existence of such a proposal is not determinative but it must be considered (paras. 34-37).


Borisovna Abbasova–applicability of Gender Guidelines and failure to consider psychological issues in credibility

Borisovna Abbasova v. Canada (Citizenship and Immigration), 2011 FC 43 (CanLII)

Judge: Justice Shore

Date heard: January 10, 2011

Date decided: January 14, 2011

Counsel for Borisovna Abbasova: Denise Feret

Counsel for Minister: Christine Bernard

Place of Hearing: Montréal, Quebec

This was judicial review of a pre-removal risk assessment decision turning on the Gender Guidelines.

Justice Shore opened the reasons with the following emphatic but convoluted statement: “For decision-makers at all levels, procedural fairness sounds a rarely heard alarm, and that alarm must be heard if injustice is not to be done.” (para. 1)

The Applicant was a Russian national who alleged persecution at the hands of her common-law partner, in the form of domestic abuse complicated by the fact that the abuser was a police officer. She further alleged having been mislead by a fraudulent non-lawyer (para. 10).

Her refugee claim was denied in February 2009 (para. 12).

The Applicant filed a PRRA in August 2009, and it was denied in April 2010 (para. 13). A stay of removal was granted in June 2010 (para. 14).

The PRRA officer assigned no weight to the Applicant’s new evidence (para. 15).

The issues were whether the officer erred in not considering the relevant evidence and/or erred in failing to apply the Refugee Protection Division’s Guideline 7 of women fearing gender-related persecution (para. 16).

Justice Shore approved of the PRRA officer’s giving no weight to documentation which, while it post-dated the hearing, “simply echoed the information previously submitted” (paras. 28-30).

However, the PRRA officer also gave no weight to a post-hearing psychological assessment of the Applicant (para. 30). Justice Shore noted that the RPD had found the Applicant not credible, but the psychological report clarified this issue; the PRRA officer ought to have taken into consideration “Possible evidence of the applicant’s inability to testify” (paras. 30-31).

Justice Shore noted that:

It is not for the Court to reassess the evidence submitted to the PRRA officer and that is not what it intends to do; nonetheless, the developments in Ms. Abbasova’s evidence, particularly regarding her psychological condition, could have been considered to be relevant if they had been analyzed. More specifically, in her particular case, as shown, a psychological problem apparently impaired Ms. Abbasova’s ability to testify. That evidence could have been central to the determination of credibility, considering that the RPD and, subsequently, the PRRA officer found Ms. Abbasova not to be credible based on the answers she gave in her testimony. … (para. 37, emphasis in original)

Justice Shore also took into account the new evidence filed by the Applicant in the stay application, notwithstanding the fact that this new medical evidence was not before the PRRA officer (paras. 39-43). Furthermore, the Judge found that even if only the preliminary psychological evidence had been considered by the PRRA officer, the officer night have concluded in the Applicant’s favor or at least that there was an issue of credibility/psychological issues which warranted a hearing (para. 44).

Regarding the Gender Guideline, Justice Shore affirmed their applicability as an “aid” in PRRA decisions (paras. 53-54).