Date: 19980227
Docket: IMM-1213-97
BETWEEN:
LOCHAN SOOKNANAN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision described in the application for judicial review in the following terms:
| The decision of P. Wright, Presiding Member dated February 24, 1997 and communicated to the Applicant on March 12, 1997, in which the Officer determined that there were not humanitarian and compassionate grounds to accept the Application submitted by the Applicant pursuant to Section 114 (2) of the Immigration Act. |
The decision-maker is indicated to be the Immigration and Refugee Board, Immigration Appeal Division, (the "Appeal Division"). The identification of the decision-maker is correct. However, the decision under review is in fact a decision of the Appeal Division dismissing an appeal filed pursuant to section 77 of the Immigration Act1 refusing the applications for landing of the applicant's father, mother and sister. The applications of the applicant's father, mother and sister were sponsored by the applicant herein.
[2] The decision rejecting the applications of the applicant's father, mother and sister (the "applicants for landing") reads in part as follows:
| After careful review of your file, I regret to inform that your application for admission is refused. According to Section 19(1)(a) of the Immigration Act, 1976: |
| "19(1) No person shall be granted admission who is a member of any of the following classes: |
| (a) persons who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer, |
| (i) they are likely to be a danger to public health or to public safety, or |
| (iii)[sic] their admission would cause or might reasonably be expected to cause excessive demands on health or social service;" |
| Your daughter, Babita, has been diagnosed as suffering from severe mental retardation. Her medical report states as follows: |
| "Applicant suffers from a severe form of mental retardation. She has been unable to attain any degree of self-sufficiency. I.Q. of 20 to 34, she has a three year chronological age level. Cannot communicate or handle money and needs constant supervision and assistance. Should family support break down, she will not become self-supporting. She will require long term facility care for the rest of her life and will cause excessive demands on Social Services. Therefore inadmissible under Section 19(1)(a)(ii) of the Act." |
| Section (6)(1)(a) of the Immigration Regulations, 1978 states as follows: |
| "6(1) ....where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if: |
| (a) he and his dependants, whether accompanying or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these regulations;" |
| Since your daughter is a member of an inadmissible class, you and your wife are ineligible to have immigrant visas issued to you. |
| On July 31, 1991, you and your wife were convoked for a special interview in order to assess humanitarian and compassionate considerations related to your case. It has been determined on the basis of that interview that these considerations are insufficient to warrant your admission to Canada. |
[3] The Appeal Division considered the applicant's appeal on grounds of law, fact and mixed law and fact as well as on compassionate and humanitarian grounds as it is mandated to do by subsection 77(3) of the Immigration Act. The reasons for decision of the Appeal Division read in part as follows:2
| I find that I cannot question the correctness of the medical diagnosis which was concurred in by two medical officers. This is despite the evidence of Miss Jaffer, which is based on her 23 years of experience in the field of mental retardation. While I cannot question the diagnosis, I am able to consider the prognosis in the context of family support and to examine the reasonableness of the visa officer's conclusion that, should family support break down, there would be excessive demands placed on social services. There is no evidence before me that the visa officer examined the probability or improbability of the breakdown of family support. The evidence is that the applicant has lived with family members for all of her life and in the same house for well over 20 years, even though the appellant testified of problems with neighbours. The applicant is clearly very attached to her family emotionally and has always been cared for by them in the same home. According to the appellant's testimony, there is no institutional care available in Trinidad and Tobago. |
| I believe that the family's emotional and physical support of the applicant will continue without breakdown. However, I find the visa officer's determination that the applicant's condition would cause excessive demands on social services to be reasonable and was based on the medical facts before him at the time of making his decision. The medical report, which remains undisputed despite Ms. Jaffer's knowledgeable evidence, states among other explanatory comments regarding the applicant's severe mental retardation that, "she is unable to attain any degree of self-sufficiency." I note that this opinion of the concurring medical officers was formed even with the family support which existed at the time of the medical assessment and is ongoing. As a result, I find the refusal to be valid in law. |
| I have also considered the appeal on humanitarian or compassionate grounds. The appellant pledged his financial support of the applicant if she is allowed to come to Canada. He testified that he and his wife have the financial wherewithal to look after his sister's needs. The appellant also stated and demonstrated by his actions in hiring Miss Jaffer that he and his wife intend to look after his sister's social services needs and not rely on government services for her support. In this regard, the appellant testified of his intention to engage the private services of Miss Jaffer in order to assess and establish a program for the applicant. However, I find that his financial wherewithal and his ability to engage such services privately are of little consequence, as the applicant becomes eligible for social services upon being granted landed immigrant status. |
| I note Miss Jaffer's display of professionalism and objectivity in giving her testimony. While I believe Miss Jaffer is well intentioned, I agree with counsel for the appellant that Ms. Jaffer is speculating that, with intervention which has not been previously attempted, the applicant's condition may improve. The undisputed evidence is that the applicant experiences significant limitations in her daily activities which have led to her lack of ability to be self-supporting and to her need for constant supervision. While I am satisfied that it is not the intention of the appellant to access services to which the applicant will be entitled on landing, I am not persuaded that unforeseen circumstances will not dictate the applicant's need to access the services available to her. |
| The appellant testified that there is no institutional care for his sister in Trinidad and Tobago. However, it is noteworthy that, while the appellant is willing to pay for private services to assist the applicant in Canada, there is no evidence before me that he and his family have sought out and utilized, if available in Trinidad and Tobago, the services which Miss Jaffer could provide in Canada. |
| I acknowledge that the family is split, with a brother and sister and their families living in Canada and the appellant's sister and parents living in Trinidad. The appellant described the separation as stressful and testified of the difficulty that family members experience when they visit one another and have to leave. However, I find that, despite the emotional difficulty of being separated, the appellant can continue his visits to the family in Trinidad and his communication by telephone, as he now does on a frequent basis. The evidence is also that family members in Trinidad have also visited members in Canada in 1982 and in 1987, prior to the filing of the application for permanent residence. I find that there is no reason why the family members in Trinidad and Tobago cannot make future applications for visits, even though I note that they were refused visitors' visas in 1993 and 1994. |
| I find the applicant is well established in Trinidad and Tobago. She has lived there all her life and in the same house for more than 20 years. There is no financial dependency on the appellant and she relies on her parents for her day to day physical and emotional support and supervision. |
[4] Counsel for the applicant urged that the Appeal Division erred in a reviewable manner in two respects: first, by ignoring evidence and failing to take into account relevant considerations; and second, by failing to apply the proper test when interpreting the Immigration Act on the issue of whether the applicant's sister would cause excessive demand on social services in Canada.
[5] The standard of review on an application such as this is a relatively high one. It is effectively summarized in the following passage from the reasons of Mr. Justice McKeown in Canada (Minister of Citizenship and Immigration) v. Ram:3
| The test in the case before me is not whether this Court would have reached a different decision but rather whether the decision of the IAD was reasonably open to it based on all the evidence before it. |
[6] The Appeal Division was correct when it concluded that it was not open to it to question the correctness of the medical diagnosis. Further, the Appeal Division correctly recognized that this was not the end of the matter. It went on to examine the probable consequences in terms of demands on social services if the applicants for landing were permitted to come to Canada. Mr. Justice MacGuigan wrote in Deol v. Canada (Minister of Employment & Immigration)4:
| It should be obvious from Jiwanpuri that the mere invocation of mental retardation leads to no particular conclusion. Mental retardation is a condition covering a wide range of possibilities from total inability to function independently to near normality. The concept cannot be used as a stereotype, because it is far from a univocal notion. It is not the fact alone of mental retardation that is relevant, but the degree, and probable consequences of that degree of retardation for excessive demands on the government services. |
[7] The Appeal Division formed a belief that "...the family's emotional and physical support of the applicant [here the applicant's sister in Trinidad] will continue without breakdown." In the next sentence, it found to be "reasonable" the original decision-maker's determination that the mentally retarded applicant would, by reason of her condition, cause excessive demands on social services in Canada. By reason of these two findings, the Appeal Division determined the rejection of the applications for landing of the applicant's parents and sister to be valid in law. On the face of the Appeal Division's reasons up to the point of this determination, it is difficult to understand how the two findings on which the decision in law is based can stand together. I am not, however, prepared to dissect the reasons of the Appeal Division in a microscopic analysis. Rather, I conclude that the reasonableness of the decision must be determined on the basis of the whole of the reasons provided.
[8] In the portion of its reasons quoted above dealing with compassionate and humanitarian grounds, the Appeal Division writes:
| ...I am not persuaded that unforeseen circumstances will not dictate the applicant's need to access the services available to her. |
[9] This is a concern that was reasonably open to the Appeal Division. The evidence before the Appeal Division was that the applicant's parents had been providing the extensive care required by the applicant's sister. There was no evidence, nor would one expect there to be, to demonstrate that the applicant's parents would be able to continue to do so indefinitely, such that the applicant's sister would not outlive her parent's capacity to provide such care. Further, there was no evidence before the Appeal Division that the applicant and other family members in Canada had extensive experience in providing care for the applicant's sister in the absence of the support that has long been provided by the applicant's mother and father.
[10] While the Appeal Division noted the applicant's pledge of financial support for his sister and found that the applicant had shown significant resourcefulness in finding an alternative or supplementary support service in the community, it found such pledge and resourcefulness to be of little consequence since the sister would be entitled, as of right, to social service support upon landing. I find this to be a reasonable conclusion. As indicated earlier, I find the Appeal Division's further conclusion that, on the evidence before it, "unforseen circumstances" could dictate the need to access publicly provided medical services to a degree which would result in an excessive demand on those services also to be reasonably open. Put another way, despite the best intentions of all family members, I conclude that it remained open to the Appeal Division to find that "unforeseen circumstances" might dictate the need to access publicly provided social services to which the applicant's sister would be entitled. The result could be an excessive demand on those services.
[11] As indicated earlier, I am not prepared to dissect the Appeal Division's decision. While, also as indicated earlier, its decision on the issue of law is unsupported in the single paragraph directed to that issue, I am prepared to read together with that paragraph the more extensive analysis provided by the Appeal Division in its consideration of compassionate and humanitarian grounds. With some considerable regret, I conclude that the decision of the Appeal Division on compassionate and humanitarian considerations was reasonably open to it. Its reasoning to support its decision on compassionate and humanitarian considerations also provides a sufficient basis to support its decision on the issue of law.
[12] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a serious question of general importance arising on the facts on this matter. No question will be certified.
____________________________
Judge
Ottawa, Ontario
February 27, 1998
__________________2 References in the quotation to the "applicant" are to the sister in Trinidad and Tobago of the applicant on this application for judicial review. References to the appellant are to the applicant herein.