Date: 19990831
Docket: IMM-4328-98
BETWEEN:
MOHAMMAD ALI ARASTEHPOUR
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of and an order setting aside the decision of a visa officer dated July 29, 1998, whereby the applicant's application for permanent residence in Canada for himself and his dependents was refused.
The background
[2] The applicant, a citizen of Iran, applied for a visa as an independent immigrant in the self-employed category. The Canadian embassy in Vienna received the application on September 3, 1996. The applicant included his wife and two dependent sons in his application. One of his sons, Ahmadreza, claimed as a dependent, was then 29 years of age and in that son's application in response to a question about his occupation, the son responded that "Because of muscular dystrophy I am not able to work / STUDENT".
[3] On May 22, 1998 a visa officer interviewed the applicant and his wife in Vienna with the assistance of an interpreter. He reported the proceedings of that interview in CAIPS notes. The visa officer asked the applicants about Ahmadreza. They indicated that they supported him, that he lived with them, that he was confined to a wheelchair, that he spoke English well and that he works on a computer at home. The visa officer advised that because Ahmadreza was a dependent, if he was medically inadmissible, the entire family would be inadmissible. Furthermore, the visa officer emphasized, as he states by affidavit, that Ahmadreza could not be left behind while the other family members immigrated to Canada because he is a dependent son and that status could not be changed.
[4] On December 9, 1997 and February 4, 1998, the visa officer received notices that two medical officers had confirmed that Ahmadreza was inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act because of his muscular dystrophy. On February 24, 1998, letters informing the applicant of the doctors" conclusions and inviting any rebuttal evidence were forwarded to the applicant"s immigration consultant in Canada. Thereafter, the visa officer received a fax from the consultant, which stated that Ahmadreza could stay behind with an aunt and he proposed that Ahmadreza"s name be deleted from the application. After reviewing the file, the visa officer concluded that he could not delete Ahmadreza from the application because he was a "dependent son" under the Immigration Regulations, 19781. He explained his reasoning in a letter to the consultant, April 29, 1998. In effect, withdrawing Ahmadreza"s name from the application was not possible under the Regulations where, in the opinion of a visa officer, he was a dependent son, and the visa officer had so concluded in this case. The letter also stated, in part, that:
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"...if the son in this case is medically inadmissible (we note in this regard that we have not yet received any replies to our correspondence in which we ask for the submission of any further medical evidence that may be considered relevant), then the entire family is medically inadmissible. Further, this was clearly explained to the family at their interview and they were fully aware of the effect that his inadmissibility would have upon their application. |
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I am not aware of any humanitarian or compassionate grounds in this case that would warrant the issuance of a Minister"s Permit." |
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[5] The consultant forwarded another fax on July 9, 1998 asking for the visa officer"s final decision. On July 29, 1998, the visa officer wrote to the applicant stating in part:
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I have now completed the assessment of your application. I regret to inform you that your dependent, Ahmadreza Arasteh, comes within the inadmissible class of persons described in paragraph 19(1)(a)(ii) of the Immigration Act, 1976, in that he is suffering from muscular dystrophy, as a result of the nature, severity or probable duration of which, in the opinion of a medical officer and concurred in by at least one other medical officer, his admission would cause or might reasonably be expected to cause excessive demands on health and social services in Canada. |
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Specifically, it was noted that your son: |
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has evidence of a progressive, hereditary degenerative disease of skeletal muscles manifest by weakness and atrphy [sic] of musculature of the pelvic girdle, lumbosacral and shoulder regions. Despite his ability to perform certain activities of daily living, he is currently entirely dependent on other for walking either on the level or outdoors and for negotiating stairs. His current prospects for employment are considered very limited. |
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Since one of your dependents comes within an inadmissible class as described above, pursuant to section 9(4) of the Immigration Regulations and paragraph 19(2)(d) of the Immigration Act, I am not able to issue an immigrant visa to you. Therefore, your application has been refused. |
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I have also considered possible humanitarian and compassionate factors that may apply in your case but have determined that there are insufficient grounds to warrant special consideration. |
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Issues
[6] The applicant argues that there was no evidence upon which the visa officer could determine that Ahmadreza could not support himself in Canada, and that the visa officer should have deleted the son from the application upon the consultant"s request.
Analysis
[7] Section 2 of the Immigration Regulations, 1978 defines a "dependent son" as follows:
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"dependent son" means a son who |
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(c) is wholly or substantially financially supported by his parents and |
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(i) is determined by a medical officer to be suffering from a physical or mental disability, and |
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(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, including information from the medical officer referred to in subparagraph (i), to be incapable of supporting himself by reason of such disability; |
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[8] The applicant argues that the visa officer erred in law by concluding that Ahmadreza was a "dependent son" because there was not sufficient evidence to conclude that he could not support himself. The visa officer knew that the son worked on a computer, but he did not pursue whether he was capable of supporting himself from those endeavours. Furthermore, the medical officer"s opinion is allegedly flawed, because it makes a statement without evidence that Ahmadreza"s employment prospects are limited.
[9] In my view there was ample evidence for the visa officer to conclude that Ahmadreza could not support himself. As noted earlier his application stated that "Because of muscular dystrophy I am not able to work....". Furthermore, it is notable that in his affidavit the applicant does not dispute the visa officer"s conclusion, as set out in his CAIPS notes made at the time of the interview, that the applicant and his wife "completely support the handicapped son." Finally, it was not unreasonable to consider the medical officers" conclusion that the son had limited employment prospects in light of the son's prognosis of a likelihood of declining health.
[10] It is true that the visa officer did not appear to consider particularly whether in future the son could support himself were he to be admitted to Canada. It is urged for the applicant that he should have considered the son's future prospects. I am not so persuaded. There was no evidence before the visa officer about the son's future prospects, aside from the doctors' comment, and there was no obligation on the officer's part to seek such evidence.
[11] Under s. 8 of the Immigration Act, the applicant had the onus to prove that he had the right to come into Canada. There was no evidence before the visa officer to suggest that the son could support himself, and the suggestion that he would live with his aunt implies that he is not able to live independently. In my view it was not unreasonable for the visa officer to conclude that the son was a "dependent son" under the Act.
[12] The applicant submits that where a visa officer concludes that a son is no longer a dependent, he or she may delete that person from the application. It is true that a dependent son at the time an application is made may no longer be so by change of circumstances before the application is determined. It is urged the visa officer had a duty to consider the new information that the son would reside with his aunt, and that the officer erred by refusing to reconsider the son's status.
[13] Under s-s. 9(2) of the Immigration Act, the visa officer had a duty to determine whether Mr. Arastehpour and his accompanying dependents appeared to be "...persons who may be granted entry." Once he determined that the son in question was a "dependent son", he was, in my view, obligated to assess whether he could grant him entry.
[14] I do not agree that the visa officer refused to consider whether the son was no longer a "dependent son" after the request that he be dropped from the application and the suggestion that he would remain in Iran with an aunt. Rather, it is evident from the CAIPS notes that he received the consultant's fax proposing the son"s deletion from the application and a month later wrote in his CAIPS notes that he reviewed the file and concluded that the applicant could not delete his son from the application. Furthermore, the visa officer avers in his affidavit filed on October 13 1998, on which he was not challenged by cross-examination, that:
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"...at no time did I receive any evidence that Ahmadreza was no longer a dependent of his father or that he was no longer financially dependent upon him. On the contrary, the medical assessment confirmed he was entirely dependent on others to assist him with many of the activities of daily living. Had Ahmadreza passed the medical examination, he would have been issued a visa along with his parents and his brother. However, as explained to the applicant and Mrs. Arastehpour at the interview, Ahmadreza"s failure to pass the medical examination rendered the entire family inadmissible." |
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Conclusion
[15] For the foregoing reasons I dismiss this application for judicial review.
[16] Costs were requested by the respondent and it was proposed that they be fixed in the amount of $1,000. No special reasons were suggested. In view of Rule 22 of the Federal Court Immigration Rules, 1988, no order for costs is made. That Rule provides that "No costs shall be awarded to or payable by any party in respect of an application or an appeal under these Rules unless the Court, for special reasons, so orders". I am not persuaded that there are special reasons that would warrant an award of costs in this case.
W. Andrew MacKay
JUDGE
OTTAWA, Ontario
August 31, 1999
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1 SOR/78-172 as amended.
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