Date: 20100105
Docket: IMM-307-09
Citation: 2010 FC 4
Ottawa, Ontario, January 5, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SHAFQAT
ULLAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Immigration Appeal Division of the Immigration and Refugee Board (the IAD),
dated December 23, 2008, wherein the IAD refused to grant the appeal made by
Shafqat Ullah (the Applicant) on a sponsorship application for his family
members. The Applicant is a self-represented litigant.
Factual Background
[2]
The
Applicant was born in Pakistan, on November 15, 1967.
He arrived in Canada as a member
of the skilled worker class and became a permanent resident in August 2000. He
currently lives in Lac La Biche, Alberta with his wife and three
children and is employed as an accountant.
[3]
In
2002, the Applicant sought to sponsor certain members of his family. He decided
to sponsor his parents, Karamat Ullah (the father) and Ghulam Zohra (the mother)
and his brother Quamar Shazad Nomi (the brother). The Applicant’s brother is 34
years old and has a mild or moderate mental delay handicap. A visa officer
refused the sponsorship application on the grounds that the Applicant’s brother
is inadmissible under paragraph 38(1)(c) of the Act. The reason being
that the brother would require excessive demand on social services in Canada. The father
and the mother were consequently held to be inadmissible under paragraph 42(a)
of the Act.
[4]
Pursuant
to subsection 63(1) of the Act, the Applicant appealed the visa officer’s decision
to the IAD. The decision rendered by the IAD is the subject of this judicial
review.
Impugned Decision
[5]
After
briefly stating the grounds under which the brother, the father and the mother
have been found inadmissible, the IAD specifies that the Applicant is not
contesting the legal validity of the visa officer’s refusal. Rather, he is
asking that the appeal be granted on the basis of humanitarian and
compassionate considerations.
[6]
The
IAD goes on to conclude that the refusal is valid in law. This conclusion is
based on the existence of two medical reports provided in the appeal record
that confirm a diagnosis of moderate mental retardation affliction for the
Applicant’s
brother and
the fact that the Applicant did not bring any documentary evidence to dispute
the medical determination.
[7]
At
the outset, the IAD states that the issue in this case is whether or not the
brother will be a burden on the social services system and, thus, the family’s
capacity to support the social services which will be required must be
considered.
[8]
The
IAD then examines a variety of evidence related to the brother’s current care
and living situation and the proposed situation should he come to Canada. It notes
that currently the mother is his primary caregiver and he assists in the
father’s shop. Should the Applicant’s family come to Canada, the IAD
writes that the Applicant has made clear his intention to care for his brother
if his parents are unable to do so and that the entire family would live with
him and his wife. The Appellant also testified his wife would be willing to
care for his brother if need be. It seems that at one point, the Applicant
testified he would continue to live in Lac La Biche and at another that he
would move to Edmonton with his
family. The IAD also notes that the Applicant has provided letters from various
organizations in Edmonton which state that the brother could volunteer
with them and potentially learn Urdu.
[9]
In
response to these submissions, the IAD finds that the Applicant’s parents are
currently not in good health and are elderly. Based on this and the Applicant’s
testimony that he wants his parents to come live with him because they are ill,
the IAD concludes that the parents may not be able to provide home based care
for the brother for much longer. It adds that there will be an additional
strain on the parents in adapting to life in Canada. Also, the
Applicant’s responsibility for his brother is limited to a ten-year commitment.
By the time the commitment expires, the parents will be well into their
seventies and may well be unable to care for the brother at that point.
[10]
On
the balance of probabilities, it is found that the brother will require support
outside the home. Also, it is noted that there is no concrete plan for care or
social integration outside of the immediate family. The IAD notes that the
Applicant’s wife does not have any experience in caring for the elderly or a
person like his brother and that she is currently the primary caregiver for her
three young children. The IAD concludes that the Applicant has not submitted
sufficient evidence to show that his wife is capable of caring for the brother.
Finally, the IAD writes that the letters of involvement are only from organizations
in Edmonton and no clear
plans have been made for community involvement should the brother live in Lac
La Biche.
[11]
The
IAD finds that there is no evidence that the Applicant’s parents rely on him
for financial support. The Applicant provided evidence showing that he sent
money to his parents over the years but this support has decreased. The
Applicant testified that these funds are for extras and because he feels guilty
for not being there himself, he will continue to provide this support even if
his family does not come to Canada.
[12]
The
IAD then notes that many of the Applicant’s siblings still live in Pakistan along with most
of their extended family. It also concludes that the Applicant’s family will
continue to have family support in Pakistan and there is no
evidence that they would suffer undue hardship by remaining in Pakistan.
[13]
The
IAD continues its analysis by commenting on the Applicant’s financial
situation. It summarizes his employment history which demonstrates that he has
been employed by different companies since 2000 and has been self-employed
since 2006. He started a new company in 2007 and currently works for that
company. Furthermore, he holds five income generating rental properties in
Edmonton. However, the Applicant has been incurring a loss on those properties
and his financial situation has deteriorated over the last three years. The
bank statement submitted showed his account to be in overdraft. In light of the
Applicant’s financial situation, the IAD concludes that the Applicant has not
demonstrated that he is able to pay for the services which would be required by
his brother. It relies on, and says this case is factually similar to another
IAD decision where it was held that insufficient evidence of family resources
and how those resources would be actualized to defray the cost of care required
even in the face of a supportive family could not persuade the panel (Ahmed v.
Canada (Minister of Citizenship and Immigration), [2007] I.A.D.D. No. 567
(QL)).
[14]
Furthermore,
the IAD observes that the Applicant has visited his family three times since
2004 as have his wife and children and nothing prevents future visits. It notes
that the Applicant’s elder brother lives with his parents and is financially
dependent on them. The Applicant has expressed that he would return to Pakistan should his
family’s application not be granted and the IAD remarks that this would be a
decision of his own choosing. It also observes that the parents do not speak
English, that no concrete plans have been made to integrate them into society
nor are there any concrete settlement arrangements for them.
[15]
The
IAD further concludes that the allegation of undue hardship due to the
political situation in Pakistan is merely speculation and no evidence has been
submitted on this point.
[16]
The
IAD writes that it has considered the best interests of the Applicant’s
children and acknowledges that it would be beneficial to them to have a
relationship with their grandparents but that the interests of the other
grandchildren currently residing in Pakistan are also relevant. It also
considered the brother’s best interests. It finds that based on the documentary
evidence, he functions fairly well and has some independence in his current
environment. Also, he speaks the local language and is familiar with his
environment – this would not be the case should he come to Canada as the
evidence shows that he is shy and he would have difficulty learning a new
language. Also, the Applicant and his family are busy with their own lives and
activities. Accordingly, it is in the brother’s best interest to remain in
Pakistan.
[17]
Finally,
the IAD explains that the mere desire of the Applicant to have his parents in
closer proximity does not, in light of all the facts, constitute sufficient
grounds to override the negative elements of the case. The IAD considers the
Applicant’s desire to reunite with his family and his desire to care for his
brother but these grounds are not sufficient to justify the granting of special
relief.
Questions at Issue
[18]
The
Applicant disputes the IAD’s statement that he did not wish to contest the
legality of the determination. He also raises a number of issues regarding the
appreciation and the review of the evidence by the IAD. I would phrase the issues
as follows:
a. Did the IAD
err by not considering the legality of the determination that the Applicant’s
brother is inadmissible on a health ground?
b. Did the IAD
fail to take into account several important factors in determining whether or
not the circumstances warranted the granting of special relief?
Pertinent Legislation
[19]
Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
|
38. (1) A foreign national
is inadmissible on health grounds if their health condition
…
(c) might reasonably be
expected to cause excessive demand on health or social services.
42. A foreign national,
other than a protected person, is inadmissible on grounds of an inadmissible
family member if
(a) their accompanying
family member or, in prescribed circumstances, their non-accompanying family
member is inadmissible; or
(b) they are an
accompanying family member of an inadmissible person.
|
38.
(1) Emporte, sauf pour le résident permanent, interdiction de territoire pour
motifs sanitaires l’état de santé de l’étranger constituant vraisemblablement
un danger pour la santé ou la sécurité publiques ou risquant d’entraîner un
fardeau excessif pour les services sociaux ou de santé.
42.
Emportent, sauf pour le résident permanent ou une personne protégée,
interdiction de territoire pour inadmissibilité familiale les faits suivants
:
a)
l’interdiction de territoire frappant tout membre de sa famille qui
l’accompagne ou qui, dans les cas réglementaires, ne l’accompagne pas;
b)
accompagner, pour un membre de sa famille, un interdit de territoire.
|
Standard of Review
[20]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme
Court of Canada established that in determining the appropriate standard of
review, the Court can look to past jurisprudence and ascertain whether it has
already determined a satisfactory standard of review (paragraph 62). This Court
has held that the IAD’s decisions on medical admissibility on questions of
facts and mixed fact and law should be reviewed on a standard of reasonableness
(Vashishat v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1346, 337 F.T.R. 283). The first
question at issue constitutes a claim that there was a misapprehension of the
facts and evidence. Whereas the second addresses the appreciation of the
evidence by the IAD. Accordingly, both questions at issue will be held to a standard
of reasonableness and the Court will only intervene if the decision does not
fall within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir, at paragraph 47).
Did the IAD err by not
considering the legality of the determination that the Applicant’s brother is
inadmissible on a health ground?
[21]
The
Applicant insists that he did contest the legal validity of the refusal and did
not renounce his right to contest the decision on this ground at any point. He
points to submissions that were prepared by his counsel before the IAD’s oral
hearing (the Applicant was no longer represented by counsel at the time of the
hearing) and adds that he clearly indicated that he intended to contest
the legal validity of the inadmissibility determination. He claims that he
submitted medical reports that contradict the decisions of the visa officer and
the opinion of the medical officer. Furthermore, he submitted a video showing
his brother accomplishing daily tasks. The Applicant claims that this clearly
shows that he intended to contest the legality of the inadmissibility
determination.
[22]
The
Respondent, on the other hand, admits that the Applicant did contest the legal
validity of the visa officer’s refusal and despite the fact that the IAD stated
that the Applicant did not contest that issue, the IAD went on to consider it.
The reasons show that the IAD gave an individualised assessment of the
Applicant’s ability to pay as well as the likelihood of excessive social
services being used. The Respondent claims that in doing so, the IAD actually
did consider the legal validity of the decision and then went on to consider
the humanitarian and compassionate grounds in the case.
Analysis
[23]
The
Applicant’s argument on this point is essentially that his brother is more capable
than described and, with family support, would not require excessive social
services in Canada. He claims
that the IAD did not entertain this argument which would go to the legal
validity of the inadmissibility determination.
[24]
In
Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v.
Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706 (Hilewitz),
the Supreme Court of Canada ruled that an inadmissibility determination based
on excessive demands on social services requires the taking into account of
both medical and non-medical factors, including an individualized assessment of
the persons' condition, their capabilities and actual needs and the
availability of family support and willingness and ability to pay for services
(at paragraphs 54 to 61; see also Vashishat, at paragraphs 19 and 20).
[25]
While
it is true that the IAD explicitly stated that the legal validity of the
medical determination was not being contested in this case, it did go on to
consider the issue and address all of the necessary factors laid out in Hilewitz.
The IAD recognized in its reasons that this is a case where Hilewitz should
be applied and its analysis shows that it went on to do so. It noted that no additional
medical reports had been submitted that disputed the diagnosis of a mental
handicap. It also noted that the brother is able to accomplish certain tasks on
his own and the current arrangements for his care in Pakistan. It discussed
the proposed care should admittance to Canada be granted. It
concluded that it was unlikely that the proposed care would be sufficient and
that social services would still be called upon. The IAD found that the
Applicant is not in a financial position to assume the cost of social services
that his brother might require if admitted to Canada.
[26]
It
is clear in its reasons, that when determining what demands would be
placed on the social services system, the IAD balanced the brother’s current
condition and needs, the availability and proposed alternative arrangements and
the Applicant’s ability to pay. Based on these factors and the analysis
presented in the reasons, I find that the IAD did speak to the legal validity
of the inadmissibility determination.
Did the IAD fail to take
into account several important factors in determining whether or not the
circumstances warranted the granting of special relief?
[27]
The
Applicant has raised numerous evidentiary elements that he submits were ignored
or used selectively by the IAD. With regard to the health ground determination,
he points to a video that he submitted showing his brother accomplishing daily
tasks that is not mentioned in the reasons and that the IAD said it had not yet
seen at the time of the hearing. He also calls upon medical reports that he
submitted to the IAD as well as the visa officer. The Applicants submits that
the IAD was selective in analyzing and reading the medical reports. He claims
that the medical reports show that his brother’s condition is not as severe as
made out to be in the reasons and the IAD ignored this.
[28]
Furthermore,
the Applicant alleges that he explained to the IAD that his wife does not need
any particular type of training to care for his elderly parents or his brother
and would be willing to do so as this comes from values in his culture and
religion. He also explained that his wife is a homemaker and would have ample
time to care for his family members. He urges that the tribunal ignored this
important fact and erred by concluding that a professional caregiver would be
required.
[29]
In
terms of his financial ability to pay for social services, the Applicant argues
that the IAD made an unreasonable negative inference from the fact that his
rental properties are losing money. He suggests that because he can still make
his mortgage payments, despite the losses this clearly shows that he has other
income and this was ignored by the IAD. He has also provided a calculation of
his income that includes his business income and that of this wife which shows
it to be much higher than in the decision. He also points to the statement that
his bank account is in overdraft when other bank statements show there is a
surplus. He says that once again, the IAD made a selective use of the income
information and the evidence clearly shows that he has the financial ability to
pay for social services if need be.
[30]
With
regard to the humanitarian and compassionate grounds, the Applicant submits
that one of the grounds he called upon was that he will be able to provide
better care for his parents and brother than they are currently receiving in Pakistan and this was
completely ignored by the IAD. He adds that at the hearing, he explained the political
situation in Pakistan and why this
warranted special relief for his family and this was also ignored.
[31]
In
reply to these submissions, the Respondent argues that the IAD did not
misunderstand or ignore any piece of evidence presented by the Applicant. The
decision is clear and shows that the documents and evidence presented by the
Applicant were considered carefully in relation to all of the circumstances of
the case. The Respondent submits that the assessment of the evidence was reasonable
on the facts of the case and there is no reviewable error.
Analysis
[32]
The
Applicant is arguing that the IAD ignored certain elements of the evidence
before it or used the evidence selectively. In support of his argument,
he has pointed out what he deems to be key pieces of evidence which are not
mentioned in the reasons or are interpreted incorrectly in his view. There is
of course a refutable presumption that a tribunal has weighed all of the
evidence before it even if it has not mentioned each element. However, the more
important the evidence that is not mentioned, the greater the assumption that
the tribunal erred and made a finding without regard to the evidence (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R.
35, at paragraph 17 (F.C.T.D.)).
[33]
With
regard to the medical inadmissibility, even though the IAD did not watch the
video before rendering its decision, there were numerous other elements of
evidence that demonstrated the brother’s ability to complete tasks and live
somewhat independently. It is clear in the reasons that the IAD had a solid
understanding of the brother’s abilities and the care that he currently
requires. It did not rely only on the medical evidence in its analysis but also
on the evidence presented by the Applicant and his family. Although it did not
explicitly mention the videotape in its reasons, I am satisfied that the IAD
did consider the evidence on the brother’s capabilities as a whole and that the
failure to mention this one piece of evidence does not render the decision
unreasonable.
[34]
This
Court viewed the video in question before the present hearing and considers
that without analyzing the medical reports filed in this case, it is very
difficult to express an opinion on the brother's capabilities.
[35]
Furthermore,
as to the conclusion on the Applicant’s wife’s ability to care for the Applicant’s
brother and her lack of professional qualifications, the IAD does mention that
the wife is not a professional caregiver and that she has had
little contact with the brother over the years and has never been in a
situation where she was responsible for his care. The Applicant relies on a
portion of his testimony where he spoke to reasons why his wife would be
willing and able to care for his brother. It is clear in the reasons, that
despite this willingness, the IAD had concerns of the amount of time required
to care for the Applicant’s brother, particularly in a new environment where he
would no longer have his routine tasks, and found that it was unlikely given
all the circumstances that the wife would be able to provide the necessary
level of care. The Applicant’s explanation did not directly contradict this
finding and is not sufficient to lead me to conclude that a finding was made
without regard to the evidence. This is a finding that was open to the IAD and
is reasonable based on the evidence before it.
[36]
On
the point of his financial situation, the Applicant claims that the IAD used
his information selectively in concluding that he does not have the means
required to finance social services if required. He has also provided
alternative calculations of his income. The first thing to note is that his
alternative calculations include his business income and his wife’s income but
no evidence of either of these was put before the tribunal and as such will not
be considered by this Court. Clearly, the IAD cannot be faulted for not
analysing evidence that was not before it. Secondly, the onus is on the
Applicant to prove that he has the financial means to pay for social services
if he wants this factor be considered. The IAD analysed the financial
information before it and made a finding accordingly. It mentioned the
different sources of income claimed by the Applicant, over a period of three
years, and was still not satisfied of his ability to pay. It did not limit
itself to a particular point in time and used the financial information as a
whole. Furthermore, ability and willingness to pay for social services are not
necessarily determinative factors even if they are taken into consideration (Colaco
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 282, 64 Imm. L.R. (3d) 161, at
paragraph 5).
[37]
With
regard to the cited humanitarian and compassionate grounds, the situations that
unfolded in Pakistan (the alleged
political instability that took place after the hearing) on which the Applicant
is now basing his claim could not be analyzed by the IAD. Also, his general claims
on political instability at the hearing were determined by the IAD as
unsubstantiated. The Court finds that there is no reviewable error here.
[38]
The
Applicant further submits that the IAD ignored his wish to provide care for his
parents which would be better than the care provided to them now by his elder
brother. However, the IAD clearly acknowledged the parents’ health situation and
the fact that the Applicant is dissatisfied with the care provided by his elder
brother who lives with his parents. It stated that the Applicant did not want
his parents to work in Canada and that he would provide for them. It also
found that there are family members living in Pakistan who provide
support to the parents and on whom they can rely. It found that overall there
would not be an undue hardship if the parents were to stay in Pakistan. The IAD
clearly understood that the Applicant wishes for his parents to come to Canada because they
are ill and that he intends to care for them. It did not ignore this ground
even if it did not phrase it in the same way as the Applicant.
[39]
In
light of the above analysis, the Applicant’s arguments on this ground cannot
succeed. The IAD did not err in her appreciation and analysis of the evidence.
[40]
The
Court wishes to state that the issue here concerns the reasonableness of the
decision and not the opinion of the Court on whether or not the Applicant's
brother should be admitted in Canada. The Court might have had a different
opinion than the one rendered by the IAD, but finds that the IAD's conclusions
are in the range of possible and acceptable outcomes (Dunsmuir, at paragraph
47).
[41]
The
Applicant submits the following questions for certification:
1. Is an applicant's wealth a relevant
consideration in determining whether his or her admission to Canada would cause
excessive demands on social services in Canada and is a determination by
medical officers in this regard determinative or is the decision-maker in
respect of the applicant's application for permanent residence in Canada
required to consider the reasonableness of the medical officers' determination
regarding "excessive demands" in light of all the relevant material
provided to the respondent by the applicant?
2. Was IAD wrong in law not to give
preferential consideration to the best interests of children who are Canadian
citizens as compared to those children who are neither Canadian citizens nor
permanent residents and have never been to Canada?
3. Is s. 38 (2) infringe Charter rights
of Canadian citizens or permanent residents as it excludes parents from the
exceptions? Is it contrary to the objective if IRPA as described in s. 3(1)(d)?
[42]
The
Respondent opposes such questions. The Court agrees that the present case is
fact driven and no questions arise for certification.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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