Docket:
IMM-4887-11
Citation:
2012 FC 192
Calgary, Alberta,
February 09, 2012
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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HARMINDER SINGH DHILLON
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
application to sponsor Harminder Singh Dhillon as a permanent resident on the
basis of his being a family member was dismissed as the First Secretary
(Immigration) at the Canadian High Commission in New Delhi was not satisfied
that as an adult of more than 22 years of age he was unable to be financially
self-supporting. She accepted that he suffered from a physical disability as a
result of polio, but was not satisfied, in accordance with the Immigration
and Refugee Protection Regulations, that his physical or mental condition
rendered him unable to be financially self-supporting. This is the judicial
review of that decision.
[2]
Following
the hearing yesterday, I stated that I would be granting judicial review as I
considered the decision to be unreasonable. These are my reasons.
[3]
The
general rule is that an adult child over 22 years of age cannot be sponsored as
a dependent. There are exceptions. In section 2 of the Regulations, a dependent
child includes one who: “…is 22 years of age or older and has
depended substantially on the financial support of the parent since before the
age of 22 and is unable to be financially self-supporting due to a physical or
mental condition.”
[4]
Harminder
is now 38 years of age. The parties are in agreement that he has never worked;
that he is unmarried, and that he has always depended substantially on the
financial support of his parents. He is mentally sound and completed his high
school education.
[5]
The
only controversy is the extent of his partial disability and whether that
condition prevents him from being financially self-supporting.
[6]
Accompanying
the application were an affidavit from Harminder, two affidavits from his
father, and a statement from a village official that Harminder lived in Lama
Village, Punjab, that he is unmarried, unemployed and receives no benefits from
either the Central or Punjabi Government.
[7]
Various
statements from doctors in hospitals described his medical condition. Doctor
Deepak Kumar attested Harminder’s is a known case of post-polio residual
paralysis in both lower limbs. He assessed his disability at 70% and said he
was unable to attend to his daily needs and requires assistance in his day-to-day
activities. He uses crutches in both upper limbs to walk.
[8]
In
his affidavit, among others things, Harminder swore that no one wanted to give
him a job, and that he cannot “board bus-etc with the crutches.” The First
Secretary commissioned an Activity of Daily Living Report (ADLR) by an
examining physician in India. Among other things, that doctor said that Harminder’s
self-care was intact in that he could feed, drink, dress, bathe and relieve
himself without assistance. He had mobility in that he could transfer to and
from a bed, chair, wheelchair, toilet, bathtub and walk fifty yards without
difficulty. He needed some help to go up and down stairs. He had full
communication skills. He was dependent on his crutches.
[9]
The
reasons for the First Secretary’s decision are set out in her Computer Assisted
Immigration Processing System Notes. She was of the view that the report she commissioned
contradicted the findings of Dr. Kumar. She decided that although Harminder had
some mobility restrictions, he could accomplish most tasks on his own, had 12
years of schooling, and so she was not satisfied that he was unable to be
financially self-supporting due to a physical or mental condition.
[10]
That
being said, she did not deal with the uncontradicted country conditions that
people with disabilities are among the most excluded in Indian society (online
article New World Bank Report Finds People with Disabilities among the Most
Excluded in Indian Society) and that the majority of Indians in Harminder’s
situation, some 62%, cannot find employment. Thus, on the balance of
probabilities, he is unable to support himself because of the attitude of the
society in which he lives. One must not only be willing to work, someone must
be willing to hire.
[11]
Furthermore,
the officer refused to give any weight to the affidavits because they were
generated for the purpose of supporting the submission. Of course they were!
That does not mean they were untrue. All that can be said is that some opinions
were expressed. Evidence cannot be rejected simply by reason of association to
the applicant (Basra v Canada (Citizenship and Immigration), 2009
FC 535, and Rendon Ochoa v Canada (Citizenship and Immigration), 2010 FC
1105).
[12]
There
were no inconsistencies, and one begins with the rebuttable presumption that
one is telling the truth (Maldonado v Canada (Minister of Employment and
Immigration), [1980] 2 FC 302).
[13]
Furthermore,
there was no inherent contradiction in the doctors reports. The doctor who
issued the ADLR did not opine as to a percentage of partial disability.
[14]
Where
would Harminder work in his village? His uncontradicted evidence is that he is
unable to board a bus. In addition, there was ample evidence of societal
discrimination against individuals in his situation, and that no one will hire
him.
[15]
As
pointed out by the Supreme Court in Catalyst Paper Corp v North Cowichan
(District), 2012 SCC 2, reasonableness must be assessed in the context of
the particular type of decision making involved, and with all relevant factors
in mind (para 18). Harminder’s ability to support himself financially cannot be
considered in the abstract. The question is whether he is able to financially
support himself where he lives, and not whether his physical condition would
prevent him from becoming self-sufficient in Canada, where the federal and provincial
human rights commissions would give short shrift to those who would not hire
him because of his disability.
[16]
Both
parties agreed there was no question to certify for the Court of appeal, and I agree.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1.
The
application for judicial review of the decision of the First Secretary
(Immigration) of the Immigration Section of the High Commission of Canada
located in New Delhi, their file number B054966483, dated 7 June 2011, is
granted, the decision is quashed and the matter remitted to another
decision-maker for re-determination.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
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