Date: 20110310
Docket:
IMM-4711-10
Citation:
2011 FC 286
Toronto,
Ontario, March 10, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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MOHANIE HEMNATH
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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]
Ms.
Hemnath immigrated from Guyana and is now a Canadian citizen. Her
application to sponsor her parents and sister was rejected on the grounds that
her sister is medically inadmissible. According to the Citizenship and
Immigration Canada Medical Notification on file, her health condition, “medical
retardation”, might reasonably be expected to cause excessive demand on social
services, the cost of which would likely exceed the average Canadian per capita
cost over five years, and would add to existing waiting lists and delay or deny
those services to those already in Canada and in need. The applicant’s sister
was therefore found inadmissible under section 38(1) (c) of the Immigration
and Refugee Protection Act (IRPA). Since Ms. Hemnath is a citizen, she was
entitled to appeal the visa officer’s negative decision to the Immigration
Appeal Division (IAD) of the Immigration and Refugee Protection Board of Canada
in accordance with section 67 of IRPA. However the appeal was explicitly
limited to humanitarian and compassionate considerations. The determination
that her sister was otherwise medically inadmissible was not challenged.
[2]
The
IAD dismissed her appeal. This is the judicial review of that decision.
[3]
In
the narrative of the Medical Notification, it is stated that the sister has
been diagnosed with moderate to severe mental retardation and has a history of
cerebral policy and infantile encephalopathy since birth. She has delayed
milestones in all spheres, has never been to school, cannot read or write, and
emits sounds and shows hand signals to respond yes or no. She cannot live
independently and requires continuous supervision.
[4]
Part
of this appeal focused on cerebral palsy and treatment thereof. However, I must
say that it a side issue because in the medical condition column of the Medical
Notification the doctor inserted “mental retardation” not “cerebral palsy”.
[5]
The
doctor had stated that our social philosophy with respect to individuals in a
state of dependence associated with mental retardation is to promote community
living with extensive community based social support, and the sister would also
benefit from Adult Day Programs such as community access and use, behavioural
support and leisure/recreational community activities. As a permanent resident
she would be able to access support independent living programs and her family
members or caregivers would be eligible for respite care, which is both
expensive and in high demand, which would give them needed time off from the
demands from caring for a person with cognitive impairment. There is a shortage
in Canada of such
social services.
[6]
Ms.
Hemnath submits that were her sister to live in Canada, the
situation would be as it is now. Her mother is a stay-at-home mom. There is,
however, no undertaking not to take advantage of programs available in Canada, and indeed
it is quite likely that such an undertaking would not be enforceable.
[7]
The
applicant did not appear to appreciate the respite program, its availability
and its strain on the public purse.
[8]
The
IAD took all these factors carefully into account. Criticism was levied at the
fact that in the first paragraph of the IAD’s reasons the member said that Ms.
Hemnath’s father was a resident and citizen of Jamaica, not Guyana. This was
clearly a clerical error as otherwise Guyana is mentioned throughout
the reasons.
[9]
Reference
was also made to the father’s checkered immigration history in Canada. The record
indicates, however, it is indeed checkered in that he came to Canada in 2000 on a
false passport; and after his refugee claim was dismissed did not leave in a
timely manner. He needs ministerial approval to return, and the fact that he
was permitted to come subsequently on a visitor’s visa to attend a family
funeral has no bearing on whether he should be granted permanent resident
status.
[10]
The
IAD concludes at paragraph 21:
In this case the daughter has been cared
for by her parents since birth. Upon a careful consideration of all of the
evidence the panel finds that the extent and severity of the daughter’s medical
condition, the applicant’s checkered immigration history and the appellant’s
inability to produce significant evidence relating to those social services
which the daughter may require in Canada outweigh the sincere desire the
applicant and some members of her family have to provide assistance, care and
comfort to her father, mother and sister and their being victimized criminally
in the past.
[11]
Although
this is a hard case, it must be borne in mind that it is not my decision to
make. My duty is to determine whether or not the decision was reasonable. As
Mr. Justice Iacobucci stated in Canada (Director of
investigation and Research) v Southam Inc., [1997] 1 S.C.R. 748, at
paragraph 80:
I
wish to observe, by way of concluding my discussion of this issue, that a
reviewer, and even one who has embarked upon review on a standard of
reasonableness simpliciter, will often be tempted to find some way to
intervene when the reviewer him- or herself would have come to a conclusion
opposite to the tribunal’s. Appellate courts must resist such
temptations. My statement that I might not have come to the same
conclusion as the Tribunal should not be taken as an invitation to appellate
courts to intervene in cases such as this one but rather as a caution against
such intervention and a call for restraint. Judicial restraint is needed
if a cohesive, rational, and, I believe, sensible system of judicial review is
to be fashioned.
[12]
In
my view, the reasonableness of the IAD’s decision is fully defensible in light
of the principles stated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190, particularly at paragraph 47:
Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting
a review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[13]
There
is no serious question of general importance to certify.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
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