Docket: IMM-6349-14
Citation:
2015 FC 428
Vancouver, British Columbia, April 8, 2015
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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SARABJIT KAUR
SAROYA
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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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JUDGMENT AND REASONS
[1]
Ms Saroya challenges a decision of the
Immigration Appeal Division [IAD] which rejected her appeal of a Visa Officer’s
decision based on humanitarian and compassionate [H&C] grounds. For the
reasons that follow, this application for judicial review is dismissed.
I.
Background
[2]
Ms Saroya is a citizen of India and permanent resident of Canada. She immigrated to Canada under the sponsorship of her first
spouse in 2005. They had two daughters. Tragically, these children died in a
fire in 2010. Ms Saroya’s marriage then broke down. She separated from her
ex-husband in 2011. She has suffered from depression since these horrible events.
[3]
Ms Saroya entered into a common-law relationship
when visiting her parents in India. On July 9, 2013, she gave birth to a son
in Canada. She sponsored her common law spouse for permanent residence in Canada. At the hearing, counsel for Ms Saroya informed the Court that tragedy has struck
again, as the common-law spouse has passed away.
[4]
Ms Saroya applied to sponsor her parents for
Canadian permanent residence. During their medical checks, both were diagnosed
as HIV positive. By decision dated February 21, 2013, a Visa Officer refused
the application on the ground that both sponsorees were inadmissible for
medical reasons.
[5]
Ms Saroya appealed to the IAD. She did not
challenge the validity of the refusal for medical reasons. Rather, she
requested relief on H&C grounds. The IAD held a hearing on July 8,
2014. The panel received testimony from Ms Saroya and her mother, who was linked
in by telephone. Afterwards, counsel for the Minister gave her consent to allow
the appeal. At the panel’s request, counsel for the applicant and the Minister
provided post-hearing submissions confirming a joint proposal that the appeal
be allowed.
[6]
Despite this joint proposal, the IAD dismissed
the appeal by decision dated August 6, 2014, and communicated to the applicant
the next day.
[7]
The IAD found that the applicant did not
establish her case on the balance of probabilities. It discussed various relevant
H&C factors.
[8]
The panel began with “improved
medical condition”. The evidence showed that the parents are
asymptomatic and attend a clinic every month. The panel determined that this
was a neutral factor.
[9]
The panel moved on to “excessive
demand on Canadian health services”. It agreed with the opinion of the
medical professional referenced in the Visa Officer’s decision. The applicant
did not provide contradictory evidence. This was a negative factor.
[10]
The panel next considered the “availability of health services abroad and in Canada”. The parents receive free anti-retroviral medications in India. They presented no evidence of hardship in accessing medical services there.
Therefore, allowing the appeal “would result in a direct
transfer of health care costs to be entirely borne by the Canadian taxpayer”.
This was a significant negative factor.
[11]
Considering the “cost of
treatment of the medical condition”, the panel endorsed the medical
officer’s opinion that it will exceed the average Canadian per capita costs
over five years. The applicant did not provide contradictory evidence. This was
a negative factor.
[12]
The IAD then looked at the “availability of family support in Canada”. The
parents only have their daughter and infant grandson in Canada. By contrast, they have eight siblings (and their respective spouses) and 17 or 18
nephews and nieces in India. The IAD concluded that there is far more support
for the parents – and for the applicant – abroad as opposed to Canada. Moreover, the applicant’s precarious financial situation cast doubt on her ability
to support her parents in Canada. This was a negative factor.
[13]
The panel moved on to “psychological
dependencies”. Counsel for the Minister submitted that, as the sole
child, it was the applicant’s cultural duty to care for her parents. The panel
stated that this cultural duty was not discussed by the applicant in her
testimony, evidence or written submissions. The panel also rejected the
suggestion that the parents are financially reliant on the applicant for their
day-to-day needs. However, the panel accepted that the applicant suffers from
serious depression. The panel expressed sympathy for the applicant and
attributed “slight positive weight” to this
factor.
[14]
The panel concluded with analysis of the best
interests of the child [BIOC], stating that it was “alert,
alive and sensitive” to this factor. It rejected the suggestion that
placing the child in day care in Canada is a negative option. While it might be
preferable and cheaper to have the grandparents available to baby-sit, thus
affording “positive weight towards the best interest of
[the] child”, that weight was not sufficient to override the other
negative factors.
[15]
Upon receiving this decision, Ms Saroya applied
for judicial review.
II.
Issue
[16]
The sole issue before the Court is whether the
IAD erred in finding that there were insufficient H&C grounds to allow the
appeal.
III.
Standard of Review
[17]
The decision under review involves the exercise
of discretion and the application of specialized legislation to particular facts.
The standard of review is reasonableness: Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paras 52-58.
IV.
Analysis
[18]
The Court expresses its deepest sympathies to Ms
Saroya, whose life has taken several tragic turns during the last decade.
[19]
However, the Court can only intervene if the IAD
committed a reviewable error. The record does not disclose any such error
in this case. The decision rendered by the IAD falls within the range of
outcomes defensible with respect to the facts and the law.
[20]
As a matter of law, the IAD is entitled to
reject a joint submission if it provides reasons for doing so: Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134 at para 31. The fact
that counsel for the Minister favoured granting the appeal at the conclusion of
the hearing had no binding force on the IAD.
[21]
The IAD provided adequate reasons here. Although
the applicant disputes its conclusions, the Court does not have the function of
re-weighing the evidence on judicial review. Since the IAD did not assess the
evidence unreasonably, the Court must defer to its exercise of discretion.
[22]
The Court agrees with the Minister that the IAD
did not misapprehend the parents’ medical condition. It clearly stated that
their condition had not worsened and reasonably ascribed neutral weight to this
factor.
[23]
Counsel for the applicant disputed the medical
officer’s opinion without offering any evidence in rebuttal. Again, the Court agrees
with the Minister that there is no reviewable error. The case law is clear that
a medical officer must render a personalized assessment of the circumstances of
each individual when medical inadmissibility concerns are raised. If this
requirement is met, then a Visa Officer may confirm the medical officer’s
opinion without further review of the record: see e.g. Hilewitz v Canada (Minister of Citizenship and Immigration), 2005 SCC 57; Canada (Citizenship and
Immigration) v Colaco, 2007 FCA 282; Mazhari v Canada (Citizenship and Immigration), 2010 FC 467. It stands to reason that the IAD can properly
confirm the Visa Officer’s approval of the medical assessment, in the absence
of contradictory evidence presented by either party.
[24]
The medical officer made a finding that the
parents would require “publicly funded and expensive”
treatment and medication in Canada. This finding was reasonably upheld by the
Visa Officer and the IAD. Indeed, the applicant appears to completely
misunderstand the decision under review when she suggests that the medication
should be available for free in Canada because it is free in India. If the parents could obtain the medication for free in this country, the costs would in
all probability be borne by the public health care system, which is funded by
the Canadian taxpayer. There is no indication in the record before the Court
that pharmaceutical companies provide the medication as a gift to those who
need it, either in Canada or in India. That suggestion finds no support in the
evidence and cannot be used to undermine the medical officer’s opinion.
[25]
The IAD reasonably evaluated the dependencies
between the applicant and her parents. While it questioned the significance of
the financial support provided by Ms Saroya to her parents, the IAD accepted
that she has a certain psychological dependency due to her depressive state.
That is why it attributed slight positive weight to the factor of dependencies.
Since this analysis went in her favour, the applicant cannot complain.
[26]
In fact, the applicant mischaracterizes the
matter by suggesting that the IAD’s decision will sever her family ties and
thereby inflict unusual, underserved or disproportionate hardship upon her and
her parents. The IAD decision will simply maintain the status quo. Ms
Saroya and her infant son will retain the right to live in Canada. Her parents will remain in India, where they have lived their entire lives. The applicant
may continue to visit her family in India, as she has done several times
recently. An authority cited by the applicant, Davis v Canada (Citizenship and Immigration), 2011 FC 97, is wholly distinguishable. In that
case, the applicant lived in Canada with her father and the government intended
to deport her. That would have disrupted an existing relationship of
cohabitation.
[27]
There remains the assessment of the BIOC. The
law is settled that a decision-maker conducting an H&C analysis must
properly identify and define this factor and then weigh it against the
countervailing factors: see e.g. Canada (Minister of Citizenship and
Immigration) v Legault, 2002 FCA 125 at para 12 [Legault]. It
is equally settled that this factor is not determinative – despite its
importance – since it will almost always be the case that a child will benefit
from continued presence in Canada in the company of his or her parents or other
family members: see Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at para 75; Canada (Minister of Citizenship and
Immigration) v Hawthorne, 2002 FCA 475 at paras 2 and 6; Kisana v Canada
(Citizenship and Immigration), 2009 FCA 189 at para 24.
[28]
In this case, the Court is satisfied that the
IAD was alert, alive and sensitive to the BIOC. It ascribed positive weight to
this factor but reasonably concluded that it did not outweigh the other
negative factors.
[29]
As a whole, the IAD’s consideration of the
various H&C factors survives review on the standard of reasonableness. On
judicial review, the Court cannot “re-examine the
weight given to the different factors” by the decision-maker: Legault,
above, at para 11.
[30]
This application is dismissed without costs. The
parties did not propose any questions for certification and none are certified.
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