Deol v. Canada (Minister of Citizenship and Immigration), 2001 FCT 694

                                                                                                           Date: 20010622

                                                                                                Docket: IMM-1332-00

                                                                                   Neutral Citation: 2001 FCT 694

Between:

                                           CHARANJIT KAUR DEOL,

                                                                                                                      Applicant

                                                             - and -

                  THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                  Respondent

                                              REASONS FOR ORDER

Muldoon, J.:

1. Introduction

[1]         This is an application under section 82.1 of the Immigration Act (the Act) for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the Appeal Division) dated February 22, 2000, dismissing the applicant's appeal from the decision of a visa officer refusing an immigrant visa to the applicant's father and other family members because the applicant's father is medically inadmissible.

2. Statement of Facts

[2]         In June 1993, the applicant, who is a permanent resident of Canada, submitted an undertaking of assistance to sponsor her father, her mother, her sister and her two brothers for admission to Canada from India.

[3]         The applicant's father was the principal applicant for the family's application for landing. On January 13, 1997, her father and the other members of her family were denied immigrant visas because he was found to be medically inadmissible under subsection 19(1)(a)(ii) of the Act.

[4]         The applicant's father underwent medical testing to determine his specific condition. Dr. Madaan, an orthopaedic specialist, concluded that the applicant suffered from a severe degree of degenerative osteoarthritis in both knees and that he needed surgery.

[5]         The expression "medical officer" and "medical examination" are defined in subsections 2(1) and 11(3) of the Act. Dr. Saint-Germain, a Canadian medical officer, completed a medical notification form listing a diagnosis, a detailed written narrative on the condition and an opinion about the excessive demand that he would place on the Canadian health or social services. A second Canadian medical officer, Dr. Boucher, agreed with this assessment.

[6]         Following the receipt of the medical notification, the visa officer advised the applicant's father of the medical officer's conclusions. The father responded with letters from two doctors. A letter from Dr. Vijan provided little relevant information. A second letter from Dr. Singh stated that the father required conservative physiotherapy, but that total knee replacement may be required in the future. This information did not change the Canadian medical officers' assessment, and the applicant's father's application for permanent residence, along with that of his dependants, was denied. The Appeal Division of the IRB dismissed the applicant's appeal.

3. Issues

a.         Was the opinion about excessive demand on Canadian health services unreasonable;

b.        Was there a breach of natural justice because the fairness letter did not advise the applicant's father of a bonding program that is available in the Province of Manitoba to cover medical costs;

c.        Was there a breach of natural justice in failing to consider the applicant's father's ability to pay, notably because the ability to pay is a factor in issuing a Minister's permit; and

d.        Does subsection 19(1)(a)(ii) violate section 15 of the Canadian Charter of Rights and Freedoms.

4. Submissions

a.        Statutory Framework

[7]         Only Canadian citizens and permanent residents have the right to enter Canada. The burden of proving that a person's admission into Canada is not contrary to the Immigration Act rests upon the person who is seeking admission into Canada.

[8]         The Act and its Regulations establish a comprehensive and self-contained scheme for the selection and for the prohibition of immigrants. Every person seeking admission to establish permanent residence in Canada shall undergo a medical examination by a medical officer. This may include a physical or mental examination and a medical assessment of the person's medical records by a medical officer who is a qualified practitioner.

[9]         Section 19 of the Act describes the classes of persons who are not admissible to Canada. Subsection 19(1)(a)(ii) provides

19(1) No person shall be granted admission who is a member of any of the following classes:

(a) persons, who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer,

(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;

[10]       The purpose of subsection 19(1)(a)(ii) is to ensure that access to health and social services by Canadian citizens and permanent residents should not be denied or impaired by reason of excessive demands for those services by prospective immigrants.

b. Excessive Demand

[11]       The applicant submits that the Appeal Division erred by not referring to the criteria in section 22 of the Regulations to determine that the admission of the applicant's father would cause excessive demand. The respondent submits that section 22 is not applicable here. Section 22 states:

22. For the purpose of determining whether any person is or is likely to be a danger to public health or to public safety or whether the admission of any person would cause or might reasonably be expected to cause excessive demands on health or social services, the following factors shall be considered by a medical officer in relation to the nature, severity or probable duration of any disease, disorder, disability or other health impairment from which the person is suffering, namely,

(a)            any reports made by a medical practitioner with respect to the person;

(b)           the degree to which the disease, disorder, disability or other impairment may be communicated to other persons;

(c)             whether medical surveillance is required for reasons of public health;

(d)            whether sudden incapacity or unpredictable or unusual behaviour may create a danger to public safety;

(e)            whether the supply of health or social services that the person may require in Canada is limited to such an extent that

(i) the use of such services by the person might reasonably be expected to prevent or delay provision of those services to Canadian citizens or permanent residents, or

(ii) the use of such services may not be available or accessible to the person;

(f)            whether medical care or hospitalization is required;

(g)            whether potential employability or productivity is affected; and

(h)           whether prompt and effective medical treatment can be provided.

[12]       In Ismaili v. M.C.I.^[1], Mr. Justice Cullen held that section 22 of the Regulations was ultra vires because the Act does not authorize delegated legislation for this purpose. He explained

In my interpretation, section 22 of the Regulations should be read as only prescribing the factors to be considered on the health and safety issue. It is not applicable to determining whether the admission of any person would cause or might reasonably be expected to cause demands on health or social services. To that extent, section 22 of the Regulations is ultra vires the Immigration Act. Subparagraph 19(1)(a)(ii) of the Act must be interpreted without reference to the provisions of section 22 of the Regulations.

[13]       Mr Justice Rothstein applied Ismaili in Nign v. M.C.I.^[2]. He stated:

[12] Finally, I see no error with respect to the assessment of whether the applicant's infant son would cause excessive demand on health services. Section 22 of the Immigration Regulations has been determined to be not applicable to the determination of whether the admission would cause or might reasonably be expected to cause excessive demands on health and social services. See Ismaili v. Canada (M.E.I.) 1995, 100 F.T.R. 139 at 145 per Cullen J. Accordingly subparagraph 19(1)(a)(ii) of the Immigration Act is to be interpreted without regard or section 22 of the Regulations for this purpose. Subparagraph 19(1)(a)(ii) of the Immigration Act provides:

...

[13]      Subparagraph 19(1)(a)(ii) contemplates a discretionary decision by a medical officer based upon relevant information. What was relevant to the medical officer in this case was the expectation that the infant's condition would deteriorate and that he would suffer progressive liver damage requiring extensive medical resources and recurrent hospitalization, which in his view would cause excessive demand on health services...

Although the judges who decided the Ismaili and Nign cases are entitled to great respect, these particular conclusions are not binding on this Court.

[14]       The medical officer determined that the father "requires specialist care and total knee replacement surgery", a finding that was based squarely on the available medical evidence. The Appeal Division held that the opinion was reasonable because the evidence showed on a balance of probabilities that the applicant's father would require surgery that would cost approximately $40,000. The respondent submits that the Appeal Division correctly examined relevant factors in determining that the applicant's father would cause or might reasonably be expected to cause excessive demand of Canadian health services.

[15]       The applicant submits that section 22 of the Regulations has the same status as a ministerial guideline. However, the applicant has not provided any authority for the proposition that allegedly ultra vires legislation is the same as a ministerial guideline. Ultra vires legislation (if such it be) has no force or effect. Moreover, the Minister issued specific guidelines after Ismaili, and consequently, section 22 does not have the same status as before. Finally, ministerial guidelines do not create mandatory considerations, but are useful indicators of what constitutes a reasonable decision. Minister's guidelines are not legislation, unless formulated pursuant to legislation. Here, the ministerial guidelines include the following comments:

·                       Medical officers must exercise discretion rather than apply the factors set out in section 22;

·                       When they exercise discretion it must be clear that they make decisions case by case and assess a unique set of facts; and they consider factors they can determine objectively and that are relevant to whether the admission of the person would or might reasonably be expected to cause excessive demands on health or social services

·                       Without restricting what medical officers consider...they might consider medical reports and whether medical care or hospitalization is required.

[16]       Based on the guidelines, the decisions of the medical officers, of the visa officer and of the Appeal Division were reasonable. Each decision-maker objectively considered the facts which were specific to the father's medical condition.

[17]       Alternatively, the applicant argues that the Appeal Division erred by relying on Jim v. Canada (Solicitor General).^[3] However, the Jim decision remains authoritative for the proposition that "excessive demand" means "more than what is normal". This definition has been cited and applied many times in this Court and the Appeal Decision correctly relied upon it.

[18]       The applicant submits that cost alone can never be a sufficient criterion for determining whether the demand is likely to be excessive. The respondent replies that the Appeal Division considered two factors: the need for surgery and related medical treatment, and the costs of the surgery and treatment. Both factors are objective and relevant to whether a person might reasonably be expected to cause excessive demand of Canadian health services. In Yogeswaran v. M.C.I.^[4], this Court upheld a decision in which the primary factor leading to the determination that a boy would cause excessive demand was the cost of the special education that he would require.

[19]       The applicant finally submits that evidence existed that the father could elect to forego the surgery. The Appeal Division considered this evidence by considering the testimony of the applicant's uncle. The Appeal Division weighed this evidence against the medical evidence and determined that surgery would eventually be required. This decision was reasonable given the wording of the legislation, namely, that the admission of the father "might reasonably be expected to cause excessive demands". It is reasonable that the father may elect surgery as his condition worsens after admission to Canada.    

c.        Duty of Fairness

[20]       The applicant submits that the visa officer violated the duty of fairness by not advising the applicant or her father of a bonding program sponsored by the Province of Manitoba Department of Health. The respondent submits that the visa officer is not under a duty to advise applicants of this program. Moreover, the Appeal Division' review of the visa officer's decision was reasonable. There was no unfairness. Visa officers do not need potentially to attract liability on the respondent, at the behest of the province or of respondents, for wrong or misunderstood advice. It was a matter between the applicant and her provincial government.

[21]       The onus was on the applicant's father to establish that he is admissible to Canada. A "fairness letter" was sent to the applicant's father inviting him to respond to the medical evidence. That letter was sufficient to meet the requirements of procedural fairness by advising the applicant's father of the case which he had to meet. There is no obligation upon the visa officer to advise the father on how to meet the case against him. That the applicant was unaware of the bonding program does not shift the onus to the visa officer. This program is not offered by CIC, but is a voluntary program offered by one provincial government. That the program is publicly available in Manitoba, is not established by the evidence.

[22]       The applicant submits that the Appeal Division erred by requiring evidence of a legal obligation. There was no such error. The respondent submits that the Appeal Division determined that the visa officer did not have the duty to advise the applicant of the bonding program, if any. The Appeal Division correctly decided the scope of the duty of fairness imposed on visa officers.

d. Ability to Pay

[23]       The applicant submits that the Appeal Division erred by refusing to account for the applicant's ability to pay for the surgery. The respondent submits that the father's ability to pay is irrelevant and should not have been considered by the Appeal Division. In Choi v. M.C.I.^[5], the Federal Court held that the applicant's ability to pay for necessary health or social services is an irrelevant consideration. The respondent cannot impose terms on admission to Canada which counter the basic rights for all residents of Canada to benefit from publicly funded, single-tier social services. In the reasons written by Mr. Justice Teitelbaum, paragraph 30 is lucid and pointed :

[30] It is of no importance that the applicant can be considered a wealthy person and, if his daughter will require special care, he can well afford the cost of same. I agree with the submission of the respondent that as a term or condition of admission, the respondent cannot impose a term or condition that the applicant and his family would agree to waive all rights to social services in Canada for his dependent daughter Pui Shi Choi (See s. 23.1 of the Immigration Regulations).

[24]       The Wong v. M.C.I.^[6] decision is distinguishable. The social service in Wong related to the services which were needed because of the applicant's daughter's mental disability. Evidence existed there that a person may be legally required to pay for services if they be able to do so. That the applicant there had three million dollars was relevant. Cases, it seems, come to contrary conclusions because, absent the certification of a question there is no appeal as of right from this Court's decisions in judicial review cases.

[25]       The applicant submits that the Manitoba bonding program results in a legal possibility paying for medical services, and therefore that Wong is relevant. The respondent submits that this submission ignores the evidence before the Appeal Division that the bonding program was available only during the 60 days between the fairness letter and the refusal. Consequently, it is not open to the applicant to argue now that the Appeal Division should have considered the family's willingness to pay. The bonding program was not available at that stage of the process. Consequently, no obligation to pay arose and this present case is distinguishable from Choi.

e. Subsection 15(1) of the Charter

[26]       The applicant submits that subsection 19(1)(a)(ii) breaches subsection 15(1) of the Canadian Charter of Rights and Freedoms and cannot be saved under section 1. The respondent submits that subsection 19(1)(a)(ii) of the Immigration Act does not breach subsection 15(1) of the Charter, and, if it did, it would be saved under section 1. Subsection 15(1) of the Charter states:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[27]       In Law v. M.E.I.^[7], the Supreme Court of Canada, speaking through Mr. Justice Iacobucci, provided a unified approach to determining whether a breach of subsection 15(1) has occurred. The Court stated:

E. Summary of Guidelines

[88] Before moving on to apply the principles that I have just discussed to the facts of this case, I believe it would be useful to summarize some of the main guidelines for analysis under s. 15(1) to be derived from the jurisprudence of this Court, as reviewed in these reasons. As I stated above, these guidelines should not be seen as a strict test, but rather should be understood as points of reference for a court that is called upon to decide whether a claimant's right to equality without discrimination under the Charter has been infringed. Inevitably, the guidelines summarized here will need to be supplemented in practice by the explanation of these guidelines in these reasons and those of previous cases, and by a full appreciation of the context surrounding the specific s. 15(1) claim at issue. It goes without saying that as our s. 15 jurisprudence evolves it may well be that further elaborations and modifications will emerge.

General Approach

(1) It is inappropriate to attempt to confine analysis under s. 15(1) of the Charter to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach.

(2) The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues:

(A) whether a law imposes differential treatment between the claimant and others, in purpose or effect;

(B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and

(C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

The first issue is concerned with the question of whether the law causes differential treatment. The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

(3) Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

                                                                                                                   (Law (supra) p. 547-49)

[28]       The respondent submits that the applicant does not meet two of the three elements necessary to establish a breach of subsection 15(1) of the Charter. The respondent is not making a distinction based on an enumerated or analogous ground. Nor is the respondent making a distinction on the basis of a stereotypical application of presumed group or personal characteristics in a manner which undermines human dignity. The distinction is based entirely on the applicant's individual capacities.

[29]       The applicant presumes that the distinction is based upon her father's disability. The respondent denies this interpretation. The Act does not render inadmissible all persons suffering from a disability or other health problem. It is only when such persons are expected to create an excessive demand on the Canadian health or social services that they become inadmissible.

[30]       Here, the Act does not render all persons with osteoarthritis inadmissible. Rather, a person with osteoarthritis is inadmissible only if, after an individual medical assessment, it is determined that the person is likely to cause an excessive demand on Canadian health services because of his or her condition. That condition also includes: 1. early renal failure, 2. hypertensive heart disease, 3. morbid obesity, 4. old myocardial infarction, 5. right bundle branch block, 6. cervical spondylolysis. (Applicant's record p. 12).

[31]       The respondent further states that the distinction made under subsection 19(1)(a)(ii) is not being made on the basis of a stereotypical application of presumed group characteristics. A stereotype is a misconception whereby a person or group is unfairly portrayed as possessing undesirable traits, or traits which the group, or at least some of its members, do not possess. Here, the distinction is based entirely on the specific traits of the applicant's father, namely, the osteoarthritis which requires medical treatment.

[32]       The legislation takes into account the actual needs, capacity or circumstances of the applicant's father, and is not a discriminatory legislative distinction which adversely affects human dignity. Therefore, subsection 19(1)(a)(ii) does not breach the Charter.

[33]       The applicant relies on the United Nations Declaration on the Rights of Disabled Persons. However, this application does not relate to immigration, nor does it give people the right to immigrate. The respondent also denies that the various government documents consist of an admission that subsection 19(1)(a)(ii) violates the Charter.

[34]       Alternatively, if subsection 19(1)(a)(ii) violates subsection 15(1) of the Charter, the respondent submits that it is saved under section 1. The purpose subsection 19(1)(a)(ii) is to ensure that access to health and social services by Canadian citizens and permanent residents should not be denied or impaired by reason of new excessive demands for those services by prospective immigrants. This is a pressing and substantial objective, given the current state of health care in Canada.

[35]       Denying an immigrant visa to foreigners who are likely to cause an excessive demand on Canada's strained health care system is rationally connected to the objective. The legislation minimally impairs the right because those who are likely to create an excessive demand are denied admission based on relevant and objective factors. The exclusion is limited to those who are most likely to create an excessive demand. Finally, the effect is proportional to the objective because of the availability of humanitarian and compassionate factors which are specific to the particular individual.

f.           World reach of subsection 15(1) and the Charter

[36]       In the applicant's supplementary memorandum of argument, it is written:

... in ...Law, the Supreme Court of Canada summarizes its previous jurisprudence on equality this way:

"a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

(Law v. Canada (Minister of Human Resources Development) [1999[ 1 S.C.R. 497, par. 39                              (Iacobucci, J. for the Court).

(This judge's added emphasis)

[37]       The applicant submits that in this case, "the impugned law draw [sic] a formal distinction between him [sic] and others on the basis of a personal characteristic, his [sic] disability, that is to say, his [sic] restrictions of movement, his [sic] inability to walk except with a stick and his [sic] difficulty with several activities of daily living." And so the applicant's supplementary memorandum goes : the applicant, or more likely her counsel, keeps confusing the gender and identity of the applicant, Charanjit Kaur Deol, with those of her father, Ranjit Singh (a.k.a. Jagat Singh) whom she is attempting to sponsor, along with her mother and three siblings as family class immigrants. The applicant is a woman; and her father is a man : the above cited portions of the applicant's supplementary memorandum of argument (doc.10) frequently, if not persistently express the wrong personal pronoun for the applicant and her father. References to the applicant require a feminine personal pronoun. References to Ranjit Singh whom she would sponsor, require the masculine personal pronoun.

[38]       In the above quoted passage from the Supreme Court's decision in Law v. Canada (Minister of Human Resources Development) [1999] 1 S.C.R. 497, this judge has emphasized Mr. Justice Iacobucci's words: within Canadian society, because it describes the territorial extent of the Charter's application, always remembering that Ranjit Singh, the applicant's father, is not the applicant.

[39]       Canada is not an imperialistic nation, as have been, and are, some States within living memory (ie. "Deutschland Ueber Alles...", "Alle Erdreich ist Oesterreichs Untertan...", "Heart of Oak Are Our Ships...", and the U.S. Marine Corps' "Halls of Montezuma..." etc. etc. to cite some imperialistic slogans and anthems). Canada's deepest manifestation of martial sentiment extends only to some repetitive standing "on guard for thee". Canada does not purport to subject other nations and other peoples to the laws of Canada. The Canadian Charter of Rights and Freedoms, by its section 52, subjects all the provincial and federal laws in Canada to itself, but it does not dare to subject other States' laws or people to itself.

[40]       In Tolofson v. Jensen [1994] 3 S.C.R. 1022, Mr. Justice Laforest writing, in effect, for the Court, is recorded on pp. 1050-51, thus:

... Ordinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. The government of that place is the only one with power to deal with these activities. The same expectation is ordinarily shared by other states and by people outside the place where an activity occurs. If other states routinely applied their laws to activities taking place elsewhere, confusion would be the result. In our modern world of easy travel and with the emergence of a global economic order, chaotic situations would often result if the principle of territorial jurisdiction were not, at least generally, respected. Stability of transactions and well grounded legal expectations must be respected. Many activities within one state necessarily have impact in another, but a multiplicity of competing exercises of state power in respect of such activities must be avoided.

(emphasis not in original text)

[41]       Persons residing abroad, who are not citizens of Canada have no standing to invoke the Charter: [1985] 1 S.C.R. 177=">Madam Justice Wilson in Singh et al v. M.E.I., [1985] 1 S.C.R. 177 at pp. 201-02; as to lack of standing - Canadian Council of Churches v. Canada, [1990] 2 F.C. 534, (F.C.A.) at p. 563, where the Canadian Bill of Rights was also invoked in an immigration matter. Also illustrative of this proposition is Ruparel v. M.E.I. and Secretary of State, [1990] 3 F.C. 615 (F.C.T.D.). In R. v. Terry, [1996] 2 S.C.R. 207, the Court considered whether evidence obtained by U.S. police was admissible at trial in Canada, despite the U.S.police's not following Charter procedural requisites.

[42]       Madam Justice McLachlin (now Chief Justice of Canada) in writing for the Supreme Court, confirmed the territoriality principle for Charter application. She wrote:

This Court has repeatedly affirmed the territorial limitations imposed on Canadian law by the principles of state sovereignty and international comity.

This Court is, therefore, unable to offer the applicant's father the protection and comfort of the Charter, because he is a non-citizen residing in India. In matters of immigration, Canada is entitled to pick and choose and may assuredly reject people with serious health disabilities. Canada is simply not the world's great milch-cow when it is sought to confer Canada's own human rights and freedoms on the world's other peoples. This proposition may seem deplorable to some folk, but there are, inter alia, sound reasons for it described in the cited jurisprudence, not the least of which is Tolofson v. Jensen at pp. 1050-51, supra.

[43]       The applicant asserts that her own rights under the Charter section 15 are infringed. But she is not the one suffering from a physical disability; and she has been permitted to immigrate into Canada. She is in exactly the same plight as any son or daughter attempting to sponsor a parent whose immigration is blocked by the application of clause 19(1)(a)(ii) of the Immigration Act. The Charter, therefore, can apply to the applicant, in Canada, but it does not apply in the circumstances of this litigation. The Court must dismiss this attempt by the applicant to invoke the Charter for herself. Without doubt, the applicant, resident in Canada as she is, enjoys the equal protection and equal benefit of the law as proclaimed in section 15 of the Charter as stated above. She is not suffering discrimination inflicted by either the law enacted by Parliament, or by the government which enforces it.

g.         Discretionary Decision based on Humanitarian Grounds

[44]       The applicant submits that the Appeal Division erred by considering an irrelevant consideration, namely that the applicant can visit her family in India. The respondent submits however that this is not an irrelevant consideration.

[45]       The Appeal Division exercised its discretion by balancing the extent of the father's inadmissibility against the humanitarian consideration of family reunification in Canada. It was reasonable for the Appeal Division to consider that the applicant has maintained contact with her family in India. Although this does not result in the family being reunited in Canada, it demonstrates that this objective is less pressing than in other cases.

6. Remedies

[46]       The applicant requests that the decision of the Appeal Division of the Immigration and Refugee Board be quashed. The applicant asks that the word disability in subsection 19(1)(a) be held to be of no force and or effect under section 52 of the Charter.

[47]       The respondent requests that this application be dismissed, and to this petition the Court will respond affirmatively. The applicant's application is dismissed with costs.

[48]       Having considered the questions which the applicant's counsel tendered for certification, and the comments which the respondent's counsel formulated in regard thereto; and concluding that the Supreme Court in Baker purported to assume legislative power in regard to further questions, according itself the authority to consider any other question, this Court declines to go beyond the questions tendered by the applicant. They, slightly amended, are these, which are hereby certified:

Questions proposed for certification by the applicant

1.          Is the portion of section 19(1)(a)(ii) of the Immigration Act which provides for inadmissibility on the ground of disability of no force or effect under section 52 of the Charter and should it be severed from the Immigration Act?

2.          Is "more than normal" a legally acceptable measure of excessive demand under section 19(1)(a)(ii) of the Immigration Act? If so, what are the permissible criteria for the determination of normalcy?

3.          Is an election to have or not have elective surgery relevant in determining whether or not a medical opinion under section 19(1)(a)(ii) of the Immigration Act is reasonable?

4.          Is the duty of fairness breached to a Manitoba sponsor of an immigrant and a Manitoba destined immigrant, when the Manitoba bonding program (if pertinent and applicable), is not disclosed to the sponsor and the applicant in the letter advising the applicant of a negative medical assessment and inviting the applicant to submit further information not already on the file?

5.          Is the ability to pay relevant or irrelevant to the question of excessive demand under section 19(1)(a)(ii) of the Immigration Act when there is a Manitoba sponsor of an immigrant and a Manitoba destined immigrant, in light of the Manitoba bonding program if there be such a program which is both accessible and applicable in these circumstances.

Ottawa, Ontario

June 22, 2001                                                                                                                          

                                                                                                                                       Judge