Date:
20120828
Docket:
IMM-480-12
Citation:
2012 FC 1020
Ottawa, Ontario,
August 28, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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MOHAMMAD ANWARUL KABIR
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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
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Immigration Appeal
Division (IAD) of the Immigration and Refugee Board, dated November 25, 2011. The
IAD denied the appeal by the Applicant and sponsor, Mohammad Anwarul Kabir, of
the refusal to issue a visa to his mother, Shamsunnahar Azim, since she suffers
from chronic renal failure and is inadmissible to Canada on health grounds as
being reasonably expected to cause excessive demands on health or social
services under subsection 38(1)(c) of the Immigration and Refugee Protection
Act, SC 2001, c 27 (IRPA).
I. Background
[2]
The
Applicant arrived in Canada in 2000 and is now a citizen. He applied to bring
his mother to the country in 2004, but a related medical examination revealed a
diagnosis of “Renal Failure – Chronic”. Mrs. Azim was given an opportunity to
provide additional medical evidence and did so – this evidence indicated that
her condition was presently stable.
[3]
Following
a review of this evidence, the medical officer and consequently the visa
officer maintained that the Mrs. Azim had a health condition that might
reasonably be expected to cause excessive demand on health services and refused
her permanent residence visa application. The medical assessment relied on by
the visa officer, for example, stated:
Mrs. Azim requires ongoing assessment and management
by specialists in the field of renal disease as well of hypertension. Further
deterioration of her already impaired renal function will require access to
specialized hospital facilities and services for diagnosis and treatment
including pre-dialysis clinics and ultimately renal replacement therapy
including dialysis and renal transplantation. These services are expensive and
renal transplantation is in high demand with wait lists across Canada.
[4]
Thereafter,
the Applicant appealed the visa officer’s decision. His appeal was, however,
dismissed by the IAD. He now seeks the intervention of this Court by way of an
application for judicial review.
II. Decision
under Review
[5]
The
IAD found the visa officer’s decision valid in law. It was persuaded that the
medical officer took into account all documents submitted and it was reasonable
for the visa officer to rely on the related medical assessment. Although the
Applicant was willing to pay for treatment, if Mrs. Azim was allowed to
immigrate to Canada that treatment would be available to her more or less
without cost.
[6]
Turning
to humanitarian and compassionate (H&C) factors, the IAD acknowledged that
while the stability of Mrs. Azim’s current condition weighed in her favour, it
was “diminished by the fact that the refusal in this case was not based on her
current situation but rather on the expected deterioration in the next five to
ten years of her kidney function given her age, hypertension and
microproteinuria.”
[7]
The
IAD specifically addressed the Applicant’s establishment in Canada and ability to care for his mother, his sister’s return to Bangladesh to assist in July 2011,
his yearly visits, and their close knit family. At the same time, the
Applicant and his siblings “made informed decisions regarding their lives
without taking into consideration the possible consequences flowing from
leaving” their mother in Bangladesh.
[8]
Regarding
the hardships of the visa refusal, the IAD stated:
When I consider hardships, I look at inter alia
the appellant’s ability to visit; the applicant’s family in Bangladesh and her current overall situation. I am persuaded that the applicant is well
looked after. Based on the appellant’s testimony, the applicant has regular
follow ups and medical care in Bangladesh; she is financially stable; she has
two brothers and a sister who all live in Bangladesh with whom she has contact;
her children have been visiting her on a regular basis and her youngest son is
still living in Bangladesh; even though he has applied for immigration, nothing
has been finalized to date.
[9]
In
addition, the IAD did not consider the sojourn of the Applicant’s sister in Bangladesh to care for their mother an undue hardship. The best interests of the
Applicants’ children to have Mrs. Azim in Canada full time weighed only
minimally in favour of the Applicant. While Mrs. Azim would benefit from
being in Canada with her son and possibly other children, there was no reason
why she could not apply to visit Canada in the near future.
[10]
The
IAD ultimately concluded:
While I am certain that my decision to dismiss the
appeal will be a disappointment to the appellant, considering he is able to
remain in close contact with the applicant and visit them fairly often, I am
not of the view that by not allowing the applicant to come to Canada, he will
suffer any undue hardships.
III. Issues
[11]
This
application raises the following issues:
(a) Did the IAD err by
concluding that the visa officer’s refusal was valid in law?
(b) Did the IAD err in
finding that there were insufficient H&C factors to warrant relief?
IV. Standard
of Review
[12]
Assessments
by the IAD in this regard deserve the deference afforded by the reasonableness standard
(Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at paras 56-58).
[13]
Reasonableness
is concerned with the existence of justification, transparency and intelligibility
as well as whether the decision falls within a range of possible, acceptable
outcomes defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
A. Validity
of Refusal
[14]
The
Applicant insists that the IAD did not take into account the totality of the
evidence before upholding the visa officer’s conclusion that his mother would
reasonably be expected to cause excessive demand on health services contrary to
subsection 38(1)(c) of the IRPA. He points to some additional medical evidence
presented that her condition has been stable for the last 10-12 years; she is
on conservative management through diet control rather than medication; and
does not require renal replacement therapy at the moment.
[15]
I
am not persuaded, however, that evidence was ignored by the medical officer in
preparing a report and the visa officer’s subsequent determination of
inadmissibility on health grounds. Based on the totality of this evidence, it
was reasonable for the IAD to find that the conclusion in this regard is valid
in law.
[16]
As
the Respondent stresses, although Mrs. Azim’s current condition is seen as
stable, the issue for the IAD was that the medical officer recognized a loss of
kidney function due to aging, as well as hypertension and microproteinuria, may
not be reached for another five to ten years. This would support the
conclusion that she would reasonably be expected to cause excess demand on
health services in the future.
[17]
Similarly,
the Applicant’s suggestion that he would undertake to pay for health services
for the next the five to ten years would not be enforceable according to prior
jurisprudence by this Court (Jafarian v Canada (Minister of Citizenship and
Immigration), 2010 FC 40, [2010] FCJ no 332 at para 25).
[18]
As
a consequence, the Applicant has not demonstrated that the IAD somehow ignored
the relevant evidence, but merely that he disagrees with the ultimate weighing
and conclusion. This is not a valid basis for the Court’s intervention where
there is sufficient justification, transparency and intelligibility to support
the conclusion that it was legally valid to find the Applicant’s health
condition would lead to concerns based on subsection 38(1)(c) (Dunsmuir,
above).
B. H&C
Factors
[19]
The
Applicant contends that the IAD acknowledges all of the H&C factors but
then erroneously concludes, without regard to the totality of the evidence,
that these are insufficient to warrant relief. For example, he maintains that
his mother will be unable to get a visa for visits due to the medical
requirement. She is also financially dependent on him. He further suggests
the analysis is unreasonable because it is inconsistent with a stated objective
of IRPA to ensure the reunification of families.
[20]
On
my review of the IAD’s reasoning, I fail to see that evidence was ignored or
misinterpreted. The IAD directed its attention to relevant H&C factors as
discussed in Chirwa v Canada (Minister of Citizenship and Immigration),
[1970] IABD No 1. The weighing of the evidence by the IAD, as the Applicant
attempts to critique, is not the role of this Court on judicial review (Khosa,
above). As in this case, as long as the conclusion falls within the range of
possible, acceptable outcomes or, put another way, demonstrates sufficient
justification, transparency and intelligibility, it is not for me to interfere
in the overall determination (Dunsmuir, above).
[21]
The
IAD simply found, after balancing all of the H&C factors before it, that
although the situation of the Applicant’s family was a sympathetic one, there
were no undue hardships of not granting relief. The IAD referred to the
stability of her current condition and strong family ties. It nonetheless
balanced this against her expected deterioration and the possibility of visits
to Canada and the ability of family members to travel to Bangladesh to assist her.
[22]
The
IAD is entitled to balance H&C factors, and consider such important aspects
as the goal of family reunification, against issues associated with excessive
demands on the health care system (see for example Aleksic v Canada
(Minister of Citizenship and Immigration), 2010 FC 1285, [2010] FCJ no 1594
at paras 33-34). Although the Applicant may have expected that his family
history and current circumstances would warrant a different conclusion, that
alone is not sufficient to succeed on his application where the IAD balanced
the relevant factors and justified its conclusion that these factors did not
demonstrate the required level of hardship.
VI. Conclusion
[23]
Since
I consider the IAD’s conclusions reasonable and reflective of the evidence
presented in the circumstances, the application for judicial review is
dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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