Date: 20091013
Docket: IMM-1290-09
Citation: 2009 FC 1026
Ottawa, Ontario, October 13,
2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
RAMESH
ARORA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
Mr.
Arora Ramesh seeks judicial review of a decision of the Immigration and Refugee
Board, Immigration Appeal Division (IAD), dated February 16, 2009, in which
decision the IAD concluded that Mr. Ramesh’s mother was medically inadmissible
to Canada and that there were
insufficient humanitarian and compassionate (H&C) factors which would
warrant special relief.
[2]
The
beginning of this judicial review was an application by Mr. Ramesh, a resident
of Canada, to sponsor his parents
to come to Canada from India. Mr. Madan Lal
Kharbanda, as required, filed an “Application for Permanent Residence in Canada”, naming his wife, Mrs.
Kamla Rani Kharbanda (Mr. Ramesh’s mother), as a “family member”.
[3]
As
part of the application process, Ms. Kharbanda was examined by a neurologist.
The neurologist diagnosed her with Parkinson’s disease. A medical officer (on
behalf of the Respondent) concluded that Ms. Kharbanda’s health condition might
reasonably be expected to cause excessive demand on health services. Mr.
Kharbanda was advised of this opinion and was given an opportunity to submit
further evidence. In response, the family questioned the diagnosis of
Parkinson’s disease and asked that H&C factors be taken into consideration.
In a decision dated April 30, 2007, a visa officer advised Mr. Kharbanda that,
taking into account the submissions of Mr. Kharbanda, the medical officer’s
opinion was upheld and the application for permanent residence refused.
[4]
Mr.
Ramesh appealed this decision to the IAD. Submissions related to the medical
diagnosis and the H&C factors were made and an oral hearing was held. As
noted above, the IAD dismissed the appeal.
II. Issues
[5]
This
application raises three issues:
1.
Did
the IAD err by ignoring evidence that Ms. Kharbanda did not have Parkinson’s
disease?
2.
In
assessing the H&C factors, did the Board fail to weigh the evidence of the
Applicant’s cultural obligations to his parents?
3.
Did
the IAD err by failing to consider the evidence that it was not likely that Ms. Kharbanda
would cause excessive demands on Canada’s health and social services?
III. Statutory Scheme
[6]
Mr.
Ramesh, as a permanent resident of Canada, is permitted to sponsor his “family members”
(as defined in s. 2(3) of the Immigration and Refugee Protection Regulations
S.O.R./2002-227 (the IRP Regulations)) to come to Canada. However, each person
included in the sponsorship application must meet the admissibility
requirements of the Immigration and Refugee Protection Act, S.C. 2001,
c.27 (IRPA). Ms. Kharbanda was held inadmissible to Canada
pursuant to s. 38(1)(c) of IRPA, which provides that “A foreign national
is inadmissible on health grounds if their health condition . . . might
reasonably be expected to cause excessive demand on health or social services”.
Certain of the terms used in s. 38(1)(c) are defined in s. 1 of the IRP
Regulations. I have included those definitions of “excessive demand”,
“health services” and “social services” in Appendix A to these Reasons.
[7]
Mr.
Ramesh was entitled to appeal the visa officer’s decision to the IAD pursuant
to s. 63(1) of IRPA. The IAD’s mandate extends beyond that of the visa
officer. In the context of this application for judicial review, s. 67(1) of IRPA
permits the IAD to allow an appeal if it is satisfied that the decision
appealed is “wrong in law or fact or mixed law and fact” (s. 67(1)(a)) or that
sufficient H&C considerations “warrant special relief in light of all the
circumstances of the case” (s. 67(1)(c)). Mr. Ramesh made submissions on both
the correctness of the decision and on H&C grounds.
IV. Analysis
[8]
In
my view, the IAD acted reasonably in finding that there was no error in the
diagnosis of Parkinson’s disease. It was reasonably open to the IAD to prefer the
evidence of the Respondent’s neurologist over the evidence of Ms. Kharbanda’s
family doctor and neurologist. The Applicant’s doctors opined that Ms.
Kharbanda had something referred to as “benign essential tremor”. I acknowledge
that there was documentary evidence before the IAD showing that “essential
tremor” is a medical condition that may be less serious than Parkinson’s
disease. However, in spite of being provided with the opportunity to directly
refute the diagnosis of the Respondent’s neurologist, Ms. Kharbanda’s doctors
did not do so. In the absence of direct medical evidence (from, for example,
another neurologist) that stated unequivocally that Ms. Kharbanda did not have
Parkinson’s disease, the Board did not err by preferring the clear and reliable
evidence of the Respondent’s neurologist.
[9]
I am
also not persuaded that the Board erred in its assessment of the H&C
factors. The Board considered the submissions of the Applicant about his
cultural obligations to his parents. After weighing all of the evidence before
it, the IAD concluded that “there are insufficient humanitarian or
compassionate factors which would warrant special relief”. Given the deference
that is owed to the IAD’s decision (see, for example, Khosa v. Canada,
2009 SCC 12, 304 D.L.R. (4th) 1 at para. 58; Vashishat v. Canada, 2008
FC 1346, 337 F.T.R. 283 at para. 18), I see no reason to intervene on that
issue.
[10]
However,
there is one area of the IAD’s analysis that causes me to allow this
application. That is the question of whether the IAD considered the evidence
related to the costs that would be incurred by the Canadian public health
system.
[11]
In
his decision, having concluded that Ms. Kharbanda suffered from Parkinson’s
disease, the medical officer opined as follows:
The
natural course of this medical condition is such that it is reasonable to
expect a progressive deterioration requiring ongoing specialist management. As
her disease progresses, she will require increasing assistance with her
activities of daily living including feeding, personal hygiene, dressing,
transfers to and from the bed, and locomotion. She will require home care and
home nursing support and, as she further deteriorates, she will likely require
institutional care in a nursing home.
[12]
Based
on this description, the medical officer concluded that her health condition
"might reasonably be expected to cause excessive demand on health
services". The IAD appears to have relied on this statement to conclude
that Ms. Kharbanda would cause excessive demands on the public health care
system. This, in my view, is not what was stated by the officer. Rather, as
described, the majority of the services that may be required by Ms. Kharbanda
appear to be social services rather than health services. Ongoing home care and
– ultimately – nursing home care may both be accessed privately. In short, the
medical officer’s opinion is that Ms. Kharbanda will require the type of
support that likely can be provided through private means. The Applicant
directly addressed this issue by providing a letter from a person who has
offered to provide such "personal support". The IAD appears to have
ignored this letter and made general statements about the costs of care for a
person with Parkinson’s disease. No assessment was made of the individual situation
faced by Ms. Kharbanda and her family.
[13]
In
the case of Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2
S.C.R. 706 at para. 54, the Supreme Court concluded that the medical officer
must assess likely demands on social services and not mere eligibility for
them. As in Hilewitz, the family’s ability and willingness to “to
attenuate the burden on the public purse . . . are relevant factors” (Hilewitz,
above at para. 61). In the case before me, no such analysis was done. Even
though Ms. Kharbanda may need home care that could be provided as part of Canada’s funded social
services, it may be that the family is not likely to access such services. The
ability and willingness of Mr. Ramesh to pay a portion of the costs of social
services are relevant considerations, which, in this case, were not considered
by the IAD.
[14]
The
Respondent submits that the case before me is distinguishable from that in Hilewitz,
where the parents of a developmentally disabled child had made extensive
arrangements for care of their child. I do not see such a distinction. The
level and types of care necessary for the child in Hilewitz are complex
and multi-faceted. The care for Ms. Kharbanda, on the other hand, appears to be
comprised of home care for the foreseeable future. Mr. Ramesh provided
evidence, in the form of a letter from a service-provider, that he would
provide such services out of his own pocket.
[15]
I am
not saying that the IAD should have concluded that Ms. Kharbanda would not
impose excessive demands on Canada’s health and social services. It may be that a large
component of her care is medical or that Mr. Ramesh cannot afford to pay for
the necessary home care. On the record before me, I am simply unable to see any
recognition or analysis of the type of care that the medical officer stated
that she needed and the ability of Mr. Ramesh to “attenuate the burden on the
public purse”. As the Supreme Court held in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, in
a judicial review, the court not only examines the reasonableness of the
outcome. The court is also concerned “with the existence of justification,
transparency and intelligibility in the decision‑making process” (above,
at para. 47). In this case, the decision does not meet this standard.
V. Conclusion
[16]
I
will allow this application for judicial review. In these Reasons, I found
reasonable the medical officer’s opinion that Ms. Kharbanda suffers from
Parkinson’s disease. However, in the re‑determination that will now take
place, I expect that the Applicant will also have an opportunity to present new
medical evidence on the reasonableness of the diagnosis of Parkinson’s disease.
[17]
During
the oral hearing, I neglected to ask counsel whether there was a question of
general importance for certification. Accordingly, parties will have seven
calendar days from the date of these Reasons for Judgment and Judgment to
advise the Court of any proposed question for certification, and seven days
thereafter to respond to any question proposed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The application for judicial review is allowed, the decision of
the IAD is quashed and the matter sent back for re-determination by a different
panel of the IAD; and
2.
Parties will have seven days from the date of these Reasons for Judgment
and Judgment to propose a question of general importance for certification, and
seven days thereafter to respond to any question proposed.
“Judith
A. Snider”
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