Date: 20080221
Docket: IMM-1687-07
Citation: 2008 FC 236
Toronto, Ontario, February 21,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
HOW
TIEM LEE
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Mr. lee is an adult male citizen of Bangladesh. He applied
for entry into Canada under a Permanent Resident Visa as an
entrepreneur but was refused for medical inadmissibility under the provisions
of subsection 38(1)(c) of the Immigration and Refugee Protection Act,
S.C. 2001, c-27 as amended (IRPA). He was found to suffer medical conditions
including kidney disease that may require dialysis in the next few years. The
refusal to grant a permanent resident visa was upheld by Justice Campbell of
this Court (2006 FC 1461). However, he determined that consideration should
have been given to a request for a temporary resident permit and remitted the
matter to be considered by another officer on that basis.
[2]
The
matter was further considered in respect of a request for a temporary resident
permit. By letter dated May 7, 2003 from the Minister’s official, the
Applicant was advised that this application was refused. In the notes
accompanying that letter the following Summary Conclusion appears:
In my opinion the evidence
does not support a finding that there are exceptional circumstances in this
case that justify a recommendation to issue TRP to this applicant per A24(1).
Whilst I believe Mr. Lee is a successful businessman, I do not believe that
there is sufficient evidence to show that any economic benefits provided by Mr.
Lee will outweigh the costs and strain that will likely be imposed on Canada’s health system by his
admission to Canada. A TRP is by definition a
document to be issued in exceptional circumstances. It has not been
established to my satisfaction that such circumstances exist in this case.
[3]
The
Applicant is seeking judicial review of that decision. For the reasons that
follow, I find that the Application is refused
[4]
Justice Shore of
this Court, a judge very experienced in matters dealing with the Immigration
and Refugee Protection Act, S.C. 2001, c-27 as amended (IRPA), gave careful
consideration to the issue of temporary resident permits (TRP) in his recent
discussion in Farhat v. Canada (MCI), 2006 FC 1275. He concluded in
that respect that:
·
in
addition to being exceptional, the issuance of TRP’s is highly discretionary
(para. 15);
·
a
highly discretionary decision of this type is to be reviewed on the standard of
patent unreasonableness (para. 17);
·
the
objective of the relevant out provisions of IRPA is to soften the sometimes
harsh consequences of the strict application of IRPA which surfaces in cases
where there may be compelling reasons to allow a foreign national to enter or
remain in Canada despite inadmissibility or non-compliance with IRPA, it allows
officers to respond to exceptional circumstances while meeting Canada’s social
commitments (para. 22);
·
before
a IRP is issued, consideration must be given to the fact that TRP’s grant their
bearer more privileges than do visitor, student or work permits. A TRP bearer
becomes a temporary resident after being examined upon entry to Canada, but may
also be eligible for health or social services and can apply for a work or
student permit from Canada. TRP’s thus should be recommended and issued
cautiously (paras. 23 and 24).
[5]
In
the circumstances of the present situation the Applicant Lee was refused a
permanent permit for health reasons. In considering a temporary permit the
Applicant’s circumstances, namely that he resided outside Canada and wished to
enter Canada in order to
set up an entrepreneurial enterprise was balanced against the potential burden
to Canada’s health
system. The permit was denied.
[6]
The
officer gave the Applicant a full and fair opportunity to submit his case. The
officer fairly considered the relevant circumstances. The decision made is not
patently unreasonable.
[7]
Applicant’s
Counsel argues that the effect of section 65.1(d)(ii) if IRPA is to impose a
requirement that a medical certificate be furnished before a temporary resident
could become a permanent resident, thus providing a basis for considering, at
that time, whether the Applicant continues to be medically unsuitable. Counsel
argues that the Applicant should be admitted to Canada under a TRP
then examined at a later time to determine if his condition becomes worse at
which time the Applicant’s health situation can be considered further.
[8]
The
Applicant’s argument in its effect would be to remove or postpone a visa
officer’s discretion as to issuing a TRP where medical issues are under
consideration and defer those issues to a later time. I do not find that such
a process is contemplated by these provisions of IRPA. The officer has and retains
a highly discretionary function as to issuing a TRP in the first place,
including consideration and weighing of medical issues. Those issues or newly
arising medical issues may come up again when considering a permanent permit
and they are not removed when considering the matter in the first instance. In
effect, they could be considered twice if necessary.
[9]
The
officer’s decision was in law, correct, and the findings of fact and exercise
of discretion was not patently unreasonable. There is no question for certification.
JUDGMENT
For the Reasons given:
THIS COURT ADJUDGES that:
1. The
application is dismissed.
2. There is no question
for certification.
3. There is no Order as
to costs.
“Roger
T. Hughes”
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