Date: 20050615
Docket: IMM-8123-04
Citation: 2005 FC 869
Vancouver, British Columbia, Wednesday, the 15th day of June, 2005
Present: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
RESHAM SINGH DHALIWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] At the conclusion of the hearing of this application, I gave oral reasons explaining why it would be dismissed which I am committing to writing with references to the evidence and authorities cited.
[2] Mr. Dhaliwal is a citizen of India and permanent resident in Canada since December 1999. He is married with one child. On March 2, 2001 he applied to sponsor his parents and siblings. In March 2002, a medical officer examined the family's medical tests and determined that the father suffered from chronic renal failure and cardiomyopathy and was therefore inadmissible under paragraph 38(1)(c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The mother and siblings are healthy but were also denied admission. Further medical information was provided in response but the finding was maintained by a medical officer in September 2002, and the sponsorship application was denied by a visa officer.
[3] The applicant did not contest the legal validity of the visa officer's decision but in his appeal to the Immigration Division of the Immigration and Refugee Board (the "Board") asked that the Board exercise its discretion to take into account humanitarian and compassionate ("H & C") considerations under IRPA paragraph 67(1)(c). The appeal was dismissed on September 7, 2004. This is his application for judicial review of that decision.
[4] The Board found that the father's condition is degenerative and treatment in Canada would be very expensive. The Board also expressed concerns about the applicant's credibility citing doubts about his testimony relating to the family's situation in India, including discrepancies about the family's assets and income, and the lack of any apparent attempt to seek treatment there for the father. The Board found that the family does not face economic hardship in India. Further, there was no established relationship between the applicant's infant child and the grandparents that would be adversely affected by their separation and no evidence about the best interests of the applicant's minor-aged brother had been advanced that would call into question his best interests.
[5] The applicant's principal submission was that the Board erred in conducting a weighing exercise of the H & C considerations against countervailing factors: Kirpal v. Canada [1997] 1 F.C. 352.
[6] The H & C grounds listed as relevant are: the degree of family support; the claim that much of the family's income in India was sent to them by the applicant; the offer of family members in Canada to donate a kidney to the father if required; the value of having the applicant's infant son cared for by his grandparents as well as the best interests of the minor-aged brother.
[7] The applicant further submitted that the Board failed to consider the family reunification principle set out in IRPA paragraph 3(d) and erred in not hearing testimony from the other family members who attended the appeal hearing.
[8] I am satisfied that the appropriate standard of review to be applied to the Board's exercise of discretion in an appeal of a determination on health grounds is reasonableness simpliciter: Kaur v. Canada (Minister of Citizenship and Immigration) 2004 FC 268; Aryan v. Canada (Minister of Citizenship and Immigration) 2004 FC 254.
[9] With respect to whether the Board erred in balancing the H & C factors against other considerations, I note that Kirpal, supra was decided under paragraph 77(3)(b) of the former Immigration Act. In that decision, at paragraph 22, Justice Gibson explicitly concluded that the Minister could not consider extrinsic factors on the basis that the phrase "having regard to all the circumstances" was not contained in the enactment. Those words were subsequently added by Parliament to the former statute and are contained in IRPA paragraph 67(1)(c) governing appeals. I am satisfied that it was open to the Board to consider other matters, in weighing the H & C factors. Accordingly, the Board did not err in this respect.
[10] I am satisfied that the Board's conclusions on the medical evidence were entirely reasonable. The family's offer to provide a kidney transplant if and when it was required was not a satisfactory answer to the concerns about the father's condition. There was no evidence that he would be capable of receiving a transplant nor whether any member of the family would be a suitable candidate to donate a kidney to him.
[11] It is clear from the transcript of the hearing before the Board that the decision not to call evidence from the other family members was made by the applicant's consultant, not the Board. This was apparently done because the family's support was not in question and the prospective witnesses could otherwise add nothing to the applicant's testimony. I find no procedural unfairness resulted.
[12] With respect to whether the other family members should have been considered separately, the application was made in respect of the family as a group. It is well settled that the inadmissibility of one member of a group renders the other accompanying members inadmissible: IRPA s. 42(b); Kirpal, supra; Wang v. Canada (Minister of Citizenship and Immigration), 2002 FCT 125. While it is correct that a stated objective of IRPA is to reunite families, family class applications succeed or fail on the admissibility of all of the members.
[13] Regarding the applicant's infant child and minor-age brother, I am satisfied that the Board did not err in considering their best interests. There was no evidence respecting the brother other than that he was in elementary school in India and only vague speculation offered in argument that he would be "better off" in Canada. Similarly, the applicant argued that to deprive the infant child of the care and attention of his grandparents would constitute a hardship. It was not open to me, sitting in review, to re-weigh the evidence and arrive at that conclusion.
[14] In conclusion, there were no grounds presented upon which I could determine that the Board's decision was in any respect unreasonable. No serious question of general importance was proposed and none will be certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
(Sgd.) "Richard Mosley"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8123-04
STYLE OF CAUSE: RESHAM SINGH DHALIWAL
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 15, 2005
REASONS FOR ORDER AND ORDER: MOSLEY J.
DATED: June 15, 2005
APPEARANCES:
Mr. Baldev S. Sandhu FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Sandhu Law Office FOR APPLICANT
Surrey, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada