Date: 20040226
Docket: IMM-2104-03
Citation: 2004 FC 268
Between:
KULDEEP KAUR
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") dated March 3, 2003 in which the IAD dismissed an appeal brought under paragraph 77(3)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[2] Kuldeep Kaur (the "applicant") is a permanent resident in Canada while her parents live in India. In February 2000 the applicant applied to sponsor her parents' permanent resident visa application to Canada.
[3] On June 5, 2002 an Officer at the Canadian High Commission in New Delhi, India refused the application for permanent residence of Surjit Singh Gill (the "father") and Harbans Kaur Gill because the father was found to come within the inadmissible class of persons described in subparagraph 19(1)(a)(ii) of the Act. Specifically, the father was found to suffer from severe osteoarthrosis of both knees. A medical officer concluded that this medical condition may reasonably cause excessive demands on Canadian health services.
[4] The applicant appealed this decision to the IAD pursuant to paragraph 77(3)(b) of the Act. In this appeal, the applicant conceded that her father is medically inadmissible and she argued instead that there were humanitarian and compassionate ("H & C") considerations warranting the setting aside of the visa officer's refusal.
[5] The applicant has travelled to India on numerous occasions to be with her parents. The applicant also has a brother living in a basement suite in her house who suffers from depression and is unable to work.
[6] On March 3, 2003 the IAD refused the appeal because it found that there were insufficient H & C considerations to warrant the granting of special relief in this case. The IAD provides the following reasons for its decision:
- the evidence demonstrates that the father's medical condition has not been stable over the past two years even though he is coping well overall;
- there is no dispute that the father will require knee replacement surgery eventually and the evidence suggests that the surgery will be required in the very near future;
- although the applicant and her brother have testified that they are willing to pay for the father's knee replacement surgery in India, this surgery has not been undertaken. The IAD found that there is no bar to the father undergoing the surgery in India in the near future;
- the applicant's brother is not credible and he has not established that his depression is caused by the separation from his parents;
- there is no urgency in having the applicant's parents come to Canada. The applicant and her husband are managing well in taking care of their children and there is evidence that the applicant's parents are receiving a pension in India;
- both the applicant and her brother will be able to travel to India regularly to be with their parents.
[7] Since this is an appeal of a decision of the IAD on H & C grounds, the standard of review in this case should be reasonableness simpliciter (see Baker v. Canada (M.C.I.), [1992] 2 S.C.R. 817 at 857).
[8] According to the applicant, the IAD failed to appreciate the urgent nature of reunification in this case. The applicant argues that reunification is urgent because her parents are unable to take care of themselves financially in India. Furthermore, the applicant alleges that the IAD failed to recognize that her parents would help care for her children. A review of the IAD's decision reveals that both the parents' financial situation and the help they could provide the applicant at home were taken into consideration. According to the IAD however, "there was no evidence of any urgency in having the applicants in Canada other than the desire to reunite here at the earliest". Having taken the H & C factors into consideration, it is the IAD's decision as to how to weigh those factors. In my opinion, considering the evidence which was before it, the IAD did not err in its analysis of the alleged urgent nature of reunification in this case.
[9] The applicant submits that the IAD erred in concluding that the father requires knee replacement surgery at present because he is currently able to walk, climb stairs, and function well. The applicant also submits that the IAD failed to consider that she and her brother both testified that they will pay for their father's knee surgery in India and the only reason this has not been performed is that Dr. Sandhu recommended that surgery of the knees was not required at that time. The IAD found that since the evidence suggests that the surgery will be required in the near future and that nothing prohibits the father from undergoing surgery, the father can reasonably wait and have the surgery in India before joining his children in Canada. Once admitted to Canada as a permanent resident, the father would be entitled to undergo the surgery and the applicant is not in a position to guarantee that when the surgery becomes necessary, the father will return to India. In Canada, such services are available to all as of right and this right cannot be waived by the applicant (Deol v. Canada (M.C.I.), [2003] 1 F.C. 301 (C.A.)). In my view, the IAD's analysis of this point is reasonable.
[10] Finally, the applicant argues that the IAD erred in assuming that her brother was suffering from depression because of the breakdown of his marriage rather than as a result of his separation from his parents. The applicant underlines that her brother testified to the fact that his depression is worsened by the separation from his parents. In its decision the IAD notes that it found the brother not credible and that he had not established that his depression was caused by his separation from his parents. I am not convinced that the IAD's inference is an unreasonable one. The IAD clearly and comprehensibly explained its reasons for doubting the applicant's brother's testimony and noted the absence of any corroborating evidence to establish that the applicant's brother's depression is worsened by his separation from his parents. Consequently, I find that the IAD did not err in its weighing of the applicant's brother's testimony.
[11] For the reasons outlined above, I am of the opinion that the IAD committed no reviewable error in its disposition of this case. The application for judicial review is therefore dismissed.
JUDGE
OTTAWA, ONTARIO
February 26, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2104-03
STYLE OF CAUSE: KULDEEP KAUR v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 22, 2004
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: February 26, 2004
APPEARANCES:
Kuldeep Kaur ON HER OWN BEHALF
Banafsheh Sokhansanj FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kuldeep Kaur ON HER OWN BEHALF
Abbotsford, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario