Saroya v. Canada (Minister of Citizenship and Immigration)
Between
Sarabjit Kaur Saroya, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Sarabjit Kaur Saroya, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 407
2015 FC 428
Docket: IMM-6349-14
Federal Court
Vancouver, British Columbia
Mosley J.
Heard: April 1, 2015.
Judgment: April 8, 2015.
Docket: IMM-6349-14
Federal Court
Vancouver, British Columbia
Mosley J.
Heard: April 1, 2015.
Judgment: April 8, 2015.
(30 paras.)
JUDGMENT AND REASONS
1 MOSLEY J.:-- Ms Saroya challenges a decision of
the Immigration Appeal Division [IAD] which rejected her appeal of a Visa
Officer's decision based on humanitarian and compassionate [H&C] grounds.
For the reasons that follow, this application for judicial review is dismissed.
I. Background
2 Ms Saroya is a citizen of India and permanent
resident of Canada. She immigrated to Canada under the sponsorship of her first
spouse in 2005. They had two daughters. Tragically, these children died in a
fire in 2010. Ms Saroya's marriage then broke down. She separated from her
ex-husband in 2011. She has suffered from depression since these horrible
events.
3 Ms Saroya entered into a common-law relationship
when visiting her parents in India. On July 9, 2013, she gave birth to a son in
Canada. She sponsored her common law spouse for permanent residence in Canada.
At the hearing, counsel for Ms Saroya informed the Court that tragedy has
struck again, as the common-law spouse has passed away.
4 Ms Saroya applied to sponsor her parents for
Canadian permanent residence. During their medical checks, both were diagnosed
as HIV positive. By decision dated February 21, 2013, a Visa Officer refused
the application on the ground that both sponsorees were inadmissible for
medical reasons.
5 Ms Saroya appealed to the IAD. She did not
challenge the validity of the refusal for medical reasons. Rather, she
requested relief on H&C grounds. The IAD held a hearing on July 8, 2014.
The panel received testimony from Ms Saroya and her mother, who was linked in
by telephone. Afterwards, counsel for the Minister gave her consent to allow
the appeal. At the panel's request, counsel for the applicant and the Minister
provided post-hearing submissions confirming a joint proposal that the appeal
be allowed.
6 Despite this joint proposal, the IAD dismissed
the appeal by decision dated August 6, 2014, and communicated to the applicant
the next day.
7 The IAD found that the applicant did not
establish her case on the balance of probabilities. It discussed various
relevant H&C factors.
8 The panel began with "improved medical
condition". The evidence showed that the parents are asymptomatic and
attend a clinic every month. The panel determined that this was a neutral
factor.
9 The panel moved on to "excessive demand on
Canadian health services". It agreed with the opinion of the medical
professional referenced in the Visa Officer's decision. The applicant did not
provide contradictory evidence. This was a negative factor.
10 The panel next considered the "availability
of health services abroad and in Canada". The parents receive free
anti-retroviral medications in India. They presented no evidence of hardship in
accessing medical services there. Therefore, allowing the appeal "would result
in a direct transfer of health care costs to be entirely borne by the Canadian
taxpayer". This was a significant negative factor.
11 Considering the "cost of treatment of the
medical condition", the panel endorsed the medical officer's opinion that
it will exceed the average Canadian per capita costs over five years. The
applicant did not provide contradictory evidence. This was a negative factor.
12 The IAD then looked at the "availability of
family support in Canada". The parents only have their daughter and infant
grandson in Canada. By contrast, they have eight siblings (and their respective
spouses) and 17 or 18 nephews and nieces in India. The IAD concluded that there
is far more support for the parents -- and for the applicant -- abroad as
opposed to Canada. Moreover, the applicant's precarious financial situation
cast doubt on her ability to support her parents in Canada. This was a negative
factor.
13 The panel moved on to "psychological
dependencies". Counsel for the Minister submitted that, as the sole child,
it was the applicant's cultural duty to care for her parents. The panel stated
that this cultural duty was not discussed by the applicant in her testimony,
evidence or written submissions. The panel also rejected the suggestion that
the parents are financially reliant on the applicant for their day-to-day
needs. However, the panel accepted that the applicant suffers from serious
depression. The panel expressed sympathy for the applicant and attributed
"slight positive weight" to this factor.
14 The panel concluded with analysis of the best
interests of the child [BIOC], stating that it was "alert, alive and
sensitive" to this factor. It rejected the suggestion that placing the
child in day care in Canada is a negative option. While it might be preferable
and cheaper to have the grandparents available to baby-sit, thus affording
"positive weight towards the best interest of [the] child", that
weight was not sufficient to override the other negative factors.
15 Upon receiving this decision, Ms Saroya applied
for judicial review.
II. Issue
16 The sole issue before the Court is whether the
IAD erred in finding that there were insufficient H&C grounds to allow the
appeal.
III. Standard
of Review
17 The decision under review involves the exercise
of discretion and the application of specialized legislation to particular
facts. The standard of review is reasonableness: Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paras 52-58.
IV. Analysis
18 The Court expresses its deepest sympathies to Ms
Saroya, whose life has taken several tragic turns during the last decade.
19 However, the Court can only intervene if the IAD
committed a reviewable error. The record does not disclose any such error in
this case. The decision rendered by the IAD falls within the range of outcomes
defensible with respect to the facts and the law.
20 As a matter of law, the IAD is entitled to
reject a joint submission if it provides reasons for doing so: Fong v Canada
(Public Safety and Emergency Preparedness), 2010 FC 1134 at para 31. The
fact that counsel for the Minister favoured granting the appeal at the
conclusion of the hearing had no binding force on the IAD.
21 The IAD provided adequate reasons here. Although
the applicant disputes its conclusions, the Court does not have the function of
re-weighing the evidence on judicial review. Since the IAD did not assess the
evidence unreasonably, the Court must defer to its exercise of discretion.
22 The Court agrees with the Minister that the IAD
did not misapprehend the parents' medical condition. It clearly stated that
their condition had not worsened and reasonably ascribed neutral weight to this
factor.
23 Counsel for the applicant disputed the medical
officer's opinion without offering any evidence in rebuttal. Again, the Court
agrees with the Minister that there is no reviewable error. The case law is
clear that a medical officer must render a personalized assessment of the
circumstances of each individual when medical inadmissibility concerns are
raised. If this requirement is met, then a Visa Officer may confirm the medical
officer's opinion without further review of the record: see e.g. Hilewitz v
Canada (Minister of Citizenship and Immigration), 2005 SCC 57; Canada
(Citizenship and Immigration) v Colaco, 2007 FCA 282; Mazhari v Canada
(Citizenship and Immigration), 2010 FC 467. It stands to reason that the
IAD can properly confirm the Visa Officer's approval of the medical assessment,
in the absence of contradictory evidence presented by either party.
24 The medical officer made a finding that the
parents would require "publicly funded and expensive" treatment and
medication in Canada. This finding was reasonably upheld by the Visa Officer
and the IAD. Indeed, the applicant appears to completely misunderstand the
decision under review when she suggests that the medication should be available
for free in Canada because it is free in India. If the parents could obtain the
medication for free in this country, the costs would in all probability be
borne by the public health care system, which is funded by the Canadian
taxpayer. There is no indication in the record before the Court that
pharmaceutical companies provide the medication as a gift to those who need it,
either in Canada or in India. That suggestion finds no support in the evidence
and cannot be used to undermine the medical officer's opinion.
25 The IAD reasonably evaluated the dependencies
between the applicant and her parents. While it questioned the significance of
the financial support provided by Ms Saroya to her parents, the IAD accepted
that she has a certain psychological dependency due to her depressive state.
That is why it attributed slight positive weight to the factor of dependencies.
Since this analysis went in her favour, the applicant cannot complain.
26 In fact, the applicant mischaracterizes the
matter by suggesting that the IAD's decision will sever her family ties and
thereby inflict unusual, underserved or disproportionate hardship upon her and
her parents. The IAD decision will simply maintain the status quo. Ms
Saroya and her infant son will retain the right to live in Canada. Her parents
will remain in India, where they have lived their entire lives. The applicant
may continue to visit her family in India, as she has done several times
recently. An authority cited by the applicant, Davis v Canada (Citizenship
and Immigration), 2011 FC 97, is wholly distinguishable. In that case, the
applicant lived in Canada with her father and the government intended to deport
her. That would have disrupted an existing relationship of cohabitation.
27 There remains the assessment of the BIOC. The
law is settled that a decision-maker conducting an H&C analysis must properly
identify and define this factor and then weigh it against the countervailing
factors: see e.g. Canada (Minister of Citizenship and Immigration) v Legault,
2002 FCA 125 at para 12 [Legault]. It is equally settled that this
factor is not determinative -- despite its importance -- since it will almost
always be the case that a child will benefit from continued presence in Canada
in the company of his or her parents or other family members: see Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para
75; Canada (Minister of Citizenship and Immigration) v Hawthorne, 2002
FCA 475 at paras 2 and 6; Kisana v Canada (Citizenship and Immigration),
2009 FCA 189 at para 24.
28 In this case, the Court is satisfied that the
IAD was alert, alive and sensitive to the BIOC. It ascribed positive weight to
this factor but reasonably concluded that it did not outweigh the other
negative factors.
29 As a whole, the IAD's consideration of the
various H&C factors survives review on the standard of reasonableness. On
judicial review, the Court cannot "re-examine the weight given to the
different factors" by the decision-maker: Legault, above, at para
11.
30 This application is dismissed without costs. The
parties did not propose any questions for certification and none are certified.
JUDGMENT
THIS COURT'S JUDGMENT is that the
application is dismissed without costs. No questions are certified.
MOSLEY J.
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