Date: 20050510
Citation: 2005 FC 658
Toronto, Ontario, May 10th, 2005
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
ARUNTHATHY RAJENDRAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Rajendran came to Canada, from Sri Lanka, in 1991 and is now a Canadian citizen. She sponsored her parents' application for permanent residence, but her mother was determined to be medically inadmissible. Ms. Rajendran takes no issue with that finding. She appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board on the basis that there exist humanitarian and compassionate (H & C) reasons for allowing the application. The IAD dismissed her appeal and Ms. Rajendran seeks judicial review of its decision.
BACKGROUND
[2] In 1998, Ms. Rajendran's parents relocated from Sri Lanka to India to escape the political situation. They claim that they are still unable to return to their homeland. Ms. Rajendran's married sister and her sister's children live in Canada. One of her brothers lives in Norway and the other, who has a disability arising from the effects of polio and who is married with one child, lives in India. The immigration officer determined that Ms. Rajendran's mother was inadmissible because, due to her dementia, her admission might reasonably be expected to cause excessive demands on health or social services.
THE DECISION
[3] The IAD, after referring to and describing the mother's medical condition, thoroughly canvassed the grounds put forth by Ms. Rajendran. It cited the test from Chirwa v. Canada (Minister of Manpower and Immigration) (1970), 4 I.A.C. 338 (I.A.B.):
...those facts, established by the evidence, which would excite in a reasonable man in a civilized society a desire to relieve the misfortunes of another - so long as these misfortunes warrant the granting of special relief from the provisions of the [Immigration and Refugee Protection] Act.
[4] The IAD then weighed the various factors and determined that the H & C considerations were insufficient and, consequently, it dismissed the appeal.
ISSUES
[5] Ms. Rajendran claims that the IAD erred in three respects:
(a) it erred in failing to conclude that her proffered H & C considerations would "excite in a reasonable person in a civilized community a desire to relieve" her mother's misfortunes;
(b) it failed to provide adequate reasons for its finding that it did not accept Ms. Rajendran could not have visited her parents since leaving Sri Lanka in 1991;
(c) it fettered its discretion by improperly considering her mother's lack of "hardship" in India when it ought to have referred to "misfortunes" as required by Chirwa. Moreover, the IAD failed to consider family reunification in assessing "hardship" and it did not consider any H & C considerations regarding Ms. Rajendran's father.
ANALYSIS
[6] The parties agree that the applicable standard of review regarding an appeal based on H & C grounds is that of reasonableness regarding the decision as a whole and patent unreasonableness with respect to the factual findings of the IAD. I am content with this approach given the absence of a privative clause, the significant expertise of the IAD, the discretionary nature of the decision and the fact that the decision relates to the rights and interests of an individual: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[7] Despite the articulate submissions of Ms. Rajendran's counsel, I am not persuaded that the IAD ignored relevant evidence or that it considered irrelevant factors in coming to its decision. It was appropriate for the IAD to weigh all of the factors before it, including the lack of hardship faced by Ms. Rajendran's mother in India. It was not unreasonable, based on its consideration of Chirwa, supra, to speak of hardship or misfortune and to take into account the mother's ability to access medical care and attention in India. In short, "hardship" was not an irrelevant factor.
[8] Regarding Ms. Rajendran's inability to visit her parents, it was she who raised this as an H & C consideration and it was therefore appropriate for the IAD to assess the credibility of her statement. The IAD did have regard to Ms. Rajendran's circumstances when it found that there was insufficient evidence to support her claim that she had neither the vacation time nor the financial resources to be able to visit her parents since she left them in Sri Lanka in 1991.
[9] The IAD did not fail to consider family reunification. It explicitly recognized Ms. Rajendran's wish to be reunited with her parents, her feeling that she is duty-bound by her religion and culture to care for her elderly parents, and the location of Ms. Rajendran's siblings in various countries throughout the world. Insofar as her father is concerned, the transcript reveals that the focus of the evidence and submissions related to Ms. Rajendran's mother and the IAD responded in kind. It was aware that its decision would, of necessity, have implications for her father as well.
[10] The substance of the arguments constitutes an effort to have me assess the evidence and substitute my opinion for that of the IAD. That is not my function. The decision of the IAD was reasonably open to it and my intervention is not warranted. Counsel did not suggest a question for certification and none arises on these facts.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4920-04
STYLE OF CAUSE: ARUNTHATHY RAJENDRAN
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MAY 9, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: MAY 10, 2005
APPEARANCES BY:
Jackie Esmonde FOR THE APPLICANT
Mary Mattews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Roach Schwartz & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C
Deputy Attorney General of Canada
Toronto, Ont. FOR THE RESPONDENT