Saini v. Canada

Appearances:

M. Berger, for the appellant.
D. Taylor, for the respondent.

1. These are the reasons for the decision of the Immigration Appeal Division (IAD) respecting the appeal made pursuant to section 77 of the Immigration Act (the Act), by Mr. Sukhdeep Singh Saini (the appellant) from the refusal of the sponsored application for permanent residence of his father, Mr. Jaswant Singh; his mother, Mrs. Balwinder Kaur; and his sister, Ms. Jiwan Jot, (the applicants), all citizens of India.
2. The appeal was heard on April 1, 1997, with Mr. Max Berger, Barrister and Solicitor, representing the appellant and Mr. Derek Taylor, Appeals Officer, representing the respondent Minister of Citizenship and Immigration [See Note 1 below]. In addition to the record, the appellant and his wife, Mrs. Simran Kaur Saini, provided oral testimony.

Note 1: A March 12, 1997 sitting was postponed by this panel, without the case having been commenced, as there was no interpreter available, the appellant having indicated on his Notice of Appeal that the services of an interpreter are not required. It became evident to the panel, however, that the appellant was not proficient in the English language.

3. The refusal of the application for permanent residence was communicated to the applicants by letter dated October 12, 1994. The visa officer refused the applications on the ground that the appellant’s mother is inadmissible pursuant to subparagraph 19(1)(d)(ii) of the Act, in that she is suffering from rheumatoid arthritis, in consequence of which her admission to Canada would cause or might reasonably be expected to cause excessive demands on health or social services. In this respect, the Medical Notification, which is also referred to in the refusal letter, states:

DIAGNOSIS :Rheumatoid Arthritis

REMARKS: This 54 year old female applicant has active, early erosive Rheumatoid Arthritis. Her condition is expected to continue. Treatement [sic] is only partially effective and eventual deterioration is likely to occur. She requires or probably will require extensive medical care and is likely to require re-current hospitalizations. Consequently, she has a condition which would cause excessive demand on health services. She is hence inadmissible as Section 19(1)(a)(ii) applies [See Note 2 below].

Note 2: Record, p. 22: Medical Notification, 04/07/94.

4. The appellant does not challenge the validity of the medical refusal insofar as the medical condition of the appellant’s mother is concerned, or that her admission to Canada would cause or might reasonably be expected to cause excessive demands on health or social services.
5. Instead, the appellant submits, pursuant to paragraph 77(3)(b) of the Act, that there exist compassionate or humanitarian considerations that warrant the granting of special relief from the refusal of the sponsored applications for landing.
6. The appellant also submits, in the alternative, that, were the panel to find that there are insufficient compassionate or humanitarian considerations to warrant the granting of special relief, then the panel should find, pursuant to paragraph 77(3)(a) of the Act, that the refusal is not valid in law. In this regard, the appellant submits that the visa officer made a determination concerning compassionate or humanitarian considerations without having interviewed the applicants or having afforded them an opportunity to make submissions on the matter. The appellant submits that the visa officer is required to consider the application of compassionate or humanitarian considerations pursuant to paragraph 77(3)(b) of the Act.
7. Having considered all of the evidence adduced and submissions, the panel finds that the refusal of the sponsored applications for landing is valid in law. As aforementioned, the appellant, who was represented by counsel, did not challenge the refusal in respect of the findings concerning the appellant’s mother’s medical condition, including the determination that her admission to Canada would cause or might reasonably be expected to cause excessive demands on health or social services. As for the argument relating to the determination of compassionate or humanitarian considerations, this issue is moot given the panel’s positive determination on section 77(3)(b).
8. With respect to the application of paragraph 77(3)(b), the panel finds there to exist compassionate or humanitarian considerations that warrant the granting of special relief from the refusal of the sponsored applications.
9. The evidence adduced reveals considerations that go beyond that of a desire on the appellant’s part for family reunification and the existence of natural love and affection between him and the applicants.
10. In this regard, the evidence shows that the appellant is the only son of his parents. According to the evidence provided by him and his wife, which was uncontradicted in the face of cross-examination, the appellant’s position in his family as the only son is an important consideration in Sikh culture, with the obligation resting on him to care for his parents.
11. In response to this consideration, the respondent submits that the appellant knew, when he immigrated to Canada as a fiancé and thereby left his parents behind in India, that his immigration to Canada would entail a separation from his parents; nevertheless, the appellant made the choice to immigrate. While this observation may be a valid consideration in the context of another case, it is not determinative when considered in the context of the evidence adduced in this case. Specifically, the appellant provided testimony which was not contradicted or inherently implausible that, at the time of his immigration to Canada, his mother was in good health and the appellant had, therefore, reasonably expected that his parents would follow him to Canada pursuant to a sponsorship by him.
12. The appellant also provided uncontradictory testimony that he has had a son since his immigration to Canada and that it is important in the Sikh culture for a grandson to know his paternal grandparents. One might argue that the appellant should have known that by his having immigrated to Canada, there was the possibility that his future born children may not come to know their grandparents. However, again, this argument must be considered in the context that the appellant had fully anticipated to be able to sponsor his parents and that they would soon follow him to Canada.
13. Apart from the love and affection shown to exist between the appellant and the applicants, there would appear to exist a relationship of dependency between them. In this regard, uncontradicted testimony was adduced respecting financial support which the appellant provides to them, from which the appellant’s mother is able to afford to visit a medical specialist. Evidence has also been presented regarding regular communication between the appellant and his parents. In addition, the appellant has visited his parents, having last done so in October 1995, and being unable thereafter due to difficulty in getting time off of work. This relationship is further reflected by the appellant and his wife having made provision for the applicants in their home and that the appellant is prepared to tend to his mother’s needs. In this regard, the appellant testified that he will be in a position to change his shift at work for this purpose, as he has been able to do in the past, in respect of a problem that he had been required to sort out for his employer.
14. The panel has considered that the appellant’s parents have a daughter in India and the argument that she would be able to take care of them. However, in addition to the aforementioned comments concerning such obligation resting with the son in Sikh culture, this argument is not an answer and is circular in nature, since the appellant’s sister (as is his father) is part of the sponsored application for landing and would be immigrating to Canada, but for the medical impediment of the appellant’s mother (and subject to any other questions of inadmissibility that may arise in the course of the renewed processing of the applications).
15. The evidence, which again the panel stresses has not been contradicted, is that there is no other family member who would be in the position to provide emotional support for the appellant’s mother as would be the appellant. In this respect, the appellant testified that, although he has step-siblings, they are estranged from the family. In the same vein, although his mother has a sibling, he lives two days away by train in another state and visits only on occasions such as weddings.

Determination

16. The refusal of the sponsored applications for landing is valid in law. However, the appellant has shown that there exist compassionate or humanitarian considerations that warrant the granting of special relief from the refusal. The appeal is allowed pursuant to paragraph 77(3)(b) of the Immigration Act.

“T. Maziarz”

DATED at Toronto this 15th day of October, 1997.