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Dhuman v. Canada (Minister of Citizenship and Immigration)

Willie Dhuman, appellant, and Minister of Citizenship and Immigration, respondent

[1995] I.A.D.D. No. 1060
No. T91-04829

Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: P.M. Wright, P. Aterman and V. Bartley

Heard: June 16 and September 22, 1995 Decision: September 22, 1995


R. Wong, H. Fancy and A. Murji, for the appellant.
E.N.A. Marinelli, for the respondent.

This is an appeal brought by Willie DHUMAN whom I will refer to as the appellant, from the refusal of a visa officer to approve the sponsored application for landing of his daughter Sandra Dhuman.

Willie Dhuman came to Canada in 1986. He arrived here with his wife, a son Renol and a daughter Sandrina. Another daughter Sanita had come prior to that and had sponsored the family. Left behind in Guyana were a son Leslie, a daughter Sandra and another daughter Celine. Leslie has since come to Canada. Sandra is left behind and she lives with Celine. In 1988 the appellant filed an undertaking of assistance with a view to bringing Sandra to Canada. Sandra applied and she was refused on medical grounds, and it is that refusal which triggered this appeal to the Appeal Division.

The essence of the refusal can be found in the medical profile. The visa officer in his statutory declaration refers to the medical profile and he states as follows: [See Note 1 below]

Note 1: Record, pp. 13-14

As required by subsection 11(1) of the Immigration Act Miss Dhuman was instructed to undergo a medical examination. The result of that examination was her categorization as M7. She was diagnosed as suffering from cerebral palsy with diplegia (spastic) and mental retardation. She requires assistance to walk, and there was determined a physical and mental impairment since birth. It was the opinion of the Canadian Medical Services officer that Ms. Dhuman was unlikely to ever be self supporting and if family support broke down she would need nursing home care. It was noted by the medical authorities that there are already many Canadians awaiting this type of care.

(Typed as per original with errors and/or omissions.)

This appeal has been brought on two grounds: there is a challenge to the legal validity of the refusal, and in the alternative there is an appeal to the Appeal Division on humanitarian or compassionate grounds. I will deal first with the legal validity of the refusal. This panel has had an opportunity to examine the medical profile and there are, in the view of this panel, some fundamental flaws in the medical profile. These flaws were perhaps not apparent at the time that the profile was composed. They have come to light since the Federal Court has issued a decision in Jasmail Singh Litt v. M.C.I., [See Note 2 below] at least in respect to one aspect of the refusal. I should state that there are really two areas of concern that the panel has with the refusal, one is the reasonableness of the refusal and the second one, which really is a subset of the issue of reasonableness, is a concern with the assessment of the family support.

Note 2: Litt, Jasmail Singh v. M.C.I. (F.C.T.D. no. IMM-2296-94), Rothstein, 17 February 1995.

The Appeal Division has no authority to question the diagnosis and upon a review of the evidence this panel is satisfied that there is no issue with respect to the diagnosis, but it does have authority to look at the reasonableness of the prognosis. In this instance the panel has concluded that the prognosis, such as it is, is not a reasonable one in light of all of the evidence, including the evidence that was adduced at this hearing, which is a de novo hearing. In that regard it relies heavily on the evidence of Doctor Weber, which it considers to be highly persuasive. It was the view of Doctor Weber that the previous medical assessments done of Sandra were somewhat inaccurate in the following respects: Doctor Weber concluded that any assumption that there would be an excessive demand due to Sandra's cerebral palsy was an unreasonable conclusion because cerebral palsy, by its very nature, is not a condition which involves degeneration or renders a patient vulnerable to other illnesses. He noted that there may be instances where persons suffering from cerebral palsy may be vulnerable to certain accidents, which might in turn engender medical costs, but he noted that that was not the case with Sandra. Specific examples he gave were fractures resulting from falls or difficulty swallowing food.

In relation to her mental state he came to the conclusion that Sandra has a degree of mental retardation which is between mild and moderate, closer to moderate. A review of the other medical opinions certainly indicates that there is not any severe degree of retardation in this case and in one aspect the medical profile is deficient in relation to the analysis of mental retardation in light of the decision in Deol [See Note 3 below], insofar as what it does is simply identify a medical condition without specifying what degree of severity is suffered. As was indicated by the Federal Court of Appeal in Deol, simply identifying the condition per se does not necessarily lead to the conclusion that there will be an excessive demand. So in this instance simply identifying that Sandra is mentally retarded does not lead per se to the conclusion that excessive demands will be placed on Canadian health and social services.

Note 3: Deol, Daljeet Singh v. M.E.I. (F.C.A. no. A-280-90), MacGuigan, Linden, Robertson, 27 November 1992.

Now, the medical profile goes on to state that if family support breaks down, Sandra will need nursing home care. There is no evidence before us in the record that an examination was conducted of the nature and extent of the family support at the time that this refusal issued. The decision of the Federal Court Trial Division in Litt is binding upon us, and it is fairly clear from those conclusions that, absent any examination of family support, a statement that if family support breaks down the applicant will resort to becoming a burden on Canadian health or social services amounts to speculation because it is nothing more than a statement about a potential eventuality. That is a position which was analyzed sometime before Litt by the Appeal Division in the case of Parmar [See Note 4 below], which counsel quoted to us today. Litt simply affirms Parmar in our view and Litt is binding upon us and we find that Litt is applicable in the facts of this case.

Note 4: Parmar v. M.E.I., (1993), 21 Imm. L.R. (2d) 103.

So to summarize, for essentially two reasons this panel is satisfied that the medical refusal is not valid in law. The first is that the prognosis is not a reasonable one based on the simple identification of mental retardation, and the second reason is that a prognosis that she will incur costs in the Canadian health and social services system is not reasonable, absent any analysis of the question of family support. So for those reasons this panel concludes that the refusal is not valid in law.

In the alternative, and should the panel be incorrect in its assessment in that regard, this panel has considered the issue of equity and has concluded that there is sufficient equity to allow the appeal should a reviewing court find that the panel is incorrect with respect to the legal conclusion.

The equity in this case can be summarized relatively straightforwardly. This case involves an applicant who has a degree of retardation. Consequently, she is vulnerable unless surrounded by family members, and we have evidence that she may no longer be surrounded by family members in Guyana if, as appears likely, the daughter Celine is going to emigrate to the United States. Even if she does not emigrate to the United States, and we did not have clear and conclusive evidence on that point, there is evidence that the husband of Celine is somewhat hostile to the notion of continuing to keep Sandra in his house and is therefore looking to have her leave that household. If that were to occur Sandra would be isolated and vulnerable. She would not be in a position to take care of herself. Here in Canada, by contrast, there is a family which is available to support her, which is willing to support her and in the panel's view is capable of supporting her. We have a sponsor who himself is not in a position to support the applicant, in light of the fact that he is no longer working and apparently relies heavily on his family to support him and on the settlement of damages which resulted from an automobile accident in which he was involved in 1988. Notwithstanding the fact that the appellant is not in a position to support her, there are other family members who are in a position to do so.

We have heard evidence that the members of the family are working and that they have a history of steady employment. We are satisfied as to the willingness of the siblings to support her. The family appears to this panel to be a close family and we are confident that if Sandra were brought here, they would not abandon her. We are also satisfied that the only issue in that regard is one of ongoing support because we are satisfied that Sandra does not require any additional medical intervention or social services intervention, provided that the family is there to take care of her. In short, we are satisfied that her needs are no greater than the needs of anyone else, provided that those needs are supplied by her family.

The reference I have made to family support is relevant in this regard. What it does is, it serves to lower the equitable threshold which needs to be met, because the fact that there is a family available to support her makes it less likely in our view that there will be any excessive demands on health or social services. We are satisfied that there is family support and that if Sandra were refused admission to Canada she would be in a difficult position in Guyana as an isolated and vulnerable single women suffering from a series of medical conditions. For those reasons this panel has concluded that there are sufficient humanitarian or compassionate considerations to warrant the granting of special relief in this instance. The appeal is allowed both in law and in equity.

(Edited for syntax.)

"Paul Aterman"

Concurred in by: "P.M. Wright"
"V. Bartley"

Dated at Toronto this 13th day of October 1995.

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