Summary: Three sisters sought to bring their disabled brother to Canada. Initially, their family class sponsorship was refused on the grounds of medical inadmissibility (mainly for their father), but after their parents passed away, they sought further legal advice and submitted an overseas application for humanitarian and compassionate relief. Reunification of family in Canada is an important objective of the Immigration and Refugee Protection Act and it is clear that the sisters in Canada care deeply about their brother and are capable of caring for him. The previous application was refused by the Immigration Appeal Division as the barrier to admission was considered "significant", however, the disabled brother is currently being cared for at home and his lifestyle would continue in Canada if he were to be reunited with his sisters. The sisters are all employed and established in Canada and have the ability and intent to care for their brother without resorting to social services. Thankfully, a passport request has been issued after medical tests were conducted, three years after the application was submitted.
I represented three sisters in their quest to bring their disabled brother to Canada. They had first submitted a family class sponsorship and that application was initially refused on the grounds of medical inadmissibility (primarily for the father). They appealed and their brother's health condition was also considered. Unfortunately, they were represented by a lacklustre immigration lawyer here in town and the IAD appeal was also refused (more than 7 years ago).
At that time, their parents were still alive. Sadly, with their passing, their disabled brother was left in the care of another sister. It was after their parents deaths that they sought out further legal advice and came to our office.
Their brother no longer fell within the family class set out in Regulation 117 (he was an orphaned sibling, but over the requisite age). He could not be sponsored under the family class and as a result, an application for humanitarian and compassionate relief was submitted. It is clear that the reunification of family in Canada is an important objective of the Immigration and Refugee Protection Act . It was also clear that the applicant's sisters in Canada care deeply about him; that the majority of the family that reside here wish to reunite and care for him in Canada where they have the resources to do so.
While the Immigration Appeal Division found that the barrier to admission with respect to [] is “significant” the fact of the matter is that their brother is being cared for at home, has never required services outside of home; his lifestyle would continue for his life in Canada. He would be living with one of his 3 sisters that live in Calgary. The burden of caring for him would be borne by the 3 sisters who are all gainfully employed and who are all established by their many years in Canada.
Letters from the sisters were attached to the application along with proof of their establishment and circumstances in Canada. I also addressed the previous concerns:
I’ve been counsel on a number of medical inadmissibility matters arising out of the family class. Unfortunately I was not counsel for [] when he and his family attempted to come to Canada. As I said things have changed: the first application included 2 individuals that were medically inadmissible. It is almost trite to say that the level of relief depends on the level of inadmissibility. With respect to the first application to come to Canada there was a significant barrier that is 2 individuals with serious conditions. What we have before us today is one individual with a developmental issue.
The other cases that I have been involved with that have had successful resolutions out of the visa office in Delhi include individuals with Down's syndrome (similarly situated to the applicant). In those submissions reference and reliance is made to the Supreme Court of Canada’s decision on Hilewitz. In essence it should be more than likely than not, based on a family circumstances, that the contingencies will materialize. There’s no evidence before the officer that there’s any need for [] to reside, for example, in a long term care facility.The family is not going to go to all this trouble to bring their brother to Canada only to stick him in long term care. The inference that [] condition requires long term care for example is without evidentiary foundation. The only evidence that we have is that [] lives with his sister back home and that this arrangement will continue in Canada.
It is clear that the sisters in Canada have the ability and the intent to care for him without recourse to Canada’s social services. This intent should be considered and should not be disregarded lightly. Further we rely on the Federal Court of Appeal decision in Colaco 2007 FCA 282 at paragraph 5. In essence in assessing both the risk of demand and extent of the demand, the foreign national’s ability and willingness to pay for the services are relevant factors to take into consideration.
The application was submitted almost three years ago; I'm happy to see that (after further medical tests) a passport request has been issued.
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