Ottawa, Ontario, June 23, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of a visa officer (the officer) dated August 10, 2005, which refused Mr. Babur Kirec's (the applicant) application for permanent residence. The refusal was based on the conclusion that the applicant was inadmissible to Canada pursuant to subsection 38(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) because his daughter might reasonably be expected to cause excessive demand on health or social services as a result of her diagnosis of cerebral palsy.
FACTS
[2] The applicant is a citizen of Turkey and a permanent resident of the United States of America who is currently residing in the State of Florida.
[3] From November 2000 to November 2003, the applicant was living in Canada and employed as a Senior Telecommunication Software Programmer in Vancouver, British Columbia. He was joined in Canada by his second wife Nilgun as well as the two children of his first marriage. He was also joined by Nilgun's children from her first marriage.
[4] On or about April 29, 2003, the applicant filed an application for permanent residence in the skilled worker category. His wife and all four children were included as dependants on the application. The youngest child, Mine Kirec, who is sixteen, suffers from Athetoid Cerebral Palsy.
[5] On October 18, 2004, a medical notification was issued by Dr. Ann Duggan which stated the following:
This 15 year old applicant has complicated Athetoid Cerebral Palsy. She is non verbal using leg movements to express yes and no. She is completely dependent for all activities of self care including feeding and toileting, and requires a wheelchair for ambulation (or a walker with assistance). She utilises the services of occupational and speech therapy, physiotherapy, and assistive technology equipment for communication. In school she is in a modified special education learning environment with a support worker.
Ms. Kirec's condition of cerebral palsy is such that it is reasonably expected to continue. Canadian social philosophy has a commitment to equality, full participation and integration of all individuals, and thus an extensive social support system is available. Currently her disability makes her eligible for intensive Special Education and support for required medical and assisted technology devices.
Based upon my review of the results of this medical examination and all the reports I have received I conclude that Ms. Kirec has a health condition which might reasonably be expected to require services, the costs of which would likely exceed the average Canadian per capita costs over five years. Ms. Kirec is therefore inadmissible under Section 38(1)(c) of the Immigration and Refugee Protection Act.
(Medical notification dated October 18, 2004, applicant's record at page 142)
[6] By letter dated November 23, 2004 (fairness letter), the applicant was advised that he may not meet the requirements for immigration to Canada as a result of his daughter's medical condition. The applicant was invited to submit additional information relating to the medical condition before an officer made a final decision with respect to the application for permanent residency.
DECISION OF THE OFFICER
[7] The officer refused the applicant's application for permanent residence because she determined, pursuant to subsection 38(1) of the Act, that his daughter is a person whose health condition, Athetoid Cerebral Palsy, might reasonably be expected to cause excessive demand on health or social services in Canada.
ISSUES
[8]1. Was the fairness letter inherently flawed?
2. Was the visa officer's decision patently unreasonable for failing to take into
consideration an assessment of costs?
3. Did the medical officer fail to take into consideration the personal circumstances of the applicant's daughter?
4. Was there a breach in procedural fairness for failing to mention Dr. Wong's report in the fairness letter?
ANALYSIS
[9] The pertinent legislative provisions of the Act regarding the present matter are as follows:
| 42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if
(a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or (b) they are an accompanying family member of an inadmissible person.
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42. Emportent, sauf pour le résident permanent ou une personne protégée, interdiction de territoire pour inadmissibilité familiale les faits suivants : a) l'interdiction de territoire frappant tout membre de sa famille qui l'accompagne ou qui, dans les cas réglementaires, ne l'accompagne pas; b) accompagner, pour un membre de sa famille, un interdit de territoire.
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| 38. (1) A foreign national is inadmissible on health grounds if their health condition (a) is likely to be a danger to public health; (b) is likely to be a danger to public safety; or (c) might reasonably be expected to cause excessive demand on health or social services.
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38. (1) Emporte, sauf pour le résident permanent, interdiction de territoire pour motifs sanitaires l'état de santé de l'étranger constituant vraisemblablement un danger pour la santé ou la sécurité publiques ou risquant d'entraîner un fardeau excessif pour les services sociaux ou de santé.
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[10] The pertinent provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) are as follows:
| 20. An officer shall determine that a foreign national is inadmissible on health grounds if an assessment of their health condition has been made by an officer who is responsible for the application of sections 29 to 34 and the officer concluded that the foreign national's health condition is likely to be a danger to public health or public safety or might reasonably be expected to cause excessive demand. 34. Before concluding whether a foreign national's health condition might reasonably be expected to cause excessive demand, an officer who is assessing the foreign national's health condition shall consider (a) any reports made by a health practitioner or medical laboratory with respect to the foreign national; and (b) any condition identified by the medical examination.
1(1) "excessive demand" means (a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by these Regulations, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or (b) a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of the denial or delay in the provision of those services to Canadian citizens or permanent residents. (fardeau excessif)
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20. L'agent chargé du contrôle conclut à l'interdiction de territoire de l'étranger pour motifs sanitaires si, à l'issue d'une évaluation, l'agent chargé de l'application des articles 29 à 34 a conclu que l'état de santé de l'étranger constitue vraisemblablement un danger pour la santé ou la sécurité publiques ou risque d'entraîner un fardeau excessif.
34. Pour décider si l'état de santé de l'étranger risque d'entraîner un fardeau excessif, l'agent tient compte de ce qui suit : a) tout rapport établi par un spécialiste de la santé ou par un laboratoire médical concernant l'étranger; b) toute maladie détectée lors de la visite médicale.
1(1) « fardeau excessif » Se dit :
a) de toute charge pour les services sociaux ou les services de santé dont le coût prévisible dépasse la moyenne, par habitant au Canada, des dépenses pour les services de santé et pour les services sociaux sur une période de cinq années consécutives suivant la plus récente visite médicale exigée par le présent règlement ou, s'il y a lieu de croire que des dépenses importantes devront probablement être faites après cette période, sur une période d'au plus dix années consécutives;
b) de toute charge pour les services sociaux ou les services de santé qui viendrait allonger les listes d'attente actuelles et qui augmenterait le taux de mortalité et de morbidité au Canada vu l'impossibilité d'offrir en temps voulu ces services aux citoyens canadiens ou aux résidents permanents. (excessive demand)
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[11] In Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration) [2005] S.C.J. No. 58, the Supreme Court of Canada confirmed that the standard of review is correctness when assessing whether or not an officer erred in determining that an applicant might reasonably be expected to cause excessive demand on the health or social services pursuant to subparagraph 19(1)a)(ii) (now subsection 38(1)) of the Act.
1. Was the fairness letter inherently flawed?
[12] The applicant submits that although a fairness letter was issued, it did not give any detail of the information relied upon by the medical officer to conclude that Mine Kirec's health condition might reasonably be expected to cause an excessive demand on health or social services. As such, the letter is flawed because the applicant did not know the contents of the medical file and did not know what criteria were applied to assess Mine Kirec's medical condition.
[13] I disagree with the applicant's assertion. As noted by the respondent, the fairness letter, dated November 23, 2004, included the medical findings of the medical notification. That is, the letter outlined the grounds for which the applicant's daughter was found to be inadmissible due to her medical condition. The letter noted that the applicant's daughter was non verbal; completely dependant for all activities of self care, utilizes the services of occupational and speech therapy, physiotherapy and assistive technology for communication.
[14] Because the fairness letter outlined the reasons for medical inadmissibility, I find that it is not flawed. The letter did in fact provide details of the information relied upon by the medical officer to conclude that Mine Kirec's health condition might reasonably be expected to cause an excessive demand on health or social services.
2. Was the visa officer's decision patently unreasonable for failing to take into consideration an assessment of costs?
[15] The applicant argues that the medical notification is flawed because it did not provide evidence as to the actual cost to be incurred by reason of the applicant's daughter's medical condition. In addition, the visa officer erred because she failed to make an enquiry as to why the medical notification provided no evidence to the extent of the actual costs to be incurred. The applicant submits that the visa officer's conclusion is based solely on the fact that Mine Kirec had cerebral palsy and not on an assessment of costs that would likely exceed the average Canadian per capita health services costs over a period of five consecutive years.
[16] The applicant's argument that the medical officer erred in not providing a specific cost figure on Mine Kirec's anticipated health or social service needs is ungrounded. Dr. Duggan deemed Mine Kirec to be inadmissible because her anticipated annual need for health and social services were excessive in relation to the threshold of $4,057 for the average Canadian (see cross-examination on the affidavit of Dr. Waddell, at page 24). In the present matter, Dr. Duggan had information that the B.C. Ministry of Education would fund up to $30,000 a year for handicapped dependant students.
[17] Although there was not a dollar figure on the services Mine Kirec utilized through the publicly funded Vancouver School Board, there was evidence that she required a full time special education assistant. This alone would constitute an excessive demand on social service as clearly it costs more than the threshold of $4,057. In addition, she required physiotherapy services both privately and through the Vancouver School Board, she required the services of occupational therapists, speech language therapist, and had utilized public funds for a wheelchair.
[18] Despite not providing an exact dollar amount of all the services the applicant's daughter would probably use, it was reasonable for the medical officer to conclude that the total costs would be in excess of the average Canadian per capita cost over a period of five years. The evidence in the present matter is unequivocal in demonstrating that the applicant's daughter had previously used Canadian health and social services during her time in Canada. It was reasonable for the medical officer to conclude that upon return to Canada, she would continue to use such services.
[19] After reading the visa officer's affidavit and cross-examination, I am convinced that she saw no error in the medical notification. As such, I am satisfied that she considered the reasonableness of the medical notification. Further, it was perfectly reasonable for the visa officer to trust the findings of the medical officer's report in that the applicant's daughter would put an excessive demand on costs that would likely exceed the average Canadian per capita health services costs over a period of five consecutive years. As such, the visa officer did not make a finding solely on the fact that the applicant's daughter had cerebral palsy.
3. Did the medical officer fail to take into consideration the personal circumstances of the applicant's daughter?
[20] The applicant argues that the medical officer's conclusions are flawed because they failed to take into consideration the applicant's daughter's personal circumstances, particularly the degree of support that could be provided by the family so as not to place excessive demand on social services.
[21] The respondent argues that it is unclear whether or not the Hilewitz decision, above, applies in the present matter. In Hilewitz, the Supreme Court was influenced by the fact that the applicants were applying for permanent residency based on their personal wealth as business class applicants. Further, the applicants in Hilewitz made submissions as to how they would use their wealth so as not to burden or put an excessive demand on social services. As such, the Court found that family support should be taken into account in assessing personal situations and the medical inadmissibility of applicants. The Supreme Court stated the following at paragraph 70:
The medical officers were obliged to consider all relevant factors, both medical and non-medical, such as the availability of the services and the anticipated need for them. In both cases, the visa officers erred by confirming the medical officers' refusal to account for the potential impact of the families' willingness to assist. Moreover, their failure to read the families' responses to the fairness letters sent to them by the medical officers meant that their decisions were not based on all the relevant available information.
[22] The respondent argues that family support should not be assessed in the present matter seeing as the applicant is applying for permanent residency based on the skilled worker category and not as a business class category. Regardless of the aforementioned argument, there is a more pressing issue that must be addressed, namely the fact that the applicant failed to make any submissions regarding how family support would offset any excessive demand on social services.
[23] In Newton- Juliard c. Canada (Ministre de la Citoyenneté et de l'Immigration) 2006 CF 177, Justice Danielle Tremblay-Lamer noted that in Hilewitz, above, the applicants both made submissions expressing an intention to send their children to private schools with specialized education. Further, Mr. Hilewitz also expressed an intention to purchase a company which would provide employment for his son, thus avoiding the need for vocational training. Justice Tremblay-Lamer stated the following at paragraph 24:
Au moment où ils ont présenté leur demande, les familles Hilewitz et de Jong avaient toutes deux exprimé leur intention d'inscrire leurs enfants à des écoles privées offrant une éducation spécialisée, ce qui rendait peu probable le recours aux services financés par l'État. M. Hilewitz a également exprimé l'intention d'acquérir une entreprise qui procurerait un emploi à son fils, ce qui éliminerait la nécessité de recourir à la formation professionnelle. Dans l'affaire Hilewitz, l'agente des visas elle-même a reconnu qu'il était "très improbable" que la famille Hilewitz ait recours à des services financés par l'État. En l'espèce, contrairement aux affaires précitées, la demanderesse a inscrit sa fille dans une école publique dès son arrivée au Canada. Quant aux services requis dans le futur, contrairement dans les cas Hilewitz et de Jong, jamais la demanderesse n'a invoqué qu'elle entendait faire appel au système d'éducation privé.
[24] Justice Tremblay-Lamer differentiates Hilewitz from Newton- Juliardby noting that the applicant in the latter was in the process of using public social services and did not mention any intention to cease doing so. As such, Justice Tremblay-Lamer concluded that, based on the evidence submitted, the applicant would place excessive demand on social services.
[25] In Khan v. Canada (Minister of Citizenship and Immigration), [2002] 2 F.C. 413, the Court of Appeal stated the following regarding the invitation to make submissions on excessive demand at paragraph 23:
There is ample authority for the proposition that the omission from the fairness letter of an express invitation to submit further material on the excessive demands opinion does not deny to visa applicants their right to a reasonable opportunity to respond to concerns on this issue, even though the letter does explicitly invite applicants to provide additional evidence on the medical conclusions: Hussain v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 86 (F.C.T.D.), at paragraph 21; Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 (F.C.T.D.), at paragraphs 4-6; Ma v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311 (F.C.T.D.), at paragraphs 15-17; Koudriachov v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 138 (F.C.T.D.), at paragraph 34.
[26] In the present matter, the applicant's daughter had a long history of using social services while living in Canada. Furthermore, the applicant never made any submissions to the effect that his daughter would not place an excessive demand on such services if the family were to move back to Canada from the United States. The visa officer clearly took into consideration the personal circumstances of the applicant's daughter. As such, the visa officer did not err rejecting the applicant's application for permanent residence based on the medical inadmissibility of his daughter.
4. Was there a breach in procedural fairness for failing to mention Dr. Wong's report in the fairness letter?
[27] The applicant points out that Dr. Duggan was the medical officer who ultimately made the decision on medical inadmissibility and prepared the medical notification. She has since been absent on maternity leave and it was Dr. Waddell who provided an affidavit for the present matter commenting on the procedure which took place in order to determine medical inadmissibility. As the basis for his affidavit he made reference to Dr. Duggan's notes concerning the file.
[28] The applicant suggests a breach of procedural fairness because conflicting medical evidence submitted to Dr. Duggan was not mentioned in the fairness letter, nor was the visa officer made aware of said evidence. The designated medical practitioner in New York, Dr. Wong, provided a medical report to Immigration Medical Services which was contrary to the assessment of Dr. Duggan. Dr. Duggan was unavailable for comment, so one can only speculate as to whether or not she took these reports into consideration. Dr. Waddell, in the cross-examination of his affidavit, commented that it was standard for the medical officer to take all of the medical information into consideration.
[29] The visa officer did not err in failing to provide the applicant with the report of Dr. Wong which found that Mine's condition could be handled without resorting to the provision of social services. As noted by the respondent, the information that Dr. Wong relied on - that the applicant's daughter was in a wheelchair, was flaccid, was not requiring any mediation - was known to the applicant and in fact was information provided to them. Dr. Wong's report led a medical officer to determine that more information was required before a final determination of admissibility could be made. Before a final determination was made, the information that the medical officer was relying on was summarized and communicated to the applicant in order that the applicant could respond. The requirements of fairness were met.
[30] Counsel for the respondent suggests a question for certification:
Is there an obligation on either the medical officer or the visa officer to set forth a specific dollar amount on the anticipated health or social services costs in the fairness letter?
In my view, the law and the regulations speak for themselves and have already responded to that question. As such, the aforementioned question is not a question of general importance and will not be certified.
JUDGMENT
The application for judicial review is dismissed.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6272-05
STYLE OF CAUSE: Babur Kirec v. MCI
PLACE OF HEARING: Vancouver, B.C.
REASONS FOR JUDGMENT: BLAIS J.
APPEARANCES:
| Bruce J. Harwood
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| Sandra Weafer
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SOLICITORS OF RECORD:
| Watson Goepel Maledy LLP
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| John H. Sims, Q.C. Deputy Attorney General
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