Ottawa, Ontario, July 19, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
SAVITA COLACO
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Peter and Savita Colaco and their two children, Joel and Jocelyn Colaco, applied in 2001 to come to Canada as permanent residents. Mr. and Mrs. Colaco applied under the classification of skilled workers.
[2] When nothing was heard from the Department of Citizenship and Immigration ("Department") for more than eighteen months, the family applied again for landing. It was not until June 23, 2005 that the Colacos were advised by the Department that their application was denied for the following reasons:
Pursuant to subsection 38(1) of the Immigration and Refugee Protection Act, your family member, Jocelyn Colaco, is a person whose health condition: Mental Retardation - Mild, might reasonably be expected to cause excessive demand on health or social services. The regulatory definitions of these terms are attached. As a result, your family member is inadmissible to Canada on health grounds.
My letter of March 3, 2004 invited you to provide additional information or documents in response to the preliminary assessment. Your materials were received and were carefully considered but did not change this assessment of your family member's health condition, which has now become final.
[3] It is not disputed that Jocelyn Colaco does have a mild cognitive disability which may benefit from some level of social services support. It is noteworthy, though, that she functions at a high level and needs very little in the way of personal care assistance. It is also agreed by the parties that Jocelyn's future needs will be limited to social services support and will not require the provision of any extraordinary health care resources.
[4] The record also discloses that, before coming to Canada, Mr. and Mrs. Colaco provided all of the support required by Jocelyn from their own resources, and that they intended to continue in that practice if the family was landed here. Included in their immigration application was a statement indicating a combined net worth of $280,125.00.
[5] It is clear that the Department's decision to refuse entry to this family failed to take account of their financial circumstances and their ability and willingness to contribute to the future costs of support for Jocelyn.
Issue
[6] The sole question before me is whether the Department erred by failing to consider the financial ability and willingness of Mr. and Mrs. Colaco to contribute to Jocelyn's future social services support requirements.
Analysis
[7] The issue presented by this application is settled by the 2005 Supreme Court of Canada decision in Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706, [2005] S.C.J. No. 58, 2005 SCC 57 (S.C.C.) and I need not consider any of the other authorities cited by the parties. The statutory provision under consideration in Hilewitz was subsection 19(1) of the former 1985 Immigration Act. That provision is, however, indistinguishable from subsection 38(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 which was applied by the Department in this case. Both provisions establish bars to admissibility on health grounds where a medical condition might reasonably be expected to cause excessive demand on health or social services.
[8] The Hilewitz case, above, involved the denial of admission to Canada of two families for the same reason given by the Department in this case - the intellectual disability of dependent children. As in this case, a medical officer assessed the level of social services support that would likely be accessed by the families in Canada on behalf of the affected dependents, and concluded that the associated costs would place an excessive demand on Canadian social services. The medical officers who carried out those assessments did not inquire into the capacity or willingness of the two families to contribute financially to the anticipated social services costs. This failure to consider the probable demands that would be placed on provincial social services (as distinct from eligibility for those services) was held to be an error of statutory interpretation. The Court found that the Department had an obligation to consider a family's actual circumstances and to carry out individual assessments (see paragraph 57). It then went on to define the obligation in the following terms 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.
[9] In the present case, the Department has attempted to distinguish Hilewitz, above, by arguing that its reasoning applies only to one class of prospective economic immigrants - specifically to business applicants (investors, self-employed and entrepreneurs). It contends that business applicants are required to come to Canada with significant assets and it relies heavily on the following passage from the Hilewitz decision in drawing this distinction:
39 It is important to recognize at the outset that we are dealing with individuals who qualify for [page723] admission to Canada in the "investor" and "self-employed" categories. These categories are, to a large extent, concerned with an individual's assets. While there is no doubt that most immigrants, regardless of the state of their resources when they come to Canada, eventually contribute to this country in a variety of ways, the categories applicable to the applicants in these appeals reflect an aspect of immigration policy which admits individuals expected to make a more immediate substantial economic contribution.
40 It seems to me somewhat incongruous to interpret the legislation in such a way that the very assets that qualify investors and self-employed individuals for admission to Canada can simultaneously be ignored in determining the admissibility of their disabled children. I agree with those on the Federal Court who, like Justices Reed and Gibson, have held that the personal circumstances of the families of disabled dependants are relevant factors in a s. 19(1)(a)(ii) assessment of their anticipated impact on social services. See Poste v. Canada (Minister of Citizenship and Immigration) (1997), 140 F.T.R. 126, per Cullen J.; Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62, per Reed J.; Wong v. Canada (Minister of Citizenship and Immigration) (2002), 220 F.T.R. 137, 2002 FCT 625, per McKeown J.; Simmons v. Canada (Minister of Citizenship and Immigration) (2002), 221 F.T.R. 303, 2002 FCT 866, per Martineau J.; Karmali v. Canada (Minister of Citizenship and Immigration) (2003), 230 F.T.R. 140, 2003 FCT 358, per O'Keefe J.
[10] I do not accept that the above passage was intended by the Court to limit the application of its reasons to business immigrants. Rather, it is simply an observation of an interpretative incongruity arising from the Department's argument in that case. The fact that such an incongruity may not always arise does not detract from the applicability of the Court's reasons in other cases, including a case such as this one.
[11] While it is the case that other classes of applicants are not required to have the financial resources expected of business applicants, there is, nevertheless, a financial threshold required of those seeking entry to Canada as skilled workers. There will also be cases such as this one where a family is able to bring to Canada more resources than are legally required, and where those resources are readily available to support a disabled dependent. To hold that such a family is undeserving of an individual assessment of the sort described in Hilewitz, above, would import an arbitrary element into the legislative scheme that cannot have been intended, and which is nowhere to be found in the language in the Immigration and Refugee Protection Act, S.C. 2001, c.27.
[12] Here, it was incumbent upon the Department to carefully consider the evidence offered by the Colaco family concerning their stated commitment to financially support Jocelyn. The record indicates that both the Visa Officer and the Medical Officer assigned to this case failed to carry out an individual assessment of the type described in Hilewitz, above. That is not altogether surprising because Hilewitz was decided almost four months after the decision was rendered in this case denying entry to the Colaco family. It is also worth noting that counsel for the Department candidly conceded that, if Hilewitz was found to apply in this case, the assessment failed to meet the required standard.
[13] As in Hilewitz at paragraph 71, this case turns on a question of statutory interpretation which dictates a standard of review of correctness. Because the Department's decision was incorrect, its decision is set aside. The application by the Colaco family shall be remitted for reconsideration and redetermination by a different Visa Officer.
[14] I will give both parties the opportunity to propose a certified question within seven days of this decision, with a right of reply within the following three days.
JUDGMENT
THIS COURT ADJUDGES that the decision of the Visa Officer is set aside, and the matter shall be remitted for reconsideration and redetermination by a different Visa Officer.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5186-05
STYLE OF CAUSE: PETER ANTHONY COLACO ET AL
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 28, 2006
APPEARANCES:
Mario Bellissimo FOR APPLICANTS
Catherine Vasilaros FOR RESPONDENT
SOLICITORS OF RECORD:
Mario Bellissimo FOR APPLICANT
Ormston, Bellissimo, Rotenberg
Barristers & Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
Toronto, Ontario