Ottawa, Ontario, June 26, 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 September 22, 2005, which refused Mr. Rowan George Daniel Cohen'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 wife might reasonably be expected to cause excessive demand on health or social services as a result of her diagnosis of Rheumatoid Arthritis.
FACTS
[2] The applicant is a citizen of the United Kingdom (U.K.) who is married with three children. The applicant had an offer of employment in British Columbia as a plumber/gas fitter. He applied for permanent residency and was assessed as having sufficient points to qualify as a skilled worker.
[3] By letter dated September 16, 2004 (fairness letter), the officer advised the applicant that he may not meet the requirements for immigration to Canada as a result of his wife's medical condition. The officer invited the applicant to submit additional information relating to the medical condition before the officer made a final decision with respect to the application for permanent residency. The applicant complied with the officer's request for more information.
DECISION OF THE OFFICER
[4] Despite qualifying as a skilled worker, the visa officer refused the applicant's application for permanent residence because she determined, pursuant to subsection 38(1) of the Act, that his spouse is a person whose health condition, Rheumatoid Arthritis, might reasonably be expected to cause excessive demand on health or social services in Canada.
ISSUE
[5] Did the visa officer err in her analysis of "excessive demand"?
ANALYSIS
[6] 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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[7] 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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[8] In Hilewitz 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.
Did the visa officer err in her analysis of "excessive demand"?
[9] The applicant argues that the visa officer's and the medical officer's analysis of excessive demand is flawed because both failed in their obligation to calculate the health services costs and social services costs over a period of five years for the average Canadian and the applicant's spouse.
[10] The applicant submits that the officer's decision to deny permanent residency is based on the perception that the applicant's spouse needs the expensive drug Entanercept to control her medical condition. However, as mentioned by the applicant, if the officer had considered the applicant's submissions in response to the fairness letter, she would have concluded that the applicant's spouse does not need Entanercept to control her condition. As such, the applicant contends that his spouse would not place an excessive demand on the health care system.
[11] I have reviewed carefully the documents provided as evidence, particularly the handwritten notes of the medical officer, Dr. Georges Giovinazzo, his affidavit and the transcript of the cross-examination. I have also reviewed the transcript of the visa officer, Ms. Anne Vanden Bosch, her cross-examination and her affidavit. I also reviewed the medical file.
[12] I am particularly concerned with some discrepancies in the medical officer's calculation of costs. There exists a threshold of anticipated annual need for health and social services for the average Canadian created by the regulation with reference to the amount established by the Canadian Information on Health Centre. At the time of the applicant's assessment, the threshold amount was evaluated at $3950 per year.
[13] The medical officer identified that the health costs for Entanercept in the U.K. - the drug the applicant's wife was taking - was over $17,000 per year. In his assessment of how much the aforementioned drug would cost in British Columbia, the medical officer took, into account certain reductions that apply in that province and arrived at the figure of roughly $10,000 per year.
[14] Later in his cross-examination, the medical officer responded that the applicant's wife could need Entanercept for a year and a half before she could rely solely on a new alternative therapy called "Margaret Hills". As such, the cost of the drug would be estimated at $15,000 for the year and a half time period. Presumably after that time period there would no longer be any need for the expensive drug. As such, in calculating the excessive demand over a five year period, as required by the Act, the total cost would be less than the threshold amount for the average Canadian mentioned above.
[15] When we read the notes, the affidavit and the transcript as a whole, we see that the medical officer is sceptical regarding the success of the "Margaret Hills" therapy and believes that, if the therapy fails, the applicant will once again be relying on the expensive medication that was successful in controlling her condition in the past.
[16] Nevertheless, there are too many speculations surrounding the file and both the visa officer and the medical officer were not precise enough in their conclusions.
[17] In my view, it amounts to a reviewable error that justifies this Court's intervention.
[18] Both parties suggested questions for certification:
- Should the calculation of "excessive demand" in rule 1(1) of the Regulations include costs of health and social services or health or social services?
- In calculating the threshold to determine whether an applicant will cause an excessive demand on health services or social services, should that threshold include both health services and social services costs for the average Canadian in every case?
[19] In my view, the conclusions in this case are based on imprecise assessment by both the visa and the medical officers. When the assessment is made pursuant to the existing law and regulation with the reference to the proper numbers establish by the Canadian Health Information Center, the existing regulation scheme responds to the suggested questions.
[20] Those questions do not raise a matter of general importance, therefore, they will not be certified.
JUDGMENT
1. This application for judicial review is granted.
2. The case is returned to another visa officer and another medical officer to be redetermined.
3. No questions for certification.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4060-05
STYLE OF CAUSE: Rowland George Daniel Cohen v. MCI
PLACE OF HEARING: Vancouver, B.C.
REASONS FOR JUDGMENT: BLAIS J.
APPEARANCES:
| Mr. Peter A. Chapman
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| Ms. Banafsheh Sokhansanj
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SOLICITORS OF RECORD:
| Chen and Leung Vancouver, BC
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| John H. Sims, Q.C. Deputy Attorney General
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