Ottawa, Ontario, October 23, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of a visa officer refusing Hui-Chun Gau’s application for permanent residence as part of the skilled worker class. The refusal was based on the officer’s conclusion that Ms. Gau was inadmissible to Canada because her 15-year-old daughter could reasonably be expected to cause an excessive demand on health or social services.
[2] Ms. Gau says that the visa officer erred in failing to carry out the type of individualized assessment of her child’s situation mandated by the Supreme Court of Canada in Hilewitz v. Canada (Minister of Citizenship and Immigration) and De Jong v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706, 2005 SCC 57, and that, as a result, the officer’s decision should be set aside.
[3] I am of the view that in light of the limited information provided to the officer regarding Ms. Gau’s daughter, the officer’s assessment of the application was sufficient, and, as a result, the application will be dismissed.
Background
[4] Ms. Gau is a citizen of the People’s Republic of China, and is an officer of Mitsui and Company, a Japanese corporation. Ms. Gau has a teenaged daughter, Shao-Chen, who has been diagnosed with infantile autism, with moderate mental retardation.
[5] Ms. Gau applied for a permanent resident visa under the skilled worker class, and was assessed a total of 68 points, making her eligible for a visa. In this regard the visa officer found that Ms. Gau would be able to establish herself economically in Canada, and that she and her husband were well-educated applicants, with the proven ability to adapt to another country, as was evidenced by the couple’s success working in Japan.
[6] However, on May 3, 2005, a “fairness letter” was sent to Ms. Gau expressing the officer’s concern that Shao-Chen could reasonably be expected to cause an excessive demand on health or social services in Canada.
[7] Ms. Gau was then afforded the opportunity to provide further information or documents with respect to Shao-Chen’s condition, and further documentation was provided to the officer by Ms. Gau under cover of a letter dated May 12, 2005.
[8] Ms. Gau’s additional documentation was forwarded to a CIC doctor for consideration, and by letter dated September 27, 2005, the visa officer advised Ms. Gau that her application for permanent residence had been refused based upon the officer’s finding that Shao-Chen could reasonably be expected to cause an excessive demand on health or social services.
Issue
[9] The only issue on this application is whether the visa officer and medical officer erred in failing to take into account the personal circumstances of Shao-Chen, including the ability of her parents to provide her with home-based education and care.
Standard of Review
[10] As the Supreme Court of Canada noted in Hilewitz, the question of whether an individual with a particular medical condition would create excessive demands on Canadian social services is one that lies within a medical officer's area of expertise, and requires some deference.
[11] With this in mind, it is not necessary to determine whether the appropriate standard of review is patent unreasonableness or reasonableness, as I am satisfied that the officer’s decision can withstand scrutiny under the more exacting standard of reasonableness.
Analysis
[12] As a preliminary matter, it should be noted that both parties have filed affidavits in support of this application that contain information and documentation that was not before either the medical officer or the visa officer.
[13] It is well-settled that an application for judicial review should ordinarily be determined on the basis of the evidence that was before the decision-maker. While there are exceptions to this rule, neither party has advanced any argument in this case to support a finding that the extrinsic evidence should be admitted here. As a consequence, I intend to confine my analysis to the documents that were in the record at the time that the decision under review was made.
[14] It should also be noted that the respondent takes the position that the Hilewitz decision is not applicable in this case, as that decision applies to individuals applying for landing in the investor class, whereas Ms. Gau’s application was as a skilled worker. This argument has already been rejected by this Court: see, for example, Colaco v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1134, 2006 FC 896.
[15] That said, given my decision with respect to the merits of Ms. Gau’s application for judicial review, it is not necessary for me to finally decide this issue, and I will proceed on the basis that Hilewitz does indeed apply to this case.
[16] As Ms. Gau observes, the type of assessment that must be carried out in a case such as this was described by the Supreme Court of Canada in Hilewitz in the following terms:
¶ 54 Section 19(1)(a)(ii) [of the Immigration Act] calls for an assessment of whether an applicant's health would cause or might reasonably be expected to cause excessive demands on Canada's social services. The term "excessive demands" is inherently evaluative and comparative. Without consideration of an applicant's ability and intention to pay for social services, it is impossible to determine realistically what "demands" will be made on Ontario's social services. The wording of the provision shows that medical officers must assess likely demands on social services, not mere eligibility for them.
¶ 55 To do so, the medical officers must necessarily take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with the willingness and ability of the applicant or his or her family to pay for the services.
[17] While this obviously reflects the current state of the law on this point, a medical officer can only assess the willingness and ability of parents to pay for social services based upon the information that is available on this point.
[18] In this case, there was virtually no information before the officer with respect to the willingness or ability of Shao-Chen’s parents to provide her with private care. This is not altogether surprising, given the timing of Ms. Gau’s application for permanent residence.
[19] That is, at the time that Ms. Gau filed her application for permanent residence in 2004, applications of this nature were governed by the decision of the Federal Court of Appeal in the Hilewitz and DeJong matters. These decisions held that an applicant's personal circumstances, including their wealth, were not factors that a medical officer was required to consider in determining whether a person's admission to Canada might cause excessive demands on social services in Canada.
[20] The Supreme Court of Canada subsequently reversed that decision, with the result that factors such as parents’ willingness and ability to provide for their disabled child are indeed relevant factors that must be assessed on a case-by-case basis.
[21] In this case, the evidence before both the visa officer and the medical officer included a psychologist’s report indicating that Shao-Chen’s ability to function was at the level of the moderately mentally retarded. Her full scale IQ tested at 47. While there is some suggestion that Shao-Chen’s IQ may have been undervalued as a result of her difficulties with communication, the psychologist’s opinion was that her true full scale IQ was in the 44-54 range.
[22] After reviewing all of the results of the psychological assessment, the psychologist indicated that Shao-Chen would require an individualized education program with periodic reassessments in order to monitor her development.
[23] Moreover, Shao-Chen’s school reports indicate that she suffers from weaker comprehension and deduction capabilities. Shao-Chen is evidently attending public school in Taiwan, and while the evidence is not entirely clear on this point, it does appear that she is currently receiving at least some special education programming through the public school system.
[24] Insofar as the willingness and ability of Shao-Chen’s parents to contribute to her care is concerned, the only evidence on this point in the record is a passing reference in a medical report to the fact that Shao-Chen is receiving “home-based, parent-as-coach education for her interpersonal relatedness, as well as mainstream education in her junior high school”.
[25] In contrast to the situation in Hilewitz, no plan has been put forward for Shao-Chen’s care in this country, nor is there any indication from either of her parents as to their ability or their willingness to assist in her care.
[26] Moreover, Ms. Gau did not make any submissions regarding how family support would off-set any excessive demand on social services
[27] A review of the analysis carried out by both the medical officer and the visa officer discloses that neither simply considered Shao-Chen as a child with infantile autism, with moderate mental retardation. Rather, her individual circumstances were considered, including her psychological testing and school reports.
[28] Having regard to the limited nature of the evidence in the record, I am satisfied that the individualized assessment carried out in this case satisfied the requirements articulated by the Supreme Court of Canada in Hilewitz. Moreover, the conclusion that Shao-Chen could reasonably be expected to cause an excessive demand on social services in Canada was a reasonable one, in all of the circumstances.
Conclusion
[29] For these reasons, the application for judicial review is dismissed.
Certification
[30] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is dismissed; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7127-05
STYLE OF CAUSE: GAU, HUI-CHUN v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: October 13, 2006
APPEARANCES:
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Mr. Lawrence Wong
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Ms. Helen Park
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SOLICITORS OF RECORD:
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Wong Pederson Law Offices Vancouver, B.C.
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Deparment of Justice Vancouver, B.C.
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