Ottawa, Ontario, December 28, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] This is a judicial review application by Sudipto Sarkar, a citizen of India, who seeks to set aside the 19th of October, 2005 decision of designated Immigration Officer Keefe, (the Immigration Officer) who determined his application for permanent residence in Canada could not be accepted because his daughter Konika is inadmissible to Canada pursuant to subsection 38(1) of the Immigration and Refugee Protection Act (the Act) being a person whose health condition, Pervasive Development Disorder (PDD:Autism) might reasonably be expected to cause excessive demand on social services and specifically on educational services. Under section 4(2)(a) of the Act, Dr. Sarkar was inadmissible because his daughter was inadmissible.
[2] The principal issue in this judicial review application is whether the Immigration Officer failed to comply with the Supreme Court of Canada’s decision in Hilewitz v. Canada (Minister of Citizenship and Immigration) [2005] 2 S.C.R. 706, released on October 21, 2005, three days after she made her determination.
[3] At the time the Immigration Officer made her decision, the state of the law was expressed by the Federal Court of Appeal in Hilewitz v. Canada (Minister of Citizenship and Immigration) 2003 FCA 420 to the effect non-medical factors such as the ability and willingness of the family to pay for the excessive demand was not a relevant factor for an immigration officer to take into account. The Supreme Court of Canada reversed that decision and held the resources of the Hilewitz family could not be discarded in deciding whether their disabled child would create an excessive public burden.
[4] I reproduce in Appendix A to these reasons, section 38 of the Act and the definitions of “excessive demand”, “health services” and “social services” provided for in section 1 of the Immigration and Refugee Protection Regulations (the Regulations) for the purposes of the Act and the Regulations.
[5] There is no issue between the parties that, at the present time, Konika’s health condition and the burden it currently imposes on the educational system fit within the definition of “excessive demand” and “social services” in the Regulations.
[6] Moreover, for the purposes of this application, the Minister does not argue, as he did in Colaco v. The Minister of Citizenship and Immigration, 2006 FC 896 that Hilewitz, above, must be interpreted as being limited to business applicants for permanent residence, (investors, self-employed, or entrepreneurs) but not to the skilled worker class. In Colaco Justice Barnes rejected the Minister’s interpretation and certified a question on the point.
FACTS
[7] Dr. Sarkar holds a doctorate from Colombia University and, since 2001, has been a Professor of Finance and Business at McMaster University in Hamilton, Ontario obtaining full tenure in 2004. He was able to teach in Canada on the basis of a work permit issued to him. He is earning an annual salary of approximately $120,000.00 with bonuses and made his application for permanent residence on February 10, 2003 through the Consulate General of Canada in Buffalo in the category of the skilled worker class pursuant to section 70(2)(b) of the Regulations. His application included his spouse and dependant daughter Konika.
[8] But for the Immigration Officer’s determination in respect of Konika, it is clear his application for permanent residence to Canada would have been successful.
[9] I summarize the material events in the history of the treatment of his application:
1. As noted, his application for permanent residence was received at the Canadian Consulate in Buffalo, New York on February 10, 2003;
2. Konika was examined by a medical doctor who on March 1, 2004 advised Health Services Branch at Citizenship and Immigration Canada in Ottawa (CIC) further medical testing by a development paediatrician was required because of her possible medical condition (i.e. PDD: Autism);
3. That consultation took place on September 16, 2004. The paediatrician confirmed Konika’s diagnosis and indicated she still needed an educational assistant “but this is likely to be withdrawn in view of her improvement.” He added it was likely her behavioural problems were related to adjustment issues and therefore she might have a good prognosis and not require further resources;
4. On October 26, 2004 the reviewing medical officer at Health Services of CIC in Ottawa prepared a medical notification to the effect Konika’s condition might reasonably be expected to cause excessive demand on social services because she required an individual education plan and additional support in the form of an educational assistant. Her notification indicated that Konika was inadmissible under section 38(1)(c) of the Act;
5. The reviewing medical officer received additional information during the last few months of 2004 which caused her to withdraw her assessment of Konika’s inadmissibility under section 38 of the Act and to seek additional medical input. She so advised the Canadian Consulate in Buffalo and the applicant was asked for additional medical reports on Konika.
6. Both the reviewing medical officer and the Canadian Consulate in Buffalo received additional medical input and also received a submission from the Sarkar family legal counsel, Howard Eisenberg, dated the 31st of January 2005 from which I extract two paragraphs:
“Dr. Sarkar and his family are totally committed to their children. Konika attends speech therapy and occupational therapy. These services are not covered by the Province of Ontario. Dr. Sarkar pays these costs privately. Speech therapy costs $110.00 per hour and OT is about $80.00 per hour. You will see from the report of the OT that the benefits for Konika are numerous for participating in these programs. Dr. Sarkar advises that the need for Konika’s participation in these programs in decreasing, but he still funds her participation because of the enormous social benefits and stimulation that his daughter receives.
Prior to attending public school, Dr. Sarkar funded day care for Konika privately. Dr. Sarkar is employed by McMaster University in Hamilton, Ontario as a tenured professor in the Business school. He earns approximately $117,500.00. He is fully able and agreeable to fund any of the social services to help his daughter.” [Emphasis mine]
7. Another letter received is dated December 21, 2004. It is from the Head of the Division of Child Psychiatry at McMaster University. He states Konika suffers from a chronic lifelong condition but this does not mean her condition will not improve over time. He confirms while she does have an educational assistant, it is anticipated she will not require one the next two or three years. He said she sees him on average once a year “which is hardly a drain on the Canadian health care system.” He confirms she has no other need for health services.
8. Another letter received is from Konika’s Occupational Therapist (OT) dated January 11, 2005. The OT confirms since October 2001, she has been hired privately by Dr. Sarkar who also paid her privately to consult with staff at Konika’s pre-school and on one occasion at her current school. The OT attested to Konika’s progress.
9. On August 11, 2005, the reviewing medical officer, after studying all of the additional information received, prepared a new medical notification in which she determined Konika was inadmissible under section 38(1)(c) of the Act because Konika had a health condition “that might reasonably be expected to cause excessive demand on social services.” She added “specifically, this medical condition might reasonably be expected to require services, the cost of which would likely exceed the average Canadian per capita cost over five years.” The reviewing medical officer acknowledged Konika was diagnosed with Pervasive Development Disorder of moderate degree. She added the following:
“She currently benefits from speech therapy, occupational therapy and, an individual educational plan and teaching assistant. The reviewing medical officer wrote “the assessing specialist states that although this condition is a chronic life-long condition, improvement is possible over time especially in social and communication skills. He anticipates that an educational assistant will not be required in the next two to three years. She has made significant progress due to her school and home program and her very supportive family. In a school report it is indicated the amount of direct support presently needed, will decrease in time.
…this applicant suffers from a chronic life-long condition. She requires and will continue to require special educational services. She would likely benefit from speech therapy and occupational therapy. These services are expensive …” [Emphasis mine]
[10] Medical officer Waddell deposed an affidavit setting out his estimate of the extra educational costs attributable to Konika. He identified two intensive student allocations (ISA) under Ontario’s special education grants at levels 2 and 3 of $12,000.00 and $27,000.00 per year respectively less normal student costs in grade school of $3,885.00.
[11] Dr. Waddell also indicated Konika would be eligible for development disability at home and identified adult day programs and vocational training costs, which in my view, may or may not be relevant given the only extra costs on the record absorbed by public funds are her special educational plan and her teaching assistant costs.
[12] The record also indicates Dr. Sarkar paid for Konika’s pre-public school daycare and she has been in the public school system for four years now, first on a part-time basis and recently on a full-time basis.
ANALYSIS
[13] Counsel for the Respondent argues there are two recent cases decided by my colleagues which are directly on point namely: Newton–Juliard v. Canada (Minister of Citizenship and Immigration) 2006 FC 177 decided by my colleague Justice Tremblay-Lamer and Kirec v. Canada (Minister of Citizenship and Immigration) 2006 FC 800 decided by my colleague Justice Blais.
[14] In both of those cases, my colleagues stated the standard of review in respect of an Immigration Officer’s decision on grounds of medical inadmissibility in the context of an application for permanent residence status was correctness. I adopted that standard here.
[15] In Newton-Juliard, above, Justice Tremblay-Lamer expressed the thrust of the Hilewitz case to be as follows at paragraphs 22 and 23 of her reasons for judgment:
22 The Supreme Court determined that the financial situation of the families of the handicapped dependants was a relevant factor in assessing the potential impact of the admission of those persons on social services (Hilewitz, supra, paragraph 40). Therefore, the visa officers erred in confirming the medical officers' refusal to take into account the potential impact of the families' willingness and ability to assist (Hilewitz, supra, paragraph 70).
23 Madam Justice Abella, writing for the Court, observed that an analysis of the history of the relevant statutory provisions indicates that Parliament had intended to pass from an exclusionary policy based on classes to a policy requiring individual assessments (Hilewitz, supra, paragraph 53). The visa officer must determine whether there is a "reasonable likelihood" that the applicant's health condition would cause or might reasonably be expected to cause excessive demand on Canadian social services. To determine the demand realistically, the applicant's ability and intention to assume the costs of social services must be considered (Hilewitz, supra, paragraph 54).
[16] On the facts of the case before her, Justice Tremblay-Lamer wrote as follows:
24 At the time that they filed their application, Hilewitz and de Jong had both expressed their intention to register their children in private schools offering special education, which made it unlikely that there would be recourse to services financed by the State. Mr. Hilewitz also expressed the intention to acquire a business that would ensure employment for his son, which would eliminate the need to resort to professional training. In Hilewitz, the visa officer herself acknowledged that it was "highly unlikely" that the Hilewitz family would use services financed by the State. In this case, contrary to the above-mentioned matters, the applicant registered her in a public school as soon as she arrived in Canada. With respect to the services required in the future, contrary to the case of Hilewitz and de Jong, the applicant did not submit that she intended to call on the private education system. [Emphasis mine]
25 I dismiss the applicant's argument to the effect that her daughter would not now be an excessive demand on the basis that Djéna's school is a public school financed by the municipality of Montréal as well as income tax. Even in the event that the school were exclusively financed by the municipality it is nonetheless a school financed with public funds. The evidence in the record provided by the two affidavits of Dr. Gollish establish that the excessive costs of the services required for Djéna are now in the neighbourhood of $15,000. Further, taking the applicant's volunteer work at the school into account, as the applicant suggests, is purely speculative since nothing in the evidence would have allowed Dr. Gollish to quantify the time that she allots to it.
26 In short, the medical officer proceeded with an individualized assessment of Djéna's condition by assessing the nature, the gravity and the likely duration of her condition while taking into account the availability and cost of services offered by the State.
27 Based on the foregoing, I am persuaded that she considered all of the factors deemed relevant by the Supreme Court in assessing excessive demand.
[17] In Kirec, above, Justice Blais quoted from Justice Tremblay-Lamer’s decision in Newton-Juliard, above, and stated this at paragraph 24 of his reasons.
24 Justice Tremblay-Lamer differentiates Hilewitz from Newton- Juliard by 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. [Emphasis mine]
[18] Justice Blais then concluded:
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. [Emphasis mine]
[19] I conclude this judicial review application must be allowed. Unlike Newton-Juliard and Kirec, above, the applicant in the case before me expressed through his counsel a willingness and ability to pay for any social services to help his daughter.
[20] As I see it, there is nothing in the record to support the conclusion that either the Medical Officer or the Immigration Officer considered, as they had to, the willingness and ability of Dr. Sarkar to defray the above average educational costs, past, present and in the future Konika would demand.
[21] Also, there is nothing in the record to support the conclusion that either the Medical Officer or the Visa Officer considered the extent to which, in the past, Dr. Sarkar privately funded Konika’s pre-school costs and currently pays privately for her OT and speech therapy costs as well as some developmental costs at home.
[22] In this context, the IO should have examined the applicability of Ontario legislation such as the Developmental Services Act about which Justice Abella had this to say in Hilewitz:
69 Social services are regulated by provincial statutes. In Ontario, the province in which both the Hilewitz and de Jong families have expressed their intention to live, the Developmental Services Act, R.S.O. 1990, c. D.11, as amended, addresses some of the facilities, assistance and services that may be provided to a person with developmental disabilities. Section 15 of the regulations under the [page734] Developmental Services Act Regulations, R.R.O. 1990, Reg. 272, states that a determination will be made as to the ability of the applicant for "admission to [a] facility and for assistance" to contribute "to all or any part of the cost" thereof. Section 16 extends the same approach to applications for "services". The Ontario legislation manifestly contemplates the possibility of financial contributions from families able to make them. Even if the Hilewitz and de Jong families' stated intentions regarding education and training did not materialize, the financial resources of both families are such that they likely would be required to contribute a substantial portion, if not the entirety, of the costs associated with certain social services provided by the province. [Emphasis mine]
[23] I conclude by stating the record, in the case before me, was sufficiently clear to trigger the obligation to consider Dr. Sarkar’s willingness and ability to absorb the excessive demand costs which Konika would attract. This they failed to do.
[24] Having come to this conclusion, it is not necessary for me to address counsel for the applicant’s second submission that the authorities misapprehended the evidence on the issue of Konika’s future needs for special educational services.
JUDGMENT
This judicial review application is allowed, the Immigration Officer’s decision of October 19, 2005 is set aside and Dr. Sarkar’s application for permanent residence in Canada with his wife and daughter is to be reconsidered by a different Immigration Officer.
APPENDIX A
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7552-05
STYLE OF CAUSE: Sudipto Sarkar
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 6, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: Lemieux J.
DATED: December 28, 2006
APPEARANCES BY:
Howard P. Eisenberg For the Applicant
Stephen H. Gold For the Respondent
SOLICITORS OF RECORD:
Howard P. Eisenberg
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent