Ottawa, Ontario, January 17, 2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a visa officer’s decision dated March 24, 2006, which found that the applicant was inadmissible to Canada based on her daughter’s inadmissibility. The visa officer concluded that the applicant’s daughter, who suffers from moderate mental retardation, might reasonably be expected to cause an excessive demand on Canada’s social services.
[2] The applicant is a citizen of Kazakhstan. She applied for permanent residence in November 2001 in the independent category along with her husband and children. She was assessed as a skilled worker in the field of economic analysis and met the minimum points required under the former Immigration Act, R.S.C. 1985, c. I-2.
[3] By letter dated July 4, 2005, the applicant was notified that her daughter had been clinically assessed as being moderately mentally retarded. The letter identified a concern that she would almost certainly require special education in Canada and invited the applicant to make submissions in response.
[4] The applicant provided further submissions on August 9, 2005, which were considered by a medical officer who opined that the applicant’s daughter was not physically disabled and did not require isolated maintenance for a contagious condition. However, the medical officer noted that the daughter attended a special school in Kazakhstan in an individualized program, and maintained his earlier position that the applicant’s daughter would reasonably require special education in Canada.
[5] The visa officer reviewed the applicant’s submissions and the medical officer’s opinion and concluded that the applicant’s daughter was inadmissible because her condition would likely result in an excessive demand on Canadian social services. This decision is the subject of this application for judicial review.
Issues
[6] The issues raised in this application are as follows:
1. Did the medical officer and visa officer err in assuming that Alberta would provide the applicant’s daughter with special education at a cost exceeding the Canadian per capita average?
2. Did the visa officer err in failing to consider the applicant’s willingness and ability to pay for the costs of her daughter’s special education needs?
Relevant Legislation
[7] The legislation relevant to this application is as follows:
1. the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act); and
2. the Immigration and Refugee Protection Regulations, S.O.R. 2002-227 (the Regulations).
The pertinent legislative provisions of the Act are as follows:
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38. (1) A foreign national is inadmissible on health grounds if their health condition […] (c) might reasonably be expected to cause excessive demand on health or social services. […] Inadmissible family member 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. |
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. […]
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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[8] The grounds of inadmissibility are further set out in the following provisions of the Regulations:
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Definitions 1. (1) The definitions in this subsection apply in the Act and in these Regulations. […] “excessive demand” “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) “health services” “health services” means any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care. (services de santé) “social services” “social services” means any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services, (a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and (b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies. (services sociaux) […]
Assessment of inadmissibility on health grounds 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. […] 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.
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Définitions 1. (1) Les définitions qui suivent s’appliquent à la Loi et au présent règlement. […] « fardeau excessif » « 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) […] « services de santé » « services de santé » Les services de santé dont la majeure partie sont financés par l’État, notamment les services des généralistes, des spécialistes, des infirmiers, des chiropraticiens et des physiothérapeutes, les services de laboratoire, la fourniture de médicaments et la prestation de soins hospitaliers. (health services) « services sociaux » « services sociaux » Les services sociaux — tels que les services à domicile, les services d’hébergement et services en résidence spécialisés, les services d’éducation spécialisés, les services de réadaptation sociale et professionnelle, les services de soutien personnel, ainsi que la fourniture des appareils liés à ces services : a) qui, d’une part, sont destinés à aider la personne sur les plans physique, émotif, social, psychologique ou professionnel; b) dont, d’autre part, la majeure partie sont financés par l’État directement ou par l’intermédiaire d’organismes qu’il finance, notamment au moyen d’un soutien financier direct ou indirect fourni aux particuliers. (social services) […] Évaluation pour motifs sanitaires 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. […] 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. |
Standard of review
[9] The decision under review involves a factually-intensive determination as to the demand the applicant’s daughter might reasonably place on health or social services in Canada. Accordingly, the visa officer is entitled to considerable deference, and the Court will not interfere except on account of a patently unreasonable decision. The failure of the visa officer to assess the ability of the applicant to pay for the special education of her mentally retarded daughter is a question of law subject to a correctness standard of review.
Analysis
Issue No. 1: Did the medical officer and visa officer err in assuming that Alberta would provide the applicant’s daughter with special education at a cost exceeding the Canadian per capita average?
[10] The applicant’s application was denied based on a determination that her daughter might reasonably be expected to cause excessive demand on social services in Canada. As set out in the Regulations, “excessive demand” is determined in relation to the average Canadian per capita health services and social services costs. The applicant argues that her daughter’s special education will not cost more than the average education needs for Canadian children in Alberta.
[11] In his medical opinion, the medical officer stated:
From this evaluation she would almost certainly be identified as an exceptional student requiring special education and special funding would be allocated to her so that she could receive this secondary schooling.
The applicant argues that the visa officer erred in assuming that the applicant’s daughter would require special funding for her education, i.e. an excessive demand for social services.
[12] The applicant argues that, since she and her family indicated their intention to live in Alberta, it is necessary to examine Alberta’s legislation and policies to determine whether excessive demand would be caused by the applicant’s daughter’s attendance at school in that province.
[13] The applicant has submitted evidence concerning Alberta’s legislation and policies. The applicant relies on a report produced by the Government of Alberta in November 2000 entitled “Shaping the Future for Students with Special Needs: A review of Special Education in Alberta”. In this report, special needs students are identified as students who have mild or moderate or severe disabilities, and students who are gifted or talented. The report describes the procedure for service delivery:
Once a student is identified as having special needs, school authorities must develop and deliver an education program that provides the student with a valuable learning experience. Assessment results, initially used to determine the special needs of the student, are used to assist the teacher in developing and implementing an individualized program plan (IPP). Alberta Learning requires that IPPs be developed for every student identified as having special needs.
[Emphasis added]
[14] The report goes onto state that funding for students with mild and moderate disabilities is included in the Basic Instruction Funding provided to school authorities:
Alberta Learning provides funding to school authorities to help meet the learning requirements of students with special needs. Funding for students with mild and moderate disabilities, and students who are gifted and talented is currently included in the Basic Instruction Funding. Additional funding is available to provide programs and supports for students with severe disabilities. School authorities are required to use a portion of the Basic Instruction Funding plus additional funding that is provided for students with severe disabilities to provide programs for students based on their individual needs.
[Emphasis added]
According to the 2006-2007 Funding Manual for School Authorities produced by Alberta Learning and submitted as evidence by the applicant, the Base Instruction funding for children in Grades 1 to 12 in Albert is $5,291 per child.
[15] The applicant argues that because her daughter’s moderate disability would not require additional funding under Alberta’s education funding policy, her daughter would not place an “excessive demand” on Alberta’s education system. The applicant also argues that because mild and moderately disabled students are treated similarly to gifted and talented students, her daughter would neither be perceived to be, nor in fact would be, a burden to Alberta’s education system.
[16] The respondent argues that since the applicant’s daughter already requires a specialized, individual educational program, it is not unreasonable to expect that she would be assessed as having a severe disability for the purposes of Alberta’s special needs education program.
[17] The applicant has not adequately rebutted the assumption of the visa officer that the applicant’s daughter would require special education, and that this might reasonably be expected to cause an excessive demand on Alberta’s social services. The evidence required to rebut this assumption should be a specialized report from an Alberta expert indicating that the education of mentally retarded children without financial resources is not funded by the province. The report submitted by the applicant in this regard is not sufficient to establish this fact. Accordingly, the finding of the visa officer that the child will require special education is not patently unreasonable. It is logical to assume that a mentally retarded child will require special education, and if that child’s family does not have adequate resources, the province will pay for that special education.
Issue No. 2: Did the visa officer err in failing to consider the applicant’s willingness and ability to pay for the costs of her daughter’s special education needs?
[18] The applicant relies on the Supreme Court of Canada’s judgment in Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57. In that case, the Court noted at paragraph 69 that the relevant legislation in Ontario contemplated the possibility of financial contributions from families towards the cost of developmental services. On that basis, the Court held at paragraph 70 that the medical officer erred by not taking into account the potential impact of the families’ willingness to assist:
¶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 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.
¶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. […]
[Emphasis added]
[19] In its written submissions, the respondent sought to distinguish this case from Hilewitz, above, on the basis that the applicant’s family in this case did not pledge to provide private schooling for the daughter, nor was there any evidence that they could afford to do so. The respondent also argues that the determination in Hilewitz, above, regarding the need to consider the ability to pay cannot extend beyond the business immigration categories to federal skilled workers. Federal skilled workers, the respondent argues, are not required to provide objective and reliable evidence of their financial resources other than demonstrating that they possess adequate settlement funds. As stated by the respondent in its written submissions:
Assessing the financial resources of skilled worker applicants may involve considerable speculation and uncertainty so as to render the ability to pay mitigation analysis completely unreliable. This unreliable analysis cannot serve to displace an excessive demands finding.
[20] In my view, the Supreme Court of Canada’s judgment in Hilewitz, which requires visa officers to take into account a family’s willingness to pay for a family member’s health or social welfare expenses, need not be restricted to applicants in the business immigration categories. While applicants in business immigration categories will more readily be able to demonstrate their ability to pay for a family member’s expenses, it does not follow that applicants in other categories will be unable to do so. This is particularly so given the diverse range of health conditions which may give rise to an individual’s demand on health or social services above the Canadian per capita average.
[21] In this case, the applicant has stated a strong willingness to pay for the social (i.e. education) programs which her daughter will require if allowed to immigrate to Canada. The applicant argues that the visa officer did not take into account the family’s willingness to pay for the social services. The applicant maintains that she and her family had never before accessed available government social services in Kazakhstan to care for her daughter. That is not true. The special education in Kazakhstan was publicly funded.
[22] In this case, while the applicant stated a strong willingness to pay for the education program her daughter will require if allowed to immigrate to Canada, the applicant did not provide any evidence demonstrating an ability to pay for her daughter’s special education in Canada. The evidence is that the applicant does not have significant funds, and her relatives in Canada did not provide any evidence of sufficient capital to cover the special education needs of a moderately mentally retarded 10 year old girl in Alberta. Accordingly, the applicant cannot argue that the visa officer erred in law in failing to assess the applicant’s ability to pay for their daughter’s special education. The applicant is at liberty to re-apply for permanent resident status and to submit evidence of her family's willingness and ability to pay for the special education program that her daughter will require if allowed to immigrate to Canada.
[23] For these reasons, the application for judicial review must be dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
The application for judicial review is dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2570-06
STYLE OF CAUSE: LIDIYA AIRAPETYAN v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: January 10, 2007
APPEARANCES:
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Mr. Peter Wong Q.C.
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Mr. Rick Garvin
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SOLICITORS OF RECORD:
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Caron & Partners, LLP Calgary, Alberta
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John H. Sims, Q.C. Deputy Attorney General for Canada
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