IMM-5340-00
2002 FCT 844
David Hilewitz (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Hilewitz v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Gibson J.--Toronto, July 23 and August 8, 2002.
Citizenship and Immigration -- Status in Canada -- Permanent Residents -- Judicial review of visa officer's rejection of application for permanent residence pursuant to Immigration Act, s. 19(1)(a)(ii) on ground developmentally delayed dependent son might reasonably be expected to cause excessive demands on Canadian social services -- Principles from case law reviewed -- Visa officer must consider all available evidence in reaching conclusion as to "excessive demands" -- Wealth of applicant relevant where issue demand on social, not medical, services -- Visa officer erred in not considering applicant's response to initial notification son inadmissible, including plan to provide sheltered employment, family's wealth.
This was an application for judicial review of the visa officer's rejection of an application for permanent residence on the ground that one of the applicant's sons suffered from developmental delays, which might reasonably be expected to cause an excessive demand on Canadian social services. Immigration Act, subparagraph 19(1)(a)(ii) prohibits the admission to Canada of persons suffering from a disability as a result of which their admission might reasonably be expected to cause excessive demands on health or social services. The applicant, a citizen of South Africa, applied for permanent residence in Canada in the "investor" category. Included in his application, as dependants, were his wife and two sons, the younger of whom was born with brain damage. The medical notification stated that if admitted to Canada the latter would likely require a variety of social services such as special education, respite care for parents and vocational training, thus placing an excessive demand on Canadian social services. In response the applicant provided additional materials to the medical officer who had initiated the medical notification, indicating that the family had not thus far used social services in South Africa for their son, and that they had already investigated private schooling in Toronto, and intended to establish a business to accommodate him in the future. He also provided letters from a clinical psychologist and a medical doctor. Two medical officers found that the new material did not change the assessment.
Held, the application should be allowed.
According to the case law: (1) the degree and probable consequences of developmental delay, not the mere fact of that delay, is the relevant factor for excessive demands on government services; (2) it is important to consider the social services available in the particular region of Canada where an applicant wishes to settle; (3) the visa officer must, without second guessing the medical, diagnostic opinion of the medical officers, consider all of the available evidence in reaching his or her own conclusion regarding "excessive demands"; (4) each applicant must be considered in his or her uniqueness", including the wealth of the applicant; and (5) the particular significance of the wealth of the applicant is relevant where the issue is demand on social services as opposed to medical services, because of the differences between the social services and medical services regimes in Canada.
The visa officer did not see the applicant's response to the medical notification. Nor did she consider the effect of the family's wealth on the likelihood of the dependent son having to resort to social services. She was unaware that the applicant was planning on providing, without resort to publicly funded programs, sheltered employment for his son. The visa officer erred by failing to take into account all of the material provided by the applicant and available to her, although not before her, that was relevant to the fulfilment of her obligation.
The Immigration and Refugee Protection Regulations provide a comprehensive scheme for disposition of decisions of the respondent made under the Immigration Act and referred back to the respondent by this Court for redetermination where the redetermination was not made before June 28, 2002. Therefore the decision was set aside and the application for permanent residence in Canada was referred back to the respondent for redetermination by a different officer, in accordance with law, but without any terms being imposed.
statutes and regulations judicially
considered
Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(a)(ii).
| Immigration and Refugee Protection Regulations, SOR/2002-227, s. 350. |
cases judicially considered
applied:
Wong v. Canada (Minister of Citizenship and Immigration), 2002 FCT 625; [2002] F.C.J. No. 980 (T.D.) (QL); Deol v. Canada (Minister of Employment & Immigration) (1992), 18 Imm. L.R. (2d) 1; 145 N.R. 156 (F.C.A.); Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139; 29 Imm. L.R. (2d) 1 (F.C.T.D.); Poste v. Canada (Minister of Citizenship and Immigration) (1997), 5 Admin. L.R. (3d) 69; 140 F.T.R. 126; 42 Imm. L.R. (2d) 84 (F.C.T.D.).
distinguished:
Deol v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 301 (C.A.).
referred to:
Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62; 42 Imm. L.R. (2d) 17 (F.C.T.D.).
APPLICATION for judicial review of a visa officer's rejection of an application for permanent residence pursuant to Immigration Act, subparagraph 19(1)(a)(ii) on the ground that the applicant's developmentally delayed dependent son might reasonably be expected to cause an excessive demand on Canadian social services. Application allowed.
appearances:
Cecil L. Rotenberg, Q.C. for applicant.
Niveditha Logsetty for respondent.
solicitors of record:
Cecil Rotenberg, Q.C., Don Mills, Ontario, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.:
Introduction
[1]These reasons arise out of an application for judicial review of a decision of a designated immigration officer (the officer) at the Canadian Consulate General in Seattle, Washington, whereby the officer rejected the applicant's application for permanent residence in Canada on the ground that one of the applicant's dependent sons, Gavin Martin Hilewitz (Gavin):
. . . comes within the inadmissible class of persons described in paragraph 19(1)(a) of the Immigration Act, 1976, in that he is suffering from developmental delay as a result of which, in the opinion of a medical officer concurred in by at least one other medical officer, his admission would cause or might reasonably be expected to cause an excessive demand on Canadian social services.
The decision under review is dated 15 September, 2000.
Background
[2]The applicant, a citizen of South Africa, applied for permanent residence in Canada in the "investor" category. He included within his application, as dependents, his wife and two sons, the younger of whom is Gavin. Gavin's date of birth is 19 August, 1982.
[3]The applicant was interviewed by the officer on the 9th of December, 1999. The officer's CAIPs notes of the interview read in part as follows:
There is an anticipated medical problem here. PI s [person interested's] youngest son was born with a brain damage apparently incurred during the birth process. He is attending a special school started by PI. He does not require around the clock care. PI has looked into a private day school in the Toronto area which has space for the boy and where he would fit in very well. I have warned them that the son is likely to be found medically inadmissible, explained the opportunity to provide further medical documentation, and the possibility of making a recommendation for MPs [Minister's permits] which then may or may not be concurred in by the province. It seems that there would be financial benefits accruing to the province if PI were allowed entry as he would try to attract foreign investments in Canada. Have also told him that he would have to be the one providing me with the salient facts for an MP submission.
[4]A medical notification signed by medical officer Dr. J. Lazarus on 7 December, 1999 and concurred in by another medical officer, Dr. J. Saint-Germain, issued. The relevant portion of the narrative in the medical notification reads as follows:
DEVELOPMENTAL DELAY
This 17 year old dependant applicant has developmental delay and is functioning at the level of a child aged 8 years. He has delayed comprehension and reading skills as well as difficulty problem solving. He is easily distracted and impulsive. He is currently attending a special school for pupils with delayed scholastic ability.
If admitted to Canada, he and his supporting family, where applicable, will be eligible for, and will likely require, a variety of social services such as further special education, continuous training to enhance his ability to carry out the activities of daily living and attain his full potential, respite care for parents, and ultimately vocational training. These requirements are far in excess of those of an average Canadian and will place an excessive demand on Canadian social services.
Inadmissible under section 19(1)(a)(ii) of the Immigration Act.
[5]The relevant portions of subsection 19(1) of the Immigration Act1 read as follows:
19. (1) No person shall be granted admission who is a member of any of the following classes:
(a) persons who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer,
. . .
(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;2
The officer sent a "fairness letter" to the applicant, dated 22 March, 2000, providing the applicant with an opportunity to respond to the medical notification. The substance of the "fairness letter" reads as follows:
I have received a medical notification stating your son, Gavin Martin Hilewitz, is suffering from developmental delay. The opinion of a medical officer regarding his medical condition, concurred in by at least one other medical officer, is stated as follows:
[As quoted earlier in these reasons.]
This information leads me to conclude that your dependant can be expected to cause excessive demands on health or social services in Canada. For this reason, I could refuse your application for permanent residence.
Before I make a decision whether Gavin is inadmissible, you may respond to the description of his medical conditions with new medical information of your own.
The applicant was provided a reasonable period of time to respond with new medical information. He was directed to provide any response to the medical officer who initiated the medical notification.
[6]The applicant did respond to the "fairness letter". In his own letter, covering additional materials, the applicant wrote:
We cannot deny that Gavin does not function as a 17 year old in all facets of his behaviour and ability. At the same time, whilst he was born with minimal brain damage, many of his functional abilities are normal and way beyond the maturity of an 8 year old.
Under the heading "Physical Medical Health", the applicant wrote:
His general medical health has been that of a healthy normal person that very rarely requires medical attention as born [sic] out in the enclosed letter from our General Practitioner, Dr M. Blumberg.
Under the heading "Schooling", the applicant wrote in part:
He has required specialized education for the past nine years during which period we have never resorted to any institutional assistance or social services available in South Africa.
. . .
As demonstrated we have never been a drain on any institutional or social service structure to support our son and cannot conceivably ever contemplate any change to this ethos in the future.
The applicant continued under the heading "Scholastic Skills":
Gavin excels in subject matters that interest him. Throughout the majority of his lifetime he has had a passion for natural history and has an amazing retentive memory for the names and habits of the various species of dinosaurs, sharks and other reptiles beyond the knowledge of most adults.
With the advent of the Internet, we have installed a computer at home for his personal use. He has been able in a short space of time to independently access the Internet, to browse websites of interest to himself, to print the contents thereof, save information and open and close files without the requirement of our assistance.
We believe that constant encouragement from ourselves, coupled with his acumen in operating a computer, will be major tools in expanding his education and general knowledge.
Under the headings "Social Skills", "Future Prognosis" and "Vocational Training", the applicant continues:
We have enclosed a letter from a psychologist whom we asked to meet and assess Gavin. To expand on this we would like you to know the following. Gavin is a delightful person who draws people to himself through his friendliness and sincerity of spirit. For many years he has been dropped by us at our local shopping mall where he does his own shopping, goes to movies, restaurants, internet cafes and video arcades, with or without a friend from his school. In the process he manages his money well, enjoys himself and telephones us when he is ready to be collected. Similarly, he goes to ten pin bowling, to the zoo and the war museum (in which he has a passionate interest).
. . .
Furtherance of his education is vitally important. This will manifest itself through a combination of private schooling and continuous training on the computer where the cyberworld library is so vast that it can only widen his general knowledge, reading skills and make use of the wide range of educational tools available.
With regard to schooling, we have on our previous trips to Toronto, identified potential schooling, the costs thereof and most importantly whether Gavin would fit their criteria. We even had an interview with Gavin present at the Shore Institute of Learning at which we had a very positive response with regard to them educating Gavin. If granted a visa, we would explore the many other options available in private schooling without requesting or needing any financial assistance.
. . .
There is no doubt that Gavin will have to have sheltered employment. As my background is that of a person who has been involved in many businesses and industries over my working life of 30 years, it is my intention to establish or purchase as one of my business interests a business to accommodate Gavin's future. For example, I would seriously consider purchasing a Video Game/Toy Franchise employing experienced management and to include Gavin in that operation where he could demonstrate home video games at which he is far above the average user of such products.
Finally, after commenting on the commitment of three other children of he and his wife, all older than Gavin, the applicant concludes:
In conclusion we wish to point out that we are very proud and independent people who have endured hard times and enjoyed very successful times. Throughout these times we have always been independent and focused on Gavin's well being, security and happiness. We assure you that this will never change.
[7]The applicant's responsive letter covered brief letters from a clinical psychologist and a medical doctor who had known Gavin as a patient for ten years. Extensive material relating to Gavin's school and his schooling was also enclosed.
[8]In a communication dated 23 May, 2000, Dr. Saint-Germain, the medical officer who concurred in the original medical notification in respect of Gavin, advised that he had reviewed the new information reflected in the response to the "fairness letter" as well as the full medical file on Gavin and had concluded that the new material "does not modify the current assessment of medical inadmissibility." That opinion was concurred in by Dr. Walter G. Waddell, a medical officer who was not a party to the original assessment. Apparently Dr. Lazarus, the medical officer who formulated the original medical notification took no part in the review of the new material.
[9]The decision letter that is here under review followed.
[10]Both the officer and Dr. Waddell filed affidavits on this application for judicial review. Both were cross-examined. References to certain of their responses on cross-examination will follow in the portion of these reasons under the heading "Analysis".
The Issues
[11]The issues arising on this application for judicial review are set out in the application record filed on behalf of the applicant, in the following terms:
| A. Whether the medically inadmissible class of persons described in subparagraph 19(1)(a)(ii) of the Immigration Act includes mentally disadvantaged applicants or their dependents? |
| B. In the alternative, whether the admission of this particular applicant taken in his uniqueness would cause excessive demands on health or social services in Canada? |
| C. Whether the visa officer ignored relevant evidence, misconstrued the evidence before her and made findings that were patently unreasonable as to constitute reviewable error? |
| D. Ought due deference be given to a decision of an officer who was both unfamiliar with and inexperienced in the question that she had to decide and thus, is the test to be applied to her decision, correctness? |
| E. Whether the visa officer failed to observe a principle of natural justice, procedural and administrative fairness that she was required by law to observe. |
[12]Shortly before the date set for hearing of this application for judicial review, counsel for the applicant advised the Court and counsel for the respondent that he would not be pursuing the first of the foregoing issues.
Analysis
(1) Recent Case Law
[13]In Wong v. Canada (Minister of Citizenship and Immigration),3 my colleague Mr. Justice McKeown had before him an application for judicial review of a decision of a visa officer whereby the visa officer rejected, for the third time, the applicant's application for permanent residence in Canada on the ground that the applicant's daughter suffered from mild to moderate "mental retardation" (now referred to as "developmental delay" or "cognitive impairment") and Down's Syndrome thus leading two medical officers to the opinion that her admission would or might reasonably be expected to cause excessive demands on social services in Canada. Justice McKeown notes that one of the issues raised before him was whether or not the visa officer had erred in failing to consider the applicant's daughter in her "uniqueness" with respect to social services. At paragraph 5 of his reasons, Mr. Justice McKeown noted an earlier decision of Madam Justice Reed [Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62 (F.C.T.D.)] arising out of the rejection of the applicant's second application for permanent residence in Canada. He wrote:
On the application for judicial review of the August 1996 decision, Reed J. allowed the application finding that there was a breach of procedural fairness as a result of the applicant not being given answers to the questions he had posed about the doctor's opinion that his daughter's admission to Canada would place "excessive demands" on Canadian social services. Reed J. stated at paragraph 26:
Most significant is the non-disclosure to the applicant of information concerning the basis on which the opinion was rendered. The applicant and his counsel wished to respond to the conclusion that admission of the daughter to Canada would as a result of her medical condition, cause excessive demands on social services. In order to do this in an intelligent way they needed to know what factors were considered relevant. In my view, the non-disclosure of the requested information constituted a breach of natural justice [and] is a breach of the rules of fairness.
Reed J. also noted that under Ontario's Developmental Services Act, Canadian residents who are able to do so are required to pay for the social services that are in question. She also commented in obiter on the need to consider an individual's particular circumstances. At paragraph 31 she states:
Having come to this conclusion, it is not, strictly speaking, necessary to consider the other issues that counsel raised. I do note, however, that under subparagraph 19(1)(a)(ii), it is the admission of the individual that is to be assessed in determining whether excessive demands would be or might reasonably be expected to arise. I read that provision as requiring a consideration of the individual's particular circumstances, including in this case the applicant's offer to set up a trust fund.
Counsel for the respondent argues that individual circumstances (particularly above average financial resources) should not be taken into account when assessing medical inadmissibility because our medical and social services are predicated on the principle that all individuals are equally entitled, and that advantages should not accrue in these areas to some individuals simply because they are wealthier than others. The force of that argument is strong. However, the category under which the applicant has been approved for permanent residence [sic] status is the self-employed category, that is, he has been approved because of his financial resources and entrepreneurial experience. There does seem to be an incongruity between admitting someone as a permanent resident because he has significant financial resources but refusing to take into account those same resources when assessing the admissibility of a dependent. This is particularly true if Canadian residents themselves must pay for the social services if they can afford to do so. [Emphasis added.]
[14]After quoting subparagraph 19(1)(a)(ii) of the Immigration Act, as reproduced earlier in these reasons, Mr. Justice McKeown continued at paragraphs 18 to 22 and 26 of his reasons:
In Deol v. M.E.I. (1992), 18 Imm. L.R. (2d) 1 (F.C.A.), MacGuigan J. held that the fact of mental retardation alone is not the relevant factor but the degree and probable consequences of that degree of retardation for excessive demands on government services. Also, in Ismaili v. M.C.I. (1995), 29 Imm. L.R. (2d) 1 (F.C.T.D.), Cullen J. considered the social services in the particular region of Canada where the applicant wished to settle. Cullen J. in that case also stated that:
The visa officer--wholly apart from the decision of the medical officers--is obliged to consider whether the applicant's medical condition would place excessive demands on health or social services. The visa officer, without second guessing the medical, diagnostic opinion, must consider all of the available evidence.
Furthermore, in Poste v. M.C.I., [1997] F.C.J. No. 1805 (T.D.) Cullen J. held that each and every applicant should be looked at in their "uniqueness".
The applicant submits that family support ought to be considered, but that it was not considered in this case. Allegedly the medical officers based their opinion on eligibility for services alone and there is wording in the medical notification and refusal letter such as "eligible for . . . services" and "likely to require . . . services". The applicant submits that without a reasonably direct inquiry as to family support and the intentions of the applicant vis-à-vis his dependents, no intelligent answer can be made to the statement "likely to require". In this case, the applicant made it very clear that there would be no community involvement in the care of his daughter.
In my view the respondent did not err in failing to consider family support. Dr. Giovinazzo specifically explains in his December 31, 1998 letter that they were aware of the family support for the daughter in this case. Notwithstanding this support, however, the officers were of the opinion that social services outside the home would be required to assist the individual to be more independent and learn to interact with others. The letter also clearly indicates that the daughter's specific circumstances were taken into account.
The health services that the daughter may require is not at issue in the case before me. With respect to social services, one has to be considered eligible, and such application entails consideration of "whether the applicant is able to contribute to all or any part of the cost thereof" (Developmental Services Act, R.S.O. 1990, c. D.11 and the General Regulation, R.R.O. 1990 Reg. 272; Education Act R.S.O. 1990, c. E2). Thus, the applicant will likely be required to pay for any services used because he has the means to do so. Thus no demands will be caused by the admission of the applicant with respect to social services.
The jurisprudence is split on the question of whether the wealth of the applicant should be taken into account in assessing excessive demands on social services. While in Ching Ho Poon v. M.C.I., [2000] F.C.J. No 1993 (T.D.) Pelletier J. found that wealth was not relevant, in my view the better approach was that taken by Reed J. in the earlier Wong decision when she found that it would be incongruous to admit somebody as a permanent resident because he has significant financial resources but then refuse to take into account these same resources when assessing the admissibility of the dependant. This approach would not be applicable in the case of medical services but it is applicable with respect to social services.
. . .
In the case before me the officers identified the medical condition and then identified a broad range of social services which normally would be made available and would benefit her. The officers held such service to be more than the normal services utilized and therefore excessive. However, the response of Dr. Giovinazzo and the decision letter of the officer do not indicate that there was any consideration of which specific services would be available in the particular community in which the applicant chose to settle. In my view it is important to note that we are talking about the social services here and not medical services. In Canada one is not permitted to obtain medical services on a private basis. However, there is no such restriction in the social services and as was shown by Ontario's Development Services Act, persons who can afford to pay for social services must pay for them. Accordingly, since there is no evidence before me that the medical officers or the visa officer considered the specific services available in the particular community where the applicant chose to reside, this constitutes a reviewable error. [Emphasis added.]
[15]I note in particular the following points from the foregoing quotation:
· the reference to Mr. Justice MacGuigan's finding in Deol v. Canada (Minister of Employment & Immigration) [(1992), 18 Imm. L.R. (2d) 1 (F.C.A.)] that the fact of mental retardation or developmental delay alone is not the relevant factor but the degree and probable consequences of that degree of retardation or delay for excessive demands on government services;
· from Ismaili v. Canada (Minister of Citizenship and Immigration) [(1995), 100 F.T.R. 139 (F.C.T.D.)], the importance of considering the social services available in the particular region of Canada where an applicant wishes to settle;
· once again from Ismaili, the obligation of the visa officer, without second guessing the medical, diagnostic opinion of the medical officers, to consider all of the available evidence in reaching his or her own conclusion regarding "excessive demands";
· from Poste v. Canada (Minister of Citizenship and Immigration) [(1997), 5 Admin. L.R. (3d) 69 (F.C.T.D.)], the obligation to consider each applicant in his or her "uniqueness", including the wealth of the applicant; and
· the particular significance of the wealth of the applicant where the issue is demand on social services as opposed to medical services, because of the differences between the social services and medical services regimes in Canada.
[16]More recently, Mr. Justice Evans, on behalf of a unanimous panel of the Court of Appeal, provided reasons in Deol v. Canada (Minister of Citizenship and Immigration).4 The Court had before it an appeal from the Trial Division on a judicial review of a denial of visas to sponsored relatives of the applicant on the ground that the applicant's father, one of those seeking a visa, was found to be medically inadmissible by reason of demands on medical services rather than social services.
[17]At paragraphs 22 to 24 of his reasons, Mr. Justice Evans focussed on the issue of "excessive demands" and wrote as follows:
In my opinion, cost alone can constitute "excessive demands" under subparagraph 19(1)(a)(ii). In Poon . . . Pelletier J. agreed that, even though not mentioned in the Act or the Regulations, cost is a relevant consideration. The "excessive demands" limb of medical inadmissibility expresses a legislative concern to protect from unusually high demands the public resources devoted to health care.
In addition, I would note that the statutory phrase is "excessive demands", not "excessive demand". The singular, "excessive demand", might well have been regarded as the correlative of "inadequate supply". However, it requires no linguistic stretch to interpret the plural, "excessive demands", as including both the cost and the availability of health services that a visa applicant is likely to require if admitted to Canada.
Moreover, it is unrealistic to regard cost and availability as unconnected. If enough people need expensive but low demand health services, resources may have to be diverted from other services for which demand is higher, thereby creating or lengthening waiting lists for those services. Alternatively, an increased demand for a particular service may prevent the reallocation of funds to services that are in short supply. [Citation omitted; emphasis added.]
[18]At paragraphs 38 and 46, Mr. Justice Evans wrote:
In determining what health services Mr. Singh would likely consume if admitted to Canada, the Board seems to have regarded as a relevant consideration whether he had elected to forego surgery. I agree that this is a relevant consideration. However, I also agree with the Board that evidence that an applicant may not elect to have surgery cannot be determinative of the demands that the individual's admission might reasonably be expected to cause on health services. No one can waive the right of access in the future to whatever publicly funded health services they need.
. . .
As has been held in several previous cases, it is not possible to enforce a personal undertaking to pay for health services that may be required after a person has been admitted to Canada as a permanent resident, if the services are available without payment. The Minister has no power to admit a person as a permanent resident on the condition that the person either does not make a claim on the health insurance plans in the provinces, or promises to reimburse the costs of any services required. See, for example, Choi v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 308, at para. 30; Cabaldon v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 296, at para. 8; Poon, supra, at paras. 18-19. [Emphasis added; citation added.]
[19]Counsel for the respondent urged that I should read Deol as speaking equally to excessive demands on social services that might reasonably be expected to be caused by the admission of an individual. I decline to do so. I am satisfied that the distinction in the delivery systems in Canada for medical services and social services that are highlighted by Mr. Justice McKeown in the Wong, supra,decision from which I have quoted extensively, when read together with references in the reasons of Mr. Justice Evans in Deol, supra, to the legislative concern to protect from "excessive demands" or "unusually high demands" the public resources devoted to health care, to "publicly funded health services" and to claims on "the health insurance plans in the provinces" is a sufficient distinction to warrant a different analysis.
(2 ) The Officer's Role in Considering Whether Gavin's Developmental Delay Would Place Excessive Demands on Social Services
[20]I return to the brief quotation from the reasons of Mr. Justice Cullen in Ismaili, supra,5 cited by Mr. Justice McKeown in Wong, supra, and quoted earlier in these reasons in the context of quotations from Mr. Justice McKeown's reasons. I repeat the brief passage [supra, at paragraph 14] from Ismaili here for ease of reference:
The visa officer--wholly apart from the decision of the medical officers--is obliged to consider whether the applicant's medical condition would place excessive demands on health or social services. The visa officer, without second guessing the medical, diagnostic opinion, must consider all of the available evidence.
[21]The social services here at issue were identified as special education and training, sheltered employment and respite care. The officer acknowledged on cross-examination that respite care would probably not be needed.6 Further, the officer acknowledged that she did not see the response provided by the applicant to her "fairness letter".7 At the same time, the officer acknowledged that she had an obligation to assure herself that the medical notification that was before her was reasonable, on the basis of the material,8 and I am satisfied that the reference to "the material" extends to all relevant material which, on the facts of this matter, certainly extends to the response to the "fairness letter".
[22]The following exchange took place between counsel for the applicant and the officer on her cross-examination:
Q. That's right, he would be eligible for whatever these services. But the question is: Would he likely require them?
A. You see, I don't . . .
Q. That's the issue; isn't it?
A. What about the future? I mean, I can't predict that. Would he likely require it? Is the lack of probability, a lack of possibility of his requiring this? No in my opinion. Right now Mr. Hilewitz is a very-well-to-do . . . man who cares very much about his son and has hereforeto defrayed the costs of Gavin's needs, and I'm sure that it is his intention to do so in the future too, but you see, I don't know what will happen in the future. It's very hard to predict about the future.
| For example, if something happens to the ability to pay, then would Gavin not need the social services and avail himself of his eligibility? I mean, to my knowledge, there are no legal provisions to limit Gavin's eligibility to social services based on his ability to pay if he were to be admitted as a permanent resident. And although eligibility may not constitute probability [of] use, it does constitute possibility, and that is what I think I have to look at, you see. I think that is entirely reasonable.9 [Emphasis added.] |
[23]The officer continued:
. . . I'm not aware that the lack of evidence of probability of future use, therefore an applicant's financial circumstances, gives me the right to disregard a medical finding. As a matter of fact, it does not. It is not within my statutory authority as a visa officer to treat people differently depending on their personal wealth.10 [Emphasis added.]
[24]The officer acknowledged on cross-examination that the applicant had advised her that Gavin would be placed in a private school. She found the applicant credible in this regard. At the same time, she apparently was unaware that the applicant was planning towards providing, without resort to publicly funded programs, sheltered employment for his son.
[25]Against the obligations of a visa officer as stated by Mr. Justice Cullen in the quotation from Ismaili that appears above, I am satisfied that the officer misunderstood her obligation to consider whether Gavin's medical condition would place excessive demands on social services and simply failed to take into account all of the material provided by the applicant and available to her, albeit on her admission, not before her, that was relevant to the fulfilment of her obligation. I reach this conclusion in particular in reliance on Mr. Justice McKeown's decision in Wong, supra, and on the points that I draw from that decision that are set out earlier in these reasons.
[26]On this basis and on this basis alone, I am satisfied that the officer erred in a reviewable manner in her failure to consider all of the material available to her and in her failure to fully comprehend, and therefore to fulfill, her obligation in review of the medical notification on which she based her rejection of the applicant's application for permanent residence in Canada.
[27]In the result, this application for judicial review will be allowed.
(3) Other Issues
[28]I acknowledge that I have not directly addressed the four live issue questions placed before the Court on behalf of the applicant. I am satisfied that my analysis to this point addresses the first two of those questions. The third question is based upon an assumption that, on the evidence before me, I reject. I am not satisfied that the evidence discloses that the officer "was both unfamiliar with and inexperienced in the question that she had to decide". In brief response to the fourth issue question, that being whether the officer failed to observe a principle of natural justice or of procedural and administrative fairness that she was required by law to observe, I am satisfied that it should be answered in the negative.
Reliefs Requested
[29]In the memorandum of fact and law filed on behalf of the applicant, under the heading "Order sought", the substance of the final paragraph reads as follows:
a) An order for a writ of certiorari quashing the decision of visa officer Virginia Hughes, dated September 15, 2000;
b) An order for a writ of mandamus directing the Respondent to process the Applicant's application for permanent residence to Canada in accordance with the Immigration Act (the "Act") and any other applicable law;
c) A Declaratory Order that the Applicant's application for permanent residence in Canada be processed within 90 days of the Order and by a different visa officer and without further regard to the issue of excessive demand for the Applicant's son Gavin;
d) Costs for this procedure;
e) And for such other relief as this Honourable Court may deem just.
[30]During the course of the hearing, counsel for the applicant indicated that he wished to expand the reliefs sought and to modify the claim for costs to costs on a solicitor-and-client basis. At the request of the Court, counsel confirmed the modification of the reliefs sought in a letter addressed to the Court and copied to counsel for the respondent. The substance of the communication to the Court is in the following terms:
The applicant wishes to have the prayer for leave [relief] amended so that in the event of success, not only should certiorari be granted, quashing the decision of Virginia Hughes, but a mandamus issued to send the matter back for re-processing in accordance with the Immigration Act and Regulations upon the following terms:
| a. That there be no need for further medical examination of the defendant, Gavin Hilewitz, in respect to his health condition of being developmentally delayed or mentally retarded. |
| b. That any medical opinion issued concerning developmental delay or mental retardation of the dependant, Gavin Hilewitz, if any, be based upon the following criteria: |
| i. That Gavin be assessed as a dependant and not an independent applicant; |
| ii. That the demand for services, if any, should relate to the place of destination; |
| iii. That the suggested use of social services, if any, be based on the probability that such services will be used by the Hilewitz family; |
| iv. That the social services so specified shall be of a compulsory nature, that is to say that the dependant shall require the services and have no option but to utilize those services; |
| v. That the services alleged to be probably utilized will be specified in both a cost evaluation and scarcity evaluation based upon the location of destination, i.e., Toronto. |
| c. That the findings of this court, including those facts in the affidavit of the applicant, upon which there was no cross-examination, form the factual framework in which the opinion is to be granted. |
| d. That the opinion by the medical department, if any, be delivered within thirty days of the date of the order of this court and in the above terms. Thereafter, the applicant be permitted a further thirty days to provide any answer rebutting or negativing the said opinion, if any, and in turn, that the Respondent shall take such rebuttal evidence into account and demonstrate in writing why it does not apply, again within thirty days. |
| e. In the event the report from the medical doctors, in respect to probable use of social services, is not delivered to the applicant's solicitor as aforesaid within thirty days, then the matter shall proceed towards the issue of the visa, as if no such opinion were forthcoming. |
[31]The Immigration and Refugee Protection Regulations11 which came into force on 28 June, 2002, commencing with section 350, provide a comprehensive scheme for disposition of decisions or acts of the respondent or an immigration officer made under the Immigration Act and referred back to the respondent by this Court for redetermination where the redetermination was not made before 28 June, 2002. I am satisfied that an order of this Court referring this matter back for redetermination in accordance with the Immigration Act and Regulations would in effect be inconsistent with law. I am not prepared to so order. Further, I am not prepared to dictate terms on which a redetermination of the applicant's application for permanent residence in Canada should be redetermined.
Reliefs Granted
[32]An order will go setting aside the decision that is under review and referring the applicant's application for permanent residence in Canada back to the respondent for redetermination by a different officer, in accordance with law.
[33]I find no basis whatsoever on the materials before me that would justify an order for costs in favour of the applicant, on a solicitor-and-client basis. An order for costs in favour of the applicant, on the ordinary scale, will go.
Certification of a Question
[34]At the close of the hearing of this matter, I indicated that I would prepare and issue reasons and thereafter provide counsel an opportunity to make submissions on whether or not this matter raised a serious question of general importance warranting certification of a question that would provide a basis for appeal from my decision. Counsel will have 14 days from the date of these reasons to serve and file any submissions they might wish to make on certification of a question. Any submissions proposing certification should be served and filed early enough within the 14-day period to allow for reply submissions if such are considered appropriate.
1 R.S.C., 1985, c. I-2.
2 S. 19(1)(a) of the Immigration Act was repealed and replaced by subsection 11(1) of S.C. 1992, c. 49. However, at all relevant times, that repeal and replacement had not been proclaimed in force.
3 2002 FCT 625; [2002] F.C.J. No. 980 (T.D.) (QL).
4 [2003]1 F.C. 301 (C.A.).
5 (1995), 100 F.T.R. 139 (F.C.T.D.).
6 Applicant's record, Tab 4, p. 79, question 69.
7 Applicant's record, Tab 4, pp. 72-73, question 46.
8 Applicant's record, Tab 4, pp. 73-74, questions 49 to 51.
9 Applicant's record, Tab 4, pp. 75-76.
10 Applicant's record, Tab 4, p. 77, question 60.
11 SOR/2002-227.