Date: 20061205
Docket: IMM-5478-05
Citation: 2006 FC 1461
Toronto, Ontario, December 5, 2006
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
HOW TIEM LEE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In the
present Application, the Applicant, a citizen of Bangladesh, challenges the decision of an
Immigration Officer (Officer) who found him inadmissible for permanent
residence in Canada. The Applicant applied under
the “entrepreneur” category prior to June 2002, and, although he was found to
qualify, he was found to be inadmissible, pursuant to s.38(1) of the Immigration
and Refugee Protection Act (IRPA); on the basis of medical evidence,
the Officer found that the Applicant’s health conditions, which included polycystic
kidney disease, hypertension, moderate mitral regurgitation and chronic renal
failure, would reasonably be expected to cause “excessive demands” on Canada’s
health services.
[2]
The
Applicant argues that, as he is an entrepreneur with considerable net worth, the
Officer erred in law by failing to consider his ability to provide for his own
health care if admitted to Canada, and, further, that the
Officer breached procedural fairness by not considering his request for a
temporary resident permit.
I. Did
the Officer err in law by not considering the Applicant’s financial ability to
pay for his own health care?
A. Considerations
in answering the question
[3]
On this
issue, the Respondent argues that the Applicant’s ability to pay was properly
not considered because it is not a factor that the Officer could, as a matter
of law, take into consideration. Five reasons are provided in support of this
submission. As outlined in the analysis which follows, I agree with the
Respondent on each reason advanced.
1.
There is a distinction between social and health services
[4]
The
Applicant relies on the Supreme Court of Canada’s decision in Hilewitz v. Canada (Minister of
Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 58 (Hilewitz)
to argue that, as is the case with social services, a person in the Applicant’s
position can pay for his own medical health services.
[5]
In
Hilewitz the
Court reviewed decisions to deny permanent resident visas to two families with
disabled children because, pursuant to s.19(1)(a)(ii) of IRPA, the
disabled children might reasonably be expected to cause excessive demands on
social services in Canada. In the majority
decision, the Court found that the family’s ability to pay was a relevant
factor when assessing for permanent resident status. The Court found that the
“investor” and “self-employed” categories under which the applicants qualified
for admission, to a large extent, concerned the individual’s assets, and, thus,
it would seem incongruous to interpret the legislation in such a way that the
very assets that qualify these individuals for admission to Canada could be ignored in
determining admissibility of their disabled child.
[6]
In Hilewitz at para. 62, the Court
noted that the officials concerned should have accounted for the means that the
families had in providing social services for their disabled children through
privately funded mechanisms:
¶ 62
The medical notifications relating to both Gavin Hilewitz and Dirkje de Jong
identified three social services that might be required: special education,
vocational training and respite care. The Hilewitz and de Jong families both
expressed an intention to send their children to private schools with
specialized education. Mr. Hilewitz also expressed an intention to purchase a
company which would provide employment for Gavin, thus avoiding the need for
vocational training. Nevertheless, both applications were rejected on the basis
that there would be excessive demands on social services.
[Emphasis
added]
Further, at
paras. 67-69, the Court recognized the difference between social and health
services and noted that in Ontario, there were mechanisms by which parents, with the ability to pay, might be required to contribute
financially to the costs of social services for their children:
¶ 67
In the de Jong case, the letter from Dr. Bertrand similarly shows that he
too made no distinction between health and social services, and
refused to take into account the de Jong family's resources and support in
determining the potential burden on social services. Instead, he raised the
speculative possibility that the family would fall on hard times and be forced
to resort to publicly funded services. Despite the clear directions in the
order of Reed J., Dr. Bertrand persisted in insisting that in making his
determination, he had no authority in law to consider the family's financial
resources.
¶ 68
These views, it seems to me, undermine and contradict the direction in the
legislation that a person can only be found to be ineligible for admission if
his or her admission "would" or "might reasonably be
expected" to cause excessive demands. That means that something more than
speculation must be applied to the inquiry. The fears articulated in the
rejections of the Hilewitz and de Jong applications, such as possible
bankruptcy, mobility, school closure or parental death, represent contingencies
that could be raised in relation to any applicant. Using such contingencies to
negate a family's genuine ability and willingness to absorb some of the burdens
created by a child's disabilities anchors an applicant's admissibility to
conjecture, not reality.
¶ 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.
[Emphasis added]
As a result, because
Hilewitz dealt specifically with an Applicant’s ability to pay for social
services and not health services, I reject the Applicant’s argument
that the reasoning in Hilewitz applies equally to health services.
2.
A permanent resident automatically has health insurance in Canada
[7]
The Canada Health Act, R.S.C. 1985, c. C-6
(CHA) provides that the health services that may be
required by the Applicant are insured services covered by provincial and
territorial publicly funded health care insurance plans: s.2
provides that “insured health services” includes medically necessary hospital
and physician services provided to insured residents of a province, and an insured
person includes a resident of the province for a set period; s.9 requires that
health services provided be comprehensive; and s.10 provides that “the health
care insurance plan of a province must entitle one hundred per cent of the
insured residents of a province to the insured health services provided for by
the plan on uniform terms and conditions.”
3.
Paying for health care is contrary to Canadian public policy
[8]
Section 3 of the CHA provides the
primary objective of Canadian health care policy:
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3. It is hereby declared that
the primary objective of Canadian health care policy is to protect, promote
and restore the physical and mental well-being of residents of Canada and to facilitate
reasonable access to health services without financial or other barriers.
[Emphasis added]
|
3. La politique canadienne de la santé a pour premier objectif de
protéger, de favoriser et d’améliorer le bien-être physique et mental des
habitants du Canada et de faciliter un accès satisfaisant aux services de
santé, sans obstacles d’ordre financier ou autre.
|
[9]
Counsel for the Applicant confirmed that, if allowed to stay in
Canada, the Applicant will likely reside in Ontario, and, therefore, Ontario
law comes into play in the present Application. In Ontario, s.10 of the Health
Insurance Act,
R.S.O. 1990, c.6 states that the purpose of the Ontario Health Care
Insurance Plan (Plan) is to provide for insurance against the costs of insured
services on a non-profit basis, and on uniform terms and conditions available to all
residents of Ontario. This legislation establishes that every person who is an
eligible resident of Ontario is entitled to become an insured person under the
Plan, to have the insured health services they require paid for by the Plan,
and also prohibits all other contracts of insurance for insured health
services.
4. There is no private health care
in Canada
[10]
Relevant
to the present Application, the Federal Court of Appeal in Deol v. Canada (Minister of Citizenship and
Immigration),
[2002]
F.C.J. No. 949 at para. 46 addressed whether an Applicant’s ability to pay for
health services should be considered when issuing permanent resident visas:
Issue 5: Did the Board
err in law in failing to have regard to the financial ability of the applicant
or members of her family to pay for the cost of surgery that might be
recommended for Mr. Singh?
¶ 46
In my opinion, it did not. 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]
The basis for
the decision is that, on the application of the CHA, there should be no
private market outlets for health services in Canada.
[11]
By s.12 and ss.18-19 of the CHA, financial
charges such as extra billing and user charges for insured health services are
not permitted as they are seen to be barriers, or impediments, to people
seeking medical care and, as such, are contrary to the accessibility criterion.
Thus, charging patients for insured health services is expressly prohibited
under the CHA. Based upon how Canada disseminates health services to
permanent residents, a person’s financial ability to pay for health services
would be irrelevant.
[12]
Section 10 of the Commitment to the
Future of Medicare Act, R.S.O.
2004, c. 5 prohibits physicians from receiving payment or benefit for insured
health services covered by the Plan from anyone other than the Plan, a
public hospital or a prescribed facility. Section 10 also prohibits physicians
from charging more or accepting payment or another benefit for more than the
amount payable under the Plan for rendering insured services to an insured
person. As well, a person or entity generally may not charge or accept payment
or other benefit for an insured service rendered to an insured person.
5. Excessive demands on health care are more than just financial
demands
[13]
An applicant with abundant resources would still pose “excessive
demands” on Canadian health care by simply using up finite places in waiting
lists. Justice Snyder explains this point in Gilani v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 240 at paras. 23-26:
¶ 23
The high cost of hospitalisation and treatment was one of the reasons for the
Program Manager's refusal to issue the Minister's Permit. However,
if the Applicant were granted a Minister's Permit, she would not be eligible
for provincial health insurance in Ontario ("OHIP"). As a
result, the high cost of her treatment was not something that would place an
excessive demand on the Canadian health care system; it would be the Applicant,
and not OHIP, who would pay for that treatment. Furthermore, the
evidence revealed that the Applicant had private medical insurance to cover her
treatment expenses and had significant financial assets (she was prepared to
invest approximately $2 million Canadian in her sister's business) which could
pay for anything not covered by insurance. Her admission on a Minister's
Permit, therefore, would not actually cost the province anything in terms of
her medical treatment.
¶ 24
Although the Program Manager was in favour of obtaining the province's input on
the admission of the Applicant on a Minister's Permit, there is no indication
that the input was actually obtained. If the Program Manager had
contacted the province, she would have discovered that the Applicant would not
qualify for OHIP if admitted on a Minister's Permit. In my view, the
Applicant's eligibility for provincial health insurance is something that the
Program Manager should have investigated and referred to specifically in her
decision given her concern regarding the high cost of the Applicant's
treatment. As a result, her conclusion regarding the cost of the
Applicant's medical treatment and its relation to the issuance of a Minister's
Permit was unreasonable and based on inaccurate assumptions.
¶ 25
However, in my view, this error is not sufficient to allow this application
for judicial review. The high cost of treatment, although a major
factor in the Program Manager's decision, was only one factor considered by her
in refusing to issue a Minister's Permit. That decision was also
based on the potential displacement of Canadians from waiting lists and the
lack of a compelling need to enter Canada. While
the medical evidence indicates that her breast cancer has stabilized, it also
indicates that she will require care from a cancer specialist and will probably
require treatment in the future. Although, she is willing and
able to pay the costs of any medical treatment she does require, it is likely
that providing service to her would displace Canadians waiting for medical
services.
¶ 26
With respect to the issue of the displacement of Canadians on waiting lists,
there is no mention in the Certified Tribunal Records of the Applicant's
intention to seek treatment in the United States. If the Applicant
did intend to seek medical treatment in the United States, this information
should have been submitted. The decision of the Program Manager,
based on the remaining evidence, is supported by reasons that can stand up to a
somewhat probing examination
[Emphasis added]
B. Conclusion
[14]
Given the considerations described, I find that financial ability
does not change entitlement or access to available health care, and this, compounded
with the reality that there is no private health care available, results in the
conclusion that the Applicant’s financial ability to pay for health care is not
a salient consideration in granting permanent resident status.
[15]
As a result, I find that the Officer did not err in law by not considering the
Applicant’s financial ability to pay for his own health care.
II. Did the Officer breach
procedural fairness by not considering the Applicant’s request for a Temporary
Resident Permit?
[16]
Section 24(1) of IRPA
enunciates how a Temporary Resident Permit (TRP) is issued:
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24. (1) A foreign national
who, in the opinion of an officer, is inadmissible or does not meet the requirements
of this Act becomes a temporary resident if an officer is of the opinion that
it is justified in the circumstances and issues a temporary resident permit,
which may be cancelled at any time.
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24. (1) Devient
résident temporaire l’étranger, dont l’agent estime qu’il est interdit de
territoire ou ne se conforme pas à la présente loi, à qui il délivre, s’il
estime que les circonstances le justifient, un permis de séjour temporaire —
titre révocable en tout temps.
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Where an applicant requests that he or
she be considered for a TRP, the request must be accommodated (Japson v. Canada, [2004] F.C.J. No. 694 at
para. 25).
[17]
In a
letter to the Canadian Consulate General dated February 3, 2004, the Applicant
made the following statement:
If necessary, our client’s
would not be adverse to coming to Canada
on Temporary Resident permits, with such terms and conditions which you may
require.
(Applicant’s Record, p. 186)
I find that the statement constitutes a
request for consideration of a TRP.
[18]
The
Respondent defends the Officer’s failure to consider the Applicant’s request on
the basis that the Applicant did not provide sufficient information and
argument to enable the Officer to determine whether a TRP is warranted. I
reject this argument. I agree with Counsel for the Applicant that the request placed before the Officer, when read
in context with the application for permanent residence, made it clear that the
Applicant wished to remain in Canada by whatever grant of
authority. Therefore, the Applicant’s request to the Officer, to consider
granting him a TRP, required the Officer to respond without the necessity of a
separate submission. In my opinion, the
failure of the Officer to deal with the request constitutes an error in due
process.
ORDER
Pursuant to s.18.1(3)(a) of
the Federal Courts Act, I hereby order that a different immigration
officer assess the Applicant’s Temporary Resident Permit Application on the
basis of the existing evidentiary record.
“Douglas
R. Campbell”
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