Date: 20060210
Docket: IMM-3421-05
Citation: 2006 FC 177
Ottawa, Ontario, February 10, 2006
PRESENT:
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
CATHERINE
NEWTON-JULIARD
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) of a
decision by the visa officer denying the applicant permanent residence based on
the health condition (autism) of her daughter Djéna, as admitting her to Canada
might reasonably be expected to cause excessive demand on health or social
services pursuant to subsection 38(1) of the IRPA.
[3]
Initially,
however, when the visa officer made her decision, the embassy had given 90 days
to the applicant via a fairness letter (“lettre d’équité”) to submit evidence
and observations to it opposing the medical notification of the Embassy’s
medical officer, Dr. Shaun Gollish, who made a prognosis to the
effect that Djéna’s admission to Canada might reasonably be expected to cause
excessive demand.
[4]
In January
2005, the applicant in fact sent additional documents to the Embassy regarding
the medical condition of her daughter Djéna. These documents were sent to
Dr. Gollish, who determined that the additional evidence provided by the
applicant was not sufficient to reverse his first prognosis and the finding of
excessive demand.
[5]
It was
after reviewing all of the applicant’s evidence in the record and
Dr. Gollish’s prognosis that the visa officer decided, on May 3, 2005, to
deny the applicant’s permanent residence application.
RELEVANT LEGISLATION
[6]
The
following statutory and regulatory provisions are those relevant to this
matter. Section 42 and subsection 38(1) of the IRPA provide the
following:
|
Inadmissible family member
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Inadmissibilité familiale
|
|
42. A foreign national, other than a protected person, is
inadmissible on grounds of an inadmissible family member if
|
42. Emportent, sauf pour le résident
permanent ou une personne protégée, interdiction de territoire pour
inadmissibilité familiale les faits suivants:
|
|
(a) their accompanying family
member or, in prescribed circumstances, their non-accompanying family member
is inadmissible; or
|
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) they are an accompanying
family member of an inadmissible person.
|
b) accompagner, pour un membre de sa
famille, un interdit de territoire.
|
|
…
|
|
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Health grounds
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Motifs sanitaires
|
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38. (1) A foreign national is
inadmissible on health grounds if their health condition
|
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.
|
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(a) is likely to be a danger to
public health;
|
|
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(b) is likely to be a danger to
public safety; or
|
|
|
(c) might reasonably be expected
to cause excessive demand on health or social services.
|
|
[7]
Sections
20 and 34 of the Immigration and Refugee Protection Regulations,
SOR/2002-227, (the Regulations) provide the following:
|
Assessment of inadmissibility on health
grounds
|
Évaluation pour motifs sanitaires
|
|
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.
|
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.
|
|
Excessive demand
|
Fardeau excessif
|
|
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
|
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) any reports made by a health
practitioner or medical laboratory with respect to the foreign national; and
|
a) tout rapport établi par un
spécialiste de la santé ou par un laboratoire médical concernant l'étranger;
|
|
(b) any condition identified by
the medical examination.
|
b) toute maladie détectée lors de la
visite médicale.
|
ISSUES
1.
Did the
medical officer consider Dr. Billon’s report?
2.
Was the
applicant entitled to a legitimate expectation?
3.
Did the
visa officer form her own opinion?
4.
Did the
visa officer err in law in determining that Djéna is an “excessive demand”?
THE STANDARD OF REVIEW
[8]
The issue
of legitimate expectation has been defined as the extension of the rules of
natural justice and procedural fairness, Reference Re Canada Assistance Plan
(B.C.), [1991] 2 S.C.R. 525, at page 557. It had been established
in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539,
that the standard of review does not apply when it is a matter of determining
whether the principles of procedural fairness have been followed.
[9]
With
respect to the appropriate standard of review for determining whether the visa officer
erred, Hilewitz v. Canada (Minister of Citizenship and Immigration),
[2005] S.C.J. No. 58 (QL), established that the appropriate standard
is that of correctness when it is a matter of interpreting subparagraph 19(1)(a)(ii)
(now subsection 38(1)), i.e. when it is a matter of determining whether the
foreign national’s health condition causes or might reasonably be expected to
cause excessive demand on health or social services.
ANALYSIS
1.
Did
the medical officer consider Dr. Billon’s report?
[10]
The applicant
claims that the complementary medical certificate from Djéna’s attending
physician, Dr. Billon (which she submitted as additional evidence following the
fairness letter dated November 10, 2004, from the Embassy), had not been
considered.
[11]
In my
opinion, the applicant’s argument must be dismissed on two grounds. First, all
of the determinations made by Dr. Gollish are supported by all of the
additional evidence filed by the applicant, including Dr. Billon’s report.
In fact, there is indeed consistency between the medical findings of
Dr. Billon and Dr. Gollish. Second, Dr. Gollish’s report did not
contradict or reject Dr. Billon’s report. Dr. Gollish rather assessed
Djéna’s condition by taking into account her present condition “autism” and her
past condition “epilepsy”, which in any case is not the basis for the excessive
demand.
2. Was the applicant
entitled to a legitimate expectation?
[12]
The
applicant claims that the visa officer did not consider the legitimate
expectation that the Juliard family had since they had a Quebec Selection
Certificate as well as an eligibility certificate for the Quebec school system
for Djéna.
[13]
In my
opinion, the applicant’s claim is unfounded since her selection by Quebec in no
way bound the government of Canada; the Canada - Québec Accord Relating to
Immigration and Temporary Admission of Aliens, dated February 5, 1991,
provides the following:
|
12.
Subject to sections 13 to 20,
|
12. Sous réserve des articles 13 à
20:
|
|
(a) Québec
has sole responsibility for the selection of immigrants destined to that
province and Canada has sole responsibility for the admission of immigrants
to that province.
|
a. Le Québec est seul responsable de
la sélection des immigrants à destination de cette province et le Canada est
seul responsable de l'admission des immigrants dans cette province.
|
|
(b) Canada
shall admit any immigrant destined to Québec who meets Québec’s selection
criteria, if the immigrant is not in an inadmissible class under the law of
Canada.
|
b. Le Canada doit admettre tout immigrant
à destination du Québec qui satisfait aux critères de sélection du Québec, si
cet immigrant n'appartient pas à une catégorie inadmissible selon la loi
fédérale.
|
|
…
|
[…]
|
[14]
Yet, Djéna
was deemed to be inadmissible under section 32 of the IRPA; this would not be
an issue of legitimate expectation.
[15]
Further,
in Canada the doctrine of legitimate expectation does not confer any
substantive right, as contemplated by the applicant in this case, but is part
of the doctrine of fairness or natural justice which could require more
extensive procedural rights than would otherwise be accorded: Bakervc.
Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817, paragraph 26.
3. Did
the visa officer form her own opinion?
[16]
When
considering whether the health condition of a claimant would cause excessive
demand on health or social services, the visa officer, without challenging the
medical opinion and the diagnosis, must consider all of the evidence available:
Ismaili v. Canada (Minister of Citizenship and Immigration), [1995]
F.C.J. No. 1127 (F.C.T.D.)(QL), paragraph 31.
[17]
The
applicant alleges that in her letter of reply, the visa officer did not form
her own opinion, but simply referred to the opinion expressed in
Dr. Gollish’s letter. The applicant did not give any grounds supporting
that application. In my opinion, the visa officer, not seeing any error in the
medical notification, based her opinion on all of the evidence in the record as
well as on Dr. Gollish’s medical notification to determine that the
applicant was inadmissible.
4. Did the visa
officer err in law in determining that Djéna is an
“excessive demand”?
[18]
The
applicant claims that the visa officer erred in failing to consider, with
regard to the question of excessive demand, the financial situation of the
Juliard family, which would probably be able to defray the costs of the
services required by Djéna. In other words, the Juliard family would itself
contribute to reduce the additional costs which would otherwise be assumed by
the community in education and in care for her autistic daughter, for example,
through the volunteer work that the applicant would give to the Étincelle
school, assistance that could certainly be given a monetary value and/or
through the purchase of a private insurance policy.
[19]
The
applicant submits that the purpose of Canadian immigration legislation is to
protect the community from “certain” and “excessive” costs associated with the
health care and social services needs of certain new handicapped arrivals in
specific situations. In the absence of a negative economic impact on the social
services system, the legislation does not provide for the automatic exclusion
of autistic children.
[20]
There has
been abundant and inconsistent case law regarding whether or not family financial
resources should be considered in assessing an immigration application of this
kind. The recent judgment by the Supreme Court of Canada in Hilewitz, supra,
put an end to that debate.
[21]
Hilewitz
and de Jong, in their name and on behalf of their family, applied for permanent
residence, under the “investors” class and the “self-employed” class. Both were
denied admission on the grounds that they each had a child whose intellectual
disability “might reasonably be expected to cause excessive demand on health or
social services” in Canada under subparagraph 19(1)(a)(ii) (now
subsection 38(1)).
[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).
[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.
[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.
[28]
With
respect to the application of Chaoulli v. Québec (Attorney General),
[2005] 1 S.C.R. 791, in my opinion, that case has no impact in this
matter since here it is not a question of health care for Djéna, but mostly of
social services that she needs, provided by a public school in Quebec. The
alternative to take out private insurance for health care has nothing to do
with specialized education in school.
[29]
For these
reasons, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed.
“Danièle
Tremblay-Lamer”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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