Date: 20061023
Docket: IMM-7127-05
Citation: 2006 FC 1258
Ottawa, Ontario, October 23,
2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
GAU,
HUI-CHUN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a visa officer refusing
Hui-Chun Gau’s application for permanent residence as part of the skilled
worker class. The refusal was based on the officer’s conclusion that Ms. Gau
was inadmissible to Canada because her 15-year-old daughter could
reasonably be expected to cause an excessive demand on health or social
services.
[2]
Ms.
Gau says that the visa officer erred in failing to carry out the type of
individualized assessment of her child’s situation mandated by the Supreme
Court of Canada in Hilewitz v. Canada (Minister of Citizenship and
Immigration) and De Jong v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 706, 2005 SCC 57, and that, as a result, the
officer’s decision should be set aside.
[3]
I
am of the view that in light of the limited information provided to the officer
regarding Ms. Gau’s daughter, the officer’s assessment of the application was
sufficient, and, as a result, the application will be dismissed.
Background
[4]
Ms.
Gau is a citizen of the People’s Republic of China, and is an
officer of Mitsui and Company, a Japanese corporation. Ms. Gau has a teenaged
daughter, Shao-Chen, who has been diagnosed with infantile autism, with
moderate mental retardation.
[5]
Ms.
Gau applied for a permanent resident visa under the skilled worker class, and
was assessed a total of 68 points, making her eligible for a visa. In this
regard the visa officer found that Ms. Gau would be able to establish herself
economically in Canada, and that she and her husband were
well-educated applicants, with the proven ability to adapt to another country,
as was evidenced by the couple’s success working in Japan.
[6]
However,
on May 3, 2005, a “fairness letter” was sent to Ms. Gau expressing the
officer’s concern that Shao-Chen could reasonably be expected to cause an
excessive demand on health or social services in Canada.
[7]
Ms.
Gau was then afforded the opportunity to provide further information or
documents with respect to Shao-Chen’s condition, and further documentation was
provided to the officer by Ms. Gau under cover of a letter dated May 12, 2005.
[8]
Ms.
Gau’s additional documentation was forwarded to a CIC doctor for consideration,
and by letter dated September 27, 2005, the visa officer advised Ms. Gau that
her application for permanent residence had been refused based upon the
officer’s finding that Shao-Chen could reasonably be expected to cause an
excessive demand on health or social services.
Issue
[9]
The
only issue on this application is whether the visa officer and medical officer
erred in failing to take into account the personal circumstances of Shao-Chen,
including the ability of her parents to provide her with home-based education
and care.
Standard of Review
[10]
As
the Supreme Court of Canada noted in Hilewitz, the question of whether
an individual with a particular medical condition would create excessive
demands on Canadian social services is one that lies within a medical officer's
area of expertise, and requires some deference.
[11]
With
this in mind, it is not necessary to determine whether the appropriate standard
of review is patent unreasonableness or reasonableness, as I am satisfied that
the officer’s decision can withstand scrutiny under the more exacting standard
of reasonableness.
Analysis
[12]
As
a preliminary matter, it should be noted that both parties have filed
affidavits in support of this application that contain information and
documentation that was not before either the medical officer or the visa
officer.
[13]
It
is well-settled that an application for judicial review should ordinarily be
determined on the basis of the evidence that was before the decision-maker.
While there are exceptions to this rule, neither party has advanced any
argument in this case to support a finding that the extrinsic evidence should
be admitted here. As a consequence, I intend to confine my analysis to the
documents that were in the record at the time that the decision under review
was made.
[14]
It
should also be noted that the respondent takes the position that the Hilewitz
decision is not applicable in this case, as that decision applies to
individuals applying for landing in the investor class, whereas Ms. Gau’s
application was as a skilled worker. This argument has already been rejected by
this Court: see, for example, Colaco v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1134, 2006 FC 896.
[15]
That
said, given my decision with respect to the merits of Ms. Gau’s application for
judicial review, it is not necessary for me to finally decide this issue, and I
will proceed on the basis that Hilewitz does indeed apply to this case.
[16]
As
Ms. Gau observes, the type of assessment that must be carried out in a case
such as this was described by the Supreme Court of Canada in Hilewitz in
the following terms:
¶ 54 Section 19(1)(a)(ii) [of the Immigration
Act] calls for an assessment of whether an applicant's health would cause
or might reasonably be expected to cause excessive demands on Canada's social services. The term
"excessive demands" is inherently evaluative and comparative. Without
consideration of an applicant's ability and intention to pay for social
services, it is impossible to determine realistically what "demands"
will be made on Ontario's social services. The
wording of the provision shows that medical officers must assess likely demands
on social services, not mere eligibility for them.
¶ 55 To do so, the medical officers
must necessarily take into account both medical and non-medical factors, such
as the availability, scarcity or cost of publicly funded services, along with
the willingness and ability of the applicant or his or her family to pay for
the services.
[17]
While
this obviously reflects the current state of the law on this point, a medical
officer can only assess the willingness and ability of parents to pay for
social services based upon the information that is available on this point.
[18]
In
this case, there was virtually no information before the officer with respect
to the willingness or ability of Shao-Chen’s parents to provide her with
private care. This is not altogether surprising, given the timing of Ms. Gau’s
application for permanent residence.
[19]
That
is, at the time that Ms. Gau filed her application for permanent residence in
2004, applications of this nature were governed by the decision of the Federal
Court of Appeal in the Hilewitz and DeJong matters. These
decisions held that an applicant's personal circumstances, including their
wealth, were not factors that a medical officer was required to consider in
determining whether a person's admission to Canada might cause excessive
demands on social services in Canada.
[20]
The
Supreme Court of Canada subsequently reversed that decision, with the result
that factors such as parents’ willingness and ability to provide for their
disabled child are indeed relevant factors that must be assessed on a case-by-case
basis.
[21]
In
this case, the evidence before both the visa officer and the medical officer
included a psychologist’s report indicating that Shao-Chen’s ability to
function was at the level of the moderately mentally retarded. Her full scale
IQ tested at 47. While there is some suggestion that Shao-Chen’s IQ may have
been undervalued as a result of her difficulties with communication, the
psychologist’s opinion was that her true full scale IQ was in the 44-54 range.
[22]
After
reviewing all of the results of the psychological assessment, the psychologist
indicated that Shao-Chen would require an individualized education program with
periodic reassessments in order to monitor her development.
[23]
Moreover,
Shao-Chen’s school reports indicate that she suffers from weaker comprehension
and deduction capabilities. Shao-Chen is evidently attending public school in Taiwan, and while
the evidence is not entirely clear on this point, it does appear that she is
currently receiving at least some special education programming through the
public school system.
[24]
Insofar
as the willingness and ability of Shao-Chen’s parents to contribute to her care
is concerned, the only evidence on this point in the record is a passing
reference in a medical report to the fact that Shao-Chen is receiving
“home-based, parent-as-coach education for her interpersonal relatedness, as
well as mainstream education in her junior high school”.
[25]
In
contrast to the situation in Hilewitz, no plan has been put forward for
Shao-Chen’s care in this country, nor is there any indication from either of
her parents as to their ability or their willingness to assist in her care.
[26]
Moreover,
Ms. Gau did not make any submissions regarding how family support would off-set
any excessive demand on social services
[27]
A
review of the analysis carried out by both the medical officer and the visa
officer discloses that neither simply considered Shao-Chen as a child with
infantile autism, with moderate mental retardation. Rather, her individual
circumstances were considered, including her psychological testing and school
reports.
[28]
Having
regard to the limited nature of the evidence in the record, I am satisfied that
the individualized assessment carried out in this case satisfied the
requirements articulated by the Supreme Court of Canada in Hilewitz.
Moreover, the conclusion that Shao-Chen could reasonably be expected to cause
an excessive demand on social services in Canada was a
reasonable one, in all of the circumstances.
Conclusion
[29]
For
these reasons, the application for judicial review is dismissed.
Certification
[30]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This application for
judicial review is dismissed; and
2. No serious question
of general importance is certified.
“Anne
Mactavish”
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