Jong v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1165

                                                                     Date: 20021113

                                                               Docket: IMM-6058-99

                                                  Neutral Citation: 2002 FCT 1165

Between:

                               DIRK DE JONG

                                                                Applicant

                                 - and -

                      THE MINISTER OF CITIZENSHIP

                             AND IMMIGRATION

                                                               Respondent

                          REASONS FOR ORDER

PINARD J.:

   This is an application for judicial review of the decision dated November 17, 1999 of visa officer J.W. André Valotaire (the "officer"), of the Canadian Embassy in Bonn, Germany. The officer denied the applicant's application for permanent residence pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") as his dependent daughter suffers from developmental delay, or mild retardation.

   The applicant and his family are citizens of the Netherlands. The applicant's application for permanent residence in the "self-employed" category, with his wife and six children as dependants, was received by the Canadian Embassy in Bonn, Germany, on October 25, 1996.

   The applicant received a "fairness letter" dated October 17, 1997, providing him with the opportunity to respond within thirty days to a medical assessment of his daughter, Dirkje De Jong ("Dirkje"), born on September 28, 1988, by Dr. J. Beltran, failing which his application would automatically be refused. The medical assessment included the following comments:

Applicant has evidence of delayed mental development on formal psychological testing (IQ 59). She demonstrates very concrete thinking and has limited abilities in abstraction and short term memory. Currently she receives personalized education in a specialized education environment. If landed, she will continue to require specialized educational services in order to acquire sufficient academic skills that might permit progression to the acquisition of marketable work skills, albeit of a simple, repetitive kind. This requirement for specialized education is in excess of the requirements for her peer group and therefore represents an excessive demand on social services. She is thus inadmissible under Section 19(1)(a)(ii) of the Immigration Act.

   The applicant responded to the fairness letter by submitting additional medical information on January 8, 1998. The delay in answering was caused by difficulties in contacting their doctor.

   The application was rejected by visa officer Eliane Wassler in a letter dated July 30, 1998, wherein she indicated that "no new medical information was submitted which would justify an upgrade to admissible status for your daughter, Dirkje".

   The applicant applied for judicial review of the rejection, which was granted by Reed J. on April 29, 1999. She referred the case back for reconsideration and redetermination, on terms and conditions including the requirement that the reconsideration proceed on the existing medical evidence and that only the possibility of "excessive demand" be considered.

   In accordance with the terms of the Order, the officer informed the applicant by letter dated June 28, 1999 that he would wait a further forty-five days to receive any additional relevant documents from the applicant before proceeding with the redetermination of his application.

   Dr. Sylvain Bertrand indicated the results of the reassessment to the applicant in a very detailed letter dated August 13, 1999, in which he stated:

In addition to approximately 11 more years of specialized education, which I note the Federal Court of Appeal has recently confirmed to constitute a "social service"within the meaning of s. 19(1)(a)(ii) of the Immigration Act, this child would benefit from some psychological counselling, multi-disciplinary assessments, and individualized or small group instruction for the acquisition of health, safety and life skills. In addition, in a few short years, she will require vocational assessment and training, with a view to perhaps permitting her to one day work in either a sheltered workshop employment setting or perhaps even providing her with the requisite skills, abilities and confidence to work in a job such as a domestic, . . .

   The applicant received the second "fairness letter" dated September 7, 1999, providing him with sixty days to respond to the reassessment of his daughter. Counsel for the applicant responded to Dr. Bertrand on September 8, 1999, challenging the medical assessment and seeking more information.

Dr. Bertrand responded to the applicant's requests in a letter dated November 10, 1999, but did not alter his opinion on the inadmissibility of the applicant's daughter.

The officer concluded the reprocessing of the case by refusing the application for permanent residence by letter dated November 17, 1999.

The applicant then filed and served a motion before Reed J., seeking an order that the refusal decision had been issued in violation of her own reprocessing order. Reed J. refused the motion, and directed that the appropriate course to follow would be by way of judicial review, the application for which was already underway.

Subparagraph 19(1)(a)(ii) of the Act reads as follows:

I intend, first, to deal with the applicant's submission that the respondent's conduct constitutes an abuse of process of this Court. Upon reviewing the evidence, including the April 29, 1999 Order of Reed J., the letters of counsel for the applicant dated June 11, 1999 (medical record pp. 89-105) and September 8, 1999 (medical record pp. 22-33), the letters of Dr. Bertrand dated August 13, 1999 (medical record pp. 38-80) and November 10, 1999 (medical record pp. 8-12) and the Medical Officer's Medical Notification dated November 10, 1999 (medical record p. 6), I am satisfied that the re-processing of this case was undertaken with care and concern to fully comply with Madam Justice Reed's Order dated April 29, 1999 and that adequate disclosure was provided to the applicant. I agree with the respondent that the fact that the applicant is unwilling to accept the validity or correctness of that which was disclosed to him, does not affect the fairness or adequacy of the disclosure process.

The applicant's basic argument is that the admission of Dirkje, having regard to the uniqueness of her circumstances, would not cause excessive demands on social services in Canada because wealth is a factor to be taken into consideration when assessing excessive demands on social services, given the distinction between health and social services. In support of this argument, the applicant invokes the two following decisions made by the Trial Division of this Court, the second decision being based on the first one: Wong v. Minister of Citizenship and Immigration (May 31, 2002), IMM-6060-99, 2002 FCT 625 and Hilewitz v. Minister of Citizenship and Immigration (August 8, 2002), IMM-5340-00, 2002 FCT 844.

The argument is dismissed on the basis of the following statement by the Federal Court of Appeal in a decision rendered after Wong, supra, namely Deol v. Canada (M.C.I.), 2002 FCA 271, [2002] F.C.J. No. 949 (QL), at paragraph 46:

. . . 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, [Poon v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 56] at paras. 18-19.

(Emphasis is mine.)

First, the Federal Court of Appeal makes reference to the reimbursement of "any services required", which, in my view, must include social services as well as health services. Furthermore, it is clear to me that the Federal Court of Appeal, in specifying as it did the paragraphs in the three cases it referred to in the above excerpt, does not consider the distinction between health and social services to be relevant for the purpose of the application of subparagraph 19(1)(a)(ii) of the Act, because these specific paragraphs all deal, although not always exclusively, with social services. Paragraph 30 of Choi v. Canada (M.C.I.), supra, states:

It is of no importance that the applicant can be considered a wealthy person and, if his daughter will require special care, he can well afford the cost of same. I agree with the submission of the respondent that as a term or condition of admission, the respondent cannot impose a term or condition that the applicant and his family would agree to waive all rights to social services in Canada for his dependent daughter Pui Shi Choi (see sec. 23.1 of the Immigration Regulations).

Cabaldon v. Canada (M.C.I.), supra, states at paragraph 8:

Moreover, neither the Medical Officers, nor the Visa Officer, erred in failing to consider evidence that family members resident in Canada had promised support to the applicant's family. For purposes of forming a medical opinion considering the medical admissibility of the child, it does not matter if the applicant provides letters of support from relatives already resident in Canada. As a permanent resident, the child would have a right to the social services she requires, a right that cannot be waived through financial support promised by relatives: Choi v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 308; 29 Imm.L.R. (2d) 85 (T.D.), at 93-94 and Hussain v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm.L.R. (2d) 86 (F.C.T.D.), at 91.

And in Poon, supra, at paragraphs 18 and 19:

To summarize:

      1) excessive demand includes, but is not limited to, the case where the health or social services by the candidate might reasonably be expected to prevent or delay provision of those services to Canadians citizens or permanent residents.

     2) it is an error for the medical experts to conclude as to excessive demand without considering the supply of the service in question in Canada; Ma v. Canada, supra [(1998), 140 F.T.R. 311].

     3) the Court is unable to look behind the medical diagnosis; Ma v. Canada, supra.

     4) the ability of a person to pay for medical and social services for a family member is irrelevant as it is unenforceable against that person or the family member; Choi v. Canada, supra [(1995), 98 F.T.R. 308].

In this case, the applicant's argument that the family's ability to pay has not been considered, cannot succeed because that factor has been found to be irrelevant in Choi, supra. Apart from the effect of authority, I would have come to the same conclusion. Access to health and social services in Canada is a matter of right for citizens and permanent residents. Once Tat Chi became a permanent resident, he would be entitled to claim access to such publicly-funded services as he required and any agreement to the contrary would be unenforceable against him.

As for the rest, I find that the officer's appreciation of the facts, including the consideration of the applicant's daughter "in her uniqueness", is based on relevant evidence and is reasonable. In that regard, the applicant has failed to convince me that the officer committed any reviewable error.

For all the above reasons, the application for judicial review is dismissed.

I agree with the respondent's submission that the only question which properly arises on the facts of this case, which is of general importance and which might be dispositive of any appeal, and thus is appropriate for certification, is:

Is an applicant's wealth a relevant consideration in determining whether his or her admission to Canada would cause excessive demands on social services in Canada?

       JUDGE

OTTAWA, ONTARIO

November 13, 2002

                              FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

                    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                IMM-6058-99

STYLE OF CAUSE:                       DIRK DE JONG v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:              Toronto, Ontario

DATE OF HEARING:              October 17, 2002

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:                          November 13, 2002

APPEARANCES:

Mr. Cecil L. Rotenberg, Q.C.                  FOR THE APPLICANT

Ms. Marie-Louise Wcislo              FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Cecil Rotenberg, Q.C.              FOR THE APPLICANT

Barrister and Solicitor

Don Mills, Ontario

Mr. Morris Rosenberg                  FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario