Date: 20100413
Docket: IMM-3861-09
Citation: 2010 FC 398
Toronto, Ontario, April 13, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
RAVINDER KUMAR SHARMA
KIRAN JAY SHARMA
RRIT SHARMA
SHRUT SHARMA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
principal Applicant is an adult male citizen of India; the other
Applicants are his wife and two children. All are resident in Kuwait.
[2]
The
Applicants applied for a permanent resident visa to enter into and reside in Canada. That
request was denied, as set out in a letter to the principal Applicant from the
High Commission of Canada in London, England dated 27 May
2009. The basis for the denial was stated as being that one of the family
members, the son, Shrut, had a health condition – mental retardation – which
might reasonably be expected to cause excessive demand on health or social
services. It is this decision that is the subject of this judicial review
application.
[3]
For
the reasons that follow, I am dismissing this application. No question is to
be certified.
[4]
The
principal Applicant applied for a visa so that he and his family could enter Canada as permanent
residents in January, 2004. The application was made under the entrepreneur
category. The record shows that the principal Applicant was engaged in the
construction business in Kuwait as a co-owner of a company, and had assets
of just under three million dollars. Since the principal Applicant was not a
Kuwaiti national he had to pay for his children’s education there.
[5]
This
application was considered a first time and, by what is called a “fairness
letter” dated May 24, 2007, the principal Applicant was advised by an Officer
at the High Commission that a developmental assessment made upon his son Shrut
revealed a history indicating mild mental retardation, such that he might
require a variety of services, including special education, speech therapy, and
so forth. As a result the Officer indicated that it might reasonably be
expected to cause excessive demand on Canadian social services. The principal Applicant
was invited to make submissions with a special warning that the principal Applicant
would be responsible for the fees of doctors and other professionals that he
might retain.
[6]
The
principal Applicant responded by a five-page letter dated 6 July, 2007. In that
letter, the principal Applicant referred to, but did not produce, medical tests
to the effect that his son suffered no physical disabilities. The principal
Applicant attested to his son’s abilities to look after himself and offered to
bear any expenses related to his health and special education. The principal Applicant
asserted that he had sufficient personal resources to look after his son’s
needs and that he intended to bring him into the family business at an
appropriate time.
[7]
The
High Commission responded by letter dated 21 January 2009, reiterating that
they were of the view that the child had special needs and would be likely to
make excessive demands on Canadian health and social services. It was estimated
that such demands would cost at least sixty thousand ($60,000.00) dollars. The
principal Applicant was invited to make submissions:
Before I make a final decision, you have
the opportunity to submit additional information that addresses any or all of
the following:
·
The
medical condition(s) identified
·
Social
services required in Canada for the period indicated
above
·
Your
individualized plan to ensure that no excessive demand will be imposed on
Canadian social services for the entire period indicated above and your signed
Declaration of Ability and Intent.
You must provide any additional
information within 60 days of the date of this letter. If you choose not to
respond, I will make my decision based on the information before me, which may
result in your application being refused.
In order to demonstrate that you/your
family member will not place an excessive demand on social services, if
permitted to immigrate to Canada, you must establish to the satisfaction of the
assessing officer that you have a reasonable and workable plan, along with the
financial means and intent to implement this plan, in order to offset the
excessive demand that you would otherwise impose on social services, after
immigration to Canada. The sections of the Immigration and Refugee Protection
Regulations that define the meanings of “social services” and “excessive
demand” are included for your reference.
[8]
The
principal Applicant responded by letter dated 24 February 2009. That letter
reiterated the principal Applicant’s position that his son was medically
healthy and had made sufficient progress as to development. No medical or other
professional reports or opinions were provided. As to a plan, while I appreciate
counsel’s argument that the whole letter is a plan, the only portion of that
letter clearly directed to a plan is as follows:
Individualized Plan:
I have been managing my own Engineering
business in the capacity of General Manager for a period of twenty eight years.
As per local laws I own 49% of our business. We have to work to generate
profits for us after paying all liabilities of materials, labor, staff and
office. Likewise we have to establish our entrepreneur credentials in Canada as well within specified
period and we are confident of doing this. Shrut is working on a plan designed
for imparting him specific training besides learning language, Math and
Computer Applications. He has already acquired skills of handling office
mechanism e.g. handling data files, scanning and photocopying documents. He is
now learning to work Point of Sales machines and cash handling activities.
These activities do not involve serious language. He will be able to handle
these activities in a few months time efficiently. Therefore one thing is
definite that he will be in near future an Important part of our entrepreneur
organization. He will be a contributor to the success story and shall not be
any excessive demand on social services. I am also enclosing declaration of
ability and intent form duly signed by me for your reference and records.
[9]
The
principal Applicant reiterated his ability and willingness to pay for the
services as may be required for his son and signed a Declaration of Ability and
Intent in the form provided by the High Commission, which included the
following statement:
I hereby declare that I will assume
responsibility for arranging the provision of the required social services in
Canada and that I am including a detailed plan of how these social services
will be provided, along with appropriate financial documents that represent a
true picture of my financial situation over the entire duration of the required
services.
[10]
The
final rejection letter dated 27 May 2009, which is the decision under review,
stated, in part:
Pursuant to subsection 38(1) of the
Immigration and Refugee Protection Act, your family member, Shrut, is a person
whose health condition, Mental Retardation, might reasonably be expected to
cause excessive demand on health or social services. The regulatory definitions
of these terms are attached. As a result, your family member is inadmissible to
Canada on health grounds.
My letter of 26 January 2009 invited you
to provide additional information or documents in response to the preliminary
assessment. Your materials were received on 3 march 2009 and were carefully
considered but did not change this assessment of your family member’s health
condition, which has now become final.
Subsection 42(a) of the Act states that a
foreign national, other than a protected person, is inadmissible on grounds of
an inadmissible family member if their accompanying family member or, in
prescribed circumstances, their non-accompanying family member is inadmissible.
Your accompanying family member is inadmissible to Canada. As a result, you are also
inadmissible.
[11]
The
CAIPS notes made by the Officer were provided to the Applicants. They say, in
part:
The submissions by the father state that
there is only a question of language delay but does not submit any proof that
this is the case. The applicant has not submitted a supporting plan other than
the fact that he has the necessary funds (which he does), and is willing to
pay. He does not however, explain how he would pay and does ot provide a viable
and credible plan to mitigate the costs. The applicant has not addressed my
concerns. Having fully reviewed the information at hand, I am satisfied that
Shrut’s health condition will reasonably be expected to cause excessive demand
on health or social services in Canada. Therefore, pursuant to A38(1) and A42,
the applicant is inadmissible on health grounds.
[12]
The
Applicants’ counsel raised three grounds for review at the hearing:
1.
The
decision was unreasonable;
2.
The
assessment that the cost of services would be about $60,000 was based on old
data
and should be rejected; and
3.
The
Officer failed to consider whether the services expected to be required would
be partly funded by the Ontario government.
Issue #1: Was the
Decision Reasonable?
[13]
Justice
Mosley of this Court in Sapru v. Canada (Minister of Citizenship and
Immigration), 2010 FC 240 recently made a thorough review of
the jurisprudence as to the standard of review to be applied in respect of
decisions of the type presently under consideration. He concluded, and I agree,
that where an issue of law is raised, the standard of review is correctness;
however, where the issues are directed to the content of a decision that is
essentially factual, the standard is reasonableness. He wrote at paragraphs 16
and 17:
[16] In the case
at bar, the applicants allege that the Medical Officer failed to comply with
her obligations as set down in Hilewitz. That is an issue of law which should
be reviewed on a standard of correctness. The applicants also raise issues of
procedural fairness which should be reviewed on a correctness standard: Canadian
Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539. In other words, this standard should apply
to issues (b) and (c).
[17] On the other hand, issues (d) and (e) concern the
content of the Officers’ decisions, which are essentially factual. Those issues
will be considered on a standard of reasonableness.
[14]
In
the present case, the issue raised is directed simply to the factual part of
the Officer’s decision. Since the decision of the Supreme Court of Canada in Hilewitz
v. Canada (Minister of Citizenship and Immigration), [2009] 2 S.C.R. 706
it is understood that an Officer in circumstances such as these is to have
regard not only to the medical evidence as to an Applicant and family members,
but also must consider on an individualized basis, the Applicant’s ability to
pay and carry some of the burden that may be imposed by any health issues.
[15]
In
Jafarian v. Canada (Minister of Citizenship
and Immigration), 2010 FC 40 Justice Harrington of this
Court wrote that consideration as to whether a provincial system would pay for
medical and social services could come into consideration when dealing with an
Applicant’s ability and willingness to pay. He noted at paragraph 25 that an
undertaking to pay is simply not enforceable:
[25] One of the relevant factors in this case is
whether Mr. Jafarian has the legal right to pay for his daughter’s Rebif. An
undertaking not to call upon the government to pay what it is obliged to pay
under statute is simply not enforceable. This principle was clearly set out by
Mr. Justice Evans, speaking for the Court of Appeal, in Deol v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 271, [2003] 1 F.C. 301, and
by Mr. Justice Campbell in Lee v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1461.
[16]
Here
the Applicants were asked to supply medical information to support their
assertions as to Shrut’s condition. Nothing was provided. They were asked to
provide a plan as to what support would be given to Shrut. An offer to pay was
made, but no specific plan was provided other than a suggestion that the son
would be brought into whatever business the Applicants would establish in Canada. The
Officer’s rejection of these submissions was not unreasonable.
Issue #2 and Issue #3
[17]
I
treat both these issues together because the Applicants’ counsel in effect
argued that the Officer had a positive duty to secure all up-to-date
information as to funding costs in Ontario (where the Applicants stated they
intended to settle) and the extent to which Ontario legislation
would assist the Applicants or oblige them to pay.
[18]
I
disagree. The Applicants are seeking admission into Canada. The medical
and developmental condition of one of them has been raised as an issue. The
Applicants were twice invited to address the situation, including providing
medical and professional opinions of their own, which they did not; and to
provide a plan, which was scanty at best. The onus rests on the Applicants to make
out their case, including such factors as may be relevant in setting out a
workable plan. The Officer committed no reviewable error in dealing with the
matter based on the information available.
Conclusion
[19]
The
application will be dismissed. No party requested certification.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application is dismissed;
2.
There is
no question for certification; and
3. No Order as to costs.
"Roger
T. Hughes"
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