Date:
20120918
Docket:
IMM-1526-12
Citation:
2012 FC 1093
Ottawa, Ontario, September 18, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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XIONG LIN ZHANG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, Xiong Lin Zhang, a citizen of China, has been selected for
immigration under Quebec’s Investor Program; his family consist of his wife and
three dependent children, including Xia Di Zhang (the retarded son) who was
born in 1986 and was diagnosed as having “moderate mental retardation”.
[2]
Despite
the fact that the retarded son is a non-accompanying family member, the
applicant and the other accompanying family members have been deemed to be
inadmissible in conformity with paragraph 38(1)(c) and section 42 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [Act] on the grounds
that the retarded son suffers from a health condition that might reasonably
be expected to cause excessive demand on health or social services, leading to the present judicial
review application.
[3]
The
applicant has not provided to the satisfaction of the visa officer details of
an individualized plan to ensure that no excessive demand will be imposed on
Canadian social services for the next five years. The applicant readily admits
that if the retarded son would be accompanying the rest of the family to Canada, social services – in terms of special education, occupational therapy and sheltered
workshops – would be required. The costs of same in Canada are not challenged
by the applicant.
[4]
The
relevant facts are not disputed by the parties. On March 17, 2010, the medical
officer issued a medical opinion deeming the retarded son inadmissible,
followed on April 13, 2010 by a fairness letter notably inviting the applicant
to submit an “individualized plan” together with a declaration of ability and
intent to pay for all the social services his retarded son would require.
[5]
On
May 8, 2010, the applicant replied by stating that he had decided to “give up
the application of [his retarded] son.” The visa officer responded that the
latter was nonetheless a “dependent child”, even if listed as
“non-accompanying”, and gave the applicant another copy of the fairness letter
along with another 30 days to submit a response.
[6]
On
July 12, 2010, the applicant sent a signed declaration of ability and intent, a
signed personal declaration, a signed declaration by his sister, and some
medical and financial documents. The personal declaration explains that his
alternate plan to offset the costs of the Canadian social services is to leave
his retarded son in China. His aunt (the applicant’s younger sister) has her
own medical clinic, as well as experience caring for his retarded son. The
applicant states that he has sufficient capital for future medical expenses of
the retarded son. The signed declaration by his sister supports the applicant’s
declaration.
[7]
This
additional information was reviewed by both the medical officer and the visa
officer, but it was not sufficient to overturn their conclusion that the
medical condition of the retarded son might be expected to cause excessive demand
on Canadian social services. A refusal letter was signed by the visa officer on
December 2, 2011.
[8]
According
to the jurisprudence, interpretations of the Act and the Immigration and
Refugee Protection Regulations, SOR/2002-227 [Regulations], as a matter of
law, are reviewable on a standard of correctness, while other findings of the
visa officer are reviewable on a standard of reasonableness: Patel v Canada
(Minister of Citizenship and Immigration), 2011 FCA 187 at para 26-27. As
far as reasonableness is concerned, the analysis of the Court is mostly
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process”; intervention is called for
only if the impugned decision does not fall within the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190.
[9]
In
the case at bar, considering that his retarded son is a non-accompanying
dependent and that there is a plan to take care of him in China, the applicant contends that their application for permanent residence should not have been
refused on inadmissibility grounds. Basing himself on Hilewitz v Canada
(Minister of Citizenship and Immigration); De Jong v Canada (Minister of
Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 [Hilewitz],
the applicant submits that the visa officer has failed to carry out an
individualized assessment of the applicant’s plan in China and has further
erred in the interpretation of paragraph 3(1) of the Act and the principle of
family reunification. In my opinion, there is no error in the interpretation of
the Act or the Regulations and the visa officer’s conclusion is within the
range of reasonable possible outcomes in view of the facts and the law.
Accordingly, this application for judicial review cannot succeed.
[10]
According
to the evidence on record, the retarded son at present suffers from a health
condition that “might reasonably be expected to cause excessive demand on
health or social services” and it is apparent that the individualized plan
submitted by the applicant “does not address how [the applicant] would mitigate
the costs of social services in Canada that [the retarded son] might reasonably
be expected to use were he to become a permanent resident of Canada”, as
found by the visa officer.
[11]
The
reasoning provided by the visa officer is self-explanatory and does not appear
to be unreasonable:
My understanding of ... Canada’s immigration law is
that it is not sufficient for a permanent resident applicant to say that
excessive demand on Canadian health or social services posed by a dependent
child will be mitigated by leaving that family member behind in his home
country. Subsection 3(1)(d) of the Immigration and Refugee Protection Act states
as a principle of Canada’s immigration law the reunification of families in Canada. The definition of dependent child supports this principle; because of the age of
the child, or because of age and financial dependency of the child as a
student, or because of financial dependency of the child due to medical
condition even when the child has reached adulthood. Zhang Xia Di is your
dependent child not only because of his age at the date you submitted your
application to the Province of Quebec, 21 years of age on 22 October 2007, but
also because he is unable to be, and always has been unable to be, financially
self-supporting due to his mental condition. Keeping the family unit of a
principal applicant intact is a goal of Canada’s immigration legislation.
[12]
I
also fail to see any error of law in the visa officer’s reasoning above.
[13]
Firstly,
whether the retarded son is less than 22 years of age, or is 22 years of age or
older, at the relevant date to consider the application for permanent
residence, he is deemed a “dependent” under section 2 of the Regulations,
because he is the biological child of the applicant and has depended
substantially on the financial support of the applicant, and is unable to be
financially self-supporting due to his mental condition.
[14]
Secondly,
the inadmissibility of the applicant is based on the inadmissibility of a
non-accompanying family member who is a dependent child. Paragraph 42(a) of the
Act must be read in conjunction with section 23 of the Regulations, which
respectively provide:
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42.
A foreign national, other than a protected person, is inadmissible on grounds
of an inadmissible family member if
(a)
their accompanying family member or, in prescribed circumstances,
their non-accompanying family member is inadmissible; or
…
23.
For the purposes of paragraph 42(a) of the Act, the prescribed circumstances
in which the foreign national is inadmissible on grounds of an inadmissible
non-accompanying family member are that
(a)
the foreign national has made an application for a permanent resident visa or
to remain in Canada as a permanent resident; and
(b)
the non-accompanying family member is
…
(iii)
a dependent child of the foreign national and either the foreign
national or an accompanying family member of the foreign national has custody
of that child or is empowered to act on behalf of that child by virtue of a
court order or written agreement or by operation of law, or
…
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42.
Emportent, sauf pour le résident permanent ou une personne protégée,
interdiction de territoire pour inadmissibilité familiale les faits suivants
:
a)
l’interdiction de territoire frappant tout membre de sa famille qui
l’accompagne ou qui, dans les cas réglementaires, ne l’accompagne pas;
…
23.
Pour l’application de l’alinéa 42a) de la Loi, l’interdiction de
territoire frappant le membre de la famille de l’étranger qui ne l’accompagne
pas emporte interdiction de territoire de l’étranger pour inadmissibilité
familiale si :
a)
l’étranger a fait une demande de visa de résident permanent ou de séjour au
Canada à titre de résident permanent;
b)
le membre de la famille en cause est, selon le cas :
…
(iii)
l’enfant à charge de l’étranger, pourvu que celui-ci ou un membre de
la famille qui accompagne celui-ci en ait la garde ou soit habilité à agir en
son nom en vertu d’une ordonnance judiciaire ou d’un accord écrit ou par l’effet
de la loi,
…
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[Emphasis added]
Thus, regardless of whether or not the
applicant actually planned to leave his son in China or not, paragraph 42(a)
of the Act extends the inadmissibility of the retarded son to the applicant. It
follows that the other family members who are accompanying the applicant are
also inadmissible by the effect of paragraph 42(b) of the Act.
[15]
Thirdly,
before issuing a visa to a foreign national who wishes to enter Canada and to become permanent resident, the visa officer must be satisfied that the
foreign national is not inadmissible and meets the requirements of the Act
(subsection 11(1) of the Act). The foreign national and the members of his
family must submit to a medical examination on request (subsection 16(2) of the
Act). In this regard, the visa officer shall determine that a foreign national
is inadmissible on health grounds if the latter’s health condition might
reasonably be expected to cause excessive demand (section 20 of the
Regulations). In such a case, only the Minister has the power to exempt an
inadmissible person from any applicable criteria or obligations of the Act,
where humanitarian and compassionate considerations exist, taking into account
the best interest of a child directly affected, as the case may be (subsection
25(1) of the Act). In the case at bar, the applicant has not invoked any
humanitarian and compassionate considerations.
[16]
Fourthly,
it must be remembered that the basic aim of the excessive demand
inadmissibility provision in paragraph 38(1)(c) of the Act is to ensure that
access to health and social services by Canadian citizens and permanent
residents is not denied or impaired by reason of excessive demands for those
services by prospective immigrants and also to acknowledge that the health and
social services provided in Canada are not limitless nor costless (Thangarajan
v Canada (Minister of Citizenship and Immigration), [1999] 4 FC 167 (CA) at
para 9, [1999] FCJ 1024, leave to appeal to SCC refused [2002] SCCA No 38. However,
the applicant may provide additional evidence that speaks to their ability and
intent to mitigate the cost of social services in Canada – an individualized
plan – which the officer must consider before refusing an application on the
ground the person is admissible under paragraph 38(1)(c) of the Act: Hilewitz,
above; Colaco v Canada (Minister of Citizenship and Immigration), 2007
FCA 282, [2007] FCJ No 1172; Citizenship and Immigration Canada, Operational
Bulletins 063 and 063B, “Assessing Excessive Demand on Social Services”, 24
September 2008 and 29 July 2009.
[17]
Fifthly,
paragraph 38(1)(c) of the Act, which speaks of inadmissibility on health
grounds because the health condition of the foreign national “might reasonably
be expected to cause excessive demand on health or social services,” must be
interpreted and applied in a manner consistent with the intent and object of
the Act and the Regulations. In support of the reasonable likelihood that the
applicant would sponsor his dependent child, the visa officer has pointed to
paragraph 3(1)(d) of the Act as setting out “a principle of Canada’s
immigration law” and that “keeping the family unit of a principal applicant in
fact is a goal of Canada’s immigration legislation.” The applicant contends
that the visa officer placed too much emphasis on the family reunification
objective while not taking into account the entirety of the objectives listed
in subsection 3(1) of the Act. However, the problem with this argument is that
these other objectives are not relevant to the particular question at hand in
terms of admissibility.
[18]
The
understanding by the visa officer of Canada’s immigration law and the
possibility to sponsor the retarded son is based on subsection 38(2) of the
Act. This provision reads as follows:
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38.
(2) Paragraph (1)(c) does not apply in the case of a foreign national
who
(a)
has been determined to be a member of the family class and to be the
spouse, common-law partner or child of a sponsor within the meaning of the
regulations;
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38.
(2) L’état de santé qui risquerait d’entraîner un fardeau excessif pour
les services sociaux ou de santé n’emporte toutefois pas interdiction de
territoire pour l’étranger :
a)
dont il a été statué qu’il fait partie de la catégorie « regroupement
familial » en tant qu’époux, conjoint de fait ou enfant d’un répondant
dont il a été statué qu’il a la qualité réglementaire;
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[Emphasis
added]
[19]
In
my humble opinion, in evaluating the application for permanent residence, the
visa officer could legally assume that the non-accompanying family member, here
the retarded son, must not be inadmissible on health grounds in the first
place. This supposes that an evaluation of the Canadian costs and of any
individualized plan in Canada for a period of five or ten years, as the case
may be (here for a five year period at least). Keeping with the basic objective
of paragraph 38(1)(c) of the Act, it must not be forgotten that prospective immigrants
include non-accompanying family members who can be sponsored in the future by a
successful applicant. The problem is that there is no clear undertaking by the
applicant that he will not sponsor the retarded son, while it is even
questionable whether an applicant seeking the issuance of a visa to gain
permanent resident status, can legally renounce to the right to sponsor a
non-accompanying family member.
[20]
It
is apparent that the proposition made by the applicant to leave the retarded
son in China is a disguised way to circumvent the requirements of the Act. By
analogy, what was stated in Deol v Canada (Minister of Citizenship &
Immigration), 2002 FCA 271 at para 46, 215 DLR (4th) 675, seems equally
applicable in this instance:
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 & Immigration)
(1995), 98 F.T.R. 308 (Fed. T.D.) at para. 30; Cabaldon v. Canada (Minister of Citizenship & Immigration) (1998), 140 F.T.R. 296 (Fed. T.D.) at para.
8; Poon, supra, at paras. 18-19.
[21]
Thus,
it was up to the applicant to discharge his onus by providing a credible plan
for mitigating the excessive demand on social services in Canada. The fact that the retarded son will apparently be taken care of in China by an aunt
does not really respond to the visa officer’s concern that nothing prevents the
applicant in the future from sponsoring his retarded son once he will have
himself gained permanent resident status (Chouhdry v Canada (Minister of
Citizenship and Immigration), 2011 FC 22 at para 14-15, [2011] FCJ No 29).
[22]
To
sum up, in the case at bar, I find that the visa officer has conducted an
individualized assessment. The excessive costs regarding the retarded son were
estimated at a total of approximately $26,000 - $46,000 per year over a
five-year period, whereas the average Canadian per capita health and social
services cost for the same services required by the applicant’s son at the time
of the decision, totalled about $6,131 per year over a five-year period. Thus,
it was not unreasonable to require that the applicant submit an individualized
plan addressing the problem of excessive demand on social services in Canada,
considering that the retarded son could be sponsored in the future without
regard to his inadmissibility.
[23]
For
the reasons outlined above, this application for judicial review shall be
dismissed. Having considered the oral and written submissions of the parties’
counsels on the issue of certification, I have decided to certify the following
question of general importance:
In the aftermath of Hilewitz, when an
applicant is required to submit an individualized plan to ensure that his
family member’s admission will not cause an excessive demand on social
services, is it acceptable for this applicant to state that the inadmissible
family member will not be accompanying him to Canada, considering that he could
be sponsored in the future without regard to his inadmissibility pursuant to
paragraph 38(2) of the Immigration and Refugee Protection Act?
JUDGMENT
THIS
COURT’S JUDGMENT is that the present
application for judicial review is dismissed and the following question of
general importance is certified:
In the aftermath of Hilewitz v Canada (Minister
of Citizenship and Immigration); de Jong v Canada (Minister of Citizenship and
Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, when an applicant is required
to submit an individualized plan to ensure that his family member’s admission
will not cause an excessive demand on social services, is it acceptable for
this applicant to state that the inadmissible family member will not be
accompanying him to Canada, considering that he could be sponsored in the future
without regard to his inadmissibility pursuant to paragraph 38(2) of the Immigration
and Refugee Protection Act?
“Luc
Martineau”
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