Docket: IMM-3590-11
Citation: 2012 FC 261
Ottawa,
Ontario, February 27, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
|
|
JOEL RAVIS CUARTE
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, a citizen of Philippines, challenges the
legality of the refusal of his application for permanent residence. Based on
the medical officer’s opinion, the immigration officer found that the applicant’s
oldest son, Jethro, having been diagnosed with global developmental delay, “might
reasonably be expected to cause excessive demand on health or social services”
within the meaning of paragraph 38(1)(c) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[2]
Because
of Jethro’s inadmissibility, his parents and two brothers are inadmissible in Canada as well
(subsection 42(a) of the IRPA).
[3]
For the reasons that follow, this application for judicial review
shall be granted by the Court.
FACTUAL BACKGROUND
[4]
The
applicant is currently employed as a designer with an architecture firm in Saskatoon. He applied
to the Saskatchewan Immigration Nominee Program [SINP] and was nominated under
the Skilled Worker Category. He subsequently applied for permanent residence in
Canada. His wife
and three sons are included in this application as dependent family members.
[5]
On
November 16, 2010, the applicant received a first letter [the fairness letter] from
the immigration officer advising him that Jethro had been determined to be a
person whose health condition might reasonably be expected to place an
excessive demand on social services in Canada due to his
need for special education services.
[6]
The
fairness letter indicated that “an excessive demand is a demand for which the
anticipated costs exceed the average Canadian per capita health and social
services costs, which is currently set at $4,806 per year”, and that Jethro’s
condition required “special education services in Saskatchewan: as per Greg Chapman
[sic], Superintendent
of Finance [sic],
corresponds to level 2 with additional allocation of $13,000 per year”.
[7]
In
fact, a letter from Greg Chatlain, Superintendent of Education from Greater Saskatoon
Catholic School, indicated that public funding for Special Education Services
in Saskatchewan stands at
$13,000 per year on an average basis. The applicant was thus invited to
submit additional information regarding an individualized plan to ensure that
there would be no excessive demand.
[8]
In
January of 2011, the applicant submitted a letter outlining the family’s plan
to mitigate any excessive demand that might be caused by Jethro’s condition, to
which the applicant attached a personal declaration of ability and intention to
pay. The letter outlined various non-governmental services that are available
for Jethro, as well as the family’s plan to minimize his medical and
educational expenses.
[9]
On
March 21, 2011, the applicant received a further letter asking him to provide
evidence that there was a mechanism in place allowing reimbursement of publicly
funded education services to the Saskatchewan Ministry of Education.
IMPUGNED DECISION
[10]
By
letter dated April 20, 2011, the applicant was informed that upon review of the
material submitted, the immigration officer had made the final determination that
Jethro was inadmissible in Canada pursuant to paragraph
38(1)(c) of the IPRA.
[11]
Although not specified in the refusal letter of the immigrant
officer, the determinative issue appears to be the existence of a mechanism
of reimbursement of publicly funded education services in Saskatchewan. According
to the CAIPS notes dated April 18, 2011, the officer was not satisfied that, in
absence of such mechanism, the applicant will reimburse the province of Saskatchewan
for the special education services provided to his son.
ISSUES AND STANDARD OF
REVIEW
[12]
The
applicant challenges the legality of the decision made by the immigration
officer on the basis that:
a. The medical officer
erred in determining the expected costs imposed by Jethro’s medical condition,
falling short of the individualized assessment called for by the jurisprudence;
b. It was unreasonable
for the medical officer and the immigration officer to insist on the
availability of a mechanism for the reimbursement of costs expended for
special education services; and,
c. The immigration officer failed to comply with
the obligation to notify the province
of Saskatchewan of a potential refusal of a provincial
nominee.
[13]
Both
parties agree that the applicable standard of review with respect to the
applicant’s first and third allegations is correctness. The first relates to
the immigration officer’s obligation, as per Hilewitz v Canada (Minister of Citizenship and
Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 [Hilewitz],
to conduct an “individualized assessment” of the expected medical and social
services costs: Sapru
v Canada (Minister of Citizenship and Immigration), 2011 FCA 35 at paras 25-27, [2011] FCJ 148. The third concerns procedural
fairness.
[14]
As
far as the second allegation is concerned, the respondent argues that it should
be reviewed against the standard of reasonableness as it questions the
immigration officer’s findings of fact with respect to the assessment (Chauhdry v Canada (Minister of Citizenship
and Immigration), 2011 FC
22 at para 14). Be that as it may, the applicant is already arguing that
the immigration officer’s demand for evidence of a
mechanism for reimbursement of excessive costs was unreasonable. I have
resorted to review this issue on the standard of reasonableness, while noting
that it involves at least a mixed question of fact and law, and to some extent,
a question of law, as far as the existence of a mechanism for reimbursement
constitutes a legal requirement.
OBLIGATION TO CONDUCT AN
INDIVIDUALIZED ASSESSMENT
[15]
In Hilewitz, Justice Abella, writing for
the majority of the Supreme Court of Canada, made clear that the assessment
required for making an inadmissibility determination under subparagraph 19(1)(a)(ii)
of the former IRPA, now replaced by its paragraph 38(1)(c), is an assessment of the needs of the
individual rather than those of the needs of a person belonging to a more or
less precisely identified group of persons suffering from the same health
impairment.
Section
19(1)(a)(ii) 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.
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 to pay
for the services.
This, it seems to
me, requires individualized assessments. It is impossible, for example, to
determine the "nature", "severity" or probable
"duration" of a health impairment without doing so in relation to a
given individual. If the medical officer considers the need for potential
services based only on the classification of the impairment rather than on its
particular manifestation, the assessment becomes generic rather than
individual. It is an approach which attaches a cost assessment to the
disability rather than to the individual. This in turn results in an
automatic exclusion for all individuals with a particular disability, even
those whose admission would not cause, or would not reasonably be expected to
cause, excessive demand on public funds.
[Emphasis
added]
[16]
Also, in the recent case of Perez
v Canada (Minister of Citizenship and Immigration), 2011 FC 1336,
[2011] FCJ 1638, the Court decided that the officer did not comply with his
obligation of individual assessment by failing to evaluate the needs of an
applicant “as an individual, taking into account his particular situation, but
rather as a member of a class of persons”, in that case, deaf people.
[17]
The
applicant contends that the medical officer did not conduct an individualized assessment
of Jethro’s needs and costs associated with them. Instead, he limited his assessment
to merely determining that Jethro required special education services in Saskatchewan, which
services purportedly cost some $13,000 per year for the provincial Crown.
[18]
The
respondent contends that the medical officer’s assessment of Jethro’s likely demands
or costs has been enough individualized because Jethro is now registered at St.
Marguerite Catholic School in Saskatoon where he receives special
education services. The medical officer therefore used the appropriate figures
available in assessing Jethro’s individual needs as it is certain that he will
continue to require in the future the same services that he does now.
[19]
More
particularly, the respondent submits that the average of $13,000 corresponds to
the amount of funding provided for level 2 special education services per year
by the provincial Crown. The respondent argues that despite the fact that Jethro’s
specific needs might be somewhat more or less than another student, the actual cost
on public funds will be $13,000 as this is the amount that will be provided to
his school on his behalf. This argument directly goes against the teachings of
the Supreme Court in Hilewitz. Again, what needs to be assessed is the
services that the patient can be expected to require and receive, not what will
be available or allocated on his behalf, hence the necessity to take into
consideration the applicant’s ability and
intention to pay for the required services.
[20]
The
figure of $13,000 per year corresponds to an average, on a per capital basis,
of public funding indistinctly attributed by the province of
Saskatchewan to groups of individuals, irrespective of the differences in their
medical file, health condition and problematic in terms of the type of special
education services they each individually require. However, nothing in the
CAIPS notes indicate that there has been an assessment of whether Jethro would
be expected to use less than, more than, or exactly the average amount of
funding provided for level 2 special education service per year by the province.
Thus, I entirely agree with the
applicant that the medical officer’s assessment, on which the inadmissibility
determination was based, falls short of the individualized assessment called
for by the Supreme Court in Hilewitz, above, at paras 54-56.
[21]
In the final analysis, I am not satisfied that
the immigration officer made a sufficiently individualized assessment of Jethro’s educational costs when he
found that Jethro’s demands equate, and will continue to equate, to “level
2 special education services”. This is a generalized assessment as there is no
indication of individualized “evaluation and
comparison” in the impugned decision (Hilewitz,
above, at para 54). Moreover, I note that the funding offered by the province
to the educational boards is a global source of revenues for them, and there is
absolutely no way to determine in which way the money allocated to an
educational board is actually spent by each local school, neither to establish
the actual cost of the “demands” with respect to the particular problematic of
Jethro. In this regard, the applicant states in his affidavit that the
Principal of St. Marguerite School has noted great gains and significant
progress in Jethro’s development since he attends the school, leaving open the
question of anticipated demands for the following years to come.
[22]
Despite the fact that the lack of individualized assessment is
determinative and constitutes sufficient ground to set aside the impugned
decision, I will nevertheless examine the two other allegations made by the
applicant since the matter has to be redetermined by another immigration
officer. With respect
to the second allegation, for the reasons below, the
Court finds that the immigration officer unreasonably required evidence of the
existence of reimbursement of mechanism. As far the Canada-Saskatchewan
agreement is concerned, the Court dismisses the third allegation that the prior
notification in this case was obligatory.
ABSENCE OF A REIMBURSEMENT
MECHANISM
[23]
In
his letter, Greg Chatlain states that Greater Saskatoon Catholic Schools are
publicly funded and operate under the provisions of the Education Act,
1995, SS 1995, c E-0.2. The Saskatchewan Education Act does
not establish a reimbursement mechanism in the circumstances of the applicant.
However, it is possible to voluntarily enter into an agreement with the school board
to contribute in the applicant’s son expenses.
[24]
I
have considered the respondent’s submission that in determining whether an
individual is susceptible to place excessive demands, the immigration officer
was required to assess not only the intent but the ability to pay for such
services. However, the respondent’s correlative argument is circular and relies
on the following sophism: because there is no reimbursement mechanism, the
applicant has not proven his ability to pay for the costs of the special
education services. Here, the immigration officer failed to adequately consider
the applicant’s declaration of intent and ability to pay by relying solely on
the absence of a mechanism for reimbursement.
[25]
From
what I can read in the impugned decisions and the CAIPS notes, it is clear that
the respondent is reading into the reasons provided by the immigration officer.
Nowhere in these reasons does the immigration officer explicitly question the
applicant’s ability to pay and, indeed, the respondent admits that there is no
legal prohibition for an individual to conclude a voluntary agreement with the
education board for the reimbursement of special educational services.
[26]
As per Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1
SCR 190, “reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”. Thus, I conclude that
the overall reasoning of the immigration officer to deny the application on the
basis that reimbursement mechanism must exist in the first place is also unreasonable,
and this latter finding renders the whole decision reviewable as well.
THE CANADA-SASKATCHEWAN
AGREEMENT
[27]
Lastly,
the applicant contends that the immigration officer’s decision should be quashed
because notice was not provided to the province of Saskatchewan of the
refusal of one of its nominees in accordance with section 4.10 of the
Canada-Saskatchewan Immigration Agreement. The applicant submits that such
notice would have served to provide clarification on the issue of the existence
of a reimbursement mechanism for special education costs to the Ministry of
Education prior to the refusal.
[28]
The
respondent argues that the lack of notice does not constitute a breach of the procedural
fairness due to the applicant because the Canada-Saskatchewan Immigration
Agreement is an inter-provincial agreement to which the applicant is not a
party and of which he cannot claim the benefit.
[29]
Section
4.10 of the Canada-Saskatchewan Immigration Agreement stipulates that:
4.10 When a
refusal of a nominee is likely, Canada will notify and advise Saskatchewan
of the reasons for possible refusal prior to the refusal notice being issued to
the provincial nominee. Saskatchewan may raise
concerns with, or seek clarification from, the assessing officer at the
relevant mission or the appropriate manager, when a Provincial Nominee is
likely to be refused. Where the refusal is for reasons other than health,
security or criminality concerns, Saskatchewan
will have 90 days to raise concerns and seek clarification before notification
is given to the provincial nominee by the immigration officer.
[Emphasis
added]
[30]
In
my opinion, the above provision does not legally create a right of prior
consultation of the province to the benefit of the applicant that can be invoked
to quash the immigration officer’s decision for lack of procedural fairness. I agree
with the respondent that this case should be distinguished from Kikeshian v Canada (Minister of
Citizenship and Immigration), 2011 FC 658 at para 15, [2011] FCJ 832 [Kikeshian], cited by the applicant, which
concerned a provincial nominee under the Entrepreneur Category who had
not established to the satisfaction of the visa officer that he could become
economically established in Canada.
[31]
In
Kikeshian, above, the
Court found that the consultation
duty did not arise out of an inter-governmental agreement but was expressly imposed by subsection 87(3) of
the Immigration and Refugee Protection Regulations, SOR/2002-227, in the
context of a scheme which recognizes a provincial nomination as prima
facie evidence of an applicant’s ability to become economically
established in Canada. According to the Court’s reasoning, this created a
reasonable expectation on the part of the applicant that a visa officer would
not refuse his application without notifying the provincial authorities that
initially nominated the applicant. This is not the case here.
[32]
Accordingly,
I find that this third ground of attack is legally unfounded. Be that as it
may, this negative finding has no effect on the two determination already made by
the Court. Since the immigration officer has failed to conduct an
individualized assessment and has acted unreasonably in requiring that there be
evidence of a reimbursement mechanism, the Court must intervene.
CONCLUSION
[33]
For
the reasons above, the application for judicial review is allowed. The decision
made on April 2011 by the immigration officer is set aside and the applicant’s
application for permanent residence is to be reconsidered by a different
immigration officer after having allowed the applicant to submit any additional
evidence relevant to the determination of the issues before the immigration
officer.
[34]
The
applicant has proposed the two following questions for certification:
1.
In
assessing excessive demand under paragraph 38(1)(c) of the IRPA, is it a
reviewable error for a Medical Officer or Immigration Officer to rely only on evidence
of a government funding allocation to determine the cost that an excessive
demand that an applicant might reasonably be expected to pose to social
services, or is it necessary for the Medical Officer or Immigration Officer to
individually assess the expected cost posed by the applicant?
2.
In
assessing an applicant’s willingness or ability to pay to defray the cost of
excess demand for social services in the context of assessing excessive demand
under paragraph 38(1)(c) of the IRPA, is it a reviewable error for a
Medical Officer to conclude that an applicant is “unable to pay” solely due to
the fact that there is no mechanism in place to allow reimbursement of costs,
where there is no legislative prohibition preventing voluntary reimbursement of
such costs?
[35]
The
respondent opposes certification of the two questions proposed by the applicant
on the basis that they would not be dispositive of an appeal or/and they do not
raise a question of general importance, arguing notably that they are answered in
the jurisprudence or they are too much fact driven, while ignoring the fact
that the burden in on an applicant to show that he or she meets the requirement
of the legislation.
[36]
In
view of the result of the case and considering the position taken by the respondent,
no question shall be certified by the Court.
JUDGMENT
THIS COURT’S JUDGMENT
is that the application for judicial review is allowed. The
decision made on April 20, 2011 by the immigration officer is set aside and the
applicant’s application for permanent residence is to be reconsidered by a
different immigration officer after having allowed the applicant to submit any
additional evidence relevant to the determination of the issues before the
immigration officer. No question is certified.
“Luc
Martineau”
Email this Content