Date:
20121213
Docket: IMM-7340-11
Citation: 2012 FC 1472
Ottawa, Ontario, December 13, 2012
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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MOHAMMED HANIF SHOEB CHOWDHURY
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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]
Mr. Chowdhury seeks to set aside a decision of a visa officer of the
High Commission of Canada in Singapore dated September 14, 2011, refusing his
application for permanent residence in Canada. In the officer’s opinion, Mr.
Chowdhury’s daughter Suraiya, who has a severe visual impairment, was
inadmissible because she “might reasonably be expected to cause excessive
demand on health or social services:” Immigration and Refugee Protection Act,
SC 2001, c 27, paragraph 38(1)(c).
[2]
In October 2008, Mr. Chowdhury applied for permanent
residence in Canada in the Investor class. On July 23, 2009, the Officer sent
Mr. Chowdhury a fairness letter outlining the following:
- his
understanding of Suraiya’s medical condition and that it was expected to
exist throughout her life;
- that Suraiya
would need special education and would benefit from an integrated program
under the supervision of a team of specialists to optimize her development
and potential;
- that he and
his wife would be eligible for respite services, which are in high demand;
- that, based
on information from the Quebec Ministry of Education, the costs of the
above-mentioned services would total at least $126,139 over the next ten
years;
- that these
costs might reasonably be expected to exceed the average Canadian per
capita costs over five to ten years; and
- that, as a
result, Suraiya “might reasonably be expected to cause excessive demand on
social services in Canada.”
[3]
The fairness letter also invited Mr. Chowdhury
to:
“[S]ubmit additional
information that addresses any or all of the following:
•
The medical condition identified;
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Social services required in Canada for the period indicated above; and
•
[The] 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.”
[4]
The fairness letter finally noted that “in order
to demonstrate that your family member will not place an excessive demand on
social services […] 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 […].”
[5]
By letter dated October 8, 2009, Mr. Chowdhury
responded to the fairness letter, saying:
•
that Suraiya has been and will continue to be
cared for, as long as is required, by Dr. Trese in Michigan, USA, at his sole
expense;
•
regarding “Early Intervention/Occupational
Therapy,” that he had found “several options” for private health care providers
to supplement his wife’s full-time care costing around $5,000 to $10,000 per
year, and would seek a reference from a medical specialist upon arrival to
Canada;
•
because Suraiya’s education was his highest
priority, she would be placed in a low teacher-student classroom at a private
school, and that he had “looked at several schools in the Montreal area and St. George’s School of Montreal seems to be the best choice.”
•
that St. George’s offers individual learning
plans and special needs services like those that will be required for Suraiya,
will cost $13,500 - $15,000 per year in tuition, and that educational
assistance, respite care, and psychological assessment (for which he would use
a private health care provider) would cost an additional $40,000 - $60,000
“during this time period;”
•
that he was “fully able and willing to pay all
costs and fees associated with any service that is provided to [his] daughter
(please see signed Declaration of Ability and Intent),” understanding that as
per the Officer’s letter, that amount may exceed $127,000;
•
that his net worth was in excess of $1,170,000
CAD, the majority of which was in the form of property and stock that he
planned to liquidate in order to settle his family in Canada; and
•
that all of his family’s living expenses,
including those relating to Suraiya, will continue to be paid for by his
successful trading company.
[6]
In a June 7, 2011, CAIPS entry the Officer
briefly outlined the history of Mr. Chowdhury’s application, including the
fairness letter and the response thereto, and outlined several outstanding
concerns as to the application.
[7]
First, in his response to the fairness letter,
Mr. Chowdhury said that Suraiya was, and would thereafter be in the care of Dr.
Trese in Michigan. The information received by the officer indicated that
Suraiya’s next appointment was in November 2009, but Mr. Chowdhury had not
provided additional information to show that she was returned to the doctor at
this time or thereafter.
[8]
Second, while Mr. Chowdhury said his wife had
been caring, and would care for Suraiya on a full-time basis, he also
previously said she was a director in his company since 2003. From this, it
was unclear to the Officer whether his wife could or would provide full time
support to the child in Canada.
[9]
Third, although Mr. Chowdhury stated he would
use the services of private health care providers, it was “not clear how and
where he would source for such services,” and it he had “not demonstrated […]
that such private services are available in Quebec and such services are not
subsidized and funded by the government.”
[10]
Fourth, although Mr. Chowdhury stated he had
looked at several schools in Montreal and found St. George’s to be best, he did
not provide any evidence that he contacted St. George’s to enquire if they
would accept his daughter and on what conditions. The Officer also noted that St. George’s was also “NOT equipped to receive students with a handicap (there are stairs
and no elevator, no special equipment),” and could not confirm having spoken
with Mr. Chowdhury concerning his child.
[11]
On the basis of these concerns, the Officer
found that Mr. Chowdhury’s plan was “speculative at best and […] entirely
insufficient:” it was not detailed or individualized, and there is no evidence
that Mr. Chowdhury has done proper research on what social services Suraiya
would be entitled to and if those could be repaid by him. However, the Officer
also said in these notes that “an interview is required to give [Mr. Chowdhury]
another opportunity to address these concerns in person.”
[12]
A June 26, 2011, CAIPS’ entry shows that Mr.
Chowdhury was phoned and asked to come for an interview on July 11, 2011.
There is no evidence that the caller relayed the above concerns to Mr.
Chowdhury prior to the interview.
[13]
On July 11, 2011, the interview was held and on
September 14, 2011, the officer sent Mr. Chowdhury a letter refusing his
application for permanent residence on the basis of his daughter’s
inadmissibility.
[14]
Mr. Chowdhury raises three issues: Whether the
decision is reasonable; whether the officer breached the duty of procedural
fairness by not informing Mr. Chowdhury of his concerns prior to, or during the
interview; and whether the officer was biased, having concluded that Mr.
Chowdhury was inadmissible before the interview.
[15]
In my view, the only issue with merit is the
procedural fairness issue. Based on the information provided by Mr. Chowdhury
in his response to the fairness letter and in the interview, the officer’s
decision was reasonable and there is no evidence of bias.
[16]
However, the officer decided that Mr. Chowdhury
was to be given “another opportunity to address [the concerns of excessive
demand] in person” and decided to hold an interview. The respondent submits
that the interview was merely a continuation of the first fairness letter and
therefore the applicant had been alerted to the issues to be addressed at the
interview. It is only with the advantage of hindsight that we can see that the
interview arose from the same issues as the first fairness letter. Would the
applicant, not having been informed of the purpose of the interview, have
reasonably known that? I find, on the balance of probabilities, that the applicant
would not have known that. There was no reason for him to assume that the
interview arose from the previous letter or his response to it. He does say
that his counsel tried to find out what the interview would be about in
advance, and I take it that he was unable to do so. This supports a finding
that the applicant was not aware of the purpose of the interview. Accordingly,
I find that he was denied procedural fairness and the officer’s decision must
be set aside.
[17]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application is allowed, the officer’s decision is set aside, and the
applicant’s application for permanent residence in Canada is to be
re-determined by a different officer.
"Russel W. Zinn"
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