Date: 20110707
Docket: IMM-6544-10
Citation: 2011 FC 835
Ottawa, Ontario, July 7,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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FARAJOLLAH FIROUZ-ABADI
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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]
This
is an application for judicial review by Farajollah Firouz-Abadi, challenging a
decision by the First Secretary of the Visa Section at the Canadian Embassy
(visa officer) in Damascus, Syria refusing his
application for a permanent resident visa. The impugned decision was rendered
on September 7, 2010 and was based on a finding under ss 38(1) of the Immigration
Refugee and Protection Act, SC 2001, c27, (IRPA) that Mr. Firouz-Abadi’s
two dependant children were inadmissible because their conditions might
reasonably be expected to cause excessive demand on Canadian health or social
services.
Background
[2]
Mr. Firouz-Abadi
is a citizen of Iran. He is married to Farahnaz Gholamazad and they
have two sons, Nima (age 29) and Reza (age 25) (referred to as Applicant or
collectively as Applicants).
[3]
In
2007 Mr. Firouz-Abadi applied to the Manitoba Provincial Business Nominee
Program and was approved by the provincial authorities. As required, he then
applied for a permanent resident visa which included his wife and two sons. In
order to obtain visas, all of the members of the family were required to
disclose their medical histories. In the case of Nima and Reza, those medical
disclosures confirmed a common diagnosis of mucopolysaccharidosis. This is a
genetic metabolic disorder commonly manifesting in skeletal and neurological
impairments of varying degrees of severity. As would be expected, these diagnoses
raised an issue concerning the admissibility of the family. The visa officer wrote
to Mr. Firouz-Abadi outlining her concern and requesting further
information:
Your family member, FIROUZ-ABADI,
NIMA, has the following medical condition or diagnosis:
This 28 year old applicant has a history
of mental retardation and epilepsy since early childhood, due to complications
of severe form (Hurler’s Disease) of Mucopolysaccharidosis. He had epilepsy
since 18 months of age and is currently on anti-epileptic medications. The
characteristics of this disorder due to an enzyme deficiency are skeletal
deformities and a delay in motor and mental development, coarsening of facial
features such as macrocephaly (large skull), and hirsutism. He has a younger
brother with similar phenotype. The examining physician mentioned that Nima has
corneal opacity which is one of the multiple complications of this disorder.
The clinical geneticist mentioned in his December 2009 report that he is
mentally and physically handicapped. He concludes that: “He is not able to work
himself and be independent financially. He should be under support and supervision
of his parents.” Nima’s cognitive disability is such that it can reasonably be
expected to persist throughout his life. Canadian social philosophy has a
commitment to equality, full participation and maximum community integration of
all individuals in a state of dependence associated with mental retardation.
This philosophy promotes community living with an extensive community-based
social support system with the intent to maximize the individual’s potential
for independent living. Currently he would benefit from special vocational
training that would likely prepare him to work only in a sheltered workshop
setting. He would also benefit from Adult Day Programs such as community access
and use, behavioural support and leisure/recreational communities activities.
As a permanent resident he would be able to access the Supported Independent
Living Programs, which would enable him to maximize his potential for living as
independently as possible in the community. Additionally, his family members or
caregivers would be eligible for respite care, which is both expensive and in
high demand, to give them needed time off from the demands of caring for a
person with cognitive impairment To date many of these above named social
services are unable to meet the needs of Canadian individuals and their families
in a timely manner; the services are wait-listed end agencies prioritize access
on a most-in-need basis, Based upon my review of the results of this medical
examination and the reports. I have received with respect to the applicant’s
health condition, I conclude that he has a health condition that might
reasonably be expected to cause excessive demand on social services.
Specifically, this health condition might reasonably be expected to require
services, the costs of which would likely exceed the average Canadian per
capita costs over 5 years, and would add to existing waiting lists and delay or
deny the provision of those services to those in Canada who need or are
entitled to them. The applicant is therefore inadmissible under Section 38(1)(c)
of the Immigration and Refugee Protection Act. Detailed list of social services
required and cost implications: Vocational Training and Leisure and
Recreational Activities (Day Programmes): in most Canadian Provinces, the
average cost of this service is estimated at approximately $10,000 per year.
Respite Care: the estimated cost is about $150 per week based on $15 per hour
and 10 hours per week. Average cost is estimated at approximately $3000 to
$4000 per year.
Before I make a final decision, you may
submit additional information relating to this medical condition or diagnosis.
You may also submit any information addressing the issue of excessive demand if
it applies to your case.
You have until 15 October [2]010
to submit additional information to me. Please ensure that you quote the file
number indicated at the top of this letter on any information you submit.
You are responsible for any fees charged
by doctors or other professionals you consult as a result of this opportunity
to submit new information.
[Emphasis in the original]
[4]
In
response to the visa officer’s fairness letter the family provided additional
medical reports which indicated that the cited medical diagnosis was wrong. The
children’s treating physician in Iran,
Dr. Yousef Shafeghati, advised that neither son had Hurler’s Disease, which is a
particularly severe form of mucopolysaccharidosis. He also stated that neither
child required any special medical services. He concluded his report by
inviting further questions.
[5]
The visa
officer sent these medical reports to the medical officer, Dr. Rejean Paradis,
for further evaluation. Dr. Paradis agreed that the original diagnosis of
Hurler’s Disease was incorrect but that the original medical profile of “mental
retardation” and the corresponding need to access social services support
remained the same.
[6]
In his
supporting affidavit, Dr. Paradis confirmed that he did not request a detailed
psychological assessment for the children. Instead he assumed that with the
agreed diagnosis of “mental retardation” a minimum level of social services
support would be required in the form of vocational training and periodic
respite care at a cost of about $13,000 per annum for each child. He went on to
state that individualized assessments would not be warranted and would only
serve to impose additional costs on the Applicants and delay the processing of the
file.
[7]
The visa
officer accepted Dr. Paradis’ medical findings and concluded that the Applicants
did not have sufficient resources to defray the expected social services costs
for the two children. The visa officer’s file notes addressed the financial
issues as follows:
I noted that PA indicated having savings
equivalent to CAD $42k (bank statement submitted) in addition to the value of
his house that will be put on sale. There is a statement on file that PA has
long term care plans to support his children and is able and willing to cover
any social services costs in excess. In most Canadian Provinces, the average
cost of vocational training and leisure & recreational activities is
estimated as approximately $CAD 10k per year. The average estimated cost of
Respite Care is approximately $CAD 3k to 4k per year. The applicant does not
provide details regarding his long term care plans to support Reza and Nima.
The applicant has limited liquid assets equivalent to CAD $42k. Although the
applicant has declared being prepared to pay for any social services costs in
excess, he has not presented a clear and concrete plan as to how he will defray
these costs and sufficient evidence to show that this plan is feasible and
reasonable. The applicant has not satisfied me that he has the ability and
intent to mitigate the cost of the required social services.
[Emphasis added]
[8]
In
the result, the visa officer advised the Applicants that they were inadmissible
to Canada under s 38
of the IRPA. It is from this decision that this application for judicial review
arises.
Issue
[9]
Was
there a breach of procedural fairness in the handling of the Applicant's visa
application?
Analysis
[10]
The
standard of review for assessing a medical officer’s factual findings, as well
as a visa officer’s subsequent finding of medical inadmissibility is
reasonableness, see: Rashid v MCI, 2010 FC 157, 364 FTR 170 at
para 13; Gao v Canada (1993), 61 FTR 65 at pp
317-318. Procedural fairness aspects of those decisions, however, are to be
reviewed on a standard of correctness, see: Hilewitz v Canada (Minister of
Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 at para 71.
[11]
There
are a number of problems with the approach taken by the visa officer and the
medical officer that, when considered cumulatively, amount to a breach of
fairness requiring that this matter be redetermined on the merits.
[12]
The
starting point for a judicial review of a decision made under s 38 of the IRPA
is the Supreme Court of Canada decision in Hilewitz, above, which
established that in order to justify an exclusion a medical assessment must be
individualized. The need to avoid a generic approach, which would inevitably
lead to the exclusion of anyone with an intellectual disability, is reflected
in the following passage from the decision:
[56] This, it seems to me, requires
individualized assessments. It is impossible, for example, to determine the
“nature”, “severity” or probable “duration” of 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 demands on public funds.
[57] The issue is not whether Canada can design its immigration
policy in a way that reduces its exposure to undue burdens caused by potential
immigrants. Clearly it can. But here the legislation is being interpreted in a
way that impedes entry for all persons who are intellectually disabled,
regardless of family support or assistance, and regardless of whether they pose
any reasonable likelihood of excessively burdening Canada’s social services. Such an
interpretation, disregarding a family’s actual circumstances, replaces the
provision’s purpose with a cookie-cutter methodology. Interpreting the
legislation in this way may be more efficient, but an efficiency argument is
not a valid rebuttal to justify avoiding the requirements of the legislation.
The Act calls for individual assessments. This means that the individual, not
administrative convenience, is the interpretive focus.
[13]
It
seems to me that the approach taken in this case comes dangerously close to the
line drawn by the Court in Hilewitz, above. The only information that
the medical officer had to support his social services findings was the
diagnosis of mucopolysaccharidosis
manifesting in mental impairment, and a largely undefined level of dependency.
The treating physician had indicated that both boys were able to manage most of
their daily needs but were dependent upon the continuing support and
supervision of their parents. The generic medical information contained in the
record and relied upon by Dr. Paradis (see para 16 of his affidavit) states
that mucopolysaccharidosis presents with “varying degrees of severity” from
normal intellect to profound retardation.
[14]
Notwithstanding
the paucity of information about where these children fell on the medical and
personal care continuum, the medical officer believed that he had enough to
conclude that they would require vocational training and respite care. In his
affidavit Dr. Paradis also challenged Mr. Firouz-Abadi’s assertion that the children required minimal
assistance and supervision. Dr. Paradis stated that this information is
inconsistent with the medical reports from the treating Iranian physicians.
[15]
I can identify no
material inconsistency between the descriptions provided by Mr. Firouz-Abadi
and those of the Iranian physicians. No one denied that the children were
dependent, but the level of their dependency was described only in very general
terms. This is precisely the type of situation where detailed specialists’
evaluations were necessary and, indeed, clearly indicated by the Respondent’s
“Handbook for Designated Medical Practitioners” at question 16. That provision,
among other things, provides that a person with “mental retardation” should be
specifically assessed for adaptive skills, support requirements, vocational needs
and the need for supervision – the very matters that were not fully addressed
in the medical histories before the medical officer and which Hilewitz, above, indicates
are essential. There is also nothing in the Handbook to support Dr. Paradis’
view that such assessments are only necessary for minor children or
adolescents. I would add that it was somewhat paternalistic for Dr. Paradis to
justify his approach to this administrative requirement by stating that he wanted
to save the Applicants from additional expense. That was a choice for the
family to make and not Dr. Paradis. Dr. Paradis’ added concern about
administrative efficiency is also misplaced. The duty of fairness is not
displaced by the desire to close a file or for administrative convenience; see Singh
v Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at para 70 and Hilewitz,
above, at para 57.
[16]
What
is particularly troubling about the approach adopted here is that it
essentially bars families of somewhat modest means from emigrating to Canada
where the family includes a dependant child with an intellectual impairment,
even in circumstances where the parents have stated a willingness and ability
to provide for the child’s needs. Under the statutory scheme, a visa officer is
not entitled to ignore the stated intentions and assurances of the parents, particularly
in a case like this where the identified social services are optional and where
the parents have already provided the necessary support to their disabled
children well into their adult years.
[17]
There
are also serious problems with the sufficiency of the visa officer’s fairness
letter, most notably in its failure to clearly inform the Applicants about what
was required to address the outstanding concerns. Citizenship and Immigration Operational
Bulletins OB63 and OB63B include a form fairness letter for situations where
there is a concern about medical inadmissibility. This letter stipulates that
officers are to request “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”. Visa
officers are also told that fairness letters must explain to applicants that
they are obligated to demonstrate a detailed plan indicating how they will obtain
anticipated social services or provide for alternative arrangements. Where the
response received from an applicant is deemed insufficient, the visa officer is
told that a follow-up request may be sent.
[18]
An
early notation in the Respondent’s file acknowledged the fact that one of the
children had completed some schooling but that more information was required to
assess their respective levels of dependency. Nevertheless, the fairness letter
used here merely sought additional information relating to the medical
condition or diagnosis and tepidly invited “any information addressing the
issue of excessive demand if it applies to your case”.
[19]
I
also note that the visa officer did not send a Declaration of Ability and Intent
to the Applicants to be signed and returned. The use of that document is also
stipulated in the Respondent’s Operational Bulletin. If it had been sent to the
Applicants, it would have clearly drawn their attention to the need to present
a detailed plan for the avoidance of any excessive demand on Canadian social
services. In these circumstances it was unfair to deem the family inadmissible
for failing to present a clear, feasible and concrete care plan when no such
plan was ever requested.
[20]
In
my view, the content of this fairness letter fell well short of the standard
discussed in Sapru v Canada, 2011 FCA 35, 93 Imm LR (3d) 167, at para 31
where it was held that such a communication must clearly set out all of the
relevant concerns so that an applicant knows the case to be met and has a true
opportunity to meaningfully respond to all of the visa officer’s concerns. The
fairness letter under consideration in Sapru was in the form stipulated
in the Respondent’s relevant Operational Bulletin and it was found to be
sufficient. The letter used here fails to conform to that format and is
deficient with respect to the very issue on which the family’s inadmissibility
was ultimately determined. It was also in the same form that was described as
inadequate by Justice Michael Kelen in the Minister of Citizenship and
Immigration v Abdul, 2009 FC 967, 353 FTR 307, at para 26.
[21]
Although
I accept that the Respondent’s Operational Guidelines are not rules of law,
they are ignored by administrative decision-makers at some peril because they
can create expectations and they may also be seen to express the Respondent’s
view of what is necessary to achieve a fair outcome.
[22]
I
would add to all of the above that the visa officer’s assessment of the
principal Applicants’ financial means was deficient. The Applicants had
indicated that they had available cash resources of $42,000 CAD and intended to
sell their home to raise more. In addition, they were applying for visas under
the Business Class category and had a declared net worth of $621,130. They also
had committed to a business investment in Manitoba of at least
$200,000. As far as I can tell from the visa officer’s decision, the only
financial information she considered was the amount of money the family held on
deposit. Some consideration of their expected financial prospects in Manitoba was
essential to an understanding about their ability to meet the future financial
demands of caring for their two children.
[23]
For
the foregoing reasons this application is allowed. Neither party proposed a
certified question and no issue of general importance arises on this record.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial review is allowed
with the matter to be re-determined on the merits by a different visa officer
and medical officer.
"R.L.
Barnes"
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