Date: 20070828
Docket: IMM-694-07
Citation: 2007 FC 855
Ottawa, Ontario, August 28,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
LAI
CHING-CHU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a visa officer’s decision dated
December 18, 2006 refusing the applicant’s request for an extension of time to
file additional information in support of his application for permanent
residence. The applicant sought the extension to address the visa officer’s
concern that his son’s health might reasonably be expected to cause excessive
demand on health or social services.
FACTS
The application process
[2]
The
applicant, a resident of Taiwan, is the General Manager of Ally Star
Technologies Inc. in Taiwan. On August 1, 2005, the applicant applied
for permanent resident status for himself and his family under the Prince
Edward Island Provincial Nominee Program under the Economic Class. The
applicant declared that he had $2,649,533 in unencumbered transferable and
available funds. In 2005, as part of the application process, the applicant
traveled to Canada on a visitor visa for a mandatory interview in Prince
Edward Island.
On December 13, 2005, the applicant was selected as a Prince Edward Island
Nominee under the Economic Class subject to being cleared by a visa officer for
criminal and medical admissibility.
[3]
The
applicant and his family members underwent medical examinations as part of
their application. An examination on March 11, 2006 found that the applicant’s
17-year-old son suffered from moderate mental retardation.
[4]
On August 28, 2006 Dr. K. Kennedy of the respondent’s Regional
Medical Office wrote a “Medical Notification” that the applicant’s son had
“mental retardation – moderate” and that his integration into the Canadian
community would place an excessive demand on Canadian services and resources.
For this reason, the applicant’s son was inadmissible under paragraph 38(1)(c)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
The fairness letter
[5]
On
September 18, 2006, the visa officer notified the applicant that the assessment
of his application was nearing completion, but that it appeared the
applicant “may not meet the requirements for immigration to Canada” on the
basis that his son, Lai Chun-Chieh, was a person whose health may reasonably be
expected to cause excessive demand on health or social services pursuant to subsection
38(1) of the IRPA. Before making a final decision, however, the visa officer invited
the applicant to file additional information relating to his son’s medical
condition, diagnosis, or to the issue of excessive demand. The visa officer set
a 68 day deadline, by November 25, 2006, for submitting this information. This
letter is a procedural “fairness” letter – it provides the applicant with a
fair opportunity of knowing and responding to the visa officer’s concerns.
The request for an extension
[6]
On December 2, 2006 the applicant’s immigration consultant in Taiwan
wrote to the visa office in Taiwan requesting an extension of time to respond
to the September 18, 2006 letter. The consultant acknowledged the deadline of
November 25, 2006, but explained that gathering this information takes time.
This letter was written seven days after the deadline of November 25.
[7]
Then,
on December 13, 2006, 18 days after the visa officer’s deadline, the
applicant’s lawyer in Halifax advised the visa
officer that “we” are in the process of assembling materials relating to the
issue of excessive demand. The lawyer stated that the applicant would be in a
position to provide a written response with supporting documentation by January
22, 2007. No reasons were provided why the request was not made before the visa
officer’s deadline and no justification was provided why the applicant needed
an additional 40 days to respond.
Decision under review
[8]
On
December 18, 2006, the visa officer refused the applicant’s request for an
extension stating:
We do not grant extensions to the deadline
in such instances. The client had over 60 days to make a submission.
On the same day, the visa officer sent the
applicant notification that his application had been refused on the basis that his
son was a person whose health condition might reasonably be expected to cause
excessive demand on health or social services. The letter cited subsection 42(a)
of the IRPA as authority for the decision, stating: “Your accompanying son is
inadmissible to Canada. As a result, you are also inadmissible.” Also
included in the visa officer’s refusal letter is the following statement:
My letter of September 18, 2006 invited
you to provide additional information or documents in response to the
preliminary assessment which was included in that letter. You did not provide
any information or documents in response to my letter by the deadline of
November 25, 2006. Therefore, I have made my decision based on the information
before me.
[9]
It
is the decision refusing an extension of time that is the subject of this
application for judicial review.
THE LEGISLATION
[10]
Sections
38 and 42 of the IRPA state:
|
Health grounds
38. (1) A foreign national is inadmissible on
health grounds if their health condition
[…]
(c)
might reasonably be expected to cause excessive demand on health or social
services.
|
Motifs sanitaires
38. (1)
Emporte, sauf pour le résident permanent, interdiction de territoire pour
motifs sanitaires l’état de santé de l’étranger constituant vraisemblablement
un danger pour la santé ou la sécurité publiques ou risquant d’entraîner un
fardeau excessif pour les services sociaux ou de santé.
[…]
|
|
Inadmissible family member
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
(b)
they are an accompanying family member of an inadmissible person.
|
Inadmissibilité familiale
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;
b) accompagner, pour un membre de sa famille, un interdit de
territoire.
|
ISSUE
[11]
The
issue raised on this application is whether the visa officer failed to observe
the principles of procedural fairness and natural justice by refusing the applicant’s
request for an extension of time without any consideration of the circumstances
of the case.
STANDARD OF REVIEW
[12]
The
issue before this Court is whether the visa officer, in rendering his decision,
failed to observe principles of procedural fairness and natural justice. In
situations where a court is assessing such allegations, it is not necessary to
engage in a pragmatic and functional analysis of the appropriate standard of
review: Canadian Union of Public Employees v. Ontario (Minister of
Labour),
2003 SCC 29, [2003] 1 S.C.R. 539. In such instances, the court must instead “examine
the specific circumstances of the case and determine whether the [decision
maker] in question adhered to the rules of natural justice and procedural
fairness”: Thamotharem v. Canada
(Minister of Citizenship and Immigration), 2006 FC
16, [2006] 3 F.C.R. 168 at paragraph 15. The standard of review is correctness.
In the event that a breach of natural justice or procedural fairness is found,
no deference is due and the decision will be set aside: Sketchley v. Canada
(Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392.
ANALYSIS
Issue: Did the visa
officer breach the principles of procedural fairness and natural justice by
refusing the applicant’s request for an extension of time?
Excessive demand and Hilewitz
[13]
The
October 21, 2005 Supreme Court of Canada judgment in Hilewitz v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 decided that
a visa officer had to consider an applicant’s ability and intention to pay for
social services. In considering a similar provision in the former Immigration
Act, R.S.C. 1985, c. I-2, Madam Justice Abella, writing for the majority,
made the following comments at paragraphs 54-55:
¶
54 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.
¶
55 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 or his or her family to pay for the services.
[Emphasis added.]
Madam
Justice Abella continued at paragraph 56, outlining that individualized
assessments are necessary since it is impossible “determine the ‘nature’,
‘severity’ or probable ‘duration’ of health impairment without doing so in
relation to a given individual.”
[14]
While
the decision in Hilewitz specifically addressed the ability to pay
within the context of business class immigrants, I stated in Airapetyan v.
Canada (Minister of Citizenship and Immigration), 2007 FC 42, [2007] F.C.J.
No. 66 (QL) that one’s ability or intention to pay for social services should
not be restricted to applicants in business immigration categories:
¶ 20 While applicants in business
immigration categories will more readily be able to demonstrate their ability
to pay for a family member’s expenses, it does not follow that applicants in
other categories will be unable to do so. This is particularly so given the
diverse range of health conditions which may give rise to an individual’s
demand on health or social services above the Canadian per capita average.
[15]
In
this case, the visa officer knew that the applicant has unencumbered
transferable and available funds totalling $2,649,533. Madam Justice Abella
held at paragraph 40 of Hilewitz that the visa officer and the medical
officer cannot ignore the very assets that qualify the applicant for admission
to Canada when
determining the admissibility of his disabled son.
The duty of fairness
with respect to extensions
[16]
The
content of the duty of fairness is a question of law and will vary depending on
the facts of each case: Ha v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195. In this
case, the applicant argues that the visa officer breached the principles of procedural
fairness and natural justice by categorically refusing the request for an
extension of time. The applicant contends that the requested extension of five
weeks was reasonable considering the research and careful assessment needed in
order to make educational and vocational arrangements that would best meet his
son’s needs. As such, the applicant submits that, in this instance, procedural
fairness requires that he be given a reasonable amount of time to respond to
the immigration officer’s request for more information. Moreover, the visa
officer had not made any decision or taken any action on the file before the
extension was requested.
[17]
In
support of this position, the applicant relies on the 2000 decision of this
Court in Gakar v. Canada (Minister of
Citizenship and Immigration) (2000), 189 F.T.R. 306. In that case, Mr.
Justice Teitelbaum allowed an application for judicial review on the basis that
the applicant’s rights to procedural fairness were breached when the visa
officer refused his request for a 30-day extension to file the documents
requested. In his decision, Mr. Justice Teitelbaum states at paragraphs 36 and
39:
¶ 36 I could well understand a
refusal for an extension of time if the request was for 90 or 180 days. I
cannot understand and do not understand a refusal for a 30 day extension of
time when it is the first request for an extension of time and it has no
adverse effect on the respondent….
¶ 39 As I have said, and I repeat, a
visa officer must be understanding and flexible in deciding on a request for an
extension of time. To simply say no is a breach of natural justice….
[18]
What
the applicant does not address, however, are the factual differences between
this situation and the one arising in Gakar. First, in Gakar the
applicant was only given a 30-day window to collect the requested information.
In this case, the applicant was given a total of 68 days to address the visa
officer’s invitation for additional information.
[19]
Second,
in Gakar the applicant requested an extension within the pre-established
30-day window. In this case, the applicant’s request for additional time did not
come until December 2, 2006 and December 13, 2006, i.e., after the visa
officer’s deadline and almost three months after his September 18, 2006 fairness
letter inviting further submissions.
[20]
Finally,
in Gakar the applicant provided reasons as to why he was unable to
satisfy the request within the pre-determined time frame. Specifically, the
applicant’s letter made clear that he was “unable to gather the necessary
documents within the 30 day window.” In this case, the applicant’s counsel
provided no reasons as to why the extension was sought, nor any reasons why the
applicant could not satisfy the request within the original 68-day window.
[21]
Mr.
Justice Blanchard makes clear in Khwaja v. Canada (Minister of Citizenship
and Immigration), 2006 FC 522, [2006] F.C.J. No. 703 (QL) at paragraph 17
that the duty of fairness “requires that an applicant be given notice of the
particular concerns of the visa officer and be granted a reasonable opportunity
to respond by way of producing evidence to refute those concerns.” In my opinion,
the applicant in the case at bar was given a reasonable opportunity to respond
to the concerns of the visa officer. The fact that no contact was made prior to
the November 25, 2005 deadline regarding the nature and reasons for the
extension must fall on the shoulders of the applicant. As Mr. Justice Muldoon
stated in Prasad v. Canada (Minister of
Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 91 (F.C.T.D.) at
paragraph 7:
¶ 7 The onus is on the applicant to
satisfy the visa officer fully of all the positive ingredients in the applicant’s
application. It is not for the visa officer to wait and to offer the applicant
a second, or several opportunities to satisfy the visa officer on necessary
points which the applicant may have overlooked.
Reasonable time frames must be
respected
[22]
The
Court takes judicial notice of the huge volume of applications for permanent
residence required to be processed by visa officers at overseas posts, and the
backlog of applications waiting to be processed. In the case at bar, the visa
officer gave the applicant 68 days to file further information. After hearing
no response within those 68 days, the visa officer quite properly proceeded to
make the decision. When the applicant’s lawyer requested an extension on
December 13, 2006 until January 22, 2007, this was 18 days past the 68-day
deadline of November 25, 2006. The applicant gave no reason for failing to
request the extension within the 68-day time frame. The proper procedure would
have been to make the request for an extension before November 25, 2006 and to
set out the reasons why the extension of time was necessary.
[23]
The
visa offices around the world cannot function in an orderly manner, with the
huge volume of applications that they process, if the parties do not comply
with reasonable timeframes.
Fettering of discretion
[24]
From the record before the Court, it is clear that the visa
officer did not consider the request for an extension made by the immigration consultant
in his letter dated December 2, 2006. There is no record of this letter being
received or considered in the CAIPS notes. The visa officer only considered and
responded to the letter from the applicant’s Halifax lawyer dated December 13,
2006. The visa officer responded:
We do not grant extensions to the
deadline in such instances. The client had over 60 days to make a submission.
This categorical statement amounts
to a fettering of discretion by the visa officer. The visa officer has a duty
to consider the request for the extension before refusing it. Instead, he
writes that no extensions are granted. This December 18, 2006 letter is
inconsistent with the visa officer’s affidavit sworn for the purpose of this
hearing on June 14, 2007. In that affidavit at paragraph 7 the visa officer
writes:
After reviewing the file, I
decided not to grant the requested extension. In making this decision I was of
the opinion that the procedural fairness requirements for medical
inadmissibility refusals had been met and the policy guidelines had been
followed. At that point it had been three months since September 18, 2006
letter informing the Applicant of the pending refusal of his application due to
the medical inadmissibility of his son.
I find this after the fact
explanation not evidenced in the CAIPS notes and self-serving.
[25]
The
visa officer fettered his discretion by categorically stating he never grants
extensions of time to file additional information. If the officer had
considered the request for an extension, exercised his discretion, and then
concluded that no extension will be granted for the following reason, then this
decision would be legal. But by fettering his discretion, the visa officer is
refusing to consider exercising his discretion, which is illegal. See Yhap
v. Canada (Minister of
Employment and Immigration), [1990] 1 F.C. 722 (T.D.) per Jerome A.C.J. at 739:
The
importance of flexibility in the adoption of policy or guidelines as a means of
structuring discretion is highlighted by D.P. Jones and A.S. de Villars in Principles
of Administrative Law, where the difference between “general” and “inflexible”
policy is described at page 137:
.
. . the existence of discretion implies the absence of a rule dictating the
result in each case; the essence of discretion is that it can be exercised
differently in different cases. Each case must be looked at individually, on
its own merits. Anything, therefore, which requires a delegate to exercise his
discretion in a particular way may illegally limit the ambit of his power. A
delegate who thus fetters his discretion commits a jurisdictional error which
is capable of judicial review….
[Emphasis added.]
The letter requesting the
extension was deficient and presumptuous
[26]
The letter from the Halifax lawyer requesting the extension was
disrespectful in that it did not provide an explanation for the delay in
responding to the medical fairness letter dated September 18, 2006, did not
indicate the information that was being gathered to respond to the concerns of
the visa officer, and presumptively advised the visa officer that the Halifax
lawyer would be providing the information by January 22, 2007, a deadline that
the Halifax lawyer unilaterally imposed on the visa officer.
Conclusion
[27]
After considering the record I find that:
1.
the visa officer did not consider the request for an extension made by
the immigration consultant dated December 2, 2006;
2.
the visa officer categorically responded to the Halifax lawyer on
December 18, 2006 that he never grants extensions to the deadline and thereby
illegally fettered his discretion and breached the rules of natural justice;
and
3.
the letter from the Halifax lawyer dated December 13, 2006 was deficient
in failing to provide an explanation for requesting the extension within the
deadline, deficient in providing an explanation as to the materials being
gathered in response to the concerns of the visa officer, and presumptuous in unilaterally
imposing a new deadline of January 22, 2007.
[28]
The applicant should not be penalized because of the deficient letters
written by his immigration consultant and his Halifax lawyer. I am satisfied
that, notwithstanding the Court’s decision in this case, the applicant will
have the right to reapply for permanent residence and to present evidence that his
assets of $2.6 million means that the medical condition of his son would not
reasonably be expected to cause excessive demand on Canadian health or social
services. It would be unjust to delay the processing of this case. Accordingly,
this application for judicial review will be allowed, the decision of the visa
officer not to grant an extension to the deadline set aside, and the matter
referred to another visa officer for redetermination.
CERTIFIED QUESTION
[29]
The respondent proposed a question for certification with respect to
whether the Supreme Court of Canada decision in Hilewitz applies to persons
such as the applicant as a Provincial Nominee under the Economic Class. I responded
that the answer to this proposed certified question is obvious in view of the Supreme
Court of Canada’s finding at paragraph 40 in Hilewitz per Madam Justice
Abella:
¶ 40 It seems to me somewhat
incongruous to interpret the legislation in such a way that the very assets
that qualify investors and self-employed individuals for admission to Canada
can simultaneously be ignored in determining the admissibility of their
disabled children …”
This rationale applies to a person
chosen by Prince Edward Island as a member of their “Economic Class.” For this
reason, I advised the respondent that I would not be certifying such a
question.
[30]
Neither party proposed any other question for certification. The Court
finds that this case does not raise any question of serious importance that
should be certified for an appeal.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
application for judicial review is allowed;
2.
the
visa officer’s decision dated December 18, 2006 is set aside;
3.
the
applicant has 60 days to update and present information to the visa section in Taiwan; and
4.
the
matter is referred to another visa officer for redetermination.
“Michael
A. Kelen”
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