Date: 20070117
Docket: IMM-2570-06
Citation: 2007 FC 42
Ottawa, Ontario, January 17,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
LIDIYA
AIRAPETYAN
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 March 24, 2006, which found that the applicant
was inadmissible to Canada
based on her daughter’s inadmissibility. The visa officer concluded that the
applicant’s daughter, who suffers from moderate mental retardation, might
reasonably be expected to cause an excessive demand on Canada’s social services.
[2]
The applicant is a citizen of Kazakhstan. She applied for permanent
residence in November 2001 in the independent category along with her husband
and children. She was assessed as a skilled worker in the field of economic
analysis and met the minimum points required under the former Immigration
Act, R.S.C. 1985, c. I-2.
[3]
By letter dated July 4, 2005, the applicant was
notified that her daughter had been clinically assessed as being moderately
mentally retarded. The letter identified a concern that she would almost
certainly require special education in Canada and invited the applicant to make submissions in response.
[4]
The applicant provided further submissions on
August 9, 2005, which were considered by a medical officer who opined that the
applicant’s daughter was not physically disabled and did not require isolated
maintenance for a contagious condition. However, the medical officer noted that
the daughter attended a special school in Kazakhstan in an individualized program, and maintained his earlier position
that the applicant’s daughter would reasonably require special education in Canada.
[5]
The visa officer reviewed the applicant’s
submissions and the medical officer’s opinion and concluded that the
applicant’s daughter was inadmissible because her condition would likely result
in an excessive demand on Canadian social services. This decision is the
subject of this application for judicial review.
Issues
[6]
The issues raised in this application are as
follows:
1.
Did the medical officer and visa officer err in
assuming that Alberta would
provide the applicant’s daughter with special education at a cost exceeding the
Canadian per capita average?
2.
Did the visa officer err in failing to consider
the applicant’s willingness and ability to pay for the costs of her daughter’s
special education needs?
Relevant Legislation
[7]
The legislation relevant to this application is
as follows:
1.
the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act); and
2.
the Immigration and Refugee Protection
Regulations, S.O.R. 2002-227 (the Regulations).
The pertinent legislative provisions of the Act
are as follows:
|
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.
[…]
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.
|
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.
[…]
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.
|
[8]
The grounds of inadmissibility are further set out in the following
provisions of the Regulations:
|
Definitions
1. (1) The definitions in this subsection apply in the Act and in these
Regulations.
[…]
“excessive demand”
“excessive demand” means
(a) a demand on health
services or social services for which the anticipated costs would likely
exceed average Canadian per capita health services and social services costs
over a period of five consecutive years immediately following the most recent
medical examination required by these Regulations, unless there is evidence
that significant costs are likely to be incurred beyond that period, in which
case the period is no more than 10 consecutive years; or
(b) a demand on health
services or social services that would add to existing waiting lists and
would increase the rate of mortality and morbidity in Canada as a result of
the denial or delay in the provision of those services to Canadian citizens
or permanent residents. (fardeau excessif)
“health services”
“health services” means any health services for which
the majority of the funds are contributed by governments, including the
services of family physicians, medical specialists, nurses, chiropractors and
physiotherapists, laboratory services and the supply of pharmaceutical or
hospital care. (services de santé)
“social services”
“social services” means any social services, such as
home care, specialized residence and residential services, special education
services, social and vocational rehabilitation services, personal support
services and the provision of devices related to those services,
(a) that are intended to
assist a person in functioning physically, emotionally, socially,
psychologically or vocationally; and
(b) for which the
majority of the funding, including funding that provides direct or indirect
financial support to an assisted person, is contributed by governments,
either directly or through publicly-funded agencies. (services sociaux)
[…]
Assessment of inadmissibility on health grounds
20. An officer shall determine that a foreign national is inadmissible on
health grounds if an assessment of their health condition has been made by an
officer who is responsible for the application of sections 29 to 34 and the
officer concluded that the foreign national's health condition is likely to
be a danger to public health or public safety or might reasonably be expected
to cause excessive demand.
[…]
Excessive demand
34. Before concluding whether a foreign national's health condition might
reasonably be expected to cause excessive demand, an officer who is assessing
the foreign national's health condition shall consider
(a) any
reports made by a health practitioner or medical laboratory with respect to
the foreign national; and
(b) any
condition identified by the medical examination.
|
Définitions
1. (1) Les définitions qui suivent
s’appliquent à la Loi et au présent règlement.
[…]
« fardeau excessif »
« fardeau excessif » Se
dit :
a) de toute charge pour les services sociaux ou les services de
santé dont le coût prévisible dépasse la moyenne, par habitant au Canada, des
dépenses pour les services de santé et pour les services sociaux sur une
période de cinq années consécutives suivant la plus récente visite médicale
exigée par le présent règlement ou, s’il y a lieu de croire que des dépenses
importantes devront probablement être faites après cette période, sur une
période d’au plus dix années consécutives;
b) de toute charge pour les services sociaux ou les services de
santé qui viendrait allonger les listes d’attente actuelles et qui
augmenterait le taux de mortalité et de morbidité au Canada vu
l’impossibilité d’offrir en temps voulu ces services aux citoyens canadiens
ou aux résidents permanents. (excessive demand)
[…]
« services de santé »
« services de santé » Les
services de santé dont la majeure partie sont financés par l’État, notamment
les services des généralistes, des spécialistes, des infirmiers, des
chiropraticiens et des physiothérapeutes, les services de laboratoire, la
fourniture de médicaments et la prestation de soins hospitaliers. (health services)
« services sociaux »
« services sociaux » Les
services sociaux — tels que les services à domicile, les services
d’hébergement et services en résidence spécialisés, les services d’éducation
spécialisés, les services de réadaptation sociale et professionnelle, les
services de soutien personnel, ainsi que la fourniture des appareils liés à
ces services :
a) qui, d’une part, sont destinés à aider la personne sur les plans
physique, émotif, social, psychologique ou professionnel;
b) dont, d’autre part, la majeure partie sont financés par l’État
directement ou par l’intermédiaire d’organismes qu’il finance, notamment au
moyen d’un soutien financier direct ou indirect fourni aux particuliers. (social
services)
[…]
Évaluation pour motifs sanitaires
20. L’agent chargé du contrôle conclut à
l’interdiction de territoire de l’étranger pour motifs sanitaires si, à
l’issue d’une évaluation, l’agent chargé de l’application des articles 29 à
34 a conclu que l’état de santé de l’étranger constitue vraisemblablement un
danger pour la santé ou la sécurité publiques ou risque d’entraîner un
fardeau excessif.
[…]
Fardeau excessif
34. Pour décider si l’état de santé de
l’étranger risque d’entraîner un fardeau excessif, l’agent tient compte de ce
qui suit :
a) tout
rapport établi par un spécialiste de la santé ou par un laboratoire médical
concernant l’étranger;
b) toute maladie détectée lors de la
visite médicale.
|
Standard of review
[9]
The decision under review involves a
factually-intensive determination as to the demand the applicant’s daughter
might reasonably place on health or social services in Canada. Accordingly, the visa officer is entitled to considerable
deference, and the Court will not interfere except on account of a patently
unreasonable decision. The failure of the visa officer to assess the ability
of the applicant to pay for the special education of her mentally retarded
daughter is a question of law subject to a correctness standard of review.
Analysis
Issue No. 1: Did the medical officer and visa officer err
in assuming that Alberta would provide the applicant’s daughter
with special education at a cost exceeding the Canadian per capita average?
[10]
The applicant’s application was denied based on
a determination that her daughter might reasonably be expected to cause
excessive demand on social services in Canada. As set out in
the Regulations, “excessive demand” is determined in relation to the average Canadian per capita health services and social services
costs. The applicant argues that her daughter’s special education will not cost
more than the average education needs for Canadian children in Alberta.
[11]
In his medical opinion, the medical officer
stated:
From
this evaluation she would almost certainly be identified as an exceptional
student requiring special education and special funding would be allocated to
her so that she could receive this secondary schooling.
The applicant argues that the visa officer erred
in assuming that the applicant’s daughter would require special funding for her
education, i.e. an excessive demand for social services.
[12]
The applicant argues that, since she and her
family indicated their intention to live in Alberta, it is necessary to examine
Alberta’s legislation and policies to determine whether excessive demand would
be caused by the applicant’s daughter’s attendance at school in that province.
[13]
The applicant has submitted evidence concerning Alberta’s legislation and policies. The
applicant relies on a report produced by the Government of Alberta in November
2000 entitled “Shaping the Future for Students with Special Needs: A review of
Special Education in Alberta”. In
this report, special needs students are identified as students who have mild or
moderate or severe disabilities, and students who are gifted or talented. The
report describes the procedure for service delivery:
Once
a student is identified as having special needs, school authorities must
develop and deliver an education program that provides the student with a
valuable learning experience. Assessment results, initially used to
determine the special needs of the student, are used to assist the teacher in
developing and implementing an individualized program plan (IPP). Alberta
Learning requires that IPPs be developed for every student identified as having
special needs.
[Emphasis added]
[14]
The report goes onto state that funding for
students with mild and moderate disabilities is included in the Basic
Instruction Funding provided to school authorities:
Alberta
Learning provides funding to school authorities to help meet the learning
requirements of students with special needs. Funding for students with mild
and moderate disabilities, and students who are gifted and talented is
currently included in the Basic Instruction Funding. Additional funding is
available to provide programs and supports for students with severe
disabilities. School authorities are required to use a portion of the Basic
Instruction Funding plus additional funding that is provided for students with
severe disabilities to provide programs for students based on their individual
needs.
[Emphasis added]
According to the 2006-2007 Funding Manual for
School Authorities produced by Alberta Learning and submitted as evidence by
the applicant, the Base Instruction funding for children in Grades 1 to 12 in Albert
is $5,291 per child.
[15]
The applicant argues that because her daughter’s
moderate disability would not require additional funding under Alberta’s
education funding policy, her daughter would not place an “excessive demand” on
Alberta’s education system. The
applicant also argues that because mild and moderately disabled students are
treated similarly to gifted and talented students, her daughter would neither be
perceived to be, nor in fact would be, a burden to Alberta’s education system.
[16]
The respondent argues that since the applicant’s
daughter already requires a specialized, individual educational program, it is
not unreasonable to expect that she would be assessed as having a severe
disability for the purposes of Alberta’s special needs education program.
[17]
The applicant has not adequately rebutted the
assumption of the visa officer that the applicant’s daughter would require
special education, and that this might reasonably be expected to cause an
excessive demand on Alberta’s
social services. The evidence required to rebut this assumption should be a
specialized report from an Alberta expert indicating that the education of mentally retarded children
without financial resources is not funded by the province. The report submitted
by the applicant in this regard is not sufficient to establish this fact.
Accordingly, the finding of the visa officer that the child will require
special education is not patently unreasonable. It is logical to assume that a
mentally retarded child will require special education, and if that child’s
family does not have adequate resources, the province will pay for that special
education.
Issue No. 2: Did the visa officer
err in failing to consider the applicant’s willingness and ability to pay for
the costs of her daughter’s special education needs?
[18]
The applicant relies on the Supreme Court of Canada’s judgment in Hilewitz
v. Canada (Minister of Citizenship and Immigration);
De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57. In that case, the Court noted at
paragraph 69 that the relevant legislation in Ontario contemplated the possibility of financial contributions from families
towards the cost of developmental services. On that basis, the Court held at
paragraph 70 that the medical officer erred by not taking into account the
potential impact of the families’ willingness to assist:
¶69 Social
services are regulated by provincial statutes. In Ontario, the province in
which both the Hilewitz and de Jong families have expressed their intention to
live, the Developmental
Services Act, R.S.O.
1990, c. D.11, as amended, addresses some of the facilities, assistance and
services that may be provided to a person with developmental disabilities. Section 15 of the Developmental Services Act Regulations, R.R.O. 1990, Reg. 272, states that a
determination will be made as to the ability of the applicant for
"admission to a facility and for assistance" to contribute "to
all or any part of the cost" thereof. Section 16 extends the same approach
to applications for "services". The Ontario legislation manifestly contemplates the possibility of financial
contributions from families able to make them. Even
if the Hilewitz and de Jong families' stated intentions regarding education and
training did not materialize, the financial resources of both families are such
that they likely would be required to contribute a substantial portion, if not
the entirety, of the costs associated with certain social services provided by
the province.
¶70 The
medical officers were obliged to consider all relevant factors, both medical
and non-medical, such as the availability of the services and the anticipated
need for them. In both cases, the visa officers erred by confirming the
medical officers' refusal to account for the potential impact of the families'
willingness to assist. […]
[Emphasis added]
[19]
In its written submissions, the respondent
sought to distinguish this case from Hilewitz, above, on the basis that
the applicant’s family in this case did not pledge to provide private schooling
for the daughter, nor was there any evidence that they could afford to do so.
The respondent also argues that the determination in Hilewitz, above,
regarding the need to consider the ability to pay cannot extend beyond the
business immigration categories to federal skilled workers. Federal skilled
workers, the respondent argues, are not required to provide objective and
reliable evidence of their financial resources other than demonstrating that
they possess adequate settlement funds. As stated by the respondent in its
written submissions:
Assessing
the financial resources of skilled worker applicants may involve considerable
speculation and uncertainty so as to render the ability to pay mitigation
analysis completely unreliable. This unreliable analysis cannot serve to
displace an excessive demands finding.
[20]
In my view, the Supreme Court of Canada’s
judgment in Hilewitz, which requires visa officers to take into account
a family’s willingness to pay for a family member’s health or social welfare expenses,
need not be restricted to applicants in the business immigration categories.
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.
[21]
In this case, the applicant has stated a strong
willingness to pay for the social (i.e. education) programs which her daughter will
require if allowed to immigrate to Canada. The applicant argues that the visa officer did not take into
account the family’s willingness to pay for the social services. The applicant maintains
that she and her family had never before accessed available government social
services in Kazakhstan to care
for her daughter. That is not true. The special education in Kazakhstan was publicly funded.
[22]
In this case, while the applicant stated a strong
willingness to pay for the education program her daughter will require if
allowed to immigrate to Canada,
the applicant did not provide any evidence demonstrating an ability to pay for
her daughter’s special education in Canada. The evidence is that the applicant does not have significant
funds, and her relatives in Canada did not provide any evidence of sufficient
capital to cover the special education needs of a moderately mentally retarded 10
year old girl in Alberta. Accordingly,
the applicant cannot argue that the visa officer erred in law in failing to
assess the applicant’s ability to pay for their daughter’s special education. The applicant is at liberty to re-apply for permanent resident
status and to submit evidence of her family's willingness and ability to pay
for the special education program that her daughter will require if allowed to
immigrate to Canada.
[23]
For these reasons, the application for judicial
review must be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed.
“Michael
A. Kelen”
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