Date: 20081204
Docket:
IMM-1144-08
Citation: 2008 FC 1346
Ottawa, Ontario, December 4,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
PARATIMA VASHISHAT
TARSEM LAL JALPAT
INDER KUMAR JALPAT
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Paratima Vashishat, the principal applicant, became a permanent resident of Canada in September
of 1996. In March of 2000, Ms. Vashishat filed an application to sponsor her
father, Mr. Tarsem Lal Jalpat, and younger brother, Inder Kumar Jalpat (“Inder”),
as members of the family class category. Mr. Jalpat and Inder are citizens of India. A visa
officer found Inder inadmissible pursuant to paragraph 38(1)(c) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) on the ground
that his state of mental development might reasonably be expected to cause
excessive demands on health or social services. Ms. Vashishat appealed this
decision pursuant to subsection 63(1) of the IRPA to the Immigration Appeal Division
(“IAD”) of the Immigration and Refugee Board (“IRB”).
[2]
This
application under subsection 72(1) of the IRPA is for judicial review of the IAD’s
decision dated February 1, 2008 which dismissed Ms. Vashishat’s appeal. At the
conclusion of the hearing in Vancouver on November 20, 2008, I
advised the parties that I would grant the application and would provide my
reasons in writing.
Factual Background:
[3]
Ms.
Vashishat and Inder’s mother passed away in 1993, leaving Ms. Vashishat and her
father to care for Inder. Ms. Vashishat also has another brother who currently
lives in India with his uncle.
In 1996, Ms. Vashishat came to Canada as a sponsored fiancé. She married and
lived with the man who sponsored her for nine months. She is now married to
another man with whom she has a two-year old daughter.
[4]
In
March of 2000, Ms. Vashishat applied to sponsor her father and youngest
brother’s application for permanent residence in Canada. As part of
the application process, both Mr. Jalpat and Inder were required to undergo a
medical examination. The applicants were advised by letter dated May 26, 2006
that there were concerns about the medical admissibility of Ms. Vashishat’s
brother. They were informed that a medical officer had diagnosed Inder with
mild mental retardation and had opined that his health condition might
reasonably be expected to cause
excessive demand on social services. They
were given until July 25, 2006 to provide additional information relating to
Inder’s medical condition and the issue of excessive demand.
[5]
The
applicants filed additional medical certificates relating to Inder’s condition
and capacities as well as a video showing Inder performing various activities
independently. The medical officer reviewed the new evidence but maintained his
original assessment.
[6]
By
letter dated November 28, 2006 their applications were refused by visa officer
Michel Blouin who upheld the medical officer’s recommendation and found Inder inadmissible
because his medical condition might reasonably be expected to cause excessive
demands on health or social services. Ms. Vashishat appealed this decision
pursuant to subsection 63(1) of the IPRA.
[7]
A
hearing was held on December 10, 2007 at which Ms. Vashishat was the only
witness called. She did not dispute her brother’s medical diagnosis, but
challenged the legal validity of the refusal. She argued that Inder is more
capable than described in the refusal letter and, with family support, would
not require the social services recommended. She filed an additional medical
certificate from Inder’s family doctor to substantiate her position. In the
alternative, she submitted that there are sufficient humanitarian and compassionate
grounds to justify the appeal under paragraph 67(1)(c) of the IRPA.
[8]
The
IAD dismissed her appeal by letter dated February 1, 2008.
Decision under Review:
[9]
The
IAD found that there was nothing in the newly submitted medical opinions which
would lead it to conclude that the medical officer’s assessment was
unreasonable when it was made. The IAD relied on the Federal Court of Appeal’s
decision in Mohamed v. Canada (M.E.I.), [1986] 3 F.C. 90 to conclude that
the medical officer’s diagnosis and opinion as to the consequences of Inder’s
condition were not unclear, ambiguous or unreasonable.
[10]
The
IAD did not accept Ms. Vashishat’s contention that Inder will not require any
sort of social services and stated that he would be eligible for programs
focusing on the acquisition of basic living skills including vocational
training. The IAD held that while the applicants might not, at this time, have
the intention of using any of the social services for which Inder would be
eligible, Inder will still have a right to these publicly funded services.
[11]
The
IAD also noted that Ms. Vashishat had not submitted or demonstrated that she is
in a position to assume the full responsibility of the costs of the social
services that will be necessary for her brother if he were admitted to Canada.
[12]
In
addition, the IAD assessed whether there were sufficient humanitarian and
compassionate grounds to warrant the appeal. The IAD stated that Mr. Jalpat and
Inder are well established in India and there is no evidence to suggest that
they depend financially or emotionally on Ms. Vashishat. The IAD also
considered the best interest of the child directly affected by the decision.
While the board conceded that Ms. Vashishat’s two-year old daughter would
benefit from her grandfather’s presence, it found that she can visit him with
her mother at any time.
[13]
Lastly,
the IAD noted Ms. Vashishat’s testimony regarding the house she bought in a
farming area big enough for all of them to live in and the arrangements she
made for her brother to work on a farm. However, the IAD did not find these
elements sufficient to grant special relief in light of the other evidence.
Issues:
[14]
The
applicants’ concerns with the IAD decision can be reduced to the following
issues:
a. What is the
standard of review?
b. Did the IAD
commit a reviewable error in determining that Inder would produce an “excessive
demand” on social services?
c. Did the IAD
properly consider all the evidence in assessing the humanitarian and
compassionate grounds?
[15]
I
did not consider it necessary to call on the respondent to address the third
issue at the hearing. From my review of the applicants’ submissions, the Court
was being asked to re-weigh the evidence in support of the humanitarian and
compassionate grounds, a function which is not its role on judicial review. I
advised counsel that I would not decide this matter on that basis.
Analysis:
Standard of Review
[16]
As
established in Dunsmuir v. New Brunswick, 2008 SCC 9, there are
now only two standards of review: reasonableness and correctness. In Dunsmuir,
the Supreme Court of Canada provided guidance regarding the process for
determining the appropriate standard of review in a given case. The first step
is to ascertain whether past jurisprudence has already determined in a
satisfactory manner the degree of defence to be accorded with regard to a
particular category of question. Where this search proves fruitless,
the Court should undertake an analysis of the four factors comprising the standard of review analysis. Conversely, if the
outcome of that inquiry is fruitful, it is unnecessary to proceed with the
analysis.
[17]
This
Court has on a number of occasions applied the standard of reasonableness to
visa officer’s refusals based on medical inadmissibility, and the same standard
when reviewing the underlying medical opinion. In Fei v. Canada (Minister of
Citizenship and Immigration ) (T.D.), [1998] 1 F.C. 274, [1997] F.C.J.
No. 950, Justice Heald referred to Dubé J. in Gao v. Canada (Minister of Citizenship &
Immigration)
(1993), 14 Admin. L.R. (2d) 233
(F.C.T.D.)
who
set out the standard of review in the following terms:
Most of the case law relating to medical
inadmissibility decisions by visa or Immigration Officers has issued from
appellate bodies. The general principles arising from these cases are of course
relevant to a judicial review application seeking to quash an Immigration
Officer’s decision.
The governing principle arising from this
body of jurisprudence is that reviewing or appellate courts are not competent
to make findings of fact relating to the medical diagnosis, but are competent
to review the evidence to determine whether the medical officers’ opinion is
reasonable in the circumstances of the case [Jiwanpuri; Deol]. The
reasonableness of a medical opinion is to be assessed not only as of the time
it was given, but also as of the time it was relied upon by the Immigration
Officer, since it is that decision which is being reviewed or appealed
[Jiwanpuri]. The grounds of unreasonableness include incoherence or
inconsistency, absence of supporting evidence, failure to consider cogent
evidence, or failure to consider the factors stipulated in s. 22 of the
Regulations. [Footnotes omitted or abbreviated].
[18]
In
the present instance, the IAD reviewed the reasonableness of the visa officer’s
refusal of the applications on the basis of medical inadmissibility. The IAD’s
decision should be reviewed on a reasonableness standard. This Court will only
intervene if the decision falls outside a range of possible, acceptable
outcomes defensible on the facts and the law.
Did
the IAD commit a reviewable error in determining that Inder would produce an
“excessive demand” on social services?
[19]
The
applicants’ main contention is that the IAD, in assessing the reasonableness of
the visa officer’s decision, failed to consider Inder’s individual
circumstances as required by the Supreme Court of Canada decision in Hilewitz
v. Canada (Minister of Citizenship and Immigration), 2005 SCJ 58, [2005]
S.C.J. No. 58 (“Hilewitz”).
[20]
According
to Hilewitz, determinations of medical inadmissibility based on
excessive demands require an individualized assessment of the person’s
condition, capabilities and actual needs, together with the availability of
family support. The following excerpts of that decision are instructive for the
purpose of this discussion:
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. [Emphasis added].
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].
56 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 demands on public funds.
(…)
60 Under
this new provision, health impairments need no longer be those that "would
cause or might reasonably be expected to cause" excessive demands. Only
those that "might reasonably be expected to cause" them are relevant.
I see no real significance to the omission of the words "would
cause". The wording is sufficiently similar to preserve the requirement
that any anticipated burdens on the public purse be tethered to the
realities, not the possibilities, of applicants' circumstances, including
the extent of their families' willingness and ability to contribute time and
resources. [Emphasis added].
61 It
follows from the preceding analysis that the Hilewitz and de Jong families’ ability
and willingness to attenuate the burden on the public purse that would
otherwise be created by their intellectually disabled children are relevant
factors in determining whether those children might reasonably be expected to
cause excessive demands on Canada’s social services. [Emphasis added].
[21]
The
applicants argue that both the visa officer and the IAD failed to conduct an
individualized assessment of the applicants’ particular circumstances. Specifically,
the IAD failed to consider Inder’s capabilities and actual needs, the
arrangements made for him in Canada to work on a farm and live with his
family, and instead did a mechanistic assessment which fell short of the requirements
of Hilewitz.
[22]
The
applicants submit that the issue of family support goes beyond the mere ability
to pay for the required services. The focus should be on the family’s
willingness and ability to attenuate the potential burden and not on whether
the family has the financial means of paying for the services. The applicants
argue that the arrangements made for Inder in Canada negate the
need to rely on social services.
[23]
The
applicants further submit that the IAD applied the wrong test in focusing on
Inder’s eligibility and entitlement to services in Canada rather than
on the likelihood of demand. Instead, the IAD’s decision mirrors the medical
notation which simply identifies the services Inder would be eligible for.
The applicants contend that there is an obvious difference between social services
that Inder would be eligible for and those that he would use or might
reasonably be expected to use if he were to come to Canada. It is not
enough for the IAD to note the services that the applicant could have access
to. What is required is an explanation of the services that the applicant would
need or use or might reasonably be expected to need or use. The IAD’s reasons
are deficient, assert the applicants, because they were made without regard to
the evidence and failed to communicate which social services Inder would
require or might reasonably be expected to require.
[24]
The
respondent argues that the facts as presented by the applicant inevitably led
to the conclusion that there would be an excessive demand. The respondent
submits that the IAD considered all of the evidence presented to it, but
preferred the evidence of the medical officer which maintains that Inder’s
medical condition requires social services. The respondent contends that the
IAD based its decision on the medical officer’s opinion, which it found to be
reasonable, and on the fact that the applicants have not demonstrated or
suggested that they are in a position to pay for any of the recommended
services.
[25]
Paragraph
38(1)(c) of the IRPA reads:
|
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.
|
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.
|
[26]
This
statutory provision requires an assessment of the health condition of a foreign
national and of the resulting risk that person will cause excessive demand on
social services. The very concept of “excessive demand” conveys the notion that
a certain level of demand is acceptable and is no impediment to the
admissibility of a foreign national: Colaco v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 282 at paragraph 4 (“Colaco”).
[27]
In
assessing the risk and extent of the demand on social services of an applicant,
certain factors must necessarily be taken into consideration. At paragraph 55
of Hilewitz, Justice Abella noted that both medical and non-medical
factors must be taken into account, 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. The Federal Court of
Appeal applied that notion in Colaco, above. At paragraph 5 of that decision,
Justice Létourneau wrote the following:
In our view, in assessing both the risk
of demand and the extent of that demand, the foreign national’s ability and
willingness to pay for the services are relevant factors to take into
consideration. These factors are not necessarily conclusive or determinative in
making the assessment, but they cannot be ignored because they may influence
the level of risk and demand for social services support.
[28]
Counsel
for the applicants submits that Colaco does not stand for the
proposition that there has to be evidence of an ability to pay for the services
if there is some alternative means to provide the services. I agree. In his
concluding analysis, Justice Létourneau in Colaco held that if a skilled
worker applicant can establish that his or her admissibility in Canada cannot
reasonably be expected to cause excessive demands on social services, there is
no reason to exclude that applicant on that basis.
[29]
As
was also articulated by Justice Abella in Hilewitz, any anticipated
burden on the public purse must be tethered to the realities of the applicants’
circumstances, including the extent of the family’s willingness and ability to
contribute time and resources. Here, Inder’s family stated that it was prepared
to make alternative arrangements to provide employment for him on a farm which
would attenuate any anticipated burden or excessive demand on social services.
In its reasons, the IAD indicated that Ms. Vashishat had not submitted or
demonstrated that she is in a position to assume the “full responsibility of
the costs of the social services that will be necessary for her brother”. Here,
the IAD focused on the family’s ability to pay without taking into
consideration the alternative arrangements they have made for Inder. I find the
IAD did not properly consider the applicants’ actual circumstances in
determining what “demands” will be made on Canada’s services.
[30]
The
applicants have also argued that the IAD applied the wrong test in focusing on
eligibility and entitlement of services rather than on the likelihood of demand
based on Inder’s condition. This issue was resolved in Hilewitz. At
paragraph 54, Justice Abella remarked that the wording of the provision (now s.
38) indicates that medical officers must assess likely demands on social
services, not mere eligibility for them. In its reasons, the IAD
maintained that “the appellant might not, at this time, have the intention of
using any of the social services for which her brother would be eligible;
however, the applicant will have a right to these publicly funded services”. This
rationale does not meet the threshold required for establishing that Inder’s
medical condition would or might reasonably be expected to result in an excessive
demand on social services.
[31]
Accordingly,
this application is allowed and the matter is to be sent back to another panel
of the IAD for re-consideration. The parties proposed no question for
certification when given an opportunity to do so and none will be certified.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application is granted
and the matter is remitted to another panel of the Immigration Appeal Division
for re-consideration. No question is certified.
“Richard G. Mosley”
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