Docket: IMM-784-15
Citation:
2015 FC 1406
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 21, 2015
PRESENT: The Honourable Mr.
Justice Gascon
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BETWEEN:
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ROLA EL DOR
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Rola El Dor, is a Lebanese
citizen. She submitted an application for a permanent resident visa in the “Quebec‑selected skill worker” class to settle
in Canada with her husband and two minor children, Rayan and Jad. In October
2013 as part of Ms. El Dor’s application review, Jad, who is suffering
from autism spectrum disorder, underwent a cognitive assessment by a physician
designated by the Minister of Citizenship and Immigration. The evaluating
physician tested the child, who scored 11/30, which is a moderate-to-severe
cognitive impairment score. These findings were included in the examining
physician’s June 2014 report.
[2]
In a fairness letter dated July 4, 2014,
Canadian authorities advised Ms. El Dor of their findings regarding Jad’s
condition, i.e. a diagnosis of pervasive personality disorder and autism
spectrum disorder. The letter informed Ms. El Dor that in Canada, Jad
would have to be treated by a multidisciplinary medical team, at an estimated
annual cost of $43,068. Jad might therefore reasonably be expected to cause
excessive demand on social services in Canada. In response to the fairness
letter, Ms. El Dor said she sent Canadian authorities a letter to which
were attached Jad’s report cards, a report from Jad’s attending physician in
Lebanon challenging the medical assessment, and a detailed life plan for
managing Jad’s medical needs.
[3]
In November 2014, a visa officer from the
Canadian embassy in Romania [the officer] denied Ms. El Dor’s visa
application on the grounds that her son, Jad, would cause excessive demand on
health and social services in Canada under the terms of subsection 38(1) of the
Immigration and Refugee Protection Act , S.C. 2001, c 27 [IRPA].
[4]
Ms. El Dor is now calling for a judicial
review of the officer’s decision to deny her application. She argued that in
rendering his decision, the officer ignored the evidence submitted by
Ms. El Dor and failed to comply with the rules of procedural fairness. She
also maintained that the examining physician hired by the Minister erred in his
assessment of the evidence and Jad’s condition, and that her mitigation plan
was not correctly reviewed. She asked the Court to set aside the officer’s
decision and refer the matter back to the Minister for reconsideration in light
of all the evidence submitted.
[5]
The following issues are in dispute:
- Did the officer’s decision ignore the evidence and breach the
rules of procedural fairness?
- Should the decision be set aside because the Certified Tribunal
Record [CTR] was incomplete?
- Did the examining physician err in ignoring part of the
evidence submitted and performing a generic assessment of Jad’s condition?
- Did the decision‑makers err in performing an
individualized assessment of the mitigation plan submitted by Ms. El
Dor and providing reasons for its rejection?
- Did the officer breach the standards of procedural fairness by
failing to send a second fairness letter?
[6]
For the reasons presented below, Ms. El
Dor’s application for judicial review must fail because the Court finds that
the officer did not bend the rules of procedural fairness; the examining
physician considered all the evidence and Jad’s particular condition; and the
officer’s decision to deny the application on health grounds is within a range
of possible, acceptable outcomes in the circumstances.
II.
Background
A.
The facts
[7]
Subsequent to the submittal of Ms. El Dor’s
application for a permanent resident visa, an assessment of her young son Jad’s
cognitive state indicated a diagnosis of pervasive personality disorder, autism
spectrum disorder and moderate-to-severe cognitive impairment. The examining
physician hired by the Minister, Dr. Patrick Thériault, provided a medical
opinion to this effect in June 2014. In the fairness letter sent by the officer
in July 2014, Canadian authorities advised Ms. El Dor of Jad’s condition,
and informed her that Jad would have to be treated by a multidisciplinary team
of medical specialists. Because Jad’s annual health care costs were estimated
at $43,063, Jad might reasonably be expected to cause excessive demand on
health services in Canada.
[8]
The fairness letter asked Ms. El Dor to
provide additional information on Jad’s health problems and the social services
he would require in Canada, as well as a personal plan and a declaration of
ability and intent to mitigate the demand on social services.
[9]
Ms. El Dor said she responded to the
fairness letter by providing the visa section of the Canadian embassy in
Bucharest with several documents in a letter dated October 6, 2014 sent by her
counsel in Lebanon, Ms. Chelhot. Ms. Chelhot’s letter referred, in
particular, to a letter dated September 26, 2013 from Dr. Joseph Dib, Jad’s
attending physician in Lebanon, Jad’s 2012–2014 report cards, and a declaration
of ability and intent from Ms. El Dor confirming that every effort would
be made to ensure that Jad would not cause excessive demand on Canadian health
or social services. The October 6, 2014 letter also contained a detailed life
plan for the family, as well as proof of assets. In an affidavit submitted in
this case, Ms. El Dor attested that she personally sent the letter to the
express courier company’s office. Also, Ms. El Dor said she personally
gave Dr. Dib’s letter to the designated physician for the second time when Jad
underwent a medical assessment apparently performed September 28, 2014.
[10]
The Minister acknowledged receipt of
Ms. Chelhot’s letter dated October 6, 2014, but the Certified Tribunal
Record does not contain any medical opinion provided by Dr. Dib dated September
2013. Rather, it contains a medical assessment signed by a Lebanese
neurologist, Dr. Mohamad El Bitar, dated September 23, 2014. On November
12, 2014, Dr. Thériault, after having considered the additional information
provided by Ms. El Dor, indicated that his June 2014 medical opinion
must be upheld and that the mitigation plan submitted by Ms. El Dor was
not reasonable.
[11]
On November 20, 2014, the officer therefore
rejected Ms. El Dor’s visa application. On July 7, 2015, Dr. Thériault
signed an affidavit stating that Dr. Dib’s letter was not included in the
documents sent by Ms. Chelhot in October 2014, which he received in
November 2014. As a result, he did not consider it in his decision. Rather, the
documents sent by Ms. Chelhot included a letter from Dr. El Bitar, which
is listed in the Certified Tribunal Record.
B.
The officer’s decision
[12]
In his decision dated November 20, 2014, the
officer rejected Ms. El Dor’s visa application under subsection 38(1) of
IRPA, on the grounds that Jad [translation] “is a
person whose health status, personality disorder and autism spectrum disorder
might reasonably be expected to cause excessive demand on health or social
services in Canada."
[13]
The additional documents sent by Ms. El Dor
(following receipt of the fairness letter) did not provide a basis for
modifying Dr. Thériault’s preliminary assessment of Jad’s health status.
On November 12, 2014, after having reviewed the additional information provided
by Ms. El Dor, Dr. Thériault said he believed that [translation] “neither the diagnosis, nor the services recommended for Jab
are challenged. They are in fact confirmed by all the documents submitted.” As
a result, the medical opinion he provided on June 3, 2014 is upheld.
[14]
The officer noted in his decision that
Ms. El Dor did not challenge the initial diagnosis nor the expected
service delivery costs for treating Jad’s health condition in Quebec. However,
the officer did not approve Ms. El Dor’s commitment to cover the costs of
treating Jad’s medical condition and placing him in a private special‑needs
school. These schools receive substantial subsidies from the Quebec Department
of Education, and Jad will be eligible to receive these services when he comes
to Canada. Also, the officer was of the opinion that Ms. El Dor did not
submit an adequate plan to mitigate the cost of providing social services for
Jad, whose care is expected to cost about $43,000 per year.
C.
Provisions of the Act
[15]
The relevant provisions are set out in
subsection 38(1) of IRPA, which stipulates that a foreign national is
inadmissible on health grounds if their health conditions might reasonably be
expected to “cause excessive demand on health or social
services.” For its part, the Immigration and Refugee Protection
Regulations, SOR/2002‑227 [IRPR] defines
“excessive demand” in subsection 1(1) as “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 [...].” Finally, Section 34
of the IRPR stipulates that 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
any reports made by a health practitioner.
D.
Standard of review
[16]
The standard of review for assessing a visa
officer’s factual findings is reasonableness (Ma v. Canada (Citizenship and
Immigration), 2013 FC 131 [Ma] at para. 23; Firouz‑Abadi v.
Canada (Citizenship and Immigration), 2011 FC 835 at para. 10). The
standard of review for assessing the reason for rejecting the visa application
and denying entry into Canada on medical grounds is also reasonableness because
these are questions of mixed fact and law (Burra v. Canada (The Minister of
Citizenship and Immigration), 2014 FC 1238 [Burra] at para. 10; Banik
v. Canada (Citizenship and Immigration), 2013 FC 777 [Banik] at
para. 18).
[17]
In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision‑making process. But it is also concerned with whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law. The grounds for a decision are
deemed reasonable “if the reasons allow the reviewing
court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable outcomes”
(Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador
(Treasury Board) , 2011 SCC 62 [Newfoundland Nurses] at para. 16; Dunsmuir
v. New Brunswick, 2008 SCC 9 [Dunsmuir] at para. 47). In this
context, the Court must show restraint and deference to the tribunal’s decision
and cannot substitute its own reasons, but it may, if it finds it necessary,
look to the record for the purpose of assessing the reasonableness of the
outcome (Newfoundland Nurses at para. 15).
[18]
Procedural fairness issues, for their part, are
to be determined on the basis of a correctness standard of review (Mission
Institution v. Khela , 2014 SCC 24 at para. 79; Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12 at para. 43). The question that now
arises is not really whether the decision was “correct,” but rather whether, in
the end, the process followed by the decision‑maker was fair (Majdalani
v. Canada (Citizenship and Immigration), 2015 FC 294 at para. 15; Krishnamoorthy
v. Canada (Citizenship and Immigration), 2011 FC 1342 at para. 13).
The issue of whether a tribunal’s record is complete or incomplete is also
reviewable on a standard of correctness (Clarke v. Canada (Citizenship and
Immigration), 2009 FC 357 [Clarke] at para. 9).
[19]
Similarly, correctness is the applicable
standard of review for evaluating the obligations of the designated physician
or the visa officer with respect to the issue of individualized assessment
(versus a generic assessment) of an applicant’s health status (Sapru v.
Canada (Citizenship and Immigration), 2011 FCA 35 [Sapru] at para.
16; Ravis Cuarte v. Canada (Citizenship and Immigration), 2012 FC
261 at para. 13; Mazhari v. Canada (Citizenship and Immigration), 2010 FC 467 [Mazhari] at para. 10). Finally,
matters of procedural fairness and natural justice, such as whether a party has
had a fair opportunity to know and meet the case before it, are reviewed on a
standard of correctness (Burra at para. 9).
III.
Analysis
A.
Did the officer’s decision ignore the evidence
and breach the rules of procedural fairness?
[20]
Ms. El Dor alleged that Dr. Thériault’s
affidavit stating Dr. Dib’s letter was not included in the documents sent by
Ms. Chelhot was an admission that the officer’s decision ignored a
material part of the evidence. In her written submissions, Ms. El Dor
claimed that the officer failed to consider three of the documents attached to
Ms. Chelhot’s October 2014 letter, exhibits A‑3, A‑4 and A‑7.
However, at the hearing before the Court, Ms. El Dor acknowledged that her
life plan dated October 6, 2014 (exhibit A‑7), as well as Jad’s 2012‑2014
report cards (exhibit A‑3), first reported to be missing, were in fact in
the Certified Tribunal Record and were therefore before the officer when he
made his decision.
[21]
The only evidence that the officer would have
ignored was therefore Dr. Dib’s letter dated September 2013 (exhibit A‑4).
Ms. El Dor emphasized the capital importance of this medical assessment,
which, according to her, contradicted the examining physician’s opinion regarding
the severity of Jad’s disorder, and in the same breath, downplayed Jad’s needs
in terms of health and social services.
[22]
Ms. El Dor submitted an accurate chronology
of the steps that led to sending documents in response to the fairness letter,
supported by her own affidavits and Ms. Chelhot’s affidavit. In addition,
another affidavit signed by an executive assistant of the law firm representing
Ms. El Dor in Quebec confirmed that the firm had submitted a copy of
Ms. Chelhot postal receipt. Ms. El Dor also said she submitted Dr.
Dib’s letter to the Minister on two separate occasions. First, the letter was
in the package mailed October 6, 2014. She also personally delivered the letter
to the designated physician who assessed Jad’s medical condition on September
28, 2014.
[23]
Finally, Ms. El Dor questioned the
probative value of Dr. Thériault’s affidavit and criticized the fact that he
had not read the affidavits other than Ms. Chelhot’s when he submitted his
own. Ms. El Dor also raised the fact that Dr. Thériault stated on two
occasions (in the CAIPS notes and in his affidavit) that the package received
from Ms. Chelhot in October 2014 contained 148 pages. However, in its
current form, the postal package in the Certified Tribunal Record contained
only 132 pages. It therefore appeared that 16 pages were missing in the package
sent by Ms. Chelhot, currently in the Certified Tribunal Record.
Ms. El Dor cannot identify all the missing pages, but suggested that Dr.
Dib’s one‑page letter was definitely among them.
[24]
According to Ms. El Dor, the documents
submitted in October 2014 clearly challenged the diagnosis with respect to the
severity of Jad’s disorder. Dr. Dib’s letter used the word “mild” to describe the severity of Jad’s disorder.
Ms. El Dor also challenged the examining physician’s qualitative
assessment and claimed, based on the report cards, that Jad was self‑reliant,
understood instructions and demonstrated various abilities. Finally,
Ms. El Dor did not agree with the extent of services required by Jad as
described in the examining physician’s assessment, and submitted her own
assessment of services required by the child.
[25]
After having reviewed the evidence, the Court
cannot share Ms. El Dor’s point of view on the documents submitted in
October 2014. The Court first notes that the evidence apparently ignored by the
officer, according to Ms. El Dor, actually includes only Dr. Dib’s medical
opinion, because the other exhibits cited by Ms. El Dor in her submissions
are in the Certified Tribunal Record. This is the case for Jad’s report cards
and Ms. El Dor’s mitigation plan, her bank statements, titles to property
and the articles on autism included in the package sent by Ms. Chelhot.
[26]
However, according to the Court, the balance of
probabilities that the only document that Ms. El Dor criticizes the
officer and the examining physician for having ignored, i.e. Dr. Dib’s letter
dated September 26, 2013, was never sent in response to the officer’s fairness
letter. Dr. Thériault’s affidavit states that he did not receive this
letter written by Dr. Dib; according to his testimony, it was not included in
the package the Minister received from Ms. Chelhot, and the letter was not
part of the Certified Tribunal Record. Also, the cover page of
Ms. Chelhot’s package does not specifically mention Dr. Dib’s letter; it
refers only to a document described as [translation] “[t]he
medical report regarding Jad,” using the singular and not specifying the
name of the physician who wrote it. The use of the singular indicates that
Ms. Chelhot sent only one medical assessment. However, the package that
the Minister received from Ms. Chelhot and the Certified Tribunal Record
did in fact contain a medical report, Dr. El Bitar’s letter dated September 26,
2014. The Court observes that Ms. Chelhot’s cover page does not specify
the number of pages in her package, and does not provide a detailed list of the
exhibits attached. Finally, the Court notes that, in comparison with the
Certified Tribunal Record, there are two documents missing in the file submitted
by Ms. El Dor in this appeal: Dr. El Bitar’s letter and a letter from
Mosaik du Foyer de la Providence, a special‑needs school.
[27]
Moreover, the Court has no option but to list
the numerous irregularities that undermine Ms. El Dor’s claims and undercut
the reliability of the affidavits submitted in support of these submissions.
First of all, September 28, 2014, the date on which Ms. El Dor claims to
have personally delivered Dr. Dib’s letter to a [translation] “designated physician who performed Jad’s medical assessment”
does not appear anywhere in the Certified Tribunal Record. The file does not
contain any reference to a medical examination that Jad would have undergone on
this date. Furthermore, there is no mention of this date or an attending physician
other than Dr. Thériault in the CAIPS or the letters sent by the visa
officer. The Court therefore finds no support for this assertion by Ms. El
Dor.
[28]
With respect to the package sent by
Ms. Chelhot in October 2014, the Court notes that there were also some
obvious differences between the evidence in the Certified Tribunal Record and
the evidence submitted in the affidavits filed by Ms. El Dor in support of
her position. First, the figures indicated in Jad’s report cards from two
sources did not coincide and listed different results for Jad’s performance,
for example, with respect to comments on Jad’s psychomotor development. There
were also inconsistencies between the bank statements, which do not cover the
same period in Ms. El Dor’s file as the documents in the Certified
Tribunal Record. Finally, there were two pages missing from Ms. El Dor’s
file that were nevertheless included in the Certified Tribunal Record, i.e. Dr.
El Bitar’s letter and the letter from Mosaik du Foyer de la Providence, a special‑needs
school. These repeated differences and these omissions are difficult to explain
and give rise to serious doubt, in the eyes of the Court, on the tenor and
content of the documents which, according to Ms. El Dor, would in fact
have been submitted to the officer along with Ms. Chelhot’s letter dated
October 6, 2014.
[29]
The Court notes in passing that Dr. El Bitar’s
medical report (upon which Ms. El Dor is silent) confirmed the diagnosis
of autism and Jad’s need for specialized therapy. The notes in the examining
physician’s file actually refer to this medical assessment.
[30]
Under these circumstances, the Court considers
the Certified Tribunal Record and the evidence submitted by Dr. Thériault more
persuasive and can only give limited weight to Ms. El Dor’s submissions
regarding the documents actually sent to the officer in October 2014. As in Singh
Khatra v. Canada (Citizenship and Immigration), 2010 FC 1027 [Singh
Khatra], the question before the Court is whether Ms. El Dor convinced
me that Dr. Dib’s letter was actually delivered to the officer for review.
Based on the facts and the evidence before the Court, I am not convinced that
this is the case.
[31]
That being said, the Court finds that, in any
event, Dr. Dib’s letter did not challenge the examining physician’s diagnosis.
The letter contains only a few lines and is dated September 26, 2013. It
therefore preceded the July 4, 2014 fairness letter and the opinion Dr.
Thériault provided in June 2014. Dr. Dib’s letter could therefore not challenge
the examining physician’s diagnosis, because Dr. Dib could not have been
aware of it in September 2013. Similarly, in her documents, Ms. El Dor
does not deny the extent of services required by Jad, and her life plan in fact
recognizes that her child suffers from pervasive personality disorder and
autism spectrum disorder and must be treated by a multidisciplinary medical
team despite the progress observed.
[32]
To meet the burden of proof by a balance of
probabilities, Ms. El Dor had to demonstrate that she had provided all of
the relevant information and documentation to convince the officer (Singh
Khatra at para. 5), and that the officer ignored them. Where the Certified
Tribunal Record does not contain a document or make any reference to such a
document, a bare assertion by the applicant that the document was sent will not
suffice to meet this burden (Singh Khatra at para. 6; Adewale v.
Canada (Citizenship and Immigration), 2007 FC 1190 at para. 11). All the
more so when the docket reveals evidence to the contrary and when several
documents allegedly submitted are not even consistent with those the Court has
in its file. The probative value of the affidavits submitted by Ms. El Dor
is therefore undermined by these multiple factual contradictions.
[33]
The Court is of the opinion, that in the
circumstances, the officer did not violate any principles of natural justice or
rules of procedural fairness. The preponderance of the evidence before the
Court indicates that Dr. Dib’s letter, which Ms. El Dor criticizes the
officer and the examining physician of having ignored, was not available to the
decision‑makers. As a result, neither the officer nor Dr. Thériault could
have known whether the package they received from Ms. Chelhot was
incomplete or consistent with what she thought she had sent. The Minister is
not under any obligation to determine the package delivery route and establish
who opened the package and how it was opened. The burden of proof is always
with Ms. El Dor and she must suffer the consequences of a failure on her
part to send all the required documents or an error in the delivery of her
mail.
[34]
Finally, the Court notes that the cover page of
Ms. Chelhot’s letter did not specifically state that the attached
documents included Dr. Dib’s letter. The cover page made reference only to a “medical report” (and the Minister did in fact receive
the medical report prepared by Dr. El Bitar). This is not a
situation, as in Miller v. Canada (Citizenship and Immigration),
2015 FC 371 at para. 20, where a visa office failed to exercise diligence
when the applicant specifically indicated in his letter that a specific
document was attached and that the applicant had no way of knowing that the
document was missing if the officer did not notify him. In this case, there was
no breach of procedural fairness (Naderika v. Canada (Citizenship and
Immigration), 2015 FC 788 at paras. 24‑25).
[35]
Certainly, these considerations must take into
account the fact that 16 pages do actually seem to be missing from the
Certified Tribunal Record, as it appears in Dr. Thériault’s affidavit and his
CAIPS notes. Ms. El Dor argues that Dr. Dib’s letter is definitely one of
these missing pages. The Court finds that this is not the case and that the
evidence does not support the conclusion that Ms. El Dor provided this
letter. On the contrary, Dr. Thériault’s affidavit established that Dr. Dib’s
report was not part of the tribunal’s file. For all these reasons, there
is no basis on which to argue that the officer’s decision ignored the evidence
or was in breach of the rules of procedural fairness.
B.
Should the decision be set aside because the
Certified Tribunal Record was incomplete?
[36]
This does not however change the fact that there
were 16 pages missing from the Certified Tribunal Record with respect to the
package Ms. Chelhot sent. The Court must determine whether the officer’s
decision must nevertheless be set aside for this reason.
[37]
Ms. El Dor argues that the tribunal’s
failure to submit a complete Certified Tribunal Record is a violation of
Rule 17 of the Federal Courts Citizenship, Immigration and Refugee
Protection Rules, SOR/93‑22 [Rules] which stipulates that all papers
relevant to the matter must be included in the Certified Tribunal Record. This
violation would provide grounds for setting aside the officer’s decision. Ms. El
Dor maintains that these 16 pages conceal at least Dr. Dib’s letter, which was
a key element in the decision according to Ms. El Dor. It sharply
contradicts the examining physician’s diagnosis with respect to the severity of
Jad’s disorder.
[38]
The Court does not agree. Although case law is
not unanimous on the issue, a long line of cases establishes that in order for
an incomplete Certified Tribunal Record file to lead to the setting aside of a
decision the missing document must be “material to the
decision.” However, in this case, there is not enough evidence to
determine which documents could be missing from the Certified Tribunal Record.
None of those pointed out in Ms. El Dor’s submissions are missing.
Including Dr. Dib’s letter. In addition, even if Dr. Dib’s letter were
considered missing, the Court is satisfied that his letter cannot be considered
material to the officer’s decision.
[39]
The Court first notes that, in her affidavits in
support of this application, Ms. El Dor is not able to identify the items
missing from the Certified Tribunal Record. In her submissions before the
Court, she emphasized Jad’s report cards, the mitigation plan to offset the
cost of Jad’s treatments and Dr. Dib’s letter included in the package sent by
Ms. Chelhot. However, Ms. El Dor recognized that the two first
items were in fact in the Certified Tribunal Record. Also, for the reasons
outlined above, the Court concludes that Dr. Dib’s letter was never part of the
Certified Tribunal Record. Furthermore, none of the documents that Ms. El
Dor identified as having been overlooked by the officer were part of the 16
pages apparently missing from the Certified Tribunal Record.
[40]
Thus, 16 pages seem to have been omitted from
the Certified Tribunal Record, but the Court cannot identify which are missing
or what they may have dealt with. In fact, the Court can only determine that
Ms. El Dor did not identify what 16 pages were missing from the package
that Ms. Chelhot sent and what impact they could have on the officer’s
decision. This is definitely not sufficient to invalidate the officer’s
decision.
[41]
In addition, the Court shares the Minister’s
opinion that even if the number of pages missing from the Certified Tribunal
Record were considered, Dr. Dib’s letter would not have been a document
material to the decision. It was written September 26, 2013, before the
fairness letter dated July 4, 2014 and before Dr. Thériault’s June 2014
medical opinion. As such, it does not deal with the concerns raised by the
examining physician. Also, it is only a few lines long, refers to the
[translation] “mild” character of Jad’s autism
disorder and actually confirms Dr. Thériault ulterior diagnosis (which
described the condition as [translation] “moderate to
severe”). Jad has been found to be medically inadmissible because of the
excessive demand he would cause, and Dr. Dib’s letter would do nothing to
change this. It does not challenge the examining physician’s diagnosis of Jad’s
pervasive developmental disorder, his cognitive test results (11/30), that the
care and services requested are estimated at $43,068 or that the services are
subsidized by the government.
[42]
In paragraph 44 of Stemijon
Investments Ltd. v. Canada (The Attorney General of Canada), 2011 FCA 299,
the Federal Court of Appeal stated that “[j]ust because
a decision is unreasonable does not mean that it must automatically be set
aside and returned to the decision‑maker for redetermination. Relief on
an application for judicial review is discretionary.” According to
Rule 17, the tribunal shall prepare a Certified Tribunal Record with “all papers relevant to the matter that are in the possession
or control of the tribunal.” However, the failure to provide a certified
record in accordance with the Rules does not, in itself, warrant automatic
quashing of the decision (Li v. Canada (Minister of Citizenship and
Immigration), 2006 FC 498 [Li] at para. 15). An incomplete Certified
Tribunal Record may be a basis for a breach of procedural fairness; “that is not always so, especially where there was no actual
unfairness” (Nguesso v. Canada (Citizenship and Immigration),
2015 FC 879 at para. 159; Patel v. Canada (Citizenship and Immigration),
2013 FC 804 at para. 32; Clarke at para. 17).
[43]
The burden of proof is very high when the
missing document is material to the decision: “a breach
of Rule 17(b) will justify setting the decision aside when the evidence missing
from the certified record was particularly material to the finding under
review” (Machalikashvili v. Canada (Minister of Citizenship and
Immigration), 2006 FC 622 [Machalikashvili] at para. 9). For example
in Machalikashvili, the Certified Tribunal Record did not include any of
the material from the applicant’s file that was considered by the visa officer
and upon which he based his final assessment of Mr. Machalikashvili’s
credibility. Case law refers to evidence that is “material
to the decision” (Nguesso v. Canada (Citizenship and
Immigration), 2015 FC 102 at paras. 84, 94; Aryaie v. Canada
(Citizenship and Immigration), 2013 FC 469 at para. 26; Yadav v. Canada
(Citizenship and Immigration), 2010 FC 140, [Yadav] at para. 36; Narcissse
v. Canada (Citizenship and Immigration), 2007 FC 514 at para. 18). In Yadav,
much of what was missing in the Certified Tribunal Record was found in the
response to the Privacy Act request. The information was relevant and
should have been part of the Certified Tribunal Record, but because the
immigration officer’s “decision as a whole did not rely
on” it, the decision was upheld (Yadav at para. 37).
[44]
Neither the Li decision cited by Ms. El
Dor, nor the other precedents indicate that a decision will automatically be
set aside if the Certified Tribunal Record is incomplete. In this case, there
is no material evidence on what is missing from the Certified Tribunal Record,
and no cogent evidence that the officer’s decision could have been different
because an item was missing from the Certified Tribunal Record. Under these
circumstances, the Court is of the opinion that there is no basis for setting
aside the officer’s decision because the Certified Tribunal Record appears to
be incomplete.
C.
Did the examining physician err in ignoring part
of the evidence submitted and performing a generic assessment of Jad’s
condition?
[45]
Ms. El Dor also argued that the examining
physician ignored some material evidence. This evidence challenged the severity
of Jad’s disorder, the physician’s qualitative assessment and the services
required for the child. This failure to consider the evidence submitted would
have led to an unreasonable and erroneous conclusion. In this regard,
Ms. El Dor referred to her October 6, 2014 statement that: [translation] “[Jad] is self‑reliant, understands instructions and
has various abilities [...]” and the child’s report cards. With respect
to the extent of services required for Jad, Ms. El Dor submitted her own
assessment of the services required for the child. Finally, Ms. El Dor
submitted that the officer’s rejection letter seems to indicate he had reviewed
some documents, whereas only the physician has the prerogative to perform this
type of review.
[46]
Ms. El Dor also alleged that the examining
physician did not perform an individualized assessment of Jad’s health status,
contrary to the requirements developed by the Supreme Court in Hilewitz v.
Canada (Minister of Citizenship and Immigration); De Jong v. Canada
(Minister of Citizenship and Immigration), 2005 SCC 57 [Hilewitz].
She argues that the magnitude of the gap between the examining physician’s
report and the evidence submitted (after the fairness letter) is the result of
an error in considering the evidence. The examining physician would not have
questioned the specific way in which the child’s condition manifests itself,
but rather, would have performed a generic assessment.
[47]
The Court does not share Ms. El Dor’s opinion
and her reading of the facts. Rather, the Court finds that the examining
physician properly considered all the evidence submitted and his opinion is
reasonable. His notes also mention that he read the whole medical file and the
additional documents submitted by Ms. El Dor with Ms. Chelhot’s
letter dated October 2014. A tribunal is assumed to have considered all the
evidence in the file and there is no obligation to comment on it in detail (Kanagendren
v. Canada (Citizenship and Immigration), 2015 FCA 86 at para. 36).
[48]
The Court also notes that Ms. El Dor does
not challenge the examining physician’s diagnosis or the extent of services
required. She recognizes that Jad suffers from pervasive personality disorder
and autism disorder in her life plan and that, although he has made some
progress, he must be treated by a multidisciplinary medical team. Ms. El
Dor does not question the child’s cognitive test results (11/30) and does not
contradict the public health services costs or that they are subsidized by taxpayers.
In light of the evidence, the Court is not persuaded that the decision is
unreasonable and that the examining physician erred in asserting that the
services recommended for Jad are not challenged. In fact, Dr. El Bitar’s letter
supports these conclusions.
[49]
It is true that the examining physician could
have elaborated on the assets of Ms. El Dor’s family. However, there was
no obligation to do so. It is not a clear and direct contradiction with a piece
of evidence; “nor are [tribunals] required to refer to
every piece of evidence that they received that is contrary to their finding,
and to explain how they dealt with it” (Cepeda‑Gutierrez v.
Canada (Minister of Citizenship and Immigration) (1998) FCJ No 1425 at
para. 16; Uluk v. Canada (Citizenship and Immigration), 2009 FC 122 at
para. 26). There is nothing in the file that provides a basis for saying the
examining physician ignored part of the evidence. It is not for the Court to
question how the examining physician and the officer weighed the facts that
they considered based on their expertise. The decision certainly falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law.
[50]
With respect to the individualized assessment,
the evidence shows that far from having performed a cursory examination based
on the general symptoms of autism, the examining physician performed an
individualized assessment of Jad’s condition. In this regard, the officer
refers to the physician’s notes as follows:
His diagnosis was confirmed based on all the
information gathered. Jad is a 10‑year old boy suffering from pervasive
personality disorder and autism disorder who has been treated by a
multidisciplinary medical team for several years.
The designated physician assessed Jad’s
cognitive function during the October 2013 immigration examination and he
scored 11/30, which is a moderate to severe cognitive impairment score. Jad is
capable of making eye contact, paying attention and interacting; however, his
speech is limited, consisting of imitation, stereotypical utterances and
echolalia. Jad is good at understanding instructions, but it goes without
saying that he can eventually lose his bearings or train of thought when the
tasks involved are too complex. He seems anxious and afraid of everything
around him.
[…]
It can reasonably be expected that he will
have to be treated by a multidisciplinary team of specialists consisting of
pediatricians, child development specialists, psychologists, psychiatrists,
speech therapists and psychomotor specialists, and he will also receive a
special‑needs education […] until 21 years of age.
[51]
In Hilewitz at para. 56, the Supreme
Court requires an individualized assessment of likely demands an individual
might reasonably be expected to cause on social services. Case law pursuant to Hilewitz
is very clear with respect to the requirement for an individualized assessment
(Sapru at para. 6, Deol v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 271 [Deol] at para. 60; Mazhari at
para. 12). The Court finds that the principle of individualized assessment was
fully respected in this case. Ms. El Dor’s assertion that the wide gap
between the examining physician’s diagnosis and the evidence revealed that
[translation] “he did not question the specific way in
which the child’s condition manifests itself” and that it was a generic
assessment is completely unfounded.
D.
Did the decision makers err in performing an
individualized assessment of the mitigation plan submitted by Ms. El Dor
and providing reasons for its rejection?
[52]
In her mitigation plan, Ms. El Dor
undertook to cover all of Jad’s expenses and make every effort to ensure that
Jad would not cause excessive demand on Canadian social services, including
enrolling him in a private special‑needs school and a rehabilitation
centre for children with autism. On the other hand, in his decision, the
officer asserted that Jad would cause excessive demand on social services
because most of the target services were subsidized by the Government of Quebec.
Ms. El Dor stressed that this assessment amounted to denying permanent
residence in Canada to all persons who could require a special‑needs
education in the country, regardless of their financial situation. She argued
that such a finding was unreasonable and the result of a generic assessment
rather than an individualized assessment of her mitigation plan. Ms. El
Dor had submitted a bank statement in the amount of US$243,000 and real
property holdings estimated at $3.2 million (Canadian). According to
Ms. El Dor, the family’s savings could easily cover all of Jad’s education
costs and the cost of services he would receive as an adult.
[53]
The Court does not agree with Ms. El Dor.
On the contrary, the Court is of the opinion that the officer could reasonably
conclude that the plan submitted by Ms. El Dor would not mitigate the
excessive demand that Jad would cause on social services because most of the
target services were subsidized. His finding that the mitigation plan submitted
by Ms. El Dor was not sufficient falls within a range of possible
acceptable outcomes. Ms. El Dor said that she would enrol her son in a
special‑needs school and a rehabilitation centre for children with
autism. However, she did not look into the availability and cost of these
services or make any arrangements with service providers in Canada.
[54]
The examining physician conducted a thorough
review of the mitigation plan prepared by Ms. El Dor and was right in
finding that it was not reasonable. It was acceptable to consider that the plan
ignored the fact that the specialized services required by Jad were subsidized
by government and that Jad would automatically be entitled to these services
upon his arrival in Canada. The reasons for the decision are intelligible and
transparent, and the quality of the decision‑maker’s reasons do not
provide grounds for independent review.
[55]
Furthermore, it is well established that a
letter of intent that confirms one’s intention not to burden the public system,
when that individual has the financial capacity to pay for all services
publicly accessible to all is insufficient (Deol at para. 46; Burra
at para. 33; Ma at para. 26; Zhang v. Canada (Citizenship and
Immigration), 2012 FC 1093 at para. 20; Hassan Chaudhry v. Canada
(Citizenship and Immigration), 2011 FC 22 at para. 52). Such a document
does not eliminate the reasonable expectation of causing excessive demand on
health and social services in Canada. The applicant’s (or his parents’)
financial capacity is not the most important factor to be considered (Ma
at para. 29).
[56]
Reasonableness is the standard of review for
assessing this issue, and the reasons for the decision are intelligible and
transparent and permit the Court to determine whether the conclusion is within
the range of acceptable outcomes (Burra at para. 38). A decision‑maker
is not required to make an explicit finding on each constituent element of the
reasoning, however subordinate, leading to its final conclusion (Newfoundland
Nurses at para. 16). There is therefore no reason for the Court to
intervene.
E.
Did the officer breach the standards of
procedural fairness by failing to send a second fairness letter?
[57]
Finally, Ms. El Dor argues that when an
applicant’s response is deemed insufficient, the visa officer is responsible
for outlining the concerns in a second fairness letter in order to allow the
applicant to respond to these concerns. Failure to send a second fairness
letter would breach the rules of procedural fairness.
[58]
The Court finds this argument to be without
merit. The first fairness letter dated June 4, 2014, clearly stated all the
relevant concerns and gave Ms. El Dor a true opportunity to respond to
them. There is no duty on the decision‑making officer to advise the
applicant on how to improve the application after being provided with a procedural
fairness letter (Banik at para. 70). The law does not hold the
Minister to a standard of procedural perfection (Khan v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 345 at para. 22; Burra at
para. 23). Also, the designated physician is not obligated to seek out
information about the applicant; “[i]t is sufficient
for the medical officer to provide a Fairness Letter that clearly sets out all
of the relevant concerns and provides a true opportunity to meaningfully
respond to all of the concerns of the medical officer” (Sapru at
para. 32).
[59]
Ms. El Dor received such a fairness letter
and there was no legal obligation to send her a second letter. It is clear to
the Court that the officer did not breach any rules of procedural fairness in
this regard.
IV.
Conclusion
[60]
For the foregoing reasons, Ms. El Dor’s
application for judicial review is dismissed. The decision of the officer who
denied her application for permanent residence on health grounds is transparent
and intelligible, and falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law. In addition, at no time
did the procedure followed by the officer and the examining physician violate
their obligations of procedural fairness.
[61]
The parties did not raise any questions for
certification in their written and oral representations, and I agree that there
are none in this case.
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