Date: 20100622
Docket: IMM-4435-09
Citation: 2010 FC 682
Ottawa, Ontario, June 22, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ROSALINA
AGUINALDO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms.
Aguinaldo, a citizen of the Philippines, has been working for
the past several years as a nurse at the hospital in La Loche, some 600
kilometres north of Saskatoon.
[2]
There
is a great shortage of nurses in northern Saskatchewan, so much so
that often she is the only nurse on duty and consequently works significant overtime
in order to keep the hospital open. Otherwise, patients would have to be
transferred by air or road ambulance to Saskatoon.
[3]
Due
to the shortage, her holiday leaves are often denied. During the past several
years, she has spent only 37 days with her husband and young son, Jon, in the Philippines. She applied
for permanent resident status so that her husband and her son could immigrate to
Canada.
Unfortunately, Jon has autism spectrum disorder. A visa officer denied her
application as section 38(1) of the Immigration and Refugee Protection Act
provides that a foreign national is inadmissible on health grounds if his or
her conditions might reasonably be expected to cause excessive demand on health
or social services. By virtue of s. 42, this inadmissibility extends to the
whole family: if one family member might reasonably be expected to cause such
excessive demand, then other family members, such as parents in this case, are
also inadmissible.
[4]
A
doctor with the Regional Medical Office in Ottawa issued a medical notification
based, to some measure, on a report she had received from Jon’s doctor in the
Philippines, that his medical condition is chronic and that he requires special
educational services, the cost of which would likely exceed the average
Canadian per capita cost over five years.
[5]
The
file indicates that depending on an assessment of his condition here, the
annual cost, calculated today, might run from $6,000 to $12,000 a year. However
no analysis was done as to the average Canadian cost of social services.
[6]
The
visa officer, in an affidavit issued after leave for judicial review was
granted, endeavoured to justify his decision by referring to matters which were
not in his CAIPS notes. In particular he said:
Upon reviewing the information provided
by the Applicant, on the surface, it appeared the Applicant had demonstrated an
ability to pay the additional costs associated with her medically inadmissible
son. However, upon review of the entire file, it became apparent that the
Applicant’s intentions with respect to where the Applicant and her family
intended to reside were either contradictory or unclear. This issue became
important in considering the Applicant’s ability to pay the extra costs related
to her son’s medical condition. My concern was that if the Applicant chose to
reside in Saskatoon with her family, her income would be substantially
compromised, as it was noted that a large portion of her current income was
overtime, which she could only earn due to the shortage of nursing staff in
northern Saskatchewan.
In the Applicant’s material, it was
unclear if her intention was to have her family reside in Saskatoon while she remained in La
Loche or whether she intended to relocate to Saskatoon with her family. If the Applicant were
to reside in La Loche while her family resided in Saskatoon, the financial burden of keeping two
households would severely compromise her ability to pay any additional
educational or medical costs.
[7]
Although
a fairness letter had been given to Ms. Aguinaldo to address the visa officer’s
concerns with respect to Jon’s medical condition, no opportunity was given to
her to deal with his concerns as to her financial ability to pay and, more
specifically, as to how her plans concerning where she and her family would
live would affect that ability. Following the Supreme Court’s decision in Hilewitz
v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2
S.C.R. 706, the ability to pay for social services, including special
education needs, must be taken into consideration when assessing whether
someone is medically inadmissible. Ms. Aguinaldo put forth a series of
possibilities. One was that Jon and her husband would reside in Saskatoon where Jon
could attend a private school. Another is that Ms. Aguinaldo’s husband has
been taking special courses and would soon be in position to homeschool Jon.
[8]
The
concern that Ms. Aguinaldo might move to Saskatoon, which would
compromise her income (and therefore her ability to pay for social services for
Jon) since she would not have the same amount of overtime, is outright
speculation. It is also speculation that if the family resided in La Loche that
Jon would be sent to a public school.
[9]
Furthermore,
it does not follow from these assumptions that the family could not bear the
expense should she continue to work in La Loche and her husband and son would
live in Saskatoon. No inquiry
whatsoever was made as to her current cost of living in La Loche, and what the
cost of living would be in Saskatoon. The record indicates
that she has been earning around $150,000 per year in La Loche. There is
nothing in the record to suggest that that would not be sufficient income to
maintain a household for her husband and son in Saskatoon and a separate
residence for herself in La Loche, and pay for Jon’s social services and for
travel between La Loche and Saskatoon.
[10]
This
decision, made without an evidentiary basis, was procedurally unfair. It
follows that judicial review must be granted as the Court itself is not
entitled to speculate as to what might have happened had these concerns been
raised (Cardinal v. Kent Institution, [1985] 2 S.C.R. 643).
[11]
During
the hearing, I pointed out that I considered this matter to be very sterile.
Ms. Aguinaldo’s application is supported by the Government of
Saskatchewan! The costs associated with excessive demand on social services
would primarily be borne by the province, a province which, according to its
own elected Minister Responsible for Immigration, would find it less expensive
to finance Jon’s special needs, if such there be, rather than incur greater expense
in transporting patients to Saskatoon.
[12]
I
refuse to accept that Canadian immigration law is so rigid as to deny the
inhabitants of a northern community the services of a desperately-needed nurse
because her son’s condition may pose a demand on social services that the
applicable payor government would, if necessary, be happy to absorb. Our
immigration law creates at least three possible paths to a favourable outcome.
First, she may have the ability and intent to offset those costs, per Hilewitz.
Second, section 24 of IRPA allows an officer to issue a Temporary Resident
Permit which can lead to permanent residence. Finally, section 25 of IRPA
allows the Minister to grant a foreign national permanent resident status or an
exemption from any applicable criteria, if of the opinion that such is
justified by humanitarian and compassionate considerations, taking into account
the best interest of the child directly affected. Is it in Jon’s best interest
that he only be able to see his mother a few weeks a year? Is it in the best
interests of the community of La Loche, which desperately needs Ms. Aguinaldo’s
services, that she pack up her bags in frustration and go home to her family?
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is allowed.
2.
The
decision of the visa officer is quashed and the matter is remitted to another
visa officer for a fresh determination.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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