Date: 20100302
Docket: IMM-4112-09
Citation: 2010 FC 240
Ottawa, Ontario, March 2, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
VITHAL SAPRU
AMITA SAPRU
RADIKA SAPRU
RISHI SAPRU
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to Section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a
Designated Immigration Officer at the High Commission of Canada in New Delhi,
India (the Visa Officer) dated June 11, 2009. It was determined that the principal
applicant is inadmissible to Canada because his son Rishi, an accompanying
family member, has a health condition which might reasonably be expected to
cause excessive demand on social services in Canada.
BACKGROUND AND THE
DECISIONS UNDER REVIEW
[2]
The
applicants are a family from India. The principal applicant, Vithal Sapru, is
an engineer and has operated his own business since 1989. His wife Amita Sapru
(Amita) is a pediatrician. Their two children, Radika (15 years old) and Rishi
(8 years old), would accompany them to Canada.
[3]
Vithal
Sapru applied for permanent residence in Canada on June 27,
2002 as a member of the Skilled Worker class. In connection with his
application, he and all of his accompanying family members had to undergo
medical examinations.
[4]
The
results of the examinations were reviewed by a medical officer (the Medical
Officer) at the Health Management Branch of Citizenship and Immigration Canada
(CIC). The Medical Officer determined that Rishi suffers from developmental
delay, including psychomotor delay and delay in speech development. At age 8,
he had a mental age of 4 years and an I.Q. between 60 and 65. The Medical
Officer determined that Rishi is likely to require a variety of social services
in Canada. She
provided detailed reasons for reaching these conclusions.
[5]
In
a letter to the applicants dated December 8, 2008 (the Fairness Letter), the Visa
Officer reported the Medical Officer’s conclusions and expressed a preliminary
determination that Rishi is inadmissible to Canada on health grounds. The
Fairness Letter invited the applicants to provide additional information on
Rishi’s medical condition, social services required, and/or “your
individualized plan to ensure that no excessive demand will be imposed on
Canadian social services for the entire period indicated above and your signed
Declaration of Ability and Intent.”
[6]
The
applicants made submissions on the extent of Rishi’s condition, the social
services he would require, and their ability and intent to pay for social
services (the Fairness Response). They did not submit a Declaration of Ability
and Intent.
[7]
On
June 8, 2009, the Medical Officer wrote brief reasons indicating that she had
reviewed the entire Fairness Response, and had determined that it did not
change her original assessment that Rishi is inadmissible to Canada.
[8]
The
Visa Officer refused the applicants’ application for permanent residence in a
decision dated June 11, 2009. The Visa Officer adopted the detailed reasons in
the Medical Officer’s original assessment as to the extent of Rishi’s condition
and the social services he would likely require. The Visa Officer then considered
in some detail whether the applicants had the ability and intent to mitigate Rishi’s
excessive demand on social services (“ability and intent”).
[9]
The
Visa Officer was not satisfied of the applicants’ intent to offset excessive
demand because their “plan” for doing so was not credible, for the following
reasons:
a. The applicants
say Amita will stay home to take care of Rishi, but this is unlikely since she
has worked or been self-employed continuously since 1992;
b. Rishi already
sees specialists in India, so he is likely to continue doing so;
c. Vithal
Sapru’s brother’s offer to give the family a house is not credible;
d. The applicants
provided a brochure from a physiotherapy provider called Footprints, but this
is not an adequate individualized “plan”;
e. The applicants
provided an indemnity agreement that purports to indemnify the Ontario Ministers
of Health and Education for any social services costs Rishi requires. However,
it has not been signed by the Ministers and is not binding;
f.
There
was no clear individualized “plan” provided at all.
[10]
The
Visa Officer also found that there was insufficient evidence provided of the applicants’
financial ability to offset excessive demand. The Fairness Response did not
contain any financial details. Previous financial evidence appears on file but
is either outdated or not sufficiently detailed.
ISSUES
[11]
Several
issues have been raised on this application for judicial review. I would
restate them as follows:
a. What is the
appropriate standard of review?
b. What are the
respective obligations of a Medical Officer and a Visa Officer with respect to
the consideration of non-medical factors that might mitigate an applicant’s
excessive demand on social services? Did the Medical Officer meet her
obligations in this case?
c. Were the applicants
given adequate procedural fairness?
d. Were the Officers’
medical conclusions reasonable?
e. Were the
Officers’ non-medical conclusions reasonable?
ANALYSIS
Standard of Review
[12]
The
decision under review is the Visa Officer’s decision dated June 11, 2009. However,
as I discuss below, the Visa Officer’s primary role is to review the Medical
Officer’s decision. To assess whether that has been done lawfully, the Court
must consider the decision of the Medical Officer.
[13]
In
my recent decision in Rashid v. Canada (Minister of Citizenship and
Immigration), 2010 FC 157, I had occasion to consider the appropriate
standard of review to be applied to the decisions of Visa Officers and Medical
Officers on medical inadmissibility. I concluded that a Visa Officer’s factual
findings should be given significant deference by the Court. With respect to
the standard of review for a Medical Officer’s decision, I held as follows at
paragraphs 14 and 15:
In Gao v. Canada (Minister of
Employment and Immigration), (1993), 61 F.T.R. 65, [1993] F.C.J. No. 114, at pp. 317-318, Justice Dubé had
discussed the standard of review of a finding of fact made by a medical officer
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 related 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. Canada (M.E.I.) v. Jiwanpuri (1990), 109 N.R. 293
(F.C.A.). 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 section 22 of the Regulations.
[some citations removed].
In Barnash v. Canada (Minister of Citizenship and
Immigration),
2009 FC 842, [2009] F.C.J. No.
990, at para. 20, Justice Mandamin referred to Gao in holding that given
the specialized nature of the medical officer’s opinion, reasonableness is the
appropriate standard of review for the factual component of the decision. I
agree with that conclusion.
[14]
In
contrast to the approach taken in Rashid, Gao and Barnash,
cases such as Rounta v. Canada (Minister of Citizenship and Immigration),
2007 FC 384, Sarkar v. Canada (Minister of Citizenship and Immigration),
2006 FC 1556 and Kirec v. Canada (Minister of Citizenship and Immigration),
2006 FC 800 have applied a standard of correctness to decisions of Visa
Officers and Medical Officers. These cases rely on the Supreme Court of
Canada’s decision in Hilewitz v. Canada (Minister of
Citizenship and Immigration); De Jong v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 706 (Hilewitz).
[15]
In
my opinion, it is clear from paragraph 71 of Hilewitz that the Supreme
Court adopted a standard of correctness because the case turned on clear
questions of law. I do not think that the Supreme Court intended to impose a
standard of correctness on decisions of Visa Officers or Medical Officers that
were essentially factual. In my view, the proper standard of review for the
Officers’ factual findings is reasonableness, for the reasons given in Rashid,
Gao and Barnash.
[16]
In
the case at bar, the applicants allege that the Medical Officer failed to
comply with her obligations as set down in Hilewitz. That is an issue of
law which should be reviewed on a standard of correctness. The applicants also
raise issues of procedural fairness which should be reviewed on a correctness
standard: Canadian Union of Public Employees v. Ontario (Minister of
Labour),
[2003] 1 S.C.R. 539. In other words, this standard should apply to issues (b)
and (c).
[17]
On
the other hand, issues (d) and (e) concern the content of the Officers’
decisions, which are essentially factual. Those issues will be considered on a
standard of reasonableness.
Obligations of Medical
Officers and Visa Officers
[18]
The
applicants submit that the Medical Officer conducted a generic assessment of
Rishi’s condition and his likely demand on social services in Canada. They assert
that she failed to take into account non-medical factors such as the applicants’
ability and intent to mitigate Rishi’s excessive demand.
[19]
The
Supreme Court of Canada in Hilewitz recognized that an individualized assessment
is required to determine excessive demand. It is now well established that both
medical and non-medical factors must be taken into account. In the case at bar,
the Visa Officer provided a detailed analysis of the applicants’ ability and intent.
The applicants submit that is not good enough, because assessing excessive
demand is the Medical Officer’s responsibility.
[20]
Recent
jurisprudence has been divided on which of the two officers bears this
responsibility. In Airapetyan v. Canada (Minister of
Citizenship and Immigration), 2007 FC 42, the Court required “visa
officers to take into account a family’s willingness to pay . . .” (My
emphasis). Similar language appears in Canada (Minister of
Citizenship and Immigration) v. Abdul, 2009 FC 967 at paragraph
24.
[21]
On
the other hand, Sarkar, above, at paragraph 20 and Ching-Chu
v. Canada (Minister of Citizenship and Immigration) 2007 FC 855 at
paragraph 15 suggest that both Visa Officers and Medical Officers must consider
non-medical factors.
[22]
Jafarian
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 40 at paragraph 29 seems to place
the responsibility squarely on the Visa Officer. In my view, however, Jafarian
focuses on the Visa Officer’s obligation to review the Medical Officer’s
decision. The reasoning in Jafarian does not necessarily excuse the
Medical Officer from considering ability and intent.
[23]
I
would resolve these ambiguities by referring to the Supreme Court of Canada’s
most recent pronouncement on the issue. At paragraph 70 of Hilewitz, the
Supreme Court held as follows:
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.
[24]
In
light of Hilewitz, I agree with the applicants that it is the Medical
Officer’s obligation to perform a complete analysis of all factors, medical and
non-medical. The Visa Officer must then review the Medical Officer’s decision
to ensure that all relevant factors were considered.
[25]
I
am supported in this view by subsection 30(4) and section 20 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Subsection
30(4) provides that in order to enter Canada, a foreign national
requires a medical certificate indicating that he or she is unlikely to place
excessive demand on social services. Since issuing a certificate is a decision
that can only be made by a doctor, it is important that the Medical Officer
take into account all factors
that are relevant to an excessive demand
determination. It is not enough for a Visa Officer, who is not a doctor, to
consider these issues.
[26]
Section
20 of the Regulations provides that where a Medical Officer determines that a
person will create excessive demand, the Visa Officer must find the person
inadmissible. This interpretation is clearest from the French text of that
section, which provides as follows:
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.
Thus, the Visa Officer does not
necessarily have the authority to overrule the Medical Officer. For that
reason, in my view, it is essential that the Medical Officer takes into account
all relevant factors, including non-medical ones.
[27]
The
respondent does not seriously contest that the Medical Officer must consider ability
and intent, but submits that she did so in this case. On that point, I agree
with the respondent.
[28]
Computer
Assisted Immigration Processing System (“CAIPS”) notes provide the Medical
Officer’s reasons, written on June 8, 2009, in which she acknowledged every
document in the Fairness Response, and stated she had considered all of them. These
documents constituted the applicants’ submissions on ability and intent. As
well, in her affidavit sworn December 23, 2009, the Medical Officer stated that
she had considered the applicants’ ability and intent.
[29]
In
cross-examination on her affidavit, the Medical Officer admitted that she had
made her original medical assessment without considering non-medical factors,
as she had believed then that
Hilewitz did not apply
to applicants in the Skilled Worker category. However, she testified that by
the time she considered the Fairness Response, the Department of Citizenship
and Immigration (“CIC”) had issued Operational Bulletin 063 which confirmed
that non-medical factors had to be considered in all cases (see Colaco v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 282). The Medical
Officer confirmed that she had considered those factors when evaluating the
Fairness Response. In my opinion, her consideration of non-medical factors at
that stage was sufficient to discharge her duty under Hilewitz.
[30]
The
Medical Officer also stated during cross-examination that as a practice, she will
consider evidence of the applicants’ ability and intent, and she will presume
that the evidence is trustworthy. She will then rely on the Visa Officer to
confirm the authenticity of the evidence. For that reason, the Visa Officer
must make the final decision. With respect to the applicants’ able arguments, I
cannot conclude that this practice infringes Hilewitz. By considering
the non-medical evidence as being prima facie authentic, the Medical
Officer takes into account all relevant factors and evidence, as Hilewitz requires.
[31]
The
applicants criticize Operational Bulletin 063 for institutionalizing practices
that violate Hilewitz. According to the Bulletin, a Medical Officer will
review the Fairness Response to determine whether the applicants’ “plan” for
mitigating excessive demand is feasible from a medical point of view. If not,
there is no need to consider the ability and intent question. If the “plan” is
feasible, however, then the ability and intent question is referred to the Visa
Officer.
[32]
I
agree with the applicants that the Bulletin’s approach, as stated, is
problematic because, if it was followed, the Medical Officer would be unable to
consider ability and intent. However, I accept the Medical Officer’s affidavit
and cross-examination evidence on how the policy has been interpreted in
practice. She does not only decide whether the “plan” is feasible from a
medical point of view, but also from the point of view of the applicants’ ability
and intent to carry it out, presuming the relevant evidence to be authentic.
Thus, although the policy as written is problematic, I am not convinced that it
led to an actual error in this case.
[33]
I
do not make any comment on CIC’s most recent policies, contained in Operational
Bulletin 063B, because they were not yet in force when the decision was made in
the case at bar. The Court will have to consider Operational Bulletin 063B when
the appropriate case arises.
[34]
For
all of these reasons, I am satisfied that the Medical Officer considered the
non-medical evidence in this case as she was required to do.
[35]
This
application raises two additional questions about the Medical Officer’s
responsibilities. The first is the extent to which she must inquire into the applicants’
ability and intent. The applicants say that she should have actively sought this
information when making her original medical assessment, the same way that she
would seek medical information by conducting an examination or issuing a
“furtherance.” With respect, I am not persuaded that this is necessary. The applicants
are in the best position to provide evidence of their ability and intent, and
they are given a fair opportunity to do so in the Fairness Letter. There is no
reason that a Medical Officer should
have to make an inquiry at an earlier
stage, as long as she considers any Fairness Response carefully and with an
open mind.
[36]
The
applicants submit that in Abdul, above, Justice Kelen held that a
Fairness Letter is not a sufficient means of seeking information about ability
and intent. In my view, this submission misinterprets Justice Kelen’s decision,
which merely found that the particular letter in that case was not detailed enough
to elicit the information the Medical Officer needed. The Fairness Letter in
the case at bar was considerably more detailed, and I am satisfied that it
indicated exactly the sort of information that the Medical Officer needed to
make a proper decision: “a
reasonable and workable plan, along with the financial means and intent to
implement this plan, in order to offset the excessive demand that you would
otherwise impose on social services, after immigration to Canada.”
[37]
The
second question is the extent to which the Medical Officer must provide reasons
for her decision. The applicants assert that her reasons with respect to the
non-medical evidence were inadequate. All she said was that she had considered
every document contained in the Fairness Response and found that it did not
change her original assessment.
[38]
I
have no hesitation in finding these reasons inadequate. They do not explain how
the Medical Officer analysed the Fairness Response or how she reached her
conclusions. However, the Visa Officer did provide detailed reasons for finding
that the applicants do not have ability and intent. The question is whether
this saves the Medical Officer’s reasons.
[39]
The
applicants submit that it does not, for two reasons. First, the Visa Officer
must review the Medical Officer’s decision and requires sufficient reasons from
the Medical Officer to do so. Second, since the Medical Officer is the actual
decision-maker, the applicants require her own reasons in order to understand
why their application was refused.
[40]
With
respect to the applicants’ first argument, the Visa Officer is not in the
position of a court on an application for judicial review, whose review must
focus on the written reasons. According to Operational Bulletin 063, the Visa
Officer and the Medical Officer should collaborate throughout the
decision-making process. The Visa Officer may seek clarification from the
Medical Officer at any time if concerned about the reasonableness or
completeness of her decision. Thus, the Visa Officer does not require extensive
reasons to review the Medical Officer’s decision.
[41]
With
respect to the applicants’ second argument, it was recognized by the Supreme
Court of Canada in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 that reasons can be
provided by a person other than the actual decision-maker. According to the
Supreme Court at paragraph 44 of Baker, this may be
[. . .] part of the flexibility that is
necessary, as emphasized by Macdonald and Lametti, above, when courts evaluate
the requirements of the duty of fairness with recognition of the day-to-day
realities of administrative agencies and the many ways in which the values
underlying the principles of procedural fairness can be assured. It upholds the
principle that individuals are entitled to fair procedures and open
decision-making, but recognizes that in the administrative context, this
transparency may take place in various ways.
[42]
In
the circumstances of this case, I am satisfied that the reasons provided by the
Visa Officer are sufficient to allow the applicants to understand why their
application for permanent residence
was refused. The applicants received a fair
and transparent decision-making process. This ground of judicial review cannot
succeed.
Procedural Fairness
[43]
The
applicants point to language in the Fairness Letter which appears to suggest
that the Visa Officer had already come to a final decision, before the applicants
had an opportunity to make submissions on ability and intent. I am satisfied
that on a reading of the Fairness Letter as a whole, it is clear that a final
decision had not yet been made. The Visa Officer said that it “appears” Rishi
“may” be inadmissible. The letter went on to provide as follows:
Before
I make a final decision, you have the opportunity to submit additional
information that addresses any or all of the following: The medical
condition(s) identified; social services required in Canada for the period
indicated above; your individualized plan to ensure that no excessive demand
will be imposed on Canadian social services for the entire period indicated
above and your signed Declaration of Ability and Intent.
[.
. .]
In
order to demonstrate that your family member will not place an excessive demand
on social services, if permitted to immigrate to Canada, you must establish to
the satisfaction of the assessing officer that you have a reasonable and
workable plan, along with the financial means and intent to implement this
plan, in order to offset the excessive demand that you would otherwise impose
on social services, after immigration to Canada.
[44]
In
my view, the applicants were given a full opportunity to make submissions on
the medical opinion and on non-medical factors such as ability and intent.
[45]
I
am also satisfied that the Fairness Letter makes it clear the Medical Officer
will be considering the excessive demand question. The Visa Officer consistently
uses “I” to refer to
himself, so the statement that the
“assessing officer” will assess excessive demand can only refer to the Medical
Officer.
The Officers’ Medical
Conclusions
[46]
The
Medical Officer’s medical conclusions were reproduced verbatim in the Visa
Officer’s decision. The applicants criticize these conclusions because they
exaggerate the severity of Rishi’s condition and state that many more social
services will be required than is actually necessary.
[47]
With
respect to Rishi’s diagnosis, the Medical Officer stated as follows:
This 8 year old applicant, born Oct 18,
2001, has Developmental Delay. He has psychomotor delay and delay in speech
development secondary to perinatal hypoxia. [. . .] His mental Age . . . is 4
years with an Intelligence Quotient of 60-65. He is currently dependent on his
family for most of the activities of daily living and is delayed in most
adaptive skills.
[48]
On
the standard of review of reasonableness, I find that there was sufficient
evidence on which the Medical Officer could reach these conclusions. The
statement that Rishi is delayed in “most” adaptive skills is, in my view, a
reasonable interpretation of the psychological report that appears at pages
M-92 through M-94 of the Certified Tribunal Record.
[49]
The
Medical Officer then listed the social services Rishi would require. I agree
with the applicants that it does not appear likely that Rishi will actually require
all of them. However, the evidence does support the conclusion that Rishi will
require special education, and in that context will likely require an
assessment by a multi-disciplinary team to establish an individualized
schooling program for him. As well, the applicants
admit that Rishi will require speech therapy and occupational therapy. The
evidence also establishes that subject to the applicants’ ability and intent to
mitigate them, the costs of these necessary services would constitute an excessive
demand on Canadian social services.
[50]
For
these reasons, I conclude that even if the Medical Officer overestimated the
extent to which Rishi would require social services in Canada, that error
was not material. There was clear evidence that Rishi will actually require
many social services, the costs of which will constitute excessive demand
unless Rishi’s family is able and willing to mitigate them. I can find no
reason to interfere with the Medical Officer’s medical conclusions.
The Officers’ Conclusions
on Non-Medical Factors (Ability and Intent)
[51]
As
indicated above, I accept the Visa Officer’s reasons as the reasons for decision
on the non-medical issues. The question before the Officers was whether, on a
balance of probabilities, the applicants had the ability and intent to mitigate
the excessive demand that Rishi’s health condition would otherwise be likely to
place on Canadian social services. The Visa Officer was not satisfied that the applicants
had either the ability or a credible “plan” for avoiding excessive demand.
[52]
The
applicants did not submit a formal “plan,” but the Fairness Response indicates
what they consider the “plan” to be. Its centrepiece is an indemnity agreement
that purports to indemnify the Ontario Ministers of Health and Education for the
cost of any social services that Rishi will require.
[53]
In
Jafarian, above, Justice Harrington held that “[a]n undertaking not to
call upon the government to pay what it is obliged to pay under statute is
simply not enforceable” (para. 25; see also Deol v. Canada (Minister of
Citizenship and Immigration.), 2002 FCA 271 at para. 46). While both Jafarian
and Deol dealt with health services, in my view a commitment to pay
for social services is similarly unenforceable where the services in question
are guaranteed to all residents of the relevant province. In Ontario, the
province in which the applicants intend to live, free special education in the
public school system is guaranteed to all residents who require it: see
sections 8(3), 32(1), 33 and 36 of Ontario’s Education Act,
R.S.O. 1990, c. E.2.
[54]
The
applicants’ plan extended beyond the unenforceable indemnity agreement. Amita’s
letter contained in the Fairness Response says that any demand on the public
school system will be avoided because Rishi will be placed in a private Montessori
school program, combined with home-schooling that Amita will provide. The
affidavit of Vimal Sapru, who is Rishi’s uncle, was also contained in the
Fairness Response and noted that Vimal Sapru had “personally made enquiries at
the Merle L. Levine Academy Inc. 4630 Dufferin St. Suite 318, Toronto, Ontario, M3H 5S4. The yearly
fees for these schools are between $20,000 and $25,000.” These elements of the
“plan” are significant because according to the Fairness Letter, the largest
social service costs that Rishi is likely to incur are for special education in
Ontario’s public
school system.
[55]
According
to the “plan,” Rishi will also receive physiotherapy or occupational therapy
privately through an organization called Footprints.
[56]
In
my view, the Visa Officer was reasonable in concluding that this “plan” is not
credible. As the respondent stressed in oral argument, there is no evidence
that either the Montessori school under consideration or the Merle L. Levine
Academy offer programs that are appropriate for Rishi’s particular needs. As
well, there is no evidence that either school is willing to accept Rishi as a
student. While I accept Vimal Sapru’s affidavit evidence that he “personally
made enquiries” at the Merle L. Levine Academy, there is no evidence as to the results
of those enquiries. The Medical Officer noted these concerns during
cross-examination on her affidavit. Similarly, the Visa Officer reasonably
concluded that providing a brochure for Footprints did not constitute an
adequate “individualised plan.”
[57]
There
was a suggestion by the applicants in oral argument that the Visa Officer
should have given them an opportunity to respond to these concerns. In this
instance I am satisfied that the Officers’ concerns are ones that the applicants
should have anticipated. The Fairness Letter refers to a plan that is
“individualized” and “workable”; the applicants should have known that listing
names of schools and providing a brochure, without further detail, would not be
sufficient. The onus is on the applicants to provide sufficient evidence to
persuade the Officers. Therefore, in the circumstances of this case, the Officers
did not have to raise their concerns with the applicants: Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FC 872.
[58]
To
the extent the “plan” relies not on private schooling and physiotherapy, but on
home schooling and other services provided by Amita, I find the Visa Officer
was reasonable in finding this not to be credible. Rishi is certainly fortunate
that his mother is a pediatrician, but there is no evidence that Amita has
expertise in speech therapy, occupational therapy, or the educational needs
of a child with developmental delay.
Furthermore, the Visa Officer found that Amita was more likely than not to seek
work outside of the home rather than staying home to care for Rishi. This
conclusion was not unreasonable given that Amita has been either employed or
self-employed continuously since 1992.
[59]
Since
the applicants provided no credible “plan” for mitigating Rishi’s excessive
demand on social services, there is no need to consider whether they have the
ability to carry out a “plan.”
[60]
For
all of these reasons, I conclude that the Visa Officer did not make any errors
which would warrant the Court’s intervention. The application for judicial
review will be dismissed.
THE PROPOSED CERTIFIED
QUESTIONS
[61]
The
applicants have proposed the following seven questions for certification as
serious questions of general importance to the legal system:
a.
Does the
failure of the medical officer in this case to either conduct or direct the
focus of the necessary inquiry herself vitiate her medical opinion?
b.
Does the
participation of the visa officer in the decision making as is contemplated by
Operational Bulletin 063B fetter the discretion of the medical officer and the
opinion to be reached under R. 30(4) [of the Regulations]?
c.
Is the
medical officer under no obligation to answer the submissions made in the
fairness response by the applicant where they attempt to rebut those findings
which were reached without enquiry as indicated by paragraph 61 of the reasons
in Poste v. Canada?
d.
Is the
statement made by Justice Dubé in Gao v. Canada about
limitations of review by an immigration [officer] of a medical opinion an
accurate statement of law or has that statement been altered by the case of Dunsmuir
v. Canada, or alternatively is there any conflict in the two theories of
deference?
e.
Is it
necessary, with respect to criticisms of the plan put forward by the family of
Rishi under oath sufficiently responsive to the medical opinion or should there
be greater direction by the visa officer as to the extent of the plan?
f.
If there
are any questions in the mind of the medical officer or the visa officer about what
appears as a prima facie attempt to provide a plan, the visa officer has the
power to ask for further documentation or evidence. Since this is the first
look at the plan by an official, should he not be entitled to provide the
answer to any question raised by the officer as to any further detail required?
g.
Does the
fairness response cure or satisfy the obligation to conduct an enquiry or does
Mr. Justice Kelen in Abdul v. Canada express a correct view of the law
to the extent that the form utilized is not clear enough to constitute an
enquiry?
[62]
The
respondent objects to the certification of any of these questions on the ground
that the applicants have done what the Federal Court of Appeal cautioned
against in Varela v. Canada (Minister of Citizenship and Immigration),
2009 FCA 145, that is, drafting a “laundry list” of questions that do not
transcend the interests of the parties.
[63]
The
test for certification of a question is that it must be of general importance,
transcend the interests of the parties and would be dispositive of an appeal: Zazai
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89. The
respondent submits that while questions (b), (d) and (g) would appear to
transcend the interests of the parties involved, they would not be dispositive
of an appeal in this case.
[64]
I
find question (a) ambiguous. If it refers to the Medical Officer’s obligation
to consider all relevant factors herself, I have accepted the applicants’
argument that she must do so. That finding is not dispositive since I decided
the Medical Officer has done so.
[65]
If,
however, the question is asking whether a Medical Officer must actively inquire
into ability and intent using a “furtherance” or similar device, rather than
relying on the applicants’ Fairness Response, that question may transcend the
present case and be dispositive of an appeal.
[66]
I
would not certify question (b) because no argument about fettering discretion
was made before me and because Operational Bulletin 063B was not in force at
the material time.
[67]
The
wording of question (c) is convoluted, but it appears to ask whether the
Medical Officer has a duty to provide sufficient reasons, above and beyond that
of the Visa Officer. I find that a question along these lines would be
dispositive of an appeal and would be of general importance.
[68]
I
do not think question (d) would be dispositive of an appeal and would not
certify it.
[69]
If
question (e) is asking whether the Fairness Letter ought to have given greater
direction as to the contents of the required “plan,” it does not transcend the
facts of the present case. The question of whether or not a Fairness Letter
provides sufficient guidance depends on the wording of the particular letter.
[70]
Question
(f) asks whether, after receiving the applicants’ “plan,” the Officers must
give the applicants an opportunity to respond to their concerns. In my opinion,
this question should not be certified at this time because it appears well
settled in the jurisprudence that in cases such as the one at bar, where a
decision-maker’s concern goes to the sufficiency of evidence and could have
been anticipated, there is no obligation to seek clarification from the applicants:
see Selliah, above.
[71]
Finally,
question (g) assumes an interpretation of Justice Kelen’s decision in Abdul
that, in my view, cannot be correct. Contrary to the applicants’ assertion, Justice
Kelen was only criticizing the wording of the particular Fairness Letter in
that case. As the sufficiency of a Fairness Letter depends on the wording of
the particular letter, this is not a question that can transcend the facts of
the present case to become a question of general importance. For that reason I
will not certify it.
[72]
In
conclusion, I would certify modified versions of questions (a) and (c), with
their wording changed so that the questions are not tied to the facts of the
present case.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application for
judicial review is hereby dismissed.
THIS COURT ORDERS that the following
questions are certified as serious questions of general importance:
a.
When
considering whether a person is inadmissible on health grounds pursuant to
paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek
information about the applicants’ ability and intent to mitigate excessive
demand on social services from the outset of the inquiry, or is it sufficient
for the Medical Officer to provide a Fairness Letter and rely on the applicants’
response to that letter?
b.
Is a
Medical Officer under a duty to provide adequate reasons for finding that a
person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the
Act, which is independent from the Visa Officer’s duty to provide reasons and
which is therefore not satisfied by the Visa Officer providing reasons that are
clearly adequate?
“
Richard G. Mosley”
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