Date: 20110111
Docket: IMM-2145-10
Citation: 2011 FC 21
BETWEEN:
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RICHARD MICHAEL SHARPE
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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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REASONS
FOR JUDGMENT
PHELAN J.
I. INTRODUCTION
[1]
This
is an unfortunate case involving a family with a developmentally challenged
child and their efforts to immigrate to Canada from the U.K. commencing
at the beginning of 2004. This is the second judicial review of the Respondent’s
refusal to grant a visa because of the family’s developmentally challenged
child. The first judicial review was consented to on terms that included
discontinuance of the judicial review and a reconsideration of the visa
application by a different visa officer.
[2]
This
case turns on whether a child’s learning disability is moderate or severe. As
such, that conclusion turns on the medical evidence and opinions put before the
Visa Officer as to the nature and extent of the child’s developmental handicap
and therefore whether the child would cause an “excessive demand on health or
social services” in Canada as set forth in s. 38(1)(c) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
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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.
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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.
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II. FACTUAL
BACKGROUND
A. Preliminary
History
[3]
The
Applicants are a British family and the principal Applicant, Richard Michael
Sharpe (the Applicant), made an application for permanent residence on January
1, 2004, under the Federal Skilled Worker category by virtue of his educational
credentials and work experience.
[4]
The
Applicant’s son, Conor, had medical issues and, at the request of the 1st
Medical Officer, the Applicant provided reports on Conor’s condition. The
Applicant contended that these reports were out of date.
[5]
On
July 21, 2006, the 1st Medical Officer provided the London Visa Office
with a report which concluded that Conor had a health condition that might
reasonably be expected to cause an “excessive demand on Canadian social
services”.
[6]
A
month later the Applicants were warned in the First “Fairness Letter” that
their application might be turned down because of the “excessive demands” of
their son’s condition. Conor was found to have sensory-neuro and conductive
hearing, severe speech and language delay, fine and gross motor difficulties
and significant learning delays. The Applicant was invited to provide
additional information relating to Conor’s medical condition or diagnosis.
[7]
As
a result, on October 10, 2006, the Applicant provided the London Visa Office
with five (5) additional and more current letters and reports from
different medical professionals including a psychologist, a pediatric
physiotherapist, an occupational therapist and a speech and language therapist.
All of the letters and reports were to the same effect; that Conor’s needs were
such that he no longer required the health and social services earlier reports
suggested he did.
[8]
Despite
the more current reports, the application for permanent residence was refused
on May 9, 2007 on the grounds that Conor is a person whose health condition
might reasonably be expected to cause an excessive demand on health or social
services.
[9]
The
Applicant immediately responded to the London Visa Office requesting that
Conor’s new medical evidence be reviewed as he was concerned that it had not
been correctly assessed. He also undertook to pay for schooling and any other
social services that Conor might require.
[10]
On
May 25, 2007, the London Visa Office responded stating that the new medical
evidence had been fully considered and Conor was still inadmissible.
[11]
This
response was a barefaced falsehood. The medical report of the 1st
Medical Officer on which the decision was based was made in July 2006, three
months prior to the receipt of the current medical evidence, and two months
prior to the London Visa Office receiving information from the Alberta Ministry
of Education related to its criterion for categorizing levels of learning
disability. This later information is a critical document as it describes the
criteria for different levels of disability which are directly relevant to the
consideration of “excessive demand”.
[12]
As
a consequence of this discovery of the London High Commission’s false
representation, a judicial review proceeding was commenced which resulted in a
consent to judicial review on terms of the filing of a Notice of Discontinuance
and a reconsideration of the permanent resident application by a different visa
officer.
[13]
Despite
the concession by the Respondent, the Applicants’ reconsideration was the
subject of protracted delay. A year after the filing of the Notice of Discontinuance,
the Applicants’ file was still awaiting review. It was not until a further six
months later that the Applicants received a Second Fairness Letter.
B. Current
History
[14]
A
week after the 1st Medical Officer forwarded his original report, the
2nd Medical Officer sent a medical report on October 21, 2008 to the
Visa Office which was nearly identical to the report of the 1st
Medical Officer.
[15]
Approximately
five months later, on March 9, 2009, the new Visa Officer (2nd Visa
Officer) sent the Applicant a Second Fairness Letter which maintained the Visa
Office’s conclusion that Conor “might reasonably be expected to cause excessive
demand on health or social services in Canada”. This Second Fairness Letter
advised that the Applicant could submit additional information addressing
Conor’s medical condition, the social services required in Canada and the
Applicant’s individualized plan to ensure that no excessive demand would be
imposed on Canadian social services.
[16]
The
Applicant challenged the description of Conor’s disability as “severe” and
contended that his disabilities were mild/moderate. He submitted further
documentary evidence which included evidence that Conor’s current school in the
U.K. was designated as a school for pupils with moderate learning disabilities
and that it did not admit pupils with severe, profound or multiple learning
disabilities; that Conor was conditionally admitted to a private school in
Alberta; a psychological report by Robert Sellwood (Sellwood) which assessed
Conor as against the Alberta Department of Education criteria and concluded
that “Conor’s results place him within Alberta Education’s category of mild
cognitive disability” (Court’s underlining).
[17]
On
June 8, 2009, the 2nd Medical Officer, having considered this new
evidence, provided a preliminary conclusion, the salient parts of which are:
·
The demand
on Canadian health and social services is likely to be reduced to a degree such
that it is no longer excessive;
·
Conor is
no longer in need of speech therapy, physiotherapy or occupational therapy;
·
Conor has
been accepted into a private school where the majority of the costs are paid
for by the Applicant.
[18]
What
followed were some internal communications between the 2nd Visa
Officer and the 2nd Medical Officer, which, if not challenging the
medical assessment, at best could be described as close questioning. (The
Applicant in oral argument did not challenge this aspect of the case.) The 2nd
Visa Officer went so far as to say that she was “having difficulty drawing the
same conclusions as you” without describing on what basis she could reach such
a medical conclusion.
[19]
The
final result was that the 2nd Medical Officer changed his assessment
and concluded as follows:
In summary, my interpretation of the
educational psychologist’s report is that Conor is severely disabled as regards
his cognitive skills. Furthermore, as pointed out by their consultant, they
would have been receiving $6,805 support for attendance in a [Designated
Special Education Private Schools] for moderate disabilities which is above the
average health care cost ($5,425 Cdn) per Canadian and he is now in a school
that accepts students with severe disabilities.
[20]
On
March 1, 2010, the Applicant’s application was denied on the basis that the
March 9, 2009 Visa Office’s assessment of Conor’s health condition was unchanged.
III. ANALYSIS
A. Standard
of Review
[21]
The
issue of the standard of review on medical admissibility decisions by visa
officers and/or medical officers is the subject of an appeal from a decision by
Justice Mosley in Sapru v. Canada (Minister of Citizenship and
Immigration), 2010 FC 240. The thrust of the Sapru decision is that
both types of decisions are subject to the reasonableness standard in contrast
to earlier jurisprudence which applied the correctness standard.
[22]
It
is this Court’s view that the reasonableness standard of review is the proper
analytical framework. It is particularly the case in respect of s. 38(1)(c)
of IRPA which speaks in terms of “reasonably be expected to cause excessive
demand …”. It is also appropriate where the decision is, as here, based upon
expert opinion in the form of medical advice.
[23]
Whether
one considers that it is the medical opinion which is being challenged or the decision
of the 2nd Visa Officer is not particularly important in this case.
The essence of the matter being challenged is the conclusion of “severe
disability” whether it is considered as a stand alone matter by the 2nd
Medical Officer or one where the medical opinion was adopted by the 2nd
Visa Officer and became part of the 2nd Visa Officer’s decision.
Indeed the ability of a visa officer to come to a different conclusion from a
medical officer (as the 2nd Visa Officer suggested in her
questioning) raises issues about the visa officer’s expertise and legal and
practical ability to make such judgments.
[24]
Therefore,
on the question of the decision itself, it is subject to the reasonableness
standard of review. The Applicant also raised issues of procedural fairness
related to an entitlement to further respond to concerns expressed by the 2nd
Medical Officer. These issues would be subject to the correctness standard of
review but they were not pressed at the hearing nor should they have been.
[25]
This
case, as indicated earlier, turns on the reasonableness of the conclusion that
Conor was “severely” learning disabled and thus could reasonably be expected to
place excessive demands on health or social services in Canada.
B. Reasonableness
of Conclusion
[26]
There
are several problems with the Respondent’s conclusion as to the nature and
severity of Conor’s disability quite independent of the shabby treatment the
Applicant has experienced at the London Visa Office.
[27]
The
classification of Conor’s learning disabilities as “severe” or “mild” under Alberta education
policy determines whether Conor could reasonably be expected to place an excessive
demand on the social services. Social services are defined in s. 1 IRPA
Regulations as those services where government pays the majority of the costs.
The costs for a severely disabled child are approximately $16,000 which was
greater than the amount that the Applicant would be paying in tuition.
[28]
The
only evidence before either the 2nd Medical Officer or the 2nd
Visa Officer on the issue of where Conor would fall within the Alberta Board of
Education - the determinative educational authority in this case - was that of
Sellwood who concluded that on the province’s criterion for categorizing levels
of learning disability, Conor was mildly disabled.
[29]
Despite
the importance of the Sellwood Report, the 2nd Medical Officer never
articulated the reasons why the report was not accepted.
[30]
It
is accepted legal principle that the more important the evidence the greater
the obligation to explain the reasons for its rejection. That obligation forms part
of the requirement for transparency and intelligibility mandated by Dunsmuir
v. New
Brunswick,
2008 SCC 9.
[31]
In
Poste v. Canada (Minister of Citizenship and Immigration) (1997), 140
F.T.R. 126, this Court held:
At para. 24
…
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. 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. 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.
At para. 61
When a government body such as Immigration requests information of
an individual, it is duty-bound to consider that information when received.
This is especially so in the case where the information requested is in the
form of expert opinion, which is time-consuming as well as costly to acquire.
If a decision is rendered that runs contrary to the information requested, the
decision maker must at least make reference to the contrary information, and
account for its rejection. To be put bluntly, if Immigration requests certain
medical reports, receives two positive medical reports and one negative report,
and a medical assessment is rendered apparently solely on the negative medical
report, reasons must be given as to why the positive reports are absent from
the analysis. Even if the decision makers had considered the requested
information, and had placed it in the context of all the circumstances of the
case, there is nothing on the face of the record communicated to the applicant
to indicate that consideration of the favourable material was seriously made.
There is no appearance of justice. The decision makers thus failed the
applicant in these basic duties of procedural fairness and natural justice in
this case.
[32]
The
only basis advanced for the conclusion that Conor had severe learning
disabilities was the 2nd Medical Officer’s conclusion that in a
report by Routledge on cognitive abilities, Conor’s disabilities are described as
“significant”. There is no explanation of how or why Routledge would use that
word to mean “severe” in the context of the Alberta system. (Routledge
did not assess Conor as against the Alberta system of
classification of learning disabilities.) There is no explanation of the basis
upon which the 2nd Medical Officer made that interpretation of Routledge.
[33]
In
what appears to be an attempt to corroborate his overall conclusion, the 2nd
Medical Officer makes comments on Conor’s costs being greater than the national
average and on his current schooling situation. Both comments are conceded to
be in error but irrelevant because the Visa Officer had the correct facts.
[34]
The
importance of these factual errors is that they underline the fragile basis of
the 2nd Medical Officer’s opinion. They are not simply “throw away
lines” but are used to bolster an opinion which is at variance with the 2nd
Medical Officer’s initial opinion.
[35]
The
Applicants were entitled to an explanation of the Respondent’s conclusions.
This case fails on both the adequacy of reasons principle and on the
transparency and intelligibility criteria.
[36]
The
Court is mindful that the assessment of a child’s learning disabilities can be
a difficult task, particularly where the child is growing and their conditions
change or manifest themselves differently. However, this decision does not
stand up to the legal criteria above cited and must be quashed.
IV. CONCLUSION
[37]
As
the decision to deny the Applicant’s permanent residence application will be
quashed, the Court will defer issuing a formal order to allow the parties time
to make submissions on a certified question. The Respondent shall have 21 days
from the date of issuance of these Reasons to serve and file its submissions;
the Applicant shall have 14 days to respond.
[38]
The
matter of the admission of this family has gone on far too long. They are entitled
to a fair and proper assessment of their child’s situation, whatever the final
conclusion of a proper process may be. Further and unnecessary delay serves no
one any good.
[39]
As
a result, the Court is considering retaining jurisdiction over this matter to
ensure that the reconsideration is completed as expeditiously and as fairly as
possible. The parties may, within the time limits for submissions on a
certified question, make submissions on the terms under which a reconsideration
should be completed.
[40]
Lastly,
the Court suggests that it may be possible to have one person, acceptable to
the parties, conduct the necessary assessment and whose report would bind both
parties. The Court’s mediation role could be utilized to assist if the parties
so request.
“Michael
L. Phelan”
Ottawa,
Ontario
January
11, 2011
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