Date: 20110708
Docket: IMM-4081-10
Citation: 2011 FC 854
Ottawa, Ontario, July 8,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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CICELY ALMINDA CRAMER and
WINSTON ANDREW SAMUEL CRAMER and
GRACE ADIA CRAMER and
JOSHUA EMANUEL CRAMER
by their litigation guardian
CICELY ALMINDA CRAMER
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Applicants
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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 AND
JUDGMENT
[1]
Cicely
Alminda Cramer sought permanent residence in Canada as a skilled
worker. Her application, together with those of her husband Winston and their
two children, Grace and Joshua, was denied because the visa officer considered
that Grace suffered from a health condition that might reasonably be expected
to cause an excessive demand on health and social services in Canada. Cicely and
her family would otherwise have qualified as her points tally was well above
the pass mark on the scale used by Citizenship and Immigration, Canada.
[2]
The
problem identified by the visa officer was that Grace suffers from
developmental delay issues. At birth she was slow to breathe and suffered mild
cerebral palsy. Physically speaking, she is completely healthy. At the time of
the medical assessment for the purposes of the application, she was 11 years
old (she is now 12 years old); however she has been found to function at a year
or two below her chronological age. Up until grade 4 of her school life, Grace
attended regular educational institutions. In grade 5, she was placed in a special
school; however in grade 6 she returned to a regular school institution.
[3]
In
response to a fairness letter sent in September, 2009, the applicants provided
a plan for Grace that included keeping her in a normal class room environment
at a private school and continued home therapy from her parents, who had been
trained by specialists to conduct such sessions. From time to time, they would
seek assessments from professionals in Canada in order to
upgrade their therapy skills.
[4]
Parental
support would be augmented by assistance from Grace’s grandparents with whom
the family intended to reside. Other relatives in Canada pledged
financial and other support. These relatives had many years of experience in
education in Canada and abroad.
The principal of the private school wrote to say that the school was prepared
to work closely with the family to ensure that Grace reached her full
potential.
[5]
The
officer considered that this plan was inadequate as it did not include an
estimated cost of social services to be used. The officer further highlighted
that it was not clear what the backup plan would be if Grace’s grandparents
were to become infirm or die as they were both approximately 70 years of age. The
medical officer reviewed the file and was of the opinion that the submitted
plan did not alter the initial determination of medical inadmissibility.
[6]
The
issues raised on this application for judicial review were whether there was a
breach of procedural fairness and whether the visa officer’s decision was
reasonable. While it is the visa officer’s decision that is under review, the
Court must also consider the opinion of the medical officer (Sapru v. Canada (Minister of
Citizenship and Immigration) 2011 FCA 35, 93 Imm. L.R. (3d) 167 para.
54). In the particular circumstances of this case, I found it difficult to
assess the reasonableness of the visa officer’s opinion that Grace’s needs
could be expected to place an excessive demand on social services as it was not
clear from the record.
[7]
Where
procedural fairness is in question, the proper approach is to ask whether the
requirements of natural justice in the particular circumstances of the case
have been met. Deference is not called for. The question is not whether the
decision was “correct” but whether the procedure used was fair. See: Ontario
(Commissioner Provincial Police) v. MacDonald, 2009 ONCA 805, 3 Admin
L.R. (5th) 278 at para. 37 and Bowater Mersey Paper Co. v.
Communications, Energy and Paperworkers Union of Canada, Local 141, 2010
NSCA 19, 3 Admin L.R. (5th) 261 at paras. 30-32.
[8]
The
content of the duty of fairness owed applicants where medical inadmissibility
is raised can be difficult for a visa officer to determine even with the
assistance of a medical officer. But it is clear since the decision of the
Supreme Court of Canada in Hilewitz v. Canada (Minister of
Citizenship and Immigration) [2005] 2 S.C.R. 706, 33 Admin. L.R. (4th) 1,
that the willingness and capacity of the family to pay for any required
programs must be taken into consideration. Here, that does not appear to me to
have been done.
[9]
As
stated by the Supreme Court at paragraph 42 of Hilewitz, excessive
demand is inherently evaluative and comparative. As a result, officers must
assess likely demands on social services, not mere eligibility for them. The
Court emphasized individual rather than generic assessments, attaching a cost
to the individual rather than to the disability on a standard of reasonable
probability.
Implicit in that assessment is a
determination of what the availability and costs of the required programs might
reasonably be expected to be. In the present matter, that information does not
appear in the record.
[10]
No
information was provided by the visa officer in the fairness letter as to the
availability, scarcity or costs of any programs that Grace might need, other
than a reference to an Ontario Special Grant made to schools with students
requiring significant special education services. Indeed, it is clear that the
officer placed the burden on the applicants to provide such information and
found the application wanting when they did not include it in their plan. The
officer further mischaracterized the applicants’ plan as demonstrating an
intention to seek social and health services when that was not proposed, based
on her potential eligibility for special education, speech therapy,
occupational therapy and respite care in Ontario.
Eligibility, in itself, is not the standard. There must be a reasonable
probability that the programs would be required.
[11]
The
applicants had provided as much information as they could, by providing a statement
of their available funds, their support network, and by stating that their plans
were to conduct therapy at home and to send Grace to private school. The
applicants also provided detailed information regarding the school they
intended to send her to, as well as a letter from the principal confirming the
feasibility of this plan and his commitment to help Grace and her family cope
with her disadvantages.
[12]
In
assessing the reasonable probability of excessive demand, the medical officer’s
opinion on which the visa officer relies must be sufficient to explain the
decision to the parties, provide public accountability and permit effective
review: Parmar v. Canada (Minister of Citizenship and Immigration) [2010] FC 723,
paragraph 45. Here, there is effectively no reasons in support of the medical
officer’s opinion on record other than a passing reference in the Computer
Assisted Immigration Processing System (CAIPS) notes as follows:
MOF reviewed
file and of the opinion that submission does not alter initial medical
inadmissibility
[13]
This statement does not
provide any information as to why the medical officer considered that Grace was
inadmissible. As noted recently by the Federal Court of Appeal in Sapru, above, at
paragraph 54, when considering the reasons supporting a medical officer’s
opinion, the concern is whether any inadequacy prevented the visa officer from
assessing the reasonableness of the opinion. Statements by the medical officer
in Sapru, similar to that here, were found to be insufficient and to
constitute a breach of procedural fairness that could not be “saved” by the greater
detail provided in the visa officer’s CAIPS notes.
[14]
In
the particular circumstances of this case, the failure of the visa officer to
identify what additional costs were considered to constitute excessive demand in
the fairness letter and the inadequacy of the medical officer’s reasons amount
to a denial of natural justice. Accordingly, this application will be granted
and the matter remitted for reconsideration by a different officer.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is granted and the matter is
remitted for reconsideration by a different officer. No questions are certified.
“Richard
G. Mosley”
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