Docket: IMM-4841-13
Citation:
2014 FC 1238
Ottawa, Ontario, December 18, 2014
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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ASMEETA BURRA
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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
[1]
On March 26, 2013, an immigration officer
(Officer) at the High Commission of Canada in Pretoria, South Africa denied the
application for permanent residency in Canada of the Applicant, Asmeeta Burra,
as a result of her dependent son having been found to be medically inadmissible
pursuant to ss. 11(1), 38(1)(c) and 42(a) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA) and the Immigration and Refugee
Protection Regulations, SOR/2002-227. This is the judicial review of that
decision.
Background Facts
[2]
The Applicant, a doctor, and her husband, an
architect, are citizens of South Africa. The Applicant applied to immigrate to
Canada under the Federal Skilled Worker category together with her husband
and three sons. By letter dated August 20, 2012, referred to as a fairness
letter, the Applicant was advised by the Officer that she may be inadmissible
on health grounds because her youngest son, Diyav, had been diagnosed as having
Autistic Spectrum Disorder (ASD), a condition determined likely to cause
excessive demand on health and social services in Canada.
[3]
As the Applicant had indicated in her
application that her family intended to settle in British Columbia, the
fairness letter stated that it was likely that her son’s requirements for
special education would fall into Level 2 of Unique Student Needs within the
Funding Allocation System provided by the Ministry of Education in British
Columbia, which would cost approximately $16,000 per year (based on 2005/2006
figures). Thus, the cost would be at least $80,000 over five years and up to
$160,000 over ten years.
[4]
The fairness letter also provided the Applicant
with the opportunity to make further submissions. As cited in the letter:
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; and
• 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 and Ability and Intent.
[…]
In order to demonstrate that your family member
will not place 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 immigrating to Canada.
[5]
In her October 18, 2012 response to the fairness
letter, the Applicant indicated that her son’s facilitation program is
currently managed in South Africa at her family’s expense by the Centre for
Autism and Related Disorders (CARD). This is an outreach program by which he
is visited every three months, there are also weekly Skype communications with
his local facilitators and program managers, and, CARD’s most recent
correspondence confirmed that Diyav was the fastest progressing child in his
age group. The Applicant states that her son needs were already significantly
less than those of children with special needs and that, therefore, he would
not require additional care. She indicated that he had always attended
mainstream schools, and if CARD’s facilitation of his progress became necessary
in Canada, then the Applicant would continue to absorb that cost. The
Applicant disputed that her son would require assistance over a ten year period
as, at his current rate of progress, there was a strong possibility that he
would not require any specialized facilitation or therapy for a ten year period.
[6]
The Applicant also stated that her husband had
visited Vancouver schools and therapy centres that manage children like her son
and was pleased to learn that the aim of the British Columbia system is to
mainstream children with similar health profiles as quickly as possible. She
sated that: “We intend pursuing at our cost the BC
system of managing infantile development delays and in doing so will greatly
reduce Diyav’s dependency on specialized facilitation and therapy.”
Should his progress not meet anticipated milestones, then she and her husband
foresaw no difficulty in subsidising Diyav’s requirements from their current
and anticipated resources. She estimated this cost at $18,300 per annum, which
would be about 12% of their anticipated annual gross income based on data she
obtained online which estimated annual salaries in Canada for architects and
general practitioners. She further stated that they anticipated arriving in Canada with a minimum of $32,000, as demonstrated at the outset of their application, which
would support them for at least two years and cover any additional costs
related to their son’s health needs.
[7]
On March 26, 2013, the Officer informed the
Applicant that her application for permanent residency had been refused. The
Officer noted that the Applicant’s response to the fairness letter had been
reviewed but did not change the assessment of her son’s health condition. In
her reasons contained in the Computer Assisted Immigration Processing System Notes
(CAIPS Notes), the Officer stated that she had reviewed the medical assessment
received from the Medical Officer as well as the documents submitted by the
Applicant in response. However, while the Applicant had submitted that she and
her husband would be responsible for all costs required for special education
needs, they had not:
…submitted updated proof of funds nor proof of
capacity to be able to provide these funds. Also, even if they had the funds,
in BC, their province of destination, the funding for son’s special education
would be provided by the Ministry of Education up to the age of 19. I therefore
agree with the Medical Officer’s assessment that son’s medical condition will
likely create an excessive demand on Canadian social services…
Issues
[8]
The issues in this application are as follows:
1. Did the fairness letter accord with the principles of procedural
fairness?
2. Did the Officer undertake an individualized assessment?
3. Was the Officer’s decision reasonable?
Standard of review
[9]
Matters of procedural fairness and natural
justice, such as whether the Applicant has had a fair opportunity to know and meet
the case before her, are reviewed on a standard of correctness (Mission Institution v Khela, 2014 SCC 24 at para 79). The Supreme Court of
Canada stated in Hilewitz v Canada (Minister of Citizenship and Immigration),
2005 SCC 57 at para 56 [Hilewitz] that medical assessments are required
to be undertaken in an individualized manner, and this Court has held that
whether a medical assessment undertaken was sufficiently individualized is also
to be reviewed on a standard of correctness (Sapru v Canada (Minister of Citizenship
and Immigration), 2011 FCA 35 at paras 25-26 [Sapru]; Banik v
Canada (Minister of Citizenship and Immigration), 2013 FC 777 at para 20 [Banik]).
For matters reviewed on a standard of correctness, it is for the Court to
undertake its own analysis and provide the legal answers, and no deference is
due to the decision-maker (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at
para 50 [Dunsmuir]). Accordingly, the first two issues are to be
determined on the standard of correctness.
[10]
The standard applicable to an officer’s findings
on questions of mixed fact and law, including assessments of medical
inadmissibility, is reasonableness (Banik, above, at para 18). When
reviewing the substantive decision of an administrative decision-maker, in this
case the Officer, the Court is concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process” and whether “the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir, above, at para
47).
Issue 1: Did the fairness letter accord with the
principles of procedural fairness?
Applicant’s Submissions
[11]
The Applicant submits that the decision of the
Officer was procedurally unfair. She submits that a reasonable person, not
represented by counsel, would not understand from the standard form fairness
letter that they cannot merely provide evidence that they will cover the cost
of the services outlined in the letter. While she was told that her son’s
education would cost $16,000 per year and that this amount was excessive, she
was not told that she was unable to subsidize the cost of public education.
While the Officer was seeking information on the provision of private schooling
in British Columbia, this was not apparent from the fairness letter. Rather,
the letter concentrated on the cost of special education, and it is this aspect
of the Officer’s concerns that her submissions addressed. The Applicant was
unaware that the Government of British Columbia could not be reimbursed
directly for the cost of the educational services and would have provided more
concrete information on arrangements to be made with private schools if she had
known such a plan was indeed required. As a result, the Applicant was denied a
meaningful opportunity to respond to the Officer’s concerns.
Respondent’s Submissions
[12]
The Respondent acknowledges the requirement of Sapru,
above, at para 31 that a fairness letter must clearly set out and provide a
true opportunity to meaningfully respond to the concerns of the Medical Officer,
but submits that this threshold was met in the circumstances of this case. The
fairness letter mirrored the letter considered in Sapru, which was found
to be sufficient, as they both advised the applicants of (i) the officer’s
concerns regarding medical inadmissibility due to the reasonable likelihood of
excessive demand on social services, (ii) the particulars of the health
condition and the social services the condition would require, and (iii) an
invitation to submit additional information regarding the health condition and
an individualized plan to ensure no excessive demand would be imposed on
Canadian social services.
[13]
The Respondent submits that there is no duty on
an officer to advise a potentially inadmissible applicant on how to improve
their application after they have been provided with a fairness letter (Banik,
above, at paras 70 and 75).
Analysis
[14]
The required content of a medical
inadmissibility fairness letter was set out by Justice Dawson of the Federal
Court of Appeal in Sapru, above. While agreeing with the reviewing
Judge that an officer is under no obligation to elicit information from an applicant,
Justice Dawson went on to state:
[31] In my view the Judge was correct, for
the reasons that he gave. I would add one cautionary note. The Judge’s
conclusion was premised on the basis that the Fairness Letter gives an
applicant “a fair opportunity” to respond to any concerns. This requires the
Fairness Letter to set out clearly all of the relevant concerns so that an
applicant knows the case to be met and has a true opportunity to meaningfully
respond to all of the concerns of the medical officer.
[15]
The factual aspects of this case, and the
Applicant’s submission that she was not afforded procedural fairness, are very
similar to those in Banik, above. As in this case, there the
applicant’s minor child was diagnosed with ASD. A fairness letter was issued
which invited the applicant to submit additional information, including information
on the applicant’s use of social services in Canada for the next five years,
and an individualized plan to ensure that no excessive demands would be imposed
on Canadian social services. The letter stated that the applicant must have a
reasonable and workable plan, along with the financial means and intent to
implement it.
[16]
When his application for permanent residency was
rejected, the applicant argued that it was incumbent on the officer to have
alerted him to the deficiencies of his plan, as he was unaware that the family
could not pay for education in the Ottawa-Carleton School Board and
consequently did not research or make submissions on the viability of private
schools in the area.
[17]
Justice Russell found that the onus lay with the
applicant to demonstrate there was a viable, individualized plan to ensure that
no excessive demand would be imposed on Canadian social services, and the
procedural fairness letter which asked the applicant to address “the social services required in Canada” was sufficient
to provide the applicant a meaningful opportunity to respond:
[72] The procedural fairness letter
clearly asks the Applicant to address the “social services required in Canada
for the period indicated above,” and that the Applicant provide an “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.”
[73] Hence, I do not think the Fairness
Letter misled the Applicant in any way as to what was required. His failure to
research private school options and their costs was, he now acknowledges, his
mistake because he did not realize that the family could not pay for public
education in the Ottawa-Carleton School District. I accept that the Applicant
did his best to address the issues raised in the procedural fairness letter,
but he was represented by an immigration consultant and any mistakes which he
or his counsel made cannot now be disregarded.
[18]
I see little to distinguish Banik, above from
the matter before me. The Applicant, however, points out that the applicant in
Banik was represented by counsel. While in this case the Applicant did
use counsel in preparing the application, she submits that she did not do so in
preparing the response to the procedural fairness letter. The decision not to
do so was her own and it cannot form the basis of an argument that it led to
procedural unfairness (Balasingam v Canada (Minister of Citizenship and
Immigration), 2012 FC 1368 at paras 50-51).
[19]
The Applicant also relies on Sinnathamby v
Canada (Minister Citizenship and Immigration), 2011 FC 1421 at paras 33-36,
for the proposition that procedural fairness requires that follow-up fairness
letters are to be provided in circumstances in which it is apparent that the
Applicant has not understood the nature of the information being sought. I
note that Sinnathamby predated Banik, which was factually very
similar to the matter before me but did not follow such an approach. Further,
that the reasons of Justice Mandamin do not indicate that this second letter
was required, he merely notes that one was sent.
[20]
In this case, the August 20, 2012 fairness
letter advised the Applicant that “It is reasonable to
assume that special education will likely be required throughout his schooling
years. This special education is costly and publicly funded.” It
further sought submissions on “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.” The declaration signed by the Applicant acknowledges
receipt of a letter which listed all the social services required in relation
to her son’s medical condition and stated that she understood that the
application may be refused unless she could provide a credible plan ensuring
that her dependent would not impose an excessive demand on Canadian social
services. It stated that she was providing, with the declaration, the details
of the plan she intended to use in Canada and:
I hereby declare that I will assume
responsibility for arranging the provision of the required social services in Canada and that I am including a detailed plan of how these social services will be
provided, along with appropriate financial documents that represent a true
picture of my financial situation over the entire duration of the required
services.
[21]
The fairness letter stated that special
education is costly, publicly funded and required an individualized plan to
ensure no excessive demand will be imposed. The letter made the Officer’s
concerns known to the Applicant and stated:
In order to demonstrate that your family member
will not place an excessive demand on social services if permitted in 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 immigrating to Canada.
[22]
In my view, the fairness letter clearly set out
all of the relevant concerns. It indicated that social services are publicly
funded, and the requirement for an individualized plan was stated as being in addition
to proof of the financial means to implement it. While the letter did not
state that the Applicant could not reimburse the government for such costs, had
the Applicant made due diligence inquires for purposes of preparing the
individualized plan for her son’s education, this would have been known to her.
[23]
While the fairness letter may not have been as
clear as might have been preferred, in my view the Applicant was not denied
procedural fairness, she knew the case to be met and had the opportunity to
meaningfully respond. While it would undoubtedly be advisable for the Minister
to amend the standard form of the fairness letter so as to make it quite clear
to visa applicants that they cannot pay for or subsidize publicly funded
services, 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 [Khan]).
Issue 2: Did the Officer undertake an individualized
assessment?
[24]
As noted above, the Applicant also contends that
the Officer erred in failing to undertake an individualized examination of her
son’s potential inadmissibility. In analyzing the equivalent of what would
become s. 38(1)(c) of the IRPA, the Supreme Court of Canada in Hilewitz
concluded that medical assessments for permanent residency cannot be conducted
based on the classification of an illness. Rather, what must be assessed is
the potential need for services based on its particular manifestation. In this
regard, the Medical Officer is required to take into account both medical and
non-medical factors, such as the availability or cost of publicly funded
services along with the willingness and ability of the family to pay for the
services. This requires an individualized assessment (Hilewitz, above,
at paras 55-56).
[25]
There is no question that the Medical Officer’s
initial assessment, as contained in the Medical Notification, was
individualized. The Medical Officer stated that Diyav has a diagnosis of ASD,
which was confirmed based on all information gathered, background checks,
psychological testing, reports, as well as direct observation during clinical
assessment. A complete and very detailed history, starting from Diyav’s first
psychological assessment in December 2010 was recounted, including a detailed
review of the medical and other reports provided, as well as a description of
the educational and therapy services utilized by Diyav. The Medical Officer
recognized that Diyav is currently functioning in the borderline range (upper
limits) of intellectual potential and seems to have benefited from, and will
continue to benefit from, specialist intervention. Further, that it was
recommended, amongst other things, that there be continued occupational
therapy, continued speech and language therapy, a small class learning
environment and a dedicated facilitator at school. Having taken all of this
into account, the Medical Officer estimated the cost of special education for
Diyav to be at least $80,000 to $160,000 for the next five to ten years. In my
view, this was not a cursory examination based on the symptoms of ASD
generally, and an individualized assessment was conducted.
Issue 3: Was the Officer’s
decision reasonable?
Applicant’s Position
[26]
The Applicant also submits that the decision was
unreasonable for two reasons. Firstly, the Medical Officer’s reasons stated
that the new material provided by the Applicant in response to the fairness
letter did not modify the assessment of medical inadmissibility because “...no proof has been submitted showing a specific educational
plan for Diyav. No proof of available funds or proof of capacity to be able to
provide these funds.” However, the Applicant had included with her
application a letter confirming a bank balance in excess of R250,000 (approx
$32,000 per the Applicant’s response). Furthermore, in her letter in response
to the fairness letter, she set out her and her husband’s projected earnings. Therefore,
the Applicant argues that the Medical Officer’s finding was not based on the
record and was unreasonable. As the Officer relied on the Medical Officer’s
findings, the Officer’s decision is also unreasonable.
[27]
Secondly, the Applicant submits that the
decision was unreasonable because the Officer and the Medical Officer did not
consider that her son is currently in programming, that he is the fastest
progressing child in his group and, therefore, would be unlikely to require
special facilitation over ten years; and, that his parents already engage the
services of private care providers. In short, he did not receive
individualized assessment and, although the Applicant contested the Medical
Officer’s finding as to the level and type of social services required, this is
not reflected in the reasons.
Respondent’s Position
[28]
The Respondent submits that the Applicant did
not contest the diagnosis or the estimated costs of the required social
services. Further, the Officer was properly concerned about the Applicant’s
willingness and ability to pay as the Applicant merely speculated as to her and
her husband’s expected income. The Applicant also failed to meet her onus of
making out her case and setting out a workable plan. A plan must be
comprehensive, and this Court has found that merely offering to reimburse the
province to be insufficient to overcome a medical inadmissibility finding. In
this case no information as to private education that the Applicant’s son might
require was provided (Chauhdry v Canada (Minister of Citizenship and Immigration),
2011 FC 22 at para 49 [Chauhdry]; Sharma v Canada (Minister of Citizenship
and Immigration), 2010 FC 398 at paras 15-18; Banik, above, at paras
67-68 and 74).
Analysis
[29]
It is true that the Medical Officer stated that
there was no proof of available funds when in fact there was one document
included in the original application indicating a bank balance held by the
Applicant’s husband. Whether that document was before the Medical Officer at
the time of the original assessment is unknown. Although the Applicant made
reference to the sum of $32,000 in her response she did not provide any further
financial information. The CAIPS Notes of the Officer state that the Applicant
had “not submitted updated proof of funds nor proof of
capacity to be able to provide these funds.” Thus, it is apparent that
regardless of the finding by the Medical Officer, the Officer was aware of the
original financial information provided by the Applicant.
[30]
As stated in Sapru, the medical officer
must provide the immigration officer with a medical opinion about any health
condition of an applicant and the likely cost of treating the condition. When
an applicant submits a plan for managing the condition, the medical officer
must advise the immigration officer about such things as the feasibility and
availability of the plan. The immigration officer must “rely
upon the opinion of the medical officer about medical matters, including the
medical condition of an applicant, the likely cost of treating the medical
condition and whether the applicant’s health might reasonably be expected to
cause excessive demand on social services.” Before reliance can be
placed on the opinion of a medical officer, an immigration officer is required
to ensure that the opinion provided by the medical officer is reasonable (Sapru,
above, at paras 36-37, 43).
[31]
The Medical Officer had determined that even a
conservative estimate of the cost of the special education at issue to the
province amounted to a minimum of $80,000 to $160,000 for five to ten years of
schooling and the only information as to existing funds concerned the amount of
$32,000. Thus even if this information was overlooked by the Medical Officer,
in the absence of any further or updated information in the Applicant’s
response, such as an actual bank statement as proof of funds sufficient to pay
$80,000 to $160,000, the Medical Officer’s opinion was not unreasonable. In
any event, this was not a medical matter and the Officer did not rely on the
finding as he acknowledged that there had been no updated financial information
as to proof of the ability to meet this cost.
[32]
As to the capacity to be able to provide the
funds, the Applicant did not provide any information suggesting that she and
her husband had offers of employment that would support their capacity to
sustain the cost. While she submitted an online estimate of what architects
and general practitioners earn in Canada, this was not proof of capacity to
provide the funds.
[33]
I would also note that prior jurisprudence has
held that it is not possible to enforce a personal undertaking to pay for
health services that may be required after a person has been admitted to Canada
as a permanent resident if the services are available without payment (Chauhdry,
above, at para 53). The same would be true of specialized educational
needs.
[34]
The Medical Officer also gave as a reason that
no educational plan had been provided. This is correct. In her response to
the fairness letter, the Applicant took the position that her son was the
fastest progressing child in his age group at CARD and that he would not
require special or additional care. She also stated that at his rate of
progress he would not need any specialized facilitation or therapy over a ten
year period. This position is entirely at odds with the detailed medial
assessment conducted by the Medical Officer and the reports and information
upon which it was based. The Applicant did not provide an educational plan, in
part, because she was of the view that specialized education and care would not
be required. While she was entitled to that view, in the absence of medical
evidence to sustain it, her decision not to provide the required individualized
plan meant that she did not meet her onus of establishing that Diyav’s needs
would not be likely to cause excessive demand on Canadian social services.
[35]
The Applicant also stated that her intent was to
pursue, at her cost, the provincial system of managing infantile development
delays “and in doing so will greatly reduce Diyav’s
dependency on specialized facilitation and therapy.” This was followed
by the statement that if her son’s progress did not meet anticipated milestones,
then she foresaw no problem in subsidizing his therapy requirements.
[36]
In my view, the Applicant simply did not provide
an individualized plan. What little she did put forward was a statement of
intent which was contingent and not specific. It was inchoate. The Applicant
should have sought advice and provided a clear plan that would address the
problem of excessive demand (Chauhdry, above, at paras 49-50). The
burden of establishing eligibility for a visa is on the applicant (Khan,
above ,at para 22). She did not, and in light of the record, I find
both the Medical Officer and the Officer’s decisions to be reasonable.
[37]
While the Applicant submits that the Medical
Officer failed to refer to her submissions concerning the level of services her
son may require in his reasons, in my view this was not necessary. The Medical
Officer listed the information she had reviewed, which included the Applicant’s
response and the entire medical file. And, as noted above, the Applicant did
not support her view with new medical evidence. Accordingly, there was little
to respond to.
[38]
Reasons may not include all of the arguments or
other details that a reviewing Court may prefer, but this does not necessarily
impugn the validity of either the reasons or the result under a reasonableness
analysis. A decision-maker is not required to make an explicit finding on each
constituent element, however, subordinate, leading to its final conclusion. 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, the Dunsmuir test will be met (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paras 14-16). When viewed as a whole in light of the record,
the Officer’s decision is reasonable (Construction Labour Relations v Driver
Iron Inc, 2012 SCC 65 at para 3).
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