Date:
20130207
Docket:
IMM-5178-12
Citation:
2013 FC 131
Ottawa, Ontario,
February 7, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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MA, YAN BIN
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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
AND JUDGMENT
[1]
This is an application by Yan Bin Ma, challenging
a decision by a Visa Officer dated April
10, 2012, dismissing his application for a permanent resident visa for Canada in the Economic Immigration Class on the ground that his health condition might
reasonably be expected to cause excessive demand on health or social services.
I. Facts
[2]
The
Applicant is a 49 year-old Chinese citizen, married, father of two children
aged 18 and 25. He applied for landing in Canada as an investor and satisfied
the Visa Officer that he has assets worth 3,81 million dollars. His application
was received on January 30, 2008 at the Consulate General of Canada in Hong Kong.
[3]
On
September 12, 2008, the Applicant and his family were required to undertake a
medical examination. On August 28, 2009, the Visa Officer received a copy of a
Medical Notification dated August 26, 2009 indicating that the Applicant has a
medical condition (Cerebrovascular Disease - Late Effects). In November 2008,
he suffered a stroke that resulted in walking difficulties and that affected
his speech. In the report, the medical officer concluded that he has a “health
condition that might reasonably be expected to require services, the costs of
which would likely exceed the average Canadian per capita costs over 5 years
and would add to existing waiting lists and delay or deny the provision of
these services to those in Canada who need and are entitled to them.” The
medical officer added that as a result of his condition, the Applicant will
need respite care, speech and language, occupational and vocational training
which will incur costs of $6500. The medical officer concluded that the Applicant
is inadmissible on the basis of section 38 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [“IRPA”].
[4]
The
Applicant was sent a fairness letter dated September 8, 2009 advising him of
the medical officer’s assessment. He was invited to submit additional
information relating to his health condition, which he did. In response to the
letter, on October 21, 2009, the Applicant sent additional documentation
consisting of a notarized declaration dated October 12, 2009 and a Diagnosis
Examination Report issued by the Linyi City People’s Hospital dated October 17,
2009. Such report was sent to the Respondent’s medical officer for assessment, who
indicated that the new material had no impact on his initial assessment of the Applicant’s
health condition.
[5]
The
notarized declaration reads as follows:
“In light of my current health condition, I hereof
make the solemn statement that if I pass the immigration application and get
the immigration visa, I would bear all the medical costs and other expenses
related to the stroke in my future life in Canada and will not burden the
Canadian government.”
[6]
On
May 12, 2010, a second procedural fairness letter was sent to the Applicant,
addressing the deficiencies of the previous procedural fairness letter,
inviting the Applicant to submit additional evidence with regard to his medical
condition, the social services needed in Canada, an individualized plan to
offset the excessive demand on social services and a signed Declaration of
Ability and Intent.
[7]
On
July 7, 2010, the Applicant sent to the Visa Officer a proof of assets in his
name and his dependant wife’s name, a signed Declaration of Ability and Intent,
a written statement dated July 7, 2010 jointly signed by them, in which he
explains that his wife will assist him in rehabilitation, that he is responding
well to the treatments as he is making constant efforts and exercises to
improve his health condition. He also adds that he is willing and has the
ability to pay all the expenses arising from professional services. He also
submitted a Diagnosis Certificate issued by a physician from the Linyi City
People’s Hospital on June 25, 2010. The Diagnosis Certificate was sent to the
medical officer who concluded that it did not change the assessment of medical
inadmissibility.
II. Decision
under review
[8]
The
decision by the Officer consists of the refusal letter dated April 10, 2012 as
well as his CAIPS notes.
[9]
In
the refusal letter, the Visa Officer explained that the Applicant is
inadmissible because he has a medical condition, Cerebrovascular Disease - Late
Effects: Status post-cerebrovascular accident, and therefore needs respite care
and outpatient day programs in the nature of physiotherapy, speech and
language, occupational and vocational training, the current estimated annual
cost of which, in Canada, is $6500, the “excessive demand cost threshold” for
him being of $6141. The social services costs required for the Applicant
therefore exceed the threshold by $359 per year.
[10]
The
Visa Officer recognized that the Applicant has assets controlled by him or his
wife amounting to 3,81 million dollars and that he would have the financial
ability to pay for the costs of the social services. However, he refused the Applicant’s
plan by concluding that the Applicant has not demonstrated that he has a
“reasonable and workable plan to offset the excessive demand” on Canadian
social services nor “the actual intention to implement such a plan mitigating
these costs.”
III. Relevant
statutory provisions
[11]
The
relevant statutory provisions read as follows:
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Immigration
and Refugee Protection Act, SC 2001, c 27
Health
Grounds
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
[…]
Immigration
and Refugee Protection Regulations, SOR/2002-227
Definitions
1. (1)
The definitions in this subsection apply in the Act and in these Regulations.
[…]
“excessive
demand” means
(a) a
demand on health services or social services for which the anticipated costs
would likely exceed average Canadian per capita health services and social
services costs over a period of five consecutive years immediately following
the most recent medical examination required under paragraph 16(2)(b) of the
Act, unless there is evidence that significant costs are likely to be
incurred beyond that period, in which case the period is no more than 10
consecutive years; or
(b) a
demand on health services or social services that would add to existing
waiting lists and would increase the rate of mortality and morbidity in
Canada as a result of an inability to provide timely services to Canadian
citizens or permanent residents.
[…]
Assessment of inadmissibility on health grounds
20. An officer shall determine that a foreign national is
inadmissible on health grounds if an assessment of their health condition has
been made by an officer who is responsible for the application of sections 29
to 34 and the officer concluded that the foreign national's health condition
is likely to be a danger to public health or public safety or might
reasonably be expected to cause excessive demand.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Motifs
sanitaires
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.
[…]
Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Définitions
1. (1) Les
définitions qui suivent s’appliquent à la Loi et au présent règlement.
[…]
«
fardeau excessif » Se dit :
a) de
toute charge pour les services sociaux ou les services de santé dont le coût
prévisible dépasse la moyenne, par habitant au Canada, des dépenses pour les
services de santé et pour les services sociaux sur une période de cinq années
consécutives suivant la plus récente visite médicale exigée en application du
paragraphe 16(2) de la Loi ou, s’il y a lieu de croire que des dépenses
importantes devront probablement être faites après cette période, sur une
période d’au plus dix années consécutives;
b) de
toute charge pour les services sociaux ou les services de santé qui viendrait
allonger les listes d’attente actuelles et qui augmenterait le taux de
mortalité et de morbidité au Canada vu l’impossibilité d’offrir en temps
voulu ces services aux citoyens canadiens ou aux résidents permanents.
[…]
Évaluation
pour motifs sanitaires
20. 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.
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IV. Applicant’s
submissions
[12]
The
Applicant generally submits that the Visa Officer’s decision is unreasonable as
he has established that he is in a financial position to mitigate the costs of
the social services needed whether they amount to $6,500 or only $359 a year. The
Applicant bases his argument on the fact that in Hilewitz v
Canada (Minister of Citizenship and Immigration); De Jong v Canada (Minister of
Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 [Hilewitz], the
Supreme Court of Canada established that “excessive demand” is “inherently
evaluative and comparative” and that therefore, the financial ability of the Applicant
to cover the excessive costs needs to be taken into account. As the Visa
Officer recognized that the Applicant has established having assets worth 3,81 million
dollars, it is unreasonable to find that he has not submitted a detailed plan
of action to defray the excessive costs of social services while in Canada.
[13]
Indeed,
the Applicant submits that contrary to the Visa Officer’s conclusion, he has
demonstrated that he has “taken action” to develop a cost mitigation plan by
submitting a notarized declaration confirming his intention to allocate his
assets to his recovery as well as a list of assets which establish his
financial ability to do so. Therefore, his plan is lengthy and detailed and he relies
on Velasquez
Perez v Canada (Minister of
Citizenship and Immigration), 2011 FC 1336
at para 33,
215 ACWS (3d) 185 [Velasquez
Perez] to argue that his plan should be
considered sufficient.
[14]
Second,
the Applicant is of the view that the fact that the Applicant’s wife will
assist him has not been given proper consideration by the Visa Officer.
[15]
Third,
the Applicant argues that the Visa Officer’s finding that he did not contact
Canadian physicians in order to understand the “medical” services that he will
be needing in Canada and that he did not provide a list of the services
required while in Canada is erroneous as he explained that he contacted a
physician from Vancouver.
[16]
Finally,
the Applicant submits that the Visa Officer made an error in his decision as he
did not make a distinction between social services and health services, which is
important as some social services are not covered by the state.
V. Respondent’s
submissions
[17]
The
Respondent generally submits that a mere undertaking by the Applicant that he
will defray the excessive demand on social services as he has enough funds available
to him is insufficient. Indeed, a plan to mitigate the excessive costs of
social services needed by an Applicant with a health condition must be
complete, developed and certain and must not be speculative in order to satisfy
the government that likely “excessive demand” will be avoided. The plan
provided by the Applicant was rightly found insufficient for the following
reasons.
[18]
First,
the Applicant did not submit concrete evidence to support his intention to
arrange and pay for social services and he did not demonstrate that he has
researched the types of services needed, the availability of such services and
the costs of such services or that he has made arrangements with service
providers in Canada.
[19]
Moreover,
the Respondent adds that it has been recognized by this Court that personal
undertakings not to use public social services are not enforceable in Canada and that a mere statement is therefore insufficient.
[20]
Finally,
even if his own resources would allow him to offset the excessive demand, the Applicant
has not established that the private sector does provide such services.
[21]
With
regard to the Applicant’s assertion that his wife will assist him and that this
will reduce the demand on social services, the Applicant has not explained in
details to what extent the help provided by his wife would reduce or eliminate
the role, function and contributions of the trained and specialized
professionals.
VI. Issue
[22]
Does
the
Visa
Officer’s decision, through the assessment of the medical officer, constitute a
reasonable finding that the Applicant is inadmissible pursuant to paragraph 38(1)(c)
of the IRPA?
VII. Standard
of review
[23]
The
Visa Officer’s factual findings should be reviewed under the standard of
reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
VIII. Analysis
[24]
The
decision rendered by the Visa Officer is reasonable and therefore,
the intervention of this Court is not warranted.
[25]
The
Applicant’s request for permanent residence was refused on the basis that the Applicant
was not able to satisfy the Visa Officer that he had a concrete plan to offset
the excessive costs of social services required by his health condition and
that he did not demonstrate having the intention to do so. Considering the
evidence submitted to the Visa Officer which formed the basis of his decision,
such conclusion falls within “a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” [see Dunsmuir,
above]. Indeed, the documents submitted by the Applicant were rightly found to
be insufficient to demonstrate that there is less than a reasonable probability
that the public system will have to incur excessive demand (Hilewitz
v Canada (Minister Citizenship and Immigration); De Jong v Canada (Minister of Citizenship and
Immigration) 2005
SCC 57 at para 46, [2005] 2 S.C.R. 706 [Hilewitz]).
[26]
First,
it has been recognized that a letter of intent that confirms one’s intention
not to burden the public system, when that individual has the financial
capacity to pay for all services publicly accessible to all is insufficient as
such document is not enforceable in Canada (see Deol v Canada (Minister of
Citizenship and Immigration), 2002 FCA 271 at para 46, 215 DLR (4th) 675; Choi v
Canada (Minister of Citizenship and Immigration) (1995), 29 Imm
LR (2d) 85 at para 33, 98 FTR 308). Therefore, a mere personal
undertaking to waive all rights to social services cannot be considered to be
sufficiently reliable so that the application should be granted.
[27]
The
Applicant’s Personal Plan and other documents submitted were not found to be
satisfactory by the Visa Officer as they did not demonstrate a clear intention
not to burden the public system with the excessive costs of social services. Indeed,
there is no indication that he has made arrangements with professionals who
work in the private sector and who could provide the services that he needs. In
his Personal Plan, the Applicant indicated that he contacted a physician in Vancouver for professional advices but he did not provide detailed information.
[28]
Moreover,
the argument by the Respondent that the Applicant has not demonstrated to which
extent the help provided by his wife will reduce the work required from trained
professionals is accepted by this Court. Indeed, the Applicant states in his
Personal Plan that his wife will provide assistance to him but this does not
establish clearly that it will reduce the Applicant’s demand for social
services provided by trained professionals.
[29]
Contrary
to what is alleged by the Applicant, the issue is not about whether or not the
Visa Officer disregarded the Applicant’s financial situation but about whether
or not he submitted a plan that demonstrates that there is less than a
reasonable probability that the public system will incur the excessive
costs of social services required by him. As stated by the Supreme Court of
Canada in Hilewitz,
above, the financial situation of an applicant is a
relevant factor to be examined when determining the probabilities that an Applicant’s
presence would place excessive demands on our social services. However, unlike the
Applicant’s argument, this case does not stand for the proposition that
financial capacity is the most important factor to be considered. Therefore,
the Officer’s concern is not restricted to an assessment of the Applicant’s financial
capacity to incur costs of $359 for social services. The issue at play is
whether the Applicant has demonstrated that he has the intention to allocate
his resources to pay for those services with a precise, serious and
comprehensive multi-service health recovery plan.
[30]
The
Applicant relies on Velasquez Perez, above, a decision where
the Federal Court decided that the Visa Officer’s conclusion was unreasonable
as he had ignored the Applicant’s financial ability to pay for social services
and that the decision was not based on all the available information. In the
case at bar, the Visa Officer gave proper consideration to the Applicant’s
established ability to defray the social services that are required but however
concluded that his application did not establish clearly that he would not
burden the excessive demand on social services.
[31]
Finally,
it is important to underline that it is the Applicant who bears the onus of
demonstrating that he is not inadmissible, once a negative medical assessment
has been completed (Zhang v Canada (Minister of Citizenship and Immigration), 2012 FC 1093 at
para 20, 2012 CarswellNat 3526). In the present case, the Applicant was given two fairness
letters which allowed him to make clear additional submissions and to submit
additional documents. Therefore, the Applicant was asked repeatedly by the
Officer to submit convincing evidence demonstrating a clear intention not to
burden the public system but no additional, satisfactory evidence was provided.
[32]
In
conclusion, the Visa Officer properly assessed the Applicant’s health condition
to conclude that there is a reasonable probability that the public
system will incur the excessive costs
of social services required by him.
[33]
No questions for certification were proposed by the parties and
none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the
application for judicial review is dismissed.
No question is certified.
“Simon Noël”
______________________________
Judge
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