Docket: IMM-7922-13
Citation:
2015 FC 385
Toronto, Ontario, March
26, 2015
PRESENT: The
Honourable Mr. Justice Hughes
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BETWEEN:
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SOVEENA AMJAD
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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]
This is a judicial review of a decision of an
Officer of the Immigration Section of the High Commissioner of Canada in
London, England, dated November 8, 2013, rejecting the Applicant’s application
for a permanent resident visa on the basis that an accompanying member, her
son, was inadmissible because his likely demands on Canadian health and social
services would be excessive. The son would be inadmissible under the
provisions of subsection 38(1)(c) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (“IRPA”).
[2]
The Applicant is an adult female person, a
citizen of Pakistan. In 2009, she submitted an application for permanent
residence in Canada under the Federal Skilled Worker Class. She included her
husband and two sons in the application. On August 9, 2013, she received a
letter from a Visa Officer who raised the health condition of one of her sons (“Wasae”),
then about ten years old, who had a condition described as cerebral palsy with
global development delay.
[3]
Citizenship and Immigration Canada received
evaluations and reports provided by a Clinical Psychologist from The Children’s
Hospital in Lahore, Pakistan. Based on this material, an IMS Client Summary
was prepared comprising several pages in which the child’s medical condition
was reviewed, his special education needs considered, and an estimated annual
cost of care needed was produced; this together with a so-called fairness
letter inviting submissions from the Applicant was sent by the High Commission.
[4]
The Applicant, in reply, provided a signed
Declaration of Ability and Willingness together with a five page letter
addressing at least some of the concerns raised. Oddly, the response also
included two decisions of Canadian Courts, Hilewitz v Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 and
Colaco v Canada (Minister of Citizenship and Immigration),
2007 FCA 282, although neither of them was addressed in the letter. No
explanation, other than speculation, was provided as to why these cases were
furnished.
[5]
Following receipt of this material, a further
medical report was created by a Medical Officer of the government which stated,
in part:
I have
reviewed the new material submitted as well as the entire medical file on this
applicant. The information confirms the diagnosis and needs previously
identified.
The
applicant’s family submitted a declaration of Ability and Intent with a
detailed plan to mitigate the cost identified. They have offered to make
advance payment for the anticipated health care services.
The proposed
plan does not address all the needs that have been identified such [as]
education. The Ontario legislation requires students to attend school until
the age of 18 or graduation. As noted in the narrative written in November
2012, Wasae is likely to be identified as an exceptional student requiring
special education. Under the Act, the Ministry of Education is responsible for
ensuring that all exceptional children in Ontario have available to them
appropriate special education programs and services without payment of fees.
Therefore, it
is my opinion that the new material does not modify the assessment of medical
inadmissibility.
[6]
Having received the Applicant’s response and the
Medical Officer’s report, the Officer at the High Commissioner made the
following entry in the GCMS respecting the decision to refuse the application:
I HAVE REVEIWED THE RESPONSE TO OUR
CONCERNS AND THE OPINION OF THE MEDICAL OFFICER.
I AM NOT SATISFIED THAT THE APPLICANT HAS
DEMONSTRATED THAT SHE HAS A DETAILED, VIABLE AND REALISTIC PLAN FOR MITIGATING
THE COSTS OF HER SON’S CONDITION OVER TIME. SHE HAS NOT DEMONSTRATED THAT HER
INTENTIONS CAN ACTUALLY BE PUT INTO PLACE. SHE HAS OFFERED TO MAKE A
PRE-PAYMENT TO COVER COSTS OF CARE AND MEDICAL COSTS. THE MINISTRY OF EDUCATION
IS RESPONSIBLE FOR ENSURING THAT ALL EXCEPTIONAL CHILDREN IN ONTARIO HAVE
AVAILABLE TO THEM APPROPRIATE SPECIAL EDUCATION PROGRAMS AND SERVICES WITHOUT
PAYMENT OF FEES. THERE THE OFFER DOES NOT ALTER THE BURDEN THAT MAY BE PUT ON
EDUCATION AND HEALTH SERVICES.
I AM NOT SATISFIED THAT [S]HE HAS
DEMONSTRATED THE EXTENT TO WHICH THE MINISTRY OF HEALTH WILL BEAR THE COSTS OF
WASAE’S SPECIAL NEEDS EDUCATION, OR HOW SHE WILL PROVIDE FOR THOSE SERVICES FOR
HER SON ON A DAY-TO-DAY BASIS FOR THE PERIOD OF TIME THAT THEY ARE REQUIRED.
HAVING FULLY REVIEWED THE INFORMATION AT
HAND, I AM SATISFIED THAT WASAE’S HEALTH CONDITION CEREBRAL PALSY MIGHT
REASONABLY BE EXPECTED TO CAUSE EXCESSIVE DEMAND ON HEALTH OR SOCIAL SERVICES
IN CANADA. THE APPLICANT’S SON WASAE IS A PERSON DESCRIBED IN A38(1)(C) AND
CONSEQUENTLY THE APPLICANT IS A PERSON DESCRIBED IN A42 AND IS INADMISSABLE.
APPLICATION REFUSED.
[7]
The Applicant’s Counsel raises two issues:
1.
Did the Officer fail to conduct an individualized
assessment of the type required by the Supreme Court in Hilewitz? On
this point, it is agreed that the standard of review is correctness;
2.
In the alternative, was the decision reasonable?
I.
ISSUE 1
[8]
The Supreme Court of Canada in Hilewitz, in
reviewing the requirements of the provisions of the 1985 Act similar to
that of IRPA, per Abella J. for the Court wrote at paragraph 54:
54 Section
19(1)(a)(ii) calls for an assessment of whether an applicant's health would
cause or might reasonably be expected to cause excessive demands on Canada's social services. The term "excessive demands" is inherently evaluative
and comparative. Without consideration of an applicant's ability and intention
to pay for social services, it is impossible to determine realistically what
"demands" will be made on Ontario's social services. The wording of
the provision shows that medical officers must assess likely demands on social
services, not mere eligibility for them.
[9]
Applicant’s Counsel argues that a proper
decision must demonstrate that the decision maker addressed demands on social
services taking into account both medical and non-medical factors, such as the
availability, scarcity and cost of publicly funded services, along with the
willingness of the Applicant to pay for them. Counsel argues that the decision,
which comprises of the medical report and GCMS notes quoted above, while
addressing the Applicant’s willingness to pay, and the services that could be
provided by the Ontario government, fails to address any consideration of the
Applicant’s ability to pay as well as services which could be provided by
private sector organizations without requiring taxpayer funds.
[10]
The submissions of the Applicant, in response to
the fairness letter, does provide information as to the Applicant’s net worth,
and shows that the Applicant contacted, by e-mail, several private sector
service providers, two of whom responded but only to provide an acknowledgment
and contact information. These responses do not provide any details as to any
actual plan for private care for the boy. The response does not say that the
Applicant or her husband has secured employment in Canada. The response says
that any further assessment of the boy and his needs should await the
relocation of the family in Canada.
[11]
Applicant’s Counsel argues that the Ontario legislation respecting education of children provides an exception for private
education, and that this issue should have been addressed in the decision.
Failure to address it, according to Counsel, constitutes a reviewable error on
the correctness standard. On the same standard, Counsel submits that failure
to address the capacity to provide support constitutes a reviewable error.
[12]
Respondent’s Counsel argues that, while these
points are not specifically mentioned in the decision, the materials in the
record do not assist the Applicant. She and her husband have no apparent jobs
to go to; their resources are not enormous; the evidence as to private
education and assistance is non-existent beyond contact information.
[13]
In considering the jurisprudence respecting the
adequacy of reasons, the Courts are often stuck between the Scylla and Charybdis
decisions of the Supreme Court of Canada, released one day apart, of Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61 and Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62. Stratas J.A. of the Federal Court
of Appeal in Lemus v Canada (Minister of Citizenship and Immigration),
2014 FCA 114 wrote a very careful decision dealing with both cases and
concluding that “in this case” before that
Court, the controlling authority was Alberta Teachers. The case before
the Court was described at paragraphs 37 and 38 of his Reasons:
37 Therefore,
I conclude that in this case, the controlling authority is Alberta Teachers'
Association. It follows that it would not be appropriate, in this case, to
accept the Minister's invitation and supplement or recast the Officer's reasons
to save her decision.
38 This
is a situation where the Officer, informed by these reasons of her error and of
the proper standard to be applied, might well reach a different result. There
is evidence in the record that could support a decision either way. I cannot
say that the record leans so heavily against relief that sending the matter
back to the Officer would serve no useful purpose, as per MiningWatch Canada, supra. Nor can I say that the record is unequivocally in favour of relief allowing
us to award mandamus and grant the subsection 25(1) application.
[14]
Justice Rennie, when he was in this Court,
addressed a similar issue in Komolafe v Canada (Minister of Citizenship and
Immigration), 2013 FC 431. He wrote at paragraphs 9 to 11:
9 The
decision provides no insight into the agent's reasoning process. The agent
merely stated her conclusion, without explanation. It is entirely unclear why
the decision was reached.
10 Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708 does not save the decision. Newfoundland Nurses
ensures that the focus of judicial review remains on the outcome or decision
itself, and not the process by which that outcome was reached. Where readily
apparent, evidentiary lacunae may be filled in when supported by the evidence,
and logical inferences, implicit to the result but not expressly drawn. A
reviewing court looks to the record with a view to upholding the decision.
11 Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not
given, nor is it licence to guess what findings might have been made or to
speculate as to what the tribunal might have been thinking. This is
particularly so where the reasons are silent on a critical issue. It is ironic
that Newfoundland Nurses, a case which at its core is about deference and
standard of review, is urged as authority for the supervisory court to do the
task that the decision maker did not do, to supply the reasons that might have
been given and make findings of fact that were not made. This is to turn the jurisprudence
on its head. Newfoundland Nurses allows reviewing courts to connect the dots on
the page where the lines, and the direction they are headed, may be readily
drawn. Here, there were no dots on the page.
[15]
In the present case, there must be a measure of pragmatism
in the approach taken by the Court. There is no doubt that Hilewitz
says that certain matters are to be considered. The record shows evidence
directed to those matters does not favour the Applicant. One suspects but does
not know whether the ability to pay or private sector assistance was in fact
considered by the Officer. They are not mentioned in the decision.
[16]
In looking at the record, there is nothing there
that would have materially assisted the Applicant. The net worth of the Applicant
says little, particularly since she has no job. The private sector information
is nothing more than contact information and certainly not anything like a
plan.
[17]
The words of Evans J. (as he was then) in Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at
paragraph 16 are particularly apt:
16 On
the other hand, the reasons given by administrative agencies are not to be read
hypercritically by a court (Medina v. Canada (Minister of Employment and
Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required
to refer to every piece of evidence that they received that is contrary to
their finding, and to explain how they dealt with it (see, for example, Hassan
v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317
(F.C.A.). That would be far too onerous a burden to impose upon administrative
decision-makers who may be struggling with a heavy case-load and inadequate
resources. A statement by the agency in its reasons for decision that, in
making its findings, it considered all the evidence before it, will often
suffice to assure the parties, and a reviewing court, that the agency directed
itself to the totality of the evidence when making its findings of fact.
[18]
It must be remembered that persons such as the
Applicant here are proposing themselves as immigrants to Canada, they were not invited or coerced to come. As such, they bear the burden of demonstrating
that they, and those coming with them, are admissible and would not cause a burden.
Canadian officials receive a vast number of such applications; they are under
great pressure and overworked. Where it can be clearly demonstrated that
something was overlooked, for instance in the reasons that arguably would have
assisted the Applicant, the Court cannot simply supply reasons that are not
there. But where the reasons overlook something that would not have assisted
the Applicant in any event, the Court should not impose an unnecessary burden
on the Officials to redo a matter simply for legal propriety or pedantry.
[19]
There is a discretion in the Court in applying
the remedies afforded on judicial review. I will not return the matter simply
because the Officer did not add a few words that would not have been of any
assistance to the Applicant in any event.
II.
ISSUE 2
[20]
Was the decision reasonable? This is really the
same question as Issue #1 but determined on the lesser standard of
reasonableness. For this reasons already discussed, the decision in addition
to being correct, also was reasonable.
III.
CONCLUSION
[21]
In the result, the application will be
dismissed. No party requested a certified question.
[22]
I would like to thank and commend both Counsel
for the careful, thoughtful and effective manner in which this case was
prepared and presented. It was exemplary.
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