Date: 20031112
Docket: A-649-02
Citation: 2003 FCA 422
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
DIRK DE JONG
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on September 29, 2003.
Judgment delivered at Ottawa, Ontario, on November 12, 2003.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: LINDEN J.A.
MALONE J.A.
Date: 20031112
Docket: A-649-02
Citation: 2003 FCA 422
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
DIRK DE JONG
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] Dirk de Jong, a Dutch citizen, applied for a permanent residence visa in the self-employed category. He owns a dairy farm in the Netherlands and, if admitted to Canada, plans to buy a similar kind of farm in Ontario, in a community where other Dutch people have settled. Mr. de Jong included his wife and their six dependent children in the visa application.
[2] Mr. de Jong's visa application was rejected because one of his daughters, Dirkje, was found to be medically inadmissible under paragraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2, since her admission might reasonably be expected to cause excessive demands on social services. Dirkje, who was born in 1988, is mildly mentally retarded and is likely to need special education and other social services if admitted to Canada.
[3] Mr. de Jong made an application for judicial review to quash the visa officer's refusal of the visa. He argued, among other things, that the medical officer erred in not properly taking into consideration the fact that Dirkje would attend the Rehoboth Christian School, a private school in the community where the de Jong family intended to settle. The school is run by the church to which the family belongs and it appears to have agreed to accept the de Jongs' children, including Dirkje. Consequently, counsel for Mr. de Jong argued, it was not likely that Dirkje would have resort to the special education for developmentally delayed students provided in the Ontario public school system, free of charge to the parents.
[4] The Applications Judge dismissed the application for judicial review. He relied on Deol v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 301, 2002 FCA 271, for the proposition that parental ability and willingness to pay for privately provided social services or, where relevant, to make a required financial contribution in order to obtain publicly provided services, is not relevant to an excessive demands opinion: de Jong v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1165.
[5] In Hilewitz v. Canada (Minister of Citizenship and Immigration), 2003 FCA 420, which was heard immediately before the present appeal, this Court held that, when forming an excessive demands opinion, medical officers are not legally obliged to consider such personal non-medical factors as a visa applicant's wealth and an intention not to access publicly provided social services. The Court reached this conclusion, even though, unlike most health services, social services may be both delivered on a user pay basis, and available privately.
[6] Counsel for Mr. de Jong submitted that the main issue in this case is whether the medical officer was obliged to consider the de Jongs' financial ability and stated intention to send Dirkje to a private school when determining if excessive demands on social services, particularly special education in the public school system, might reasonably be expected if Dirkje were admitted to Canada. For the reasons given in Hilewitz, I would answer this question in the negative. Accordingly, the appeal cannot succeed on the principal issue relied on by counsel.
[7] Counsel for Mr. de Jong also argued that the medical officer's opinion was invalid because it did not provide a factual foundation for the conclusion that Dirkje was likely to require social services in addition to the special education available in Ontario schools. However, Dirkje's need for special education in itself constituted excessive demands on social services since the Province of Ontario pays to school boards an average of approximately $20,000 each year, over and above the normal funding formula, for each special needs student that they accept. Hence, any defect in the officer's opinion with respect to the other services is immaterial.
[8] In any event, after examining the file as a whole, I am satisfied that it contains an adequate explanation of the medical officers' opinion that, as she got older, Dirkje was likely to require social services such as publicly provided vocational training and life skills programmes. In addition, there was evidence of the social services available in the City of London for developmentally delayed persons. London is approximately 60 kilometres from Norwich, where the de Jongs state that they intend to settle in order to be able to belong to a community of their co-religionists.
[9] For these reasons, I would answer the certified question, "Is an applicant's wealth a relevant consideration in determining whether his or her admission to Canada would cause excessive demands on social services in Canada?" by saying that these are not factors that medical officers are obliged to consider.
[10] I would dismiss the appeal without costs.
"John M. Evans"
J.A.
"I agree
A.M. Linden J.A."
"I agree
B. Malone J.A."
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-649-02
STYLE OF CAUSE: DIRK DE JONG v. MCI
DATE OF HEARING: September 29, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: Evans J.A.
CONCURRED IN BY: Linden and Malone JJ.A.
DATE: November 12, 2003
APPEARANCES BY:
Mr. Cecil Rotenberg
Ms. Inna Kogan For the Appellant
Ms.. Marie-Louise Wcislo
Ms. Alexis Singer For the Respondent
SOLICITORS OF RECORD:
Mr. Cecil Rotenberg, Q.C.
Ms. Inna Kogan
Toronto, Ontario For the Appellant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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