Ottawa, Ontario, February 10, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) of a decision by the visa officer denying the applicant permanent residence based on the health condition (autism) of her daughter Djéna, as admitting her to Canada might reasonably be expected to cause excessive demand on health or social services pursuant to subsection 38(1) of the IRPA.
[2] The applicant, who is currently residing in Montréal, was denied permanent residence in Canada on May 3, 2005, via the Canadian Embassy in Paris, the applicant being a native of Martinique, a French department.
[3] Initially, however, when the visa officer made her decision, the embassy had given 90 days to the applicant via a fairness letter (“lettre d’équité”) to submit evidence and observations to it opposing the medical notification of the Embassy’s medical officer, Dr. Shaun Gollish, who made a prognosis to the effect that Djéna’s admission to Canada might reasonably be expected to cause excessive demand.
[4] In January 2005, the applicant in fact sent additional documents to the Embassy regarding the medical condition of her daughter Djéna. These documents were sent to Dr. Gollish, who determined that the additional evidence provided by the applicant was not sufficient to reverse his first prognosis and the finding of excessive demand.
[5] It was after reviewing all of the applicant’s evidence in the record and Dr. Gollish’s prognosis that the visa officer decided, on May 3, 2005, to deny the applicant’s permanent residence application.
RELEVANT LEGISLATION
[6] The following statutory and regulatory provisions are those relevant to this matter. Section 42 and subsection 38(1) of the IRPA provide the following:
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Inadmissible family member
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Inadmissibilité familiale
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42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if
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42. Emportent, sauf pour le résident permanent ou une personne protégée, interdiction de territoire pour inadmissibilité familiale les faits suivants:
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(a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or
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a) l'interdiction de territoire frappant tout membre de sa famille qui l'accompagne ou qui, dans les cas réglementaires, ne l'accompagne pas;
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(b) they are an accompanying family member of an inadmissible person.
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b) accompagner, pour un membre de sa famille, un interdit de territoire.
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…
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Health grounds
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Motifs sanitaires
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38. (1) A foreign national is inadmissible on health grounds if their health condition
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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.
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(a) is likely to be a danger to public health;
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(b) is likely to be a danger to public safety; or
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(c) might reasonably be expected to cause excessive demand on health or social services.
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[7] Sections 20 and 34 of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the Regulations) provide the following:
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Assessment of inadmissibility on health grounds
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Évaluation pour motifs sanitaires
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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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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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Excessive demand
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Fardeau excessif
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34. Before concluding whether a foreign national's health condition might reasonably be expected to cause excessive demand, an officer who is assessing the foreign national's health condition shall consider
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34. Pour décider si l'état de santé de l'étranger risque d'entraîner un fardeau excessif, l'agent tient compte de ce qui suit:
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(a) any reports made by a health practitioner or medical laboratory with respect to the foreign national; and
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a) tout rapport établi par un spécialiste de la santé ou par un laboratoire médical concernant l'étranger;
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(b) any condition identified by the medical examination.
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b) toute maladie détectée lors de la visite médicale.
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ISSUES
1. Did the medical officer consider Dr. Billon’s report?
2. Was the applicant entitled to a legitimate expectation?
3. Did the visa officer form her own opinion?
4. Did the visa officer err in law in determining that Djéna is an “excessive demand”?
THE STANDARD OF REVIEW
[8] The issue of legitimate expectation has been defined as the extension of the rules of natural justice and procedural fairness, Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at page 557. It had been established in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, that the standard of review does not apply when it is a matter of determining whether the principles of procedural fairness have been followed.
[9] With respect to the appropriate standard of review for determining whether the visa officer erred, Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 58 (QL), established that the appropriate standard is that of correctness when it is a matter of interpreting subparagraph 19(1)(a)(ii) (now subsection 38(1)), i.e. when it is a matter of determining whether the foreign national’s health condition causes or might reasonably be expected to cause excessive demand on health or social services.
ANALYSIS
1. Did the medical officer consider Dr. Billon’s report?
[10] The applicant claims that the complementary medical certificate from Djéna’s attending physician, Dr. Billon (which she submitted as additional evidence following the fairness letter dated November 10, 2004, from the Embassy), had not been considered.
[11] In my opinion, the applicant’s argument must be dismissed on two grounds. First, all of the determinations made by Dr. Gollish are supported by all of the additional evidence filed by the applicant, including Dr. Billon’s report. In fact, there is indeed consistency between the medical findings of Dr. Billon and Dr. Gollish. Second, Dr. Gollish’s report did not contradict or reject Dr. Billon’s report. Dr. Gollish rather assessed Djéna’s condition by taking into account her present condition “autism” and her past condition “epilepsy”, which in any case is not the basis for the excessive demand.
2. Was the applicant entitled to a legitimate expectation?
[12] The applicant claims that the visa officer did not consider the legitimate expectation that the Juliard family had since they had a Quebec Selection Certificate as well as an eligibility certificate for the Quebec school system for Djéna.
[13] In my opinion, the applicant’s claim is unfounded since her selection by Quebec in no way bound the government of Canada; the Canada - Québec Accord Relating to Immigration and Temporary Admission of Aliens, dated February 5, 1991, provides the following:
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12. Subject to sections 13 to 20,
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12. Sous réserve des articles 13 à 20:
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(a) Québec has sole responsibility for the selection of immigrants destined to that province and Canada has sole responsibility for the admission of immigrants to that province.
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a. Le Québec est seul responsable de la sélection des immigrants à destination de cette province et le Canada est seul responsable de l'admission des immigrants dans cette province.
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(b) Canada shall admit any immigrant destined to Québec who meets Québec’s selection criteria, if the immigrant is not in an inadmissible class under the law of Canada.
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b. Le Canada doit admettre tout immigrant à destination du Québec qui satisfait aux critères de sélection du Québec, si cet immigrant n'appartient pas à une catégorie inadmissible selon la loi fédérale.
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…
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[…]
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[14] Yet, Djéna was deemed to be inadmissible under section 32 of the IRPA; this would not be an issue of legitimate expectation.
[15] Further, in Canada the doctrine of legitimate expectation does not confer any substantive right, as contemplated by the applicant in this case, but is part of the doctrine of fairness or natural justice which could require more extensive procedural rights than would otherwise be accorded: Bakervc. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, paragraph 26.
3. Did the visa officer form her own opinion?
[16] When considering whether the health condition of a claimant would cause excessive demand on health or social services, the visa officer, without challenging the medical opinion and the diagnosis, must consider all of the evidence available: Ismaili v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1127 (F.C.T.D.)(QL), paragraph 31.
[17] The applicant alleges that in her letter of reply, the visa officer did not form her own opinion, but simply referred to the opinion expressed in Dr. Gollish’s letter. The applicant did not give any grounds supporting that application. In my opinion, the visa officer, not seeing any error in the medical notification, based her opinion on all of the evidence in the record as well as on Dr. Gollish’s medical notification to determine that the applicant was inadmissible.
4. Did the visa
officer err in law in determining that Djéna is an
“excessive demand”?
[18] The applicant claims that the visa officer erred in failing to consider, with regard to the question of excessive demand, the financial situation of the Juliard family, which would probably be able to defray the costs of the services required by Djéna. In other words, the Juliard family would itself contribute to reduce the additional costs which would otherwise be assumed by the community in education and in care for her autistic daughter, for example, through the volunteer work that the applicant would give to the Étincelle school, assistance that could certainly be given a monetary value and/or through the purchase of a private insurance policy.
[19] The applicant submits that the purpose of Canadian immigration legislation is to protect the community from “certain” and “excessive” costs associated with the health care and social services needs of certain new handicapped arrivals in specific situations. In the absence of a negative economic impact on the social services system, the legislation does not provide for the automatic exclusion of autistic children.
[20] There has been abundant and inconsistent case law regarding whether or not family financial resources should be considered in assessing an immigration application of this kind. The recent judgment by the Supreme Court of Canada in Hilewitz, supra, put an end to that debate.
[21] Hilewitz and de Jong, in their name and on behalf of their family, applied for permanent residence, under the “investors” class and the “self-employed” class. Both were denied admission on the grounds that they each had a child whose intellectual disability “might reasonably be expected to cause excessive demand on health or social services” in Canada under subparagraph 19(1)(a)(ii) (now subsection 38(1)).
[22] The Supreme Court determined that the financial situation of the families of the handicapped dependants was a relevant factor in assessing the potential impact of the admission of those persons on social services (Hilewitz, supra, paragraph 40). Therefore, the visa officers erred in confirming the medical officers’ refusal to take into account the potential impact of the families' willingness and ability to assist (Hilewitz, supra, paragraph 70).
[23] Madam Justice Abella, writing for the Court, observed that an analysis of the history of the relevant statutory provisions indicates that Parliament had intended to pass from an exclusionary policy based on classes to a policy requiring individual assessments (Hilewitz, supra, paragraph 53). The visa officer must determine whether there is a “reasonable likelihood” that the applicant’s health condition would cause or might reasonably be expected to cause excessive demand on Canadian social services. To determine the demand realistically, the applicant’s ability and intention to assume the costs of social services must be considered (Hilewitz, supra, paragraph 54).
[24] At the time that they filed their application, Hilewitz and de Jong had both expressed their intention to register their children in private schools offering special education, which made it unlikely that there would be recourse to services financed by the State. Mr. Hilewitz also expressed the intention to acquire a business that would ensure employment for his son, which would eliminate the need to resort to professional training. In Hilewitz, the visa officer herself acknowledged that it was “highly unlikely” that the Hilewitz family would use services financed by the State. In this case, contrary to the above-mentioned matters, the applicant registered her in a public school as soon as she arrived in Canada. With respect to the services required in the future, contrary to the case of Hilewitz and de Jong, the applicant did not submit that she intended to call on the private education system.
[25] I dismiss the applicant’s argument to the effect that her daughter would not now be an excessive demand on the basis that Djéna’s school is a public school financed by the municipality of Montréal as well as income tax. Even in the event that the school were exclusively financed by the municipality it is nonetheless a school financed with public funds. The evidence in the record provided by the two affidavits of Dr. Gollish establish that the excessive costs of the services required for Djéna are now in the neighbourhood of $15,000. Further, taking the applicant’s volunteer work at the school into account, as the applicant suggests, is purely speculative since nothing in the evidence would have allowed Dr. Gollish to quantify the time that she allots to it.
[26] In short, the medical officer proceeded with an individualized assessment of Djéna’s condition by assessing the nature, the gravity and the likely duration of her condition while taking into account the availability and cost of services offered by the State.
[27] Based on the foregoing, I am persuaded that she considered all of the factors deemed relevant by the Supreme Court in assessing excessive demand.
[28] With respect to the application of Chaoulli v. Québec (Attorney General), [2005] 1 S.C.R. 791, in my opinion, that case has no impact in this matter since here it is not a question of health care for Djéna, but mostly of social services that she needs, provided by a public school in Quebec. The alternative to take out private insurance for health care has nothing to do with specialized education in school.
[29] For these reasons, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3421-05
STYLE OF CAUSE: CATHERINE NEWTON-JULIARD
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: February 1, 2006
REASONS FOR ORDER: MADAM JUSTICE TREMBLAY-LAMER
DATE OF REASONS: February 10, 2006
APPEARANCES:
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Terence R.J. McNamara
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FOR THE APPLICANT |
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Mario Blanchard
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Malo Dansereau Association d’Avocats – Montréal
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FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice – Montréal
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FOR THE RESPONDENT |