Date: 20040819
Docket: IMM-10138-03
Citation: 2004 FC 1149
Ottawa, Ontario, August 19, 2004
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
JOSEPHINE ABASOLO PIMENTEL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision made by an Immigration Officer (the "Officer") refusing the applicant's application for permanent residence on the grounds that her husband is inadmissible to Canada pursuant to paragraph 38(1)(c) of the Immigration and Refugee Protection Act, S.C. 2001, ch. 27 (the "Act").
[2] The applicant is a citizen of the Philippines. She arrived in Canada on August 21, 1999 on an employment authorization under the Live-in Caregiver Program. In November 2001, the applicant applied for permanent resident status under the Live-in Caregiver class. On February 21, 2002, the applicant received a letter from Citizenship and Immigration Canada ("CIC") informing her that her application had been partially accepted but that before a final decision could be made, all her dependants had to pass medical and background checks.
[3] On September 25, 2003, the applicant received a "fairness letter" from CIC informing her that there was a possibility that her husband did not comply with immigration requirements because he suffered from a medical condition that could render him inadmissible to Canada and that as a consequence, her application for landing might be refused. This letter also stated that the applicant had 30 days to make further submissions regarding her husband's medical condition and that failure to make said submissions could result in her application being refused.
[4] The applicant never made additional submissions. However, on October 2, 2003, the applicant did request a 30-day extension via a letter sent to CIC by her immigration consultant, Gita Boyd. This letter was received by CIC on November 17, 2003.
[5] On December 9, 2003, the applicant's application was refused on the grounds that her husband was medically inadmissible because he might reasonably be expected to cause excessive demands on health or social services pursuant to paragraph 38(1)(c) of the Act which reads as follows:
| 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. |
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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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[6] I do not believe that CIC erred by not granting the applicant an extension in order to respond to the letter. The evidence shows that CIC did grant the applicant more than 30 days beyond the period stipulated in the "fairness letter" to send information relevant to her husband's medical condition before a decision was made in the file. Though the applicant was not informed of this extension, she did not even attempt to send any information to CIC between September 25, 2003 and December 9, 2003, the day CIC decided to refuse her claim. Indeed, an officer has discretion to proceed with a decision after waiting more than a month longer than necessary for additional documentation (Arshad v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1431 (F.C.)(Q.L.)).
[7] However, I consider that CIC failed to respect the principles of natural justice and procedural fairness by omitting to inform the applicant of the nature of the medical condition that rendered her husband inadmissible. The respondent suggests that the applicant could not reasonably have failed to be aware of her husband's medical condition and so knew the cause of inadmissibility. I disagree. The applicant's husband lives abroad in the Philippines and it is entirely possible that she had not been informed of her husband's heart condition.
[8] In Hersi v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 120, Dawson J. decided that the content of a "fairness letter" must fully disclose to the claimant the case that he or she must meet in order to be granted residence. She wrote beginning at paragraph 20 of the decision:
20 The ability to meaningfully participate in the decision-making process requires clear notice of the case to be met, a full and fair opportunity to present evidence and submissions relevant to that case, and full and fair consideration of that case by an impartial decision-maker.
21 Here, the fairness letter fully disclosed the case to be met. It disclosed the source of the concern, which was a medical notification which stated that Mr. Hersi was suffering from schizophrenia, and the nature of the concern, which was that Mr. Hersi "may be a danger to public health in Canada or can be expected to cause excessive demands on health or social services in Canada".
22 No additional information other than that communicated to Mr. Hersi was contained in the initial medical notification which, in the narrative portion, stated: [...]
[9] It is noteworthy that in the Hersi case, the applicant had been informed in the "fairness letter" that the fact that he suffered from schizophrenia was the source of his inadmissibility.
[10] The respondent suggests that simply stating that the applicant's husband had a medical condition is sufficient disclosure of the source of the concern. I disagree. The goal of the "fairness letter" is to allow the applicant to respond to the concerns. She cannot do so if she does not know what they are.
[11] For this reason, I find that CIC breached the duty of fairness incumbent upon it by denying the applicant the opportunity to respond to her husband's medical assessment.
[12] As for the applicant's submission that CIC should have considered the background of the Live-In Caregiver class and its importance within Canada, these considerations are irrelevant when there is a statutory bar to admissibility. An officer has no discretion as to whether the claimant should be granted residence once she, or her dependant, is found to be medically inadmissible and it is determined that their care would create excessive demands on the Canadian health system.
[13] For these reasons, the application for judicial review is granted. The matter is referred back for redetermination by a newly constituted panel.
ORDER
THIS COURT ORDERS that the application for judicial review is granted. The matter is referred back for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10138-03
STYLE OF CAUSE: JOSEPHINE ABASOLO PIMENTEL v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: AUGUST 18, 2004
REASONS FOR ORDER
AND ORDER: MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
DATED: AUGUST 19, 2004
APPEARANCES:
Ms. Lori O'Reilly FOR APPLICANT
Ms. Laura Dunham FOR RESPONDENT
SOLICITORS OF RECORD:
O'Reilly Law Office
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of
Canada (Edmonton Regional Office)
Edmonton, Alberta FOR RESPONDENT