Date: 20040128
Docket: IMM-4006-01
Citation: 2004 FC 134
Ottawa, Ontario, this 28th day of January 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ROLANDO CASTRO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Castro family resides in the Phillipines. Mr. Rolando Castro applied to become a permanent resident of Canada on the strength of his qualifications as a civil engineering technician. In his application, he included his wife and two sons as dependants. His son Lawrence was five years old at the time. Lawrence is described as being "developmentally delayed", meaning that his developmental age (referring to his intellectual, motor, language and social skills) falls somewhat short of his chronological age. Two Canadian medical officers reviewed assessments of Lawrence's situation and concluded that his reliance on Canadian social services would be excessive. Accordingly, they found him to be inadmissible to Canada based on s. 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 (as set out in the attached Annex). In June 2001, a visa officer informed Mr. Castro that his application was denied.
[2] Mr. Castro argues that the officers made serious errors in their handling of his application. In particular, he submits that they did not analyze Lawrence's individual circumstances adequately, and failed to take account of the family support and financial resources available to assist with Lawrence's care and education in Canada. Much of his argument is devoted to issues that have recently been decided by the Federal Court of Appeal in Hilewitz v. Canada (Minister of Citizenship and Immigration) 2003 FCA 420, [2003] F.C.J. No. 1677 (QL) (F.C.A.); De Jong v. Canada (Minister of Citizenship and Immigration) 2003 FCA 422, [2003] .C.J. No. 1679 (QL) (F.C.A.); and Pigg v. Canada (Minister of Citizenship and Immigration) 2003 FCA 421, [2003] F.C.J. No. 1678 (QL) (F.C.A.). Accordingly, these reasons are brief.
I. Issues
1. Did the officer analyze the issue of medical inadmissibility in a complete and individual way?
[3] It is clear that medical officers have a duty to "assess the circumstances of each individual that comes before them in their uniqueness": Poste v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1805 (QL) (T.D.) at para. 55. However, Hilewitz, above, now makes clear that there are certain factors that medical officers need not consider. Most importantly for present purposes, they do not have to consider the extent of family support or wealth available to the dependent person. Accordingly, the fact that the family plans to send their child to a private school is irrelevant. Nor, in general, do medical officers have to consider the scarcity of social services in the particular location in Canada where the family had planned to live. The test, according to Hilewitz, is simply whether "the cost of the health or social services in question is likely to exceed by a significant amount the average cost of the services required by a Canadian resident . . ." (at para. 30).
[4] Within the parameters set by Hilewitz, the medical officers here did conduct an individual assessment of Lawrence Castro's circumstances. The officers reviewed Lawrence's medical and psycho-educational evaluations and concluded that he was medically inadmissible to Canada. A visa officer advised Mr. Castro of the officers' conclusion and offered him an opportunity to supply further medical information that might be relevant. Mr. Castro did send some further reports which, according to the affidavit of one of the responsible medical officers, were duly considered. The officers did not, however, change their opinion about Lawrence's medical inadmissibility.
[5] Mr. Castro argued that the process by which his application was assessed was unfair because the visa officer who dismissed his application did not have before him the medical files and other information relating to Lawrence's circumstances. That information was solely in the possession of the medical officers. Similarly, information in the visa officer's file, including the application form and correspondence from Mr. Castro, was not available to the medical officers.
[6] Again, it appears to me that Hilewitz forecloses any argument about the fairness of this process. Since family support and wealth are not relevant considerations, the fact that the medical officers did not know that the Castros planned to send Lawrence to a private school and pay for the other social services he required is not problematic (Hilewitz,at para. 90). For his part, the visa officer was entitled to rely on the assessment carried out by the medical officers given that there was no real dispute about Lawrence's circumstances.
2. Did the officer apply the wrong test?
[7] Mr. Castro also argued that the visa officer applied the wrong test. He suggests that the officer dismissed his application because it was merely "possible" that Lawrence would impose excessive demands on Canadian social services, not "probable". He relies on an exchange between his counsel and the officer during cross-examination on the officer's affidavit. The officer was being questioned about the relevance of an applicant's intention to send a child to a private school:
Q: Is it not your obligation to make an assessment of the probability of whether or not they are going to do so?
A: That's true, that's what I do, but there is always the possibility that they may use other services too.
Q: Yes? Do you believe the standard of assessment is possibility as opposed to probability?
A: Unfortunately I have to make a decision according to the information I have in hand.
(Emphasis added.)
[8] In this context, it is not clear to me that the officer was asserting that the overall standard of proof in medical inadmissibility cases is mere "possibility" rather than "probability". The governing provision states that a person is medically inadmissible if his or her admission "would cause or might reasonably be expected to cause excessive demands on health or social services" (s. 19(1)(a)(ii)). As noted by Justice Evans in Hilewitz, there are really two standards of proof set out. The first, based on the words "would cause", is a standard of proof on the balance of probabilities. The second, described by the words "might reasonably be expected to cause", is a lower standard. Justice Evans stated:
The phrase, "might reasonably be expected to cause", connotes a somewhat lower standard and is satisfied if a reasonable person might think that admission would cause excessive demands. Nonetheless, a reasonable person might not expect something to happen merely because there is a possibility that it could. (At para. 66.)
[9] It would not be entirely accurate, therefore, to describe the lower standard as being merely one of "possibility" because to do so would omit the reasonableness element of the standard. Still, in the context of the exchange set out above, I would not fault the visa officer for using the word "possibility." I do not think he was describing the statutory standard at all. Further, I can find no indication that the officer did not employ the proper standard in dismissing Mr. Castro's application.
II. Disposition
[10] For the above reasons, I must dismiss this application for judicial review.
[11] The applicant in Hilewitz has sought leave of the Supreme Court of Canada to appeal the decision of the Federal Court of Appeal. Counsel for the applicant, Mr. Cecil Rotenberg, Q.C., requested that I refrain from disposing of this case until the Supreme Court of Canada decides Hilewitz, assuming it grants leave. He also proposed questions of general importance for me to certify. In light of these developments and in order to preserve any remedies that might be available to Mr. Castro in the event the Supreme Court of Canada decides any of the above issues in his favour, I will certify the following question of general importance, notwithstanding that the Federal Court of Appeal has already answered it:
Are an applicant's wealth and family support relevant factors in determining whether his or her admission to Canada would place excessive demands on social services?
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed.
2. The following question is certified:
Are an applicant's wealth and family support relevant factors in determining whether his or her admission to Canada would place excessive demands on social services?
"James W. O'Reilly"
Judge
| Immigration Act, R.S.C. 1985, c. I-2
Inadmissible persons 19. (1) No person shall be granted admission who is a member of any of the following classes:
(a) persons, who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer,
...
(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services; |
|
Loi sur l'immigration, L.R.C. 1985, ch. I-2
Personnes non admissibles 19. (1) Les personnes suivantes appartiennent à une catégorie non admissible:
a) celles qui souffrent d'une maladie ou d'une invalidité dont la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, dont l'avis est confirmé par au moins un autre médecin agréé, conclut:
[...]
ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé; |
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4006-01
STYLE OF CAUSE: ROLANDO CASTRO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 25, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
DATED: January 28, 2004
APPEARANCES BY:
Mr. Cecil Rotenberg, Q.C. FOR THE APPLICANT
Mr. Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
CECIL ROTENBERG Q.C.
Toronto, Ontario FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General of Canada FOR THE RESPONDENT