Date: 20100518

Docket: IMM-2486-09

Citation: 2010 FC 547

Ottawa, Ontario, May 18, 2010

PRESENT: The Honourable Madam Justice Johanne Gauthier

 

BETWEEN:

DAVID PHILIPPE BARLAGNE

Applicant

and

 

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               Mr. Barlagne is asking the Court to set aside the decision by the visa officer refusing his application for permanent residence on the basis that his daughter, Rachel, who has hypotonic cerebral palsy with cerebellar dysfunction, is inadmissible to Canada on health grounds because her condition might reasonably be expected to cause excessive demand on social services. The fact that young Rachel Barlagne is inadmissible means that the applicant and his family (his wife Sophie and their two daughters, Rachel and Lara) are inadmissible.

 

[2]               Cases like this are always difficult to deal with, particularly when they involve a young girl who is intelligent and endearing, if not exceptional, according to those who know her. However, unlike the application for exemption under subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), judicial review is subject to specific rules that apply to all cases, even those where strong sympathy for the applicant and his family would favour a different outcome. After thoroughly reviewing the record, the Court cannot allow Mr. Barlagne’s application for the following reasons.

 

Background

[3]               The applicant has a Master’s in computer science (software engineering). Prior to moving to Montréal and beginning in January 2003, he was the manager and the person in charge of software development for a company called Esprit Technologie s.a.r.l. He was also the majority shareholder (45% of outstanding shares / controlling interest).

 

[4]               After discussions with an investment officer at the Canadian Embassy and, inter alia, an exploratory trip to Quebec, the company Esprit Technologie Inc. (ETI) was created in Quebec, and Mr. Barlagne was appointed its Executive Vice-president. The aim of the company was to provide implementation services and to design software adapted to a clientele of libraries and publishing houses in Canada and throughout the entire Francophonie.

 

[5]               With the support of the Canadian Embassy and Investissement Québec, the applicant subsequently obtained a work permit[1] (July 23, 2005, to July 31, 2008) and visitors visas for his family members. They then moved to Quebec.

 

[6]               Mrs. Barlagne, who has only a visitor’s visa, has not worked since her arrival.[2] Lara was immediately enrolled in school, and her young sister Rachel, who first went to an integrated day care centre, has been enrolled in École Victor-Doré, a specialized public school for disabled children, since September 2007.

 

[7]               On June 14, 2007, Mr. Barlagne submitted an application for permanent residence, and he has not left Quebec since.

 

[8]               On February 20, 2008, mandatory medical forms were sent to the applicant, and on March 20, 2008, Rachel’s initial medical report was completed and signed by Dr. Charles Chocron.

 

[9]               On May 20 and May 23, 2008, requests for additional information were sent. On June 30, 2008, in response to these requests, École Victor-Doré sent a letter setting out the services that Rachel Barlagne’s physical condition requires. That letter stated that, for the 2008-2009 school year, Rachel was going to attend a special education class of nine students and that she would be receiving the services of a physiotherapist, an occupational therapist, a supply teacher in communication as well as in technical assistance to facilitate her communication.

 

[10]           After a reminder letter dated August 11, 2008, Mr. Barlagne completed his file. On August 13, 2008, Immigration Canada’s medical officer, Dr. Hélène Quévillon, made a diagnosis of general developmental delay, a [translation] “medical condition that might reasonably be expected to cause excessive demand on social services.”

 

[11]           In a letter dated September 2, 2008 (the fairness or “second chance letter”), the visa officer advised the applicant of the diagnosis in the following words and also informed him that his application for permanent residence could be refused under subsection 38(1) of the Act:

                        [translation]

Narrative: This applicant, who will soon turn six, presents a general developmental delay associated with hypotonic cerebral palsy with cerebellar dysfunction. She presents an ataxia but is able to move on her hands and knees. Her balance is precarious. She requires assistance to stand. She presents a significant speech delay. The latest psychological report does not show any intellectual impairment. She will be in a class of nine students (ratio 1/8-10) in a specialized school for physically disabled children. The class has an attendant for approximately 8 hours a week. She is followed in physiotherapy and occupational therapy. She also has the support of a supply teacher in communication. This applicant requires specialized education services. These services are expensive. Based on a review of the results of the medical assessments and all the reports that I received concerning this applicant’s health condition, I find that she presents a medical condition that might reasonably cause an excessive demand on social services. In particular, this condition will likely cause a need for services that will exceed the average Canadian per capita costs over a five-year period. Consequently, this applicant is inadmissible under section 38(1)(c) of the Immigration and Refugee Protection Act. Social services required and associated costs: Primary school: In accordance with the standards and definitions of the Ministère de l’Éducation, des Loisirs et des Sports, school boards are required, under the Basic school regulation, to provide special services to disabled children. The additional allowance for these services is approximately $7,045 for each year of primary school.

 

 

[12]           The officer directed the applicant to provide additional information or documents by November 1, 2008, as follows:

[translation]

Before I make my final decision, you may submit additional information or documents relating to the above illness, medical condition, diagnosis or medical opinion. You may also submit relevant information addressing the issue of excessive demand if it applies to your case.

 

[13]           On October 17, 2008, counsel for the applicant filed an access to information request in order to obtain all the files in Canada and at the Consulate General of Canada in Detroit as well as the medical records related to the applicant’s application for permanent residence. A little over 100 documents were received on November 28, 2008. In the meantime, on November 3, 2008, the visa officer received a request from counsel for more time to submit documents. An extension of 45 days was granted, i.e., until December 19, 2008. On December 17, 2008, counsel sent a letter and 51 attachments[3] to the visa officer, and on January 12, 2009, another letter containing corrections to the letter of December 17, 2008 (collectively “the Comments”).

 

[14]           As indicated in the Table of Attachments (Annex A), the applicant submitted information on various topics such as[4] the representations made to Mr. Barlagne by the investment officer at the Canadian Embassy, resumés including Mrs. Sophie Barlagne’s, her volunteer activities, Lara’s academic transcripts, numerous documents about Rachel’s condition, her development at school and in therapy (diagnosis and prognosis), the care she received in the past (including music therapy and riding therapy), jurisprudence and agreements between France and Quebec.[5]

 

[15]           In addition, Mr. Barlagne submitted a detailed plan for the 2009-2010 year in his Comments, as required by Operational Bulletin 063 (the Bulletin). In that plan, the applicant indicated that Rachel would continue to attend École Victor-Doré, a public institution that, as I said, offers special education and rehabilitation services. However, the applicant stated that, although he intended to continue to send his daughter to that school, the family would use specialists in the private sector to provide the rehabilitation services that Rachel requires instead of the services offered by the rehabilitation centre affiliated with École Victor-Doré, i.e., speech therapy, physiotherapy and occupational therapy (support services). It also appears that young Rachel receives assistance four times a week from Marie-Hélène Gilbert, a specialized teacher, to help her acquire more independence in various life activities.

 

[16]           It should be noted, in particular, that three types of financial documents were provided: a letter from ETI’s accountant[6] confirming the incorporation, activities, head office, number of employees (2), the company’s share ownership (tab 1), a simplified statement of financial position for the French company, Esprit Technologie s.a.r.l., for the 2005 fiscal year (tab 45) and certified copies of bank statements in euros from the Caisse d’épargne Provence-Alpes-Corse/Guadeloupe for Mrs. Barlagne and her two children dated 2008 (tab 37). At tabs 32 and 33, the applicant included the budgetary rules for the 2008-2009 school year of the Ministère de l’éducation du loisir et du sport (MELS), as well as the allowances for teaching resources prepared and issued by Mr. Serge Dupéré. Last, tab 38 contains the Bulletin dated September 24, 2008, which deals with the assessment of excessive demand on social services by Citizenship and Immigration Canada.

 

[17]           On January 15, 2008, the visa officer reviewed the documents sent by counsel for the applicant, listed them in his own words and commented on them briefly in his CAIPS notes. On January 21, 2008, certain documents were transferred to the medical officer who sent her comments on February 11 and advised the visa officer that, in her view, the inadmissibility assessment should not be changed. Dr. Quévillon noted that Rachel Barlagne still required special education services, for which she assessed an additional allowance of $5,259 $.

 

[18]           However, she requested two other documents that apparently were not sent to her. On March 4, based on a review of the two additional documents, the medical officer advised the visa officer that they did not change her opinion.

 

[19]           On March 11, 2009, the visa officer sent a short letter (1 page) refusing the applicant’s visa application under subsections 11(1), 38(1) and 42(a) of the Act. On May 15, 2009, Mr. Barlagne filed an application for leave and judicial review in Federal Court.

 

[20]           The parties filed a number of affidavits in this matter. Although the applicant and the respondent submitted contradictory evidence regarding, on the one hand, the failure of the Canadian Embassy and Investissement Québec to inform Mr. Barlagne that Rachel’s health condition could preclude admissibility and, on the other hand, Mr. Barlagne’s failure to declare his daughter’s health condition in his applications for a work permit, it is not helpful to discuss this here. The representations or possible omission by the official at the Canadian Embassy are not relevant to assessing the legality of the impugned decision. As we will see, the visa officer had no discretion to take such a factor into account, a factor that could be relevant on an application for exemption based on humanitarian and compassionate considerations under section 25 of the Act.

 

[21]           As for the “unclean hands” argument based on the failure to declare Rachel’s health condition in the applicant’s application for a work visa and in his application to change his conditions of stay (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras. 38 to 41; Thanabalasingham v. Canada (Minister of Citizenship and Immigration)), 2006 FCA 14, 263 D.L.R. (4th) 51 at paras. 9 and 17), the Court does not intend to exercise its discretion to refuse to consider the merits of the case. In fact, the Court of Appeal in Thanabalasingham set out guidelines regarding the exercise of this power, and the Court must assess certain factors (see, in particular, paras. 9 and 10) to strike a balance between the need to prevent the abuse of the judicial process and the protection of the applicant’s rights. In this case, I am satisfied that the Court must exercise its discretion to hear the application on its merits even if the Court assumes, without deciding, that there was a failure to declare.

 

Issues

[22]           At the outset, it is appropriate to deal with a preliminary issue raised by the respondent in his supplementary memorandum, i.e., that the applicant’s record contains fresh evidence, such as tab 52 and the two statements dated October and November 2009 attached as Exhibits E and F to the applicant’s supplementary affidavit.[7]

 

[23]           It is settled law that, on a judicial review, the Court must assess the validity of the decision on the basis of the evidence that was before the initial decision-maker. In this case, since the fresh evidence was not relevant to procedural fairness arguments, those documents and the related paragraphs in Mr. Barlagne’s affidavit will not be considered: Ali v. Canada (Minister of Citizenship and Immigration), 2008 FC 106, 2008 F.C.J. No. 122 (QL) at para. 26; Lemiecha (Litigation Guardian of) v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49, 24 Imm. L.R. (2d) 95 at paras. 3, 4; Abbott Laboratories Ltd. v. Canada (Attorney General), 2008 FCA 354, [2009] 3 F.C.R. 547 at paras. 37, 38.

 

[24]           Although the applicant raised a large number of issues in his initial memorandum, which repeated his Comments in detail, and in his supplementary memorandum, they can be consolidated as follows:

1.      Did the visa officer fail to observe a principle of natural justice, procedural and administrative fairness, that he was required to observe?

2.      Did the visa officer and the medical officer disregard arguments and evidence submitted in response to the fairness letter and was their decision unreasonable?

 

[25]           The applicant also submits that the visa officer did not consider his argument that subsection 38(1) of the Act and its application in this case is unconstitutional because it is contrary to section 15 of the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

 

Relevant statutory provisions

[26]           The relevant statutory provisions read as follows:

• Immigration and Refugee Protection Act, S.C. 2001, c. 27

 

 

 

 

• Immigration and Refugee Protection Regulations, SOR/2002-227

 

 

 

Education Act, R.S.Q. c. I-13.3

 

 

 

 

Basic school regulation for preschool, elementary and secondary education, 2000 G.O.Q. 2, 2593

 

 

 

Analysis

[27]           The parties did not make any written representations as to the appropriate standard of review, and at the hearing they confirmed that there was no dispute on this point.

 

[28]           In accordance with the principles developed by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), the Court is satisfied that questions of law and breach of procedural fairness are reviewable against the standard of correctness: Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 at para. 71 (Hilewitz); Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392 at paras. 52-55.

 

[29]           The application of statutory provisions to the facts of a case is a question of mixed fact and law, and the appropriate standard is reasonableness: Rashid v. Canada (Minister of Citizenship and Immigration), 2010 FC 157, [2010] F.C.J. No. 183 (QL) at paras. 12-15; Sapru v. Canada (Minister of Citizenship and Immigration), 2010 FC 240, [2010] F.C.J. No. 270 (QL) at paras. 13-15.

 

[30]           Before examining the issues, it is appropriate to clearly identify why it was thought that Rachel would cause an excessive demand, since this will lead to a better understanding of how the errors raised by the applicant are relevant.

 

[31]           Under subsection 38(1) of the Act, the visa officer must declare a person inadmissible if that person’s health condition might reasonably be expected (reasonable probability)[8] to cause excessive demand on social services.[9] This term is defined in the Immigration and Refugee Protection Regulations, SOR/2002-227. It is clear that excessive means that the anticipated costs of health and social services would likely exceed average Canadian per capita costs over a period of five years. Social services include special education services, for which the majority of the funding is provided directly or indirectly by the governments (through publicly-funded agencies).

 

[32]           In Quebec, unlike the situation in other provinces such as Ontario, special education services are provided at no cost, regardless of the parents’ ability or willingness to pay, until the child reaches the age of 21.

 

[33]           That being said, in Hilewitz[10], the Supreme Court of Canada stated that the medical officer or the visa officer must carry out an individualized assessment of the impairment and the associated costs.

 

[34]           It should be pointed out that in Hilewitz, the two families involved were expecting to move to Ontario and that the parents had clearly said they intended to send their child to a private school, which would substantially reduce the costs of social services required from the state. Accordingly, there was only a remote possibility that this family would use the public system if it experienced short- or mid-term financial difficulties.

 

[35]           In this case, as I said, Mr. Barlagne filed a plan that specifically stated that young Rachel would be sent to École Victor-Doré—a public institution— and that he would pay for all the rehabilitation services that had previously been provided at no cost by the rehabilitation centre affiliated with the school. The applicant’s ability to pay was therefore only relevant with respect to the cost of support services.

 

[36]           The applicant himself had provided with his Comments documentation indicating the allowances that the MELS pays to the school boards and schools. It appears that the amount per primary school student[11] consists of an allowance for teaching, i.e., for the cost of the teaching staff, and an allowance for other expenses (including support services).

 

[37]           At tab 33 of the documents provided by the applicant, it also appears that the allowance for teaching resources by individual represents an average allowance per student and is only a rough guide because, at that point in time, the number of students for the current academic year had not been finalized. It is clear that, since the Act requires a prospective assessment, i.e., over a period of five years, the visa officer and the medical officer cannot obtain exact figures for each individual whose file they are dealing with. The statutory definition therefore necessarily involves using reasonable estimates.

 

[38]           The Bulletin clearly explains how the calculation is done and the procedure to follow in light of the most recent jurisprudence at the time it was adopted. The document clearly indicates how the average per capita costs referred to in the Act are established. The threshold figure is the Canadian Institute for Health Information (CIHI) aggregate, which represents the average per capita health expenditure; a supplementary amount is added to that figure to account for the missing expenditures for certain social services. In September 2008, it appears that the amount that had been used since January 2003 was $4,057 ($3839 + $ 218), while it was set at $4,806 ($4,548 established by the CIHI plus $258) in September 2008. That amount must then be multiplied by 5 to establish the threshold determined by the Act.

 

[39]           In this case, it appears from the CAIPS notes and the documentation in the record that the medical officer used the figures suggested by the applicant to establish the average cost of the services for which the state would continue to be responsible under the proposed plan, i.e., the additional allowance for the teaching staff in a class of 1 to 10 students[12] for a child disabled by slight motor or organic disability or by a language disability (level 1 disability). That is, $9,023 minus the average cost of a regular student at the same level, $3,764, for an additional allowance of $5,259 per year. This means than even considering that Rachel is otherwise generally in good health (she has had only a little bronchitis and illnesses of children her age), the cost of social services alone, without considering possible increases in costs in future years is above the threshold set by the Act. In the plan and documentation that the applicant provided, there is nothing to indicate that Rachel will be able to attend a regular school in the next five years, even if she were to make enormous physical progress and her needs in terms of adaptive equipment, fittings, (orthotics) and support services diminish.

 

Procedural fairness

[40]           That being said, was there a breach of procedural fairness? The applicant submits in his supplementary memorandum that it was not until he read the respondent’s affidavit and memorandum that he became aware of a number of documents concerning the assessment of Rachel’s health condition, for example, Dr. Chocron’s report, which the medical officer relied on to form her opinion. He specifically refers to Exhibits B to J and N of the affidavit of Ms. Révah, which were not sent to him in response to his access to information request. In his view, this breach prevented him for providing an adequate response to the fairness letter.

 

[41]           The applicant also contends in his initial memorandum that the medical officer and the visa officer did not document in writing, as the Bulletin requires, all the steps of their analysis or all their notes, for example, Dr. Quévillon’s calculation of the amount included in her medical notification of August 18, 2008, reproduced in the fairness letter, or the calculation that was done to arrive at the new assessment in 2009. Mr. Barlagne believes that this is a breach of the duty of procedural fairness, which includes providing detailed and complete reasons for the process that was followed.

 

[42]           The respondent argues that the CAIPS notes are sufficiently detailed and provide all the necessary information. He also states that documents B to D and F to H, which deal with Rachel’s health condition, did not need to be disclosed because the procedural fairness letter contained a complete description of the medical officer’s medical notification. Moreover, through his access to information request, the applicant obtained the MELS documentation establishing the costs related to the diagnosis and prognosis described in the fairness letter. With respect to documents I, J and E, they were sent to counsel for the applicant.

 

[43]           We note first that the manager of access to information requests explained that these documents were not sent to counsel for Mr. Barlagne because, in her view[13], the application was directed to Mr. Barlagne’s file while the documents in question were in Rachel Barlagne’s personal file. The applicant disputes this, saying that the access to information section should have known that it had to include Rachel’s file, which also bore the same number that he had referred to. It is not necessary to determine or discuss this issue in more detail because there are other remedies available under the Access to Information Act, R.S.C. 1985, c. A-1, to deal with such issues.

 

[44]           What must be determined is whether the decision-maker breached its duty of procedural fairness in this application for permanent residence.

 

[45]           The applicant relies on the decisions in Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62, 42 Imm. L.R. (2d) 17 (F.C.) (Wong) and Jang v. Canada (Minister of Citizenship and Immigration), 2001 FCA 312, 278 N.R. 172 (Jang).

 

[46]           In my view, the Jang decision does not support the applicant’s argument. In that case, the Court merely confirmed that a visa officer must give an applicant a second chance by sending a fairness letter, which was done in this case. In addition, it is quite clear from paragraphs 13 to 14, which are reproduced here, that a letter setting out the medical opinion received and describing the diagnosis, prognosis and social services was sufficient to satisfy the requirement to act fairly.

 

[13] It is well established that a duty of fairness attaches to the process by which a visa officer considers and decides an application for an immigrant visa. Writing for a unanimous panel of this Court in Muliadi v. Canada (M.E.I) [1986] 2 F.C. 205 (F.C.A.) at p. 215 Stone J.A. stated the principle as follows:

 

. . . I think it was the officer's duty before disposing of the application to inform the appellant of the negative assessment and to give him a fair opportunity of correcting or contradicting it before making the decision required by the statute.  

 

[14] In my view the duty of fairness in immigration cases does not require the visa officer to divulge to a prospective immigrant the complete details of the medical officers' method of evaluation or the various facets of the specific decision-making processes adopted by ministerial officials. Rather, the duty of fairness requires that a visa officer give an appellant an adequate opportunity to respond to any negative medical assessment, provided always that the medical notification form prepared by the medical officer must clearly enunciate the reasons for the negative assessment.

 

[47]           The Wong decision may be distinguished because the fairness letter in that case did not contain sufficient information, and the applicant had asked the visa officer twice for the missing information, to no avail.

 

[48]           In addition, Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2002] 2 F.C. 413 (Khan), the most recent Court of Appeal decision in this regard, is interesting because it comments on the Wong decision in a case where the appellant, who was relying on that case, argued that his right to procedural fairness had been denied because he had not been given an adequate opportunity to respond to the visa officer’s concerns about excessive demand. Although the issue of excessive demand will be discussed further on, this case is relevant even with respect to the allegation that there was missing information or documentation that the medical officer had based his opinion on.

 

[49]           First, after discussing Wong and dismissing the applicant’s argument, the Federal Court of Appeal referred to the response to the fairness letter to verify whether he had been denied his right to comment (see paras. 19 to 25). Second, based on the factors laid out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 21 to 28 (Baker), the Court analysed the content of a visa officer’s duty of procedural fairness in circumstances similar to the case before us. In addition, the Federal Court of Appeal noted the following at paragraph 29:

 

[29] I agree that, where an applicant is clearly advised of the medical diagnosis and prognosis, and of the services likely to be required, he or she effectively knows the grounds for the potential refusal and has the knowledge necessary to pursue the matter further. In these circumstances, the Minister is not normally obliged to disclose in the fairness letter the detail supporting the conclusion that a visa could be refused because admission of the person concerned is likely to cause excessive demands on medical or social services.

 

[50]           Based on these authorities, it appears that the fairness letter of September 2, 2008, which reproduced in their entirety the medical officer’s conclusions in her medical notification of August 18, 2008, and which advised the applicant of the diagnosis, prognosis, the social services required and their associated costs, was sufficient to fulfil the visa officer’s duty to act fairly. In addition, as in Khan, a review of the applicant’s exhaustive response confirms that he was not prevented from understanding why his application was refused and providing a full and complete answer to the officer.

 

[51]           In addition and finally, as I indicated above, it is absolutely clear that, regardless of the prognosis or even the diagnosis applicable to this case, there is no dispute, and it is probable, if not certain, that young Rachel Barlagne would use the special education services (teaching resources) offered at École Victor-Doré.

 

[52]           As for the adequacy of the reasons, we note first that the September 24, 2008 Bulletin cannot be relevant to the analysis of the notes or the medical notification dated August 2008. With respect to the 2009 assessment, the Court is satisfied that the CAIPS notes are sufficiently complete for the applicant to exercise his rights and for the Court to conduct a judicial review (VIA Rail Canada Inc. v. Lemonde, [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 at paragraph 19).

 

[53]           Indeed, the medical officer indicated that she calculated the additional allowance by using the figures provided by the applicant in Mr. Dupéré’s document (tab 33 of the documentation provided with the Comments). She also indicated that she used the scale for disabled students 1. This is completely sufficient to justify the calculation that is easily done with this data. The medical officer did not consider the support services provided by the rehabilitation centre affiliated with École Victor-Doré because the additional allowance for the cost of teachers already exceeded the threshold set out in the Act, as indicated earlier. She stated in her notes: [translation] “The other documents provided as well as the financial ability or the ability and intention to contribute to the future costs of social services support to set aside the excessive demand finding are subject to the immigration officer’s assessment.” She therefore did not have to comment any further on them.

 

[54]           The Court has read and re-read the CAIPS notes and is satisfied that the recorded explanations and notes are sufficient in the context of this case to satisfy the requirements of the Bulletin although that in itself is not the standard to apply, it being understood that the duty of fairness considers this element, among others, as the Federal Court of Appeal stated in Via Rail above and the Supreme Court of Canada in Baker.

 

[55]           The Court finds that there was no breach of the duty to act fairly.

 

Error in law

[56]           Mr. Barlagne raises only one error in law although his argument on this issue is not very clear. At paragraph 38(g) of his Comments, he says:

[translation]

The budgetary policy of the Ministère de l’éducation, du loisir et du sport du Quebec that was used to determine the additional allowance of $7,045 (although no assessment or calculation was submitted to that effect) highlights other categories of persons who require more social services but who are not considered to cause “an excessive demand” in an immigration process. This distinction between immigrants breaches the Charter of Rights and Freedoms.

 

 

[57]           The only category of immigrants identified is the category of school children in a welcoming environment supportive of learning French for which MELS pays an additional adjustment of $2,127 according to the document provided at tab 33.

 

[58]           On that basis, the applicant concludes at paragraph 43 of his Comments that the fact that it is acceptable that a category of children that place more demand on Quebec’s social services are not considered to cause an excessive demand under subsection 38(1) of the Act whereas disabled children like the applicant are. Thus, he states that this inadmissibility for permanent resident status is based solely on the disability and is therefore contrary to the Charter.

 

[59]           He argues that the visa officer did not consider the fact that he was challenging the constitutionality of subsection 38(1) of the Act. At the hearing, he emphasized that the officer had jurisdiction to conduct this analysis because he has access to counsel in his Department.

 

[60]           The submissions on this issue were very brief, even though the applicant indicated that this was a very important argument in his case. Basically, he is relying on the Supreme Court of Canada decision in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4e) 1, as well as on the Convention on the Rights of the Child, without giving any details as to how this Convention could have a bearing on this case. He refers to paragraphs 38 to 43 of his Comments.

 

[61]           It should first be pointed out that in this case, the applicant did not serve notice on the Attorney General of Canada or on the attorney general of each province as required by section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. Although in his notice of application, the applicant did not make a specific submission in that regard, he clearly indicated at the hearing that he was challenging the constitutional applicability or operability of subsection 38(1). The absence of such a notice in this case is fatal since it is a sine qua non condition for entertaining the constitutional argument raised by the applicant: Canada (Minister of Canadian Heritage) v. Mikisew Cree First Nation, 2004 FCA 66, [2004] 3 F.C.R. 436 at paras. 75-78, rev’d on other grounds by [2005] 3 S.C.R. 388, 259 D.L.R. (4th) 610; Bekker v. Canada, 2004 FCA 186, 323 N.R. 195 at paras. 8, 9; Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427, 57 F.T.R. 180 (F.C.) at paras. 90-92.

 

[62]           Moreover and in any event, the Court is not satisfied that the visa officer in this case had jurisdiction to consider this constitutional argument or take it into account because he was bound to apply the existing Act. In fact, the Act does not confer any discretion or jurisdiction in that regard. Even in applying the test set out in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at para. 48, it seems to me that that the finding in Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43, 147 F.T.R. 246 (F.C.) at paras. 10 to 22, affirmed on appeal by [1999] 3 F.C. 404, 242 N.R. 173 (F.C.A.) at paras. 1 to 3, with regard to the lack of jurisdiction of senior immigration officers to decide constitutionality applies in this context.

 

[63]           Finally, it should be noted that the applicant did not submit sufficient evidence to establish discrimination between different types of immigrants because the class he describes at paragraph 42 is not one that exceeds the threshold set out in the Act. In fact, as the applicant seems to understand very well at paragraph 41 of his Comments, it is not the total cost to MELS that must be compared to the $4,806 threshold, but only the additional allowance of $2,127 which, over five years, is below the threshold set out in the Act. There is therefore no evidence of differential treatment of a class of immigrants as alleged by the applicant. As the Supreme Court of Canada has stated on many occasions, it is important not to trivialize the review of Charter provisions, which requires a well developed factual context. This is especially important given that the constitutionality of subsection 38(1) having regard to section 15 of the Charter has already been reviewed and affirmed by the Court (Chesters v. Canada (Minister of Citizenship and Immigration), 2002 FCT 727, [2003] 1 F.C 361).

 

[64]           Moreover, in Hilewitz, the Supreme Court of Canada confirmed that subsection 38(1) of the Act is not based on an analogous ground since this subsection emphasizes excessive demand and not an illness or disability. The concept of excessive demand is itself an individualized assessment that takes into account the concrete situation of the child and the child’s family as well as the reasonably expected costs for an individual. The fact that scales must be used in the assessment of reasonable costs does not change the character or the emphasis of the legislative provision.

 

[65]           The Court is satisfied that the visa officer and the medical officer performed an individualized analysis of the social services that Rachel Barlagne would probably need in the next five years. Now, finally, we must determine whether the decision is reasonable having regard to the other errors raised by the applicant.

 

Other errors

[66]           Under the standard of review of reasonableness, the Court must determine whether the decision falls within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”[14] It is not a matter of merely having the Court substitute its own assessment of the evidence and arguments for that of the decision-maker on whom Parliament has conferred this mandate.

 

[67]           The applicant argues that the visa officer and the medical officer did not take all of his documentation and arguments into account, particularly those regarding Rachel’s state of health, such as the letter from Ms. Josée Ouimet, Head of the School Rehabilitation Program at the Ste-Justine Hospital (tab 49), which deals with support services.[15] However, in this respect, the Court notes there is a presumption that the decision-maker has considered and assessed all of the evidence before the decision-maker.[16]

 

[68]           He also contends that the decision-makers arrived at erroneous findings of fact because they did not take into account his willingness and ability to pay, past family practices for supporting Rachel, their detailed plan, the family and community support she receives, the family’s monetary and human support, the uprooting and negative impact on her sister Lara, the incentives to relocate Mr. Barlagne’s business, etc.

 

[69]           As I mentioned earlier, none of the documents or arguments described above has a bearing on Rachel’s need[17] for specialized education or the fact that, according to the plan submitted, the state would have to cover an additional allowance for the teaching resources. It should be recalled that this is the main reason why the medical officer and the visa officer found that she was inadmissible.

 

[70]           There is no doubt in the Court’s mind that the medical officer took into account the applicant’s submissions regarding Rachel’s condition since, in her evaluation of the additional allowance for teaching services, she went from Class 2 (more expensive) to Class 1. And she made no negative comments on the proposed plan concerning the support services.

 

[71]            As I also previously said, the impact of a relocation on Lara, the relocation incentives, and the future economic contribution of Mr. Barlagne’s business to Quebec are not relevant to the process that had to be followed by the visa officer, even if they may be relevant for a possible application for exemption under section 25. The visa officer can and must take into account only the evaluation of the health or social services requirements and how the plan proposed by the parents and their ability to pay would reduce the reasonable estimate of costs for the child’s probable care. The visa officer has no discretion except with regard to these factors.

 

[72]           Given the threshold set out in the Act is less than the cost of the additional special education allowance for teaching resources only in a class of 1 to 10 students (Class 7), even if the decision-maker had erred in reviewing Mr. Barlagne’s financial ability to pay for support services, this error would not be sufficient to warrant setting the decision aside.

 

[73]           However, given the insistence of the applicant’s counsel on this point, I believe it is advisable to make a few comments on the evidence that was before the officer.

 

[74]           Even if the parties agree that the visa officer’s notes were inaccurate with regard to the savings of Mrs. Barlagne, whose bank statement indicated, without giving particulars, the balance of a second account (passbook with 16,398.83 euros), the fact remains that the evidence submitted to the visa officer left something to be desired, given the many omissions.

 

[75]           As the officer indicated in his CAIPS notes, Mr. Barlagne had not submitted any personal reference letters or any financial documents with his original application. His counsel described herself as acting pro bono (unpaid). The family was without the salary of Mrs. Barlagne, who had worked in Guadeloupe but could no longer do so since her arrival in Quebec, given the conditions of her visa. Mr. Barlagne did not provide any particulars about his current income (or since his arrival in Quebec).

 

[76]           As mentioned earlier, the only corporate financial document submitted was that of a French company which did not show any profit for a fiscal year ending on December 31, 2005. Although the applicant’s counsel stated in her written submissions that the visa officer should have known that 2005 was the French company’s last year of operations, nothing was indicated to that effect at paragraph 45 of the applicant’s Comments. Moreover, in such circumstances, the Court finds surprising the applicant’s argument that the visa officer should have been satisfied with the business income reported in the balance sheet without being concerned about the fact that the company was operating at a loss.

 

[77]           No financial documents or particulars were provided with respect to the Quebec company. Paragraph 46 of the Comments simply states that the company is in a transitional situation with a solid foundation and constantly expanding development opportunities.

 

[78]           Mr. Barlagne did not submit any evidence of personal savings, and instead relied on the savings of the other family members in France, in the amount of approximately 58,285.84 euros (instead of the 42,000 euros described by the visa officer). However, as the visa officer noted, the applicant did not submit any information on the family’s cash flow, its resources in Canada or its current ability to save money.

 

[79]           All that to say that if the Barlagne family’s financial ability had been essential to the determination of Rachel’s admissibility, it is far from evident that the Court would have found that the decision was unreasonable, even taking into account the miscalculation in the savings.

 

[80]           In conclusion, the applicant did not satisfy the Court of the existence of a reviewable error in this file, and the Court can only encourage him again to submit an application for exemption under section 25, if he has not already done so.

 

[81]           The parties were invited to submit questions for certification. They indicated that they did not have any. The Court concurs with the parties in this respect.

 

JUDGMENT

 

THE COURT ORDERS AND ADJUGES that the application is dismissed.

 

 

“Johanne Gauthier”

 

ANNEXE A

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-2486-09

 

STYLE OF CAUSE:                          DAVID PHILIPPE BARLAGNE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:                    Montréal, Québec

 

DATE OF HEARING:                      February 23, 2010

 

REASONS FOR ORDER

AND ORDER:                                   GAUTHIER J.

 

DATED:                                             May 18, 2010

 

 

APPEARANCES:

 

Patrice Jourdain	FOR THE APPLICANT
Michèle Joubert	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Patrice Jourdain Counsel Montreal, Quebec	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Montreal, Quebec	FOR THE RESPONDENT