Date:
20130108
Docket:
IMM-8494-11
Citation:
2012 FC 1523
Ottawa, Ontario,
January 8, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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JAMES JOSEPH
LAWRENCE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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AMENDED REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant was denied permanent residence in Canada under the Federal Skilled
Worker program due to his son's medical condition. He seeks judicial review of
that decision under section 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[2]
When
the applicant and his family underwent their mandatory medical exams, the
physician noted that the applicant’s son had developmental delay and moderate
learning difficulties. When this was noticed in the applicant's file, the
Medical Assessment Unit at the Canadian High Commission in London requested further
details. These were provided, and on April 26, 2010 Dr. Sylvain Bertrand, the
Medical Officer in London, recorded his opinion that the boy, aged 15 at the
time, was medically inadmissible.
[3]
The
average cost threshold for social services for an average Canadian child at that
time was $5,143 per year. Dr. Bertrand assessed that the boy would require
services amounting to between $98,500 and $126,500 over five years rather than
the $25,715 average cost over five years. This was communicated to the
applicant in a letter from the Visa Officer in London, Ms. Valerie Feldman,
dated April 29, 2010.
[4]
In
response, the applicant provided a mitigation plan including personal financial
information, letters of support promising financial or equivalent assistance,
and evidence of contact with two Toronto area private schools. He did not
dispute the medical diagnosis or the assessed cost of the required services.
[5]
The
Visa Officer did not send the applicant’s plan to the Medical Officer for
evaluation but assessed it herself. The Officer stated in her reasons that “The
information in the submission is not medical (they do not contest the medical
diagnosis) therefore this submission does not need to be reviewed by the
medical officer.” On September 14, 2011, the application was refused.
[6]
On
May 31, 2012, the Medical Officer signed an affidavit stating that: “Having now
read the Applicant’s response to Ms Feldman’s “fairness letter”, I confirm that
my medical opinion remains unchanged.”
[7]
The
applicant raised several issues with respect to the Visa Officer's decision
including whether the officer's assessment of the adequacy of the applicant’s
plan was reasonable. An argument that there were special reasons for awarding
costs in this matter was abandoned at the hearing. Having concluded that the
officer erred in law by failing to submit the applicant’s response to the
fairness letter to the medical officer for evaluation, I do not consider it
necessary to address the question of the reasonableness of the officer’s
decision with respect to the applicant’s plan to address his child’s needs.
[8]
In
Sapru v Canada (MCI), 2010 FC 240 [Sapru] aff’d by 2011 FCA 35 [Sapru
FCA] at paras 12-17, the Federal Court applied a
standard of correctness to decisions by Visa Officers which turned on clear
questions of law, relying on the Supreme Court of Canada’s decision in Hilewitz v.
Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister
of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 [Hilewitz]. In
the present case, the question of whether the Visa Officer was obliged to refer
the file to the Medical Officer is an issue of law which should be reviewed on
a standard of correctness.
[9]
The
Supreme Court in Hilewitz had given
guidance on the processing of visa applications for immigrants with health
conditions which could create excessive demand on Canada's social services. Medical
officers must assess the likely demands, taking into account both medical and
non-medical factors. In response to Hilewitz, the Minister issued two
operational bulletins to set out the policy on the matter
[10]
In
Operational Bulletin 63 (“Assessing Excessive Demand on Social Services”,
September 24, 2008) [OB 63] it is provided that officers must consider the
specific ability and intent of applicants who propose to reduce or eliminate
the anticipated excessive demand. OB 63 requires applicants to demonstrate that
the private purchase of the necessary services is actually possible in their
province of intended residence and that they possess the resources to purchase
them. OB 63 does not suggest that the Visa Officer has any discretion whether
or not to consult the Medical Officer.
[11]
A
revised version of the bulletin issued on July 29, 2009 [OB 63B], states that
the Visa Officer "should request the opinion of the medical officer if the
applicant challenges the diagnosis or the required treatment; and, if
warranted, seek the opinion of the medical officer on the nature of the plan
and whether the services proposed are acceptable, within the Canadian context,
considering the medical condition." This language was clearly intended to
give the Visa Officer the discretion whether to seek the opinion of the medical
officer on aspects of the applicant’s plan that are non-medical in nature. Whether
it can have that effect in light of the jurisprudence is at the heart of the
controversy between the parties.
[12]
In
Sapru, above, at paragraph 23, I noted that the Supreme Court had addressed
the issue by expressly stating at paragraph 70 of Hilewitz that the medical
officers were obliged to consider all relevant factors, both medical and non-medical,
such as the availability of the services and the anticipated need for them. The
Federal Court of Appeal upheld that conclusion in paragraph 36 of Sapru FCA
while setting aside the decision on another ground.
[13]
The
respondent argues that Sapru FCA does not create a universal obligation
for the Visa Officer to send the Fairness Letter and any response to the
Medical Officer in cases where the response does not concern medical matters.
The Visa Officer,it submits, can consider non-medical submissions and determine
the credibility or sufficiency of an applicant’s mitigation plan, financial
ability, and intent to pay privately for required social services.
[14]
The
requirements of procedural fairness should not be extended to the point where
they serve no practical benefit, the respondent contends. Plans to mitigate the
cost of excessive demands on Canadian social systems should be more than scant,
incomplete or inchoate statements of what is intended. Here, the bulk of the
applicant’s response to the fairness letter consisted of information concerning
his assets and the additional resources available to the family. Neither the
diagnosis nor the estimated costs of the required services were contested.
[15]
The
Visa Officer considered that the applicant’s plan was inadequate, in part
because there was no indication of the nature of the schools in question nor
whether either or both had agreed to accept the child. Medical officers are, as
the Supreme Court found in Hilewitz at paras 54-55 and 70, intended to
be the experts on how social services operate in the provinces. The
Medical Officer in this case would have known that the named schools were fully
private and that the child would have to be assessed by the schools in Canada before he could be admitted. The responsibility for providing an opinion on such
matters was assigned by OB 63 to the Medical Officer. The Visa Officer
acknowledges this in her affidavit but asserts that she did not think it was
necessary in this case to consult the Medical Officer based on the wording of
OB 63B.
[16]
Officers’
affidavits may be helpful to the Court in understanding the background and
context in which a decision is made. But they cannot be used to bolster an
officer’s reasons for the decision, as was stated in Sapru FCA at
paragraph 53. Here it is clear from the Visa Officer’s notes to file which
constitute her reasons along with the decision letter that she believed that
anything non-medical relating to social services need not go to the Medical
Officer. This was, in my view, an error of law that could not be cured by the
subsequent review and declaration by the Medical Officer that he stood by his
earlier opinion.
[17]
The
applicant opposed certification of a question on the ground that the law in
this area was clear but suggested the following language if a question was to
be certified:
When a principal applicant in a response to a
fairness letter does not dispute the medical diagnosis or medical prognosis or
the cost estimates to provide social services is there an obligation on the
immigration officer to refer the response to the medical officer for
consideration and decision?
[18]
The
respondent took the position that this question does not appear to have
been directly addressed thus far in the authorities. On that basis and with the
understanding that it would be dispositive of an appeal in this matter, I will
certify the question.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. the
application for judicial review is granted and the matter is remitted for
reconsideration by a different Visa Officer;
2. there
is no award of costs; and
3. the
following question is certified as a serious question of general importance:
When a principal applicant in a response to a
fairness letter does not dispute the medical diagnosis or medical prognosis or
the cost estimates to provide social services is there an obligation on the
immigration officer to refer the response to the medical officer for
consideration and decision?
“Richard G. Mosley”
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