Daniel v. Canada (Minister of Citizenship and
Immigration)
Between
Susanna Julia De Hoedt Daniel, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1500
2012 FC 1391
Docket IMM-4379-12
Federal Court
Vancouver, British Columbia
Shore J.
Heard: November 28, 2012.
Judgment: November 29, 2012.
Docket IMM-4379-12
Federal Court
Vancouver, British Columbia
Shore J.
Heard: November 28, 2012.
Judgment: November 29, 2012.
(63 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
SHORE J.:--
Overview
1 Accompanying
an application for permanent residence, intentions, alone, are not enough to
address medical care and corollary healing professional services to be
administered. An excessive demand on health and social services may be
considered to be the outcome if a practical and detailed plan for paid medical
care and accessory social services (ex. in respect of a required medical team)
is not provided.
Introduction
2 The
Applicant, a Sri Lankan citizen, seeks judicial review of a decision of an immigration
officer of the High Commission of Canada [HCC Officer] denying her application
for permanent residence. The Applicant argues that the HCC Officer was
unreasonable in finding that she and her accompanying family members were
inadmissible on health grounds under paragraph 38(1)(c) and section 42 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA]. In particular, she argues that it was
unreasonable to conclude that she and her accompanying family members were
inadmissible on health grounds because her son's Cerebral Palsy might
reasonably be expected to cause excessive demand on health or social services.
Judicial Procedure
3 This
is an application, under subsection 72(1) of the IRPA, for judicial review of the decision of the HCC Officer, dated
March 8, 2012.
Background
4 The
Applicant, Ms. Susanna Julia De Hoedt Daniel, and her spouse, Mr. Jeromie
Daniel, are both citizens of Sri Lanka.
5 The
Applicant's son, Jordan Isaac Daniel, was born in New Zealand in 2009 while the
Applicant and her spouse were working in that country.
6 Jordan
has Cerebral Palsy, with spasticity and development delay. As a result, he has
delayed growth and weight gain due to initial poor feeding, motor dysfunction,
learning difficulties, and neurodevelopment limitations.
7 Jordan
was enrolled in an early intervention program and receives physiotherapy and
occupational therapy. His physicians believed he was small but at a normal
growth velocity, eating well, social, and gaining independence using a walking
frame.
8 The
Applicant and her spouse have friends and family living and working in Canada.
Her spouse's sister is a permanent resident living in British Columbia with her
family.
9 In
August 2010, the Applicant applied for permanent residence in Canada [PR
Application] under the Federal Skilled Worker Class, hoping to give Jordan an
environment where children with Cerebral Palsy lead independent and fulfilling
lives.
10 On
November 7, 2011, the HCC Officer received an Immigration Medical Exam Summary
[IME Summary] for Jordan, which concluded that his Cerebral Palsy might
reasonably be expected to cause excessive demand on health or social services.
11 According
to the IME Summary, Jordan would require a comprehensive assessment by a
multi-disciplinary development team to establish and implement an appropriate
program for Jordan. The services that Jordan would require, the IME Summary
stated, would exceed the average amount spent on individual health care in
Canada.
12 The
IME Summary identified the following estimates of specific costs of services
that Jordan would likely require: (i) participation in an Early Intervention
Program for three years ($20,250); (ii) special education costs once he reached
school age ($112,000); (iii) respite care over a 10-year period ($24,000); (iv)
wheelchair costs ($6,500 to $8,000); and, (v) physiotherapy, occupational
therapy, and speech therapy.
13 On
November 24, 2011, the HCC Officer sent a letter to the Applicant [fairness
letter] advising her that Jordan's health condition might reasonably be
expected to cause excessive demand on health or social services. The fairness
letter disclosed the findings of the IME Summary discussed above.
14 The
fairness letter requested submissions on a reasonable and workable plan (and
the Applicant's financial means and intent to implement it) to offset excessive
demands that Jordan would impose on Canadian social services. The fairness
letter advised that an excessive demand is a demand for which the anticipated
costs exceed the average Canadian per capita health and social services cost
amount of $4806.00/year.
15 The
fairness letter contained a paragraph on the cost of vocational training and
supported independent living for Jordan. The Affidavit of Mr. Sean Morency,
filed by the Respondent, states that the fairness letter was drafted from a
precedent letter and that this paragraph was included inadvertently.
16 On
February 3, 2012, the Applicant submitted a financial plan [Plan] on Jordan's
social and medical costs.
17 The
Plan discussed the costs associated with Jordan's needs, the family's health
and life insurance plan, job offers made to the Applicant and her spouse, their
expected combined net income of $61,880 in Canada, and plans to accumulate
$300,000 in savings over a 10-year period to meet Jordan's future needs.
18 In
conjunction with the Plan, the Applicant filed letters of support for long-term
financial assistance and free physical care (including daycare) from members of
the Maple Ridge, British Columbia community and the congregation of St.
George's Anglican Church in Maple Ridge and letters from the Applicant's
sister-in-law's family offering general support and free accommodation for 5
years.
19 On
March 8, 2012, the HCC Officer refused the PR Application, finding the family
inadmissible because Jordan's health condition might reasonably be expected to
cause excessive demand on health or social services in Canada [final decision
letter].
Decision under Review
20 The
HCC Officer determined that Jordan was inadmissible to Canada on health
grounds, under paragraph 38(1)(c)
of the IRPA, because he has a
health condition that might reasonably be expected to cause excessive demand on
health or social services. Pursuant to section 42, the Applicant and her spouse
were also inadmissible to Canada because they were Jordan's accompanying family
members.
21 The
HCC Officer took the position that the Plan did not challenge (i) the IME
Summary's determination of Jordan's health condition, or (ii) the assessment of
the excessive cost of health and social services that he would require in
Canada. In particular, the HCC Officer was not satisfied that the Plan showed
that social services suited to Jordan's needs could be secured and delivered by
private or alternative means. Nor did the Plan show that the Applicant had the
financial means or intent to implement it without imposing an excessive demand
on the publicly-funded system.
22 According
to the Global Case Management System notes [GCMS Notes], the Plan addressed the
Applicant's financial ability to meet Jordan's social services costs but did
not ultimately disclose a credible individualized plan to privately deliver
services.
23 The
HCC Officer found that the Plan was contingent on assumptions which, if
correct, would show that it might be possible to meet Jordan's needs privately.
Nonetheless, the Plan did not explain how the Applicants would provide services
to him. Since the offers of support discussed below were not from persons with
identified medical or social service qualifications relevant to Jordan's needs,
they were not probative of this issue.
24 The
HCC Officer analyzed how the Plan compared the financial figures submitted by
the Applicant with the social service costs projected in the IME Summary. The
GCMS Notes summarize the 10-year table of figures presented in the Plan
describing projected costs (early intervention programming and special
education) and note that this table omitted costs for respite care because
family and friends would provide such care and anticipated to cover wheelchair
costs through fundraising. The HCC Officer noted that the Plan compared these
costs against the projected net income of the Applicants in Canada (less living
expenses), funds of $7500 that they were bringing with them from Sri Lanka, a
yearly donation from a relative, and $300,000 in expected savings for future
medical costs.
25 On
the sister-in-law's offer to provide 5 years of free accommodation, the HCC
Officer found that she had not explained how they would accommodate the
Applicant's family. On her ability to accommodate the Applicant's family, the HCC
Officer noted that her own family consisted of 5 individuals.
26 The
GCMS Notes recognized that the Plan contained offers of financial and general
support (including childcare support) from community and fellow congregation
members, a letter from the proprietor of a day care in Maple Ridge offering to
accept Jordan at no charge, an affidavit by the Applicant and her spouse
undertaking financial commitment for Jordan's needs and outlining their
confirmed employment and expected financial resources, offers by family and
friends to provide respite care as a substitute for paid respite care and to
raise funds for a motorized wheelchair, and an offer to provide $50/month in
assistance from a relative in Australia.
27 On
these offers, the HCC Officer concluded that they were insufficiently specific
and did not explain how the offers would contribute to Jordan's social service
costs.
28 The
HCC Officer stated that while medical insurance purchased for the Applicant's
family gave some coverage for medical devices and home care, it "did not
appear to be designed for someone with Jordan's chronic needs" (Affidavit
of Sean Morency [Morency Affidavit], Exhibit "A" GCMS Information
Request: Application at p 57). The HCC Officer reasoned that the limit on 10
visits per year to a speech therapist and a limit of $250 for physiotherapy
seemed unlikely to meet his chronic ongoing needs for specialized services.
Moreover, the HCC Officer distinguished insurance to pay for services from a
plan to actually provide services.
29 Finally,
the HCC Officer found that the Plan did not disclose professional estimates or
assessments that would show the Applicant has begun to organize the
multi-disciplinary developmental team discussed in the IME Summary. In the
absence of such information, the Plan was not credible in the view of the HCC
Officer: "Without a credible plan that identifies qualified service
providers willing and able to provide the required services, and the costs that
would be incurred to provide the services, it is impossible to make a final
determination with respect to the applicants' financial ability to avert the
projected excessive demand" (Morency Affidavit, Exhibit "A" GCMS
Information Request: Application at pp 58).
Issues
30
Was the HCC Officer
reasonable in finding that Jordan was inadmissible to Canada because of a
health condition that might reasonably be expected to cause excessive demand on
health or social services?
Did the HCC Officer
ignore or misconstrue the evidence before him?
Relevant Legislative
Provisions
31 The
following legislative provisions of the IRPA are relevant:
· 38. (1) A foreign national is inadmissible on
health grounds if their health condition
· (a) is likely to be a
danger to public health;
· (b) is likely to be a
danger to public safety; or
· (c) might reasonably
be expected to cause excessive demand on health or social services.
· ...
· 42. A foreign national, other than a
protected person, is inadmissible on grounds of an inadmissible family member
if
· (a) their
accompanying family member or, in prescribed circumstances, their
non-accompanying family member is inadmissible; or
· (b) they are an
accompanying family member of an inadmissible person.
* * *
· 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.
· [...]
· 42. Emportent, sauf pour le résident
permanent ou une personne protégée, interdiction de territoire pour
inadmissibilité familiale les faits suivants :
· a) l'interdiction de territoire frappant tout
membre de sa famille qui l'accompagne ou qui, dans les cas réglementaires, ne
l'accompagne pas;
· b) accompagner, pour un membre de sa famille,
un interdit de territoire.
32 The
following provisions of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations] are relevant:
· 1. (1) The definitions in this subsection
apply in the Act and in these Regulations.
· ...
· "excessive demand" means
· (a) a demand on
health services or social services for which the anticipated costs would likely
exceed average Canadian per capita health services and social services costs
over a period of five consecutive years immediately following the most recent
medical examination required under paragraph 16(2)(b) of the Act, unless there is evidence that significant costs are
likely to be incurred beyond that period, in which case the period is no more
than 10 consecutive years; or
· (b) a demand on
health services or social services that would add to existing waiting lists and
would increase the rate of mortality and morbidity in Canada as a result of an
inability to provide timely services to Canadian citizens or permanent
residents.
· ...
· 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. 1. (1) Les définitions qui suivent s'appliquent à la Loi et au présent
règlement.
· [...]
· "fardeau excessif" Se dit :
· a) de toute charge pour les services sociaux
ou les services de santé dont le coût prévisible dépasse la moyenne, par
habitant au Canada, des dépenses pour les services de santé et pour les
services sociaux sur une période de cinq années consécutives suivant la plus
récente visite médicale exigée en application du paragraphe 16(2) de la Loi ou,
s'il y a lieu de croire que des dépenses importantes devront probablement être
faites après cette période, sur une période d'au plus dix années
consécutives;
· b) de toute charge pour les services sociaux
ou les services de santé qui viendrait allonger les listes d'attente actuelles
et qui augmenterait le taux de mortalité et de morbidité au Canada vu
l'impossibilité d'offrir en temps voulu ces services aux citoyens canadiens ou
aux résidents permanents.
· [...]
· 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.
Position of the Parties
33 The
Applicant submits that the HCC Officer had a duty to explain his analysis of
the Plan and that his failure to provide adequate reasons is a reviewable
error.
34 According
to the Applicant, the HCC Officer breached his duty to provide adequate reasons
in failing to explain why the Plan and the evidence submitted in its support
was insufficient to show that Jordan might not reasonably be expected to cause
excessive demand on heath or social services in Canada. The Applicant contends
that the reasons are inadequate because it is difficult to assess how the Plan
did not overcome paragraph 38(1)(c) of the IRPA from
the fairness and final decision letters.
35 From
this, the Applicant infers that the immigration officer was determined on
refusing their application, whatever the evidence provided in their plan.
36 The
Applicant further argues that the HCC Officer based his decision on an
erroneous finding of fact that he made without regard to the material before
him.
37 The
Applicant claims that the Plan addressed: (i) all costs outlined in the
fairness letter and IME Summary; (ii) her and her spouse's goal to accumulate
$300,000 over a 10-year period through saving and fundraising; (iii) her
family's comprehensive medical and life insurance; (iv) her and her spouse's
job offers; (v) how the Maple Ridge community would support Jordan by letters
of support promising to assist with respite care, ongoing fundraising, car
pools, and other needs; (vi) her family's access to free accommodation for five
years with her sister-in-law; (vii) free daycare available to Jordan; (viii)
the Applicant's ability to begin work immediately on arrival in Canada; and,
(xi) her savings of $7,500 to meet the family's immediate needs.
38 If
the HCC Officer had considered the elements of the Plan, as discussed above,
the Applicant argues, then he would have found that paragraph 38(1)(c) did not apply to Jordan. Citing Canada (Minister of Citizenship and Immigration) v Colaco, 2007 FCA 282, the Applicant contends that a decision-maker may not
ignore evidence of an applicant's ability and willingness to pay for services
in assessing the extent of his or her excessive demand on health or social
services under paragraph 38(1)(c)
of the IRPA. By extension, the
Applicant argues that the HCC Officer should have considered the availability of
community support.
39 The
Applicant requests that this Court apply Justice Luc Martineau's decision in Sokmen v Canada (Minister of Citizenship and Immigration), 2011 FC 47, which holds that "some demand [on health or
social services] is acceptable" under paragraph 38(1)(c) of the IRPA and that, by consequence, the HCC Officer was required to conduct
"a full analysis ... to determine whether the demand is 'excessive'"
(at para 34).
40 The
Respondent submits that the HCC Officer conducted the individualized assessment
of the Applicant's circumstances, as required by Hilewitz
v Canada (Minister of Citizenship & Immigration),
2005 SCC 57, [2005] 2 SCR 706. Since the Plan provided by the Applicant was not
credible, the HCC Officer could not determine if it would actually meet
Jordan's needs.
41 The
Respondent submits that the Plan was not credible because it did not address
physiotherapy and speech therapy, special education, or a multi-disciplinary
team. The statements of support were not probative of the Applicant's ability
to meet these needs because these volunteers were not identified as
professionally qualified. Finally, the Respondent submits that the HCC Officer
acknowledged the Applicant's medical and life insurance but found that it was not
designed to meet Jordan's needs.
42 In
the Respondent's opinion, the fairness letter shows that the Applicant ought to
have been aware of the need to submit a satisfactory plan. The Respondent cites
OB 063 "Assessing Excessive Demand on Health and Social Services",
which takes the position that a declaration of ability and intent must be
supported by a credible plan, that the quality of this plan is the most
significant element in assessing ability and intent, and that the plan should
reflect the needs of the affected person.
43 The
Respondent argues that, since the Plan was not sufficiently concrete to allow
the HCC Officer to analyze the Applicant's intent and ability to pay, his
decision was reasonable and consistent with the evidence. The Respondent
distinguishes Sokmen, above, on
the basis that the applicant in that application had submitted a specific plan
which included a plan that her son would receive treatment from a specific
physician in France. By contrast, the Applicant did not submit a comparably
concrete plan.
44 With
respect to the adequacy of the HCC Officer's reasons, the Respondent submits
that this argument does not speak to the GCMS Notes, which form part of the HCC
Officer's decision. The Respondent notes that the Applicant indicated that she
had received written reasons for the decision in her Application for Leave and
for Judicial Review and that the Court did not initiate a request for reasons
under Rule 9 of the Federal Courts Immigration and
Refugee Protection Rules, SOR/93-22 [Rules]. Citing Toma v
Canada (Minister of Citizenship and Immigration), 2006
FC 779, 295 FTR 158 and Wang v Canada (Minister of
Citizenship and Immigration), 2006 FC 1298, 302 FTR
127, the Respondent submits that the Applicant's failure to initiate a request
under Rule 9 amounts to a waiver of the right to receive the report.
45 The
Respondent cites Ikhuiwu v Canada (Minister of
Citizenship and Immigration), 2008 FC 344, [2008] 4 FCR
432 and Singh v Canada (Minister of Citizenship and
Immigration), 2006 FC 315, for the proposition that the
Applicant's complaint on the adequacy of reasons is answered by her failure to
request further reasons under Rule 9.
46 In
her Reply, the Applicant submits that the Plan did address physiotherapy and
speech therapy, special education, and a multi-disciplinary team. She states
that, while her insurance did not entirely address physiotherapy and speech
therapy costs, it did provide some coverage; she submits that her general
ability and intent to address Jordan's needs shows that she would have
increased the insurance premium to provide further coverage. The Applicant also
notes that the Plan did discuss special education beginning at Year 4 of the
Plan. Finally, the Applicant argues that she was not obligated to include a
plan for a multi-disciplinary team because this component was discussed in the
IME Summary, to which she did not have access.
47 The
Applicant's Reply also submits that the HCC Officer's decision that the letters
of support were not from individuals who had identified themselves as qualified
to meet Jordan's needs is also incorrect. The Applicant observes that a daycare
operator wrote in her letter of support that she had cared for "children
with various special needs" and that another set of individuals identified
themselves as a teacher and software engineer who "have done professional
respite care with community living ... and have significant experience with
special needs children" (Applicant's Record [AR] at pp 39-40). The
Applicant submits that the HCC Officer had a duty to further inquire into the
qualifications of these persons.
Analysis
Standard of Review
48 Whether
the Applicant is inadmissible to Canada because of a health condition that
might reasonably be expected to cause excessive demand on health or social
services is a question of mixed fact and law reviewable on the standard of
reasonableness (Ovalle v Canada (Minister of Citizenship
and Immigration), 2012 FC 507). The HCC Officer's
findings of fact are also reviewable on a standard of reasonableness (Chauhdry v Canada (Minister of Citizenship and Immigration), 2011 FC 22, 382 FTR 145).
49 Since
the standard of reasonableness applies, this Court may only intervene if the
reasons are not "justified, transparent or intelligible". To satisfy
this standard, the decision must also fall in the "range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
(Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 SCR 190 at para 47).
50 The
Applicant's submission that the final decision letter did not sufficiently
explain why the Plan was insufficient amounts to a challenge to the adequacy of
the HCC Officer's reasons. The Supreme Court of Canada has, however, held that
if reasons are given, a challenge to the reasoning or result is addressed in
the reasonability analysis. According to Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, "reasons must be read together
with the outcome and serve the purpose of showing whether the result falls
within a range of possible outcomes" (at para 14). This Court may not
"substitute [its] own reasons" but "may look ... to the record
for the purpose of assessing the reasonableness of the outcome" (at para
15).
51 This
Court also observes that the GCMS Notes are part of the HCC Officer's reasons. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 has held that "notes to file" are
sufficient reasons in administrative immigration proceedings (at paras 43 and
44). Although the Applicant did not make submissions on the application of Rule
9 of the Rules, the Respondent is correct that the Applicant's failure to
initiate a request under Rule 9 amounts to a waiver of the right to receive the
report (Toma, above, at para 13)
and that the Applicant cannot complain as to the adequacy of reasons (Ikhuiwu, above, at para 18).
Was the HCC Officer
reasonable in finding that Jordan was inadmissible to Canada because of a
health condition that might reasonably be expected to cause excessive demand on
health or social services?
52 In
Hilewitz, above, the Supreme
Court of Canada held that a decision-maker considering whether an applicant
might reasonably be expected to impose an excessive demand on health and social
services must conduct "individualized assessments", which require
them to "take into account both medical and non-medical factors, such as
the availability, scarcity or cost of publicly funded services, along with the
willingness and ability of the applicant or his or her family to pay for the
services" (at para 55 and 56). This is the
touchstone principle of paragraph 38(1)(c) of the IRPA. Its
rationale, as stated by Justice Rosalie Abella, is that a decision-maker who
"considers the need for potential services based only on the classification of the impairment rather than
on its particular manifestation" will take a "generic rather than
individual" approach "which attaches a cost assessment to the
disability rather than to the individual. This in turn results in an automatic
exclusion for all individuals with a particular disability, even those whose
admission would not cause, or would not reasonably be expected to cause,
excessive demands on public funds" (at para 56).
53 In
assessing the reasonability of this decision on this PR Applicant, the question
to ask is: did the HCC Officer assess Jordan as an individual, taking into
account his particular situation or as a member of a class of persons; that is,
as someone with Cerebral Palsy?
54 To
conduct this analysis, this Court must examine the Plan and ask if it is
evidence of a credible plan that shows that Jordan's individual circumstances
will not impose an excessive demand on health and social services. In Zhang v Canada (Minister of Citizenship and Immigration), 2012 FC 1093, Justice Martineau held that
an applicant arguing that paragraph 38(1)(c) of the IRPA does
not apply must "provid[e] a credible plan for mitigating the excessive
demand on social services in Canada" (at para 21).
55 This
Court is not satisfied that the Plan is a credible and viable plan showing that
Jordan's individual situation is not such that it might reasonably be expected
to impose an excessive demand on health and social services.
56 The
Applicant's insurance plan does not appear to provide extensive coverage for
someone in Jordan's particular circumstances; a young person in the early
stages of child development with Cerebral Palsy. Although it is true that
"some demand" is acceptable under paragraph 38(1)(c) of the IRPA (Sokmen, above) and
that the insurance plan does begin to meet some of Jordan's physiotherapy and speech thebapy costs, the insurance
plan is not sufficient to meet many of Jordan's other chronic and ongoing need
for highly specialized services.
57 The
Plan did not discuss a multi-disciplinary development team that would assess,
establish, and implement an appropriate program to meet Jordan's medical
developmental needs. Contrary to the Applicant's submissions, the need for such
a team assessment was discussed in the fairness letter (Morency Affidavit,
Exhibit "C"at pp 1-2).
58 The
letters offering financial, physical, and other support do not demonstrate a
level or quality of support that could meet Jordan's highly specific needs.
Perhaps the most troubling aspect of this PR Application is the HCC Officer's
assessment (and the judicial review of that assessment) of the offers from the
Maple Ridge community and the Applicant's extended family. It falls within the
range of reasonable, acceptable outcomes to find that such expressions of
support do not establish a credible and viable plan. The HCC Officer reasonably
observed that these persons are not necessarily qualified to provide the
professional care that Jordan needs. Although some of the letters were from
persons experienced with special needs children and respite care, there is no
indication that these persons had a specialized expertise working with persons
with Cerebral Palsy. The undersigned member of this Court stresses that the
question that should (and indeed did) control the HCC Officer's decision under
paragraph 38(1)(c) of the IRPA was whether the Plan was sufficient to
meet Jordan's individualized needs. In Jordan's case, it was reasonable to find
that general offers of support (even if the individuals making those offers had
general experience in respite care for special needs persons) would not be
sufficient to meet the highly specific medical needs of a very young boy with
Cerebral Palsy.
59 Although
it seems pedantic, the HCC Officer was also reasonable in questioning how the
sister-in-law would actually accommodate the Applicant's family, given the size
of her own family.
60 In
finding that the offers of support from community members and family did not
discharge the onus under Zhang,
above, this Court recalls the following remarks of Justice Frank Iacobucci in Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 SCR 748:
· [80] I wish to observe, by way of concluding my discussion of this
issue, that a reviewer, and even one who has embarked upon review on a standard
of reasonableness simpliciter, will often be tempted to find some way to
intervene when the reviewer him- or herself would have come to a conclusion
opposite to the tribunal's. Appellate courts must resist such temptations. My
statement that I might not have come to the same conclusion as the Tribunal
should not be taken as an invitation to appellate courts to intervene in cases
such as this one but rather as a caution against such intervention and a call
for restraint. Judicial restraint is needed if a cohesive, rational, and, I believe,
sensible system of judicial review is to be fashioned.
The offers of support from community members and
family presented in the Plan demonstrate much that is admirable in the human
condition. Unfortunately, that is not enough to practically satisfy the
requirements of the IRPA and the
reasonability analysis as discussed by Justice Iacobucci in Southam, above.
61 It
was reasonable to conclude that the Plan was not credible and viable on the
basis of the Applicant's assumptions that she and her spouse could accumulate
$300,000 over 10 years after moving to a new country, that fundraising could
meet Jordan's complex and extensive needs, and that members of the Maple Ridge
community could meet many of Jordan's extensive needs. The measure of a plan,
that is to say, its credibility, often depends on the extent and strength of
its assumptions. These assumptions, unfortunately, were not particularly strong
without adding specific viable detail.
Did the HCC Officer
ignore or misconstrue the evidence before him?
62 Reviewing
the final decision letter and the GCMS Notes suggests that the HCC Officer did not ignore or misconstrue the
evidence. This conclusion is confirmed by the analysis of the reasonability of
the HCC Officer's decision that Jordan was inadmissible to Canada because of a
health condition that might reasonably be expected to cause excessive demand on
health or social services. The Applicant has not pointed to any evidence that
was not discussed in the final decision letter or the CGMS Notes.
Conclusion
63 For
all of the above reasons, the Applicant's application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS that the
Applicant's application for judicial review be dismissed. No question of
general importance for certification.
OBITER
It is recommended by the undersigned that the
number of well-intentioned individuals, organizations and entities, having come
forward to assist the Applicant with the care of the said child, begin the
process again and that the Canadian authorities give priority to that process,
recognizing the time and effort that has already been given to the voluminous
documents accompanying the application for permanent residence by all involved,
including the specific individuals and entities in Maple Ridge, British
Columbia.
It would seem that a viable plan requires the
preparation of a practical commitment on paper to ensure that it is acknowledged and understood as such
by the authorities who would then make their decision thereon.
SHORE J.
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