CHILD WITH CEREBRAL PALSY REQUIRES DETAILED CARE PLAN

Courts continue to struggle with the question of "unreasonable demand" for medical services. In the case below , the Federal Court determined that a mere "well intentioned" plan without sufficient specificity was not enough to overcome inadmissibility, but in an interesting twist, the court offered its "recommendation" to the applicants to start the process again.

Daniel v. Canada (Minister of Citizenship and Immigration)

Between Susanna Julia De Hoedt Daniel, Applicant, and
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.

(63 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

SHORE J.:--

 

·       I. 

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.

 

·       II. 

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.

 

·       III. 

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.

 

·       IV. 

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].

 

·       V. 

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).

 

·       VI. 

Issues

30     

 

·       (1) 

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? 

·       (2) 

Did the HCC Officer ignore or misconstrue the evidence before him? 

 

·       VII. 

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. 

 

·       VIII. 

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.

 

·       IX. 

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).

 

·       (1) 

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.

 

·       (2) 

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.

 

·       X. 

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.

CANADA BEGINS BIOMETRIC DATA COLLECTION

Canada finally joins the 21st century...the US and Australia have been doing this for years....

Biometrics data collection: Canadian visa applicants from 29 countries will be fingerprinted - thestar.com

Biometrics data collection: Canadian visa applicants from 29 countries will be fingerprinted

Published on Friday December 07, 2012

Nicholas Keung Immigration Reporter

Starting in 2013, visitors to Canada from 29 countries and a territory must pay an extra $85 for Ottawa to collect their fingerprints and photos when they apply for visas. The countries are mostly from Asia, Africa and the Middle East, but the biometrics requirement will also extend to Haiti, Jamaica and Colombia. It is yet another measure Ottawa is imposing under the Protecting Canada’s Immigration System Act passed in June to tighten border entry into Canada. Earlier this week, Ottawa exercised its powers from the same law to designate five carloads of Romanian refugee claimants crossing the Quebec border as “irregular arrivals,” stripping them of the basic rights afforded to other asylum seekers. “Biometrics will strengthen and modernize Canada’s immigration system,” Immigration Minister Jason Kenney said Friday. “Our doors are open to legitimate travellers and, through the use of biometrics, we will also be able to protect the safety and security of Canadians.” According to the Canada Gazette, the countries were selected for their volumes or rates of visa refusals, removal orders, refugee claims, and nationals arriving without proper documentation or attempting to travel under false identities, as well as their relevance to Canada’s foreign and trade policy objectives. About 20 per cent of the 300,000 visa-required applicants — visitors, students or temporary foreign workers — would have to submit their biometric information in the first year. Children, the elderly and diplomats are exempt. The applicants must present themselves at a biometric collection service point, a third-party visa application centre contracted by Ottawa, to provide “all available fingerprints and have a photograph taken.” Their fingerprints would be sent to the RCMP for storage and checked against the fingerprint records of refugee claimants, previous deportees, persons with Canadian criminal records and previous temporary resident applicants before a visa decision is made. Border guards would then check the biometrics information again at the border. The $85 fee is expected to recover 50 per cent of the operational cost. A cost-benefit analysis estimated the plan would save the federal and provincial governments $106 million over 10 years from “reduced negative refugee claims, fewer removals and detentions.” Those affected by the new rules include: Afghanistan, Albania, Algeria, Bangladesh, Burma, Cambodia, Colombia, Democratic Republic of Congo, Egypt, Eritrea, Haiti, Iran, Iraq, Jamaica, Jordan, Laos, Lebanon, Libya, Nigeria, Pakistan, Palestinian Authority, Saudi Arabia, Somalia, Sri Lanka, Sudan, South Sudan, Syria, Tunisia, Vietnam and Yemen.

RELEASE OF VIOLENT CRIMINAL QUASHED BY FEDERAL COURT

This is an amazing case, not only because it took six years for CBSA to react despite a slew of violent convictions, but also because CBSA does not seem to have given this case the priority it deserves.  I find it astonishing that people with minor offences are routinely ordered deported even when they pose no danger to the public, and yet a violent serial criminal is given numerous chances at public expense. The system needs to set its priorities straight,  While I realize that this offender has a mental illness, the question is why the public should tolerate his repeated crimes and treat him with more deference than in other cases of offenders who do not impose such a high cost on society. This does not seem to be sound policy and the Federal Court correctly understood the implications of his release.

Canada (Minister of Public Safety and Emergency Preparedness) v. Hassan

Between The Minister of Public Safety and Emergency Preparedness,
Applicant, and
Abdurahman Ibrahim Hassan, Respondent

[2012] F.C.J. No. 1477

2012 FC 1357

Docket IMM-11131-12

 Federal Court
Ottawa, Ontario

Russell J.

Heard: November 23, 2012.
Judgment: November 23, 2012.

(50 paras.)

 

---

REASONS FOR JUDGMENT AND JUDGMENT

RUSSELL J.:--

APPLICATION

1     This is an application by the Minister of Public Safety and Emergency Preparedness (Applicant) asking the Court to quash the decision of member Funston (Member Funston) dated October 30, 2012 (Decision) that ordered the release of Mr. Abdurahman Ibrahim Hassan (Respondent) from immigration detention.

BACKGROUND

2     I think the background to this application is fairly set out by the Applicant and the Respondent in their submissions and I will reproduce relevant aspects of both their summaries here.

3     The Respondent came to Canada from Somalia in December of 1992, accompanied by his aunt, Fadumo Osman, and claimed refugee protection. In August of 1993 he was granted refugee protection.

4     The Respondent suffers from bipolar disorder, as well as other medical problems such as asthma, insulin-dependent diabetes and high blood pressure, and addictions to alcohol and crack cocaine.

5     The Respondent has a thirteen year history of violent criminality in Canada which started in 1999:

 

·       a. 

On April 13, 1999, the Respondent was convicted of assault and sentenced to 12 months probation; 

·       b. 

Two subsequent assault charges were withdrawn on terms and conditions. On May 5, 2000 the Respondent was convicted of failing to comply with those terms and conditions and given a 12 month suspended sentence; 

·       c. 

On April 4, 2001, the Respondent was again convicted of assault. The victim was his brother. The Respondent entered his brother's room and attempted to wake his brother. When the brother did not wake the Respondent threw a glass bottle at his brother's head, causing injury; 

·       d. 

On September 6, 2001, the Respondent was convicted of assault and uttering threats. The victim of the assault was his mother. The Respondent threatened to kill both his mother and his brother if they did not give him money. In the course of this altercation the Respondent telephoned his aunt and repeated the threat; 

·       e. 

On October 10, 2001, the Respondent was convicted of uttering threats and mischief. He had gone to his mother's house in the middle of the night and asked to stay there. When she refused he threatened to burn the house down and strangle her. The police were called and he subsequently threatened to kill the arresting officers and kicked out the rear window of the police car; 

·       f. 

On November 1, 2004, the Respondent was convicted of two counts of robbery and uttering threats, arising out of a series of incidents. The Respondent approached several individuals on different dates, threatened to shoot them, and robbed them. The Respondent also threatened a private security officer and the arresting police officer. 

6     In December of 2005 a report on inadmissibility was prepared under section 44 of the IRPA addressing the November 2004 robbery convictions. An admissibility hearing was held, resulting in the issue of a deportation order that was stayed under paragraph 114(1)(b) of IRPA.

7     The Respondent's criminality continued: in January of 2007, he accosted an individual on the street in downtown Toronto and asked the victim for money. The Respondent threatened to get a gun and kill the victim and punched the victim in the head three times. On September 7, 2007 the Respondent was convicted of robbery and failure to comply with a recognizance and probation order. Another report on inadmissibility under section 44 was prepared, addressing this conviction.

8     In May of 2007 the Respondent was sent a warning letter by CBSA, indicating that if he received any further convictions CBSA would consider pursuing action to enforce the deportation order.

9     Once again, the Respondent's criminality continued. Since the letter of May 2007, in addition to the September 2007 robbery conviction noted above, the Respondent has been convicted as follows:

 

·       a. 

On March 17, 2009 the Respondent was convicted of theft, assault with the intent to prevent arrest, and failure to comply with a recognizance; 

·       b. 

On November 26, 2010 the Respondent was convicted of robbery and threatening death and sentenced to four months imprisonment. The Respondent robbed an individual with two accomplices, threatening to shoot him if the victim did not give them money. The Respondent smashed the victim repeatedly against a wall and threatened to kill the victim if he reported the incident to the police; 

·       c. 

On January 10, 2012, the Respondent was convicted of assault causing bodily harm and sentenced to 18 months imprisonment. He was charged with aggravated sexual assault, robbery and breach of probation. The victim had agreed to go to the Respondent's apartment for the purpose of consuming illicit drugs. After the respondent consumed the drugs he demanded sex and, when the victim refused, he jumped on top of her, choking her and banging her head against the floor. The victim agreed to sex in an attempt to stop the assault, but later refused and the assault continued. She was able to escape by pulling a refrigerator on the Respondent. 

10     The Respondent was incarcerated following this incident and remained in provincial custody until June 11, 2012 when, on completion of his sentence, he was transferred to immigration custody under a warrant for removal. The Respondent has been continuously incarcerated since approximately February 28, 2011 (on immigration hold since June 2012).

11     The Respondent has, over the years, failed to comply with criminal recognizances, but he has asserted at his detention reviews that his criminality stems from his addiction to drugs and alcohol.

12     In July of 2009 CBSA sought the opinion of the Minister under paragraph 115(2)(a) of the IRPA that the Respondent was a danger to the public ("danger opinion") to permit the Respondent to be removed from Canada.

13     Both CBSA and the Respondent have provided submissions to the Minister on the danger opinion, and now await a decision.

14     The Respondent has remained on immigration hold since June 11, 2012. At his first five detention reviews, he was ordered detained.

15     At his 48-hour detention review on June 12, 2012 the member found that it was unlikely that the Respondent, if released, would control his impulses towards violent criminal behaviour. The member noted his thirteen-year history of criminal violence and past failures to control the factors aggravating this behaviour, including addiction and mental health issues. The member also found that he was unlikely to appear given that his family is in Canada and given his past record of failing to comply with directions under the law.

16     The member at this first detention review found that, if any alternative to detention were to be considered, such an alternative would have to protect the public and make it likely that the Respondent would appear for removal. There would have to be sufficient evidence of a likelihood of rehabilitation, so that the Respondent's addiction and mental health issues could be controlled, and conditions that would prevent the public from being at risk.

17     The member at the second detention review on July 17, 2012 adopted the reasons of the first member. The Respondent indicated that he had a place in a withdrawal management program and had been attending Alcoholics Anonymous. The member, however, found insufficient evidence that the Respondent had reached a point where he was no longer vulnerable to the impulses towards violence and substance abuse.

18     The member at the third detention review on August 14, 2012 adopted the previous findings and considered the Respondent's proposal of residential withdrawal management. The member found that the Respondent showed a "lack of meaningful progress along your recovery" and referred to "strict supervision" to ensure compliance with any terms and conditions and to offset the significant danger to the public. The member encouraged the Respondent to pursue treatment for his addiction, but found that nothing in his plan would offset his flight risk or the danger to the public given the lack of supervision in the proposed plan.

19     At the fourth detention review on September 7, 2012 the Respondent proposed a plan whereby he would attend a withdrawal management program at Toronto East General Hospital and would then complete a three month program at Harbourlight. The member ordered the Respondent's detention to continue, finding that he had attended addiction programming in the past and that did not stop his criminal behaviour. The member adopted the previous reasons and stated that it was not sufficient for the Respondent to attend a withdrawal management program.

20     At the time of the fifth detention review on October 4, 2012, Respondent's counsel indicated that they were working on a detailed release plan. The member agreed with the previous findings that the Respondent is a danger to the public and is unlikely to appear, and noted that the Respondent had been given chances in the past to change his behaviour. The Respondent was again ordered detained.

21     The Respondent came into immigration hold on June 11, 2012 and has been held at the Don Jail on the grounds that he poses a danger to the public, and that he would be unlikely to appear for removal from Canada. One previous alternative to detention was proposed on June 19, 2012. That proposal was for his mother to post a $3000 cash deposit and that the Respondent attend the residential withdrawal treatment program through the Toronto East General Hospital. No information about that treatment program was provided at that time.

22     The Respondent's counsel presented an alternative to detention at his detention review October 30, 2012. Member Funston considered the proposed alternative to detention, including disclosure from the Respondent of 12 pages describing the residential addictions treatment program, Turning Point, where the Respondent had been conditionally accepted. The Respondent also proposed that his aunt be a bondsperson and that she post a $5000 cash deposit to help ensure that the Respondent complied with immigration requirements and the conditions of release.

23     The Respondent proposed that he not only be required to do the 28-day Turning Point addictions treatment program, but that he also be ordered to do other, sequential residential addictions treatment programs provided by the Salvation Army: the Harbourlight program for 3 1/2 months or the Hope Acres residential addictions program on a farm outside of Barrie, Ontario, for 6 months.

24     The Respondent was also amenable to a condition that he must continue addictions treatment/counselling on a day treatment basis after the approximately 10 months of residential addictions treatment are concluded.

25     At the October 30, 2012 detention review, the Member Funston ordered the Respondent's release from detention, with several conditions, including:

 

·       a. 

Weekly, or more frequent, telephone reporting to CBSA; 

·       b. 

No use or possession of illegal drugs; 

·       c. 

No consumption of alcohol; 

·       d. 

Successful completion of the Turning Point residential treatment program; 

·       e. 

Application to and successful completion of the Harbourlight residential treatment program; 

·       f. 

Application to and successful completion of the Hope Acres residential treatment program; 

·       g. 

Notice provided by the Respondent to CBSA 48 hours in advance of his completion of one stage of treatment and prior to commencing the next stage; 

·       h. 

A $5000 cash deposit to be posted by his aunt, Fadumo Osman; and 

·       i. 

He continue day addictions treatment/counseling after his residential rehabilitation is completed at Hope Acres, and provide proof of such treatment to CBSA upon request. 

26     At each stage of residential treatment, the Member Funston ordered, as a condition of release, that the Respondent must provide the CBSA with 48 hours notice before ending and commencing the next step in his residential addictions treatment. Member Funston stated that if the Respondent did not attend and complete each program, this would be a breach of the bond and the release order.

27     On November 9, 2012, this Court ordered the Respondent's release order stayed until the final determination of this application for leave and judicial review or until the next scheduled detention review.

ISSUES

28     The Applicant raises the following issue:

 

·       1. 

Is the Decision reasonable? 

STANDARD OF REVIEW

29     The parties agree that the applicable standard of review is reasonableness and the Court concurs.

30     The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.

31     When reviewing a decision on the standard of reasonableness, the analysis will be concerned with "the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law."

ARGUMENTS

32     The Applicant says that Member Funston:

 

·       a. 

Failed to consider whether the Respondent is unlikely to appear; 

·       b. 

Erred in concluding that the Respondent is not a danger to the public; 

·       c. 

Erred in deciding that the bondsperson (the Respondent's aunt) was appropriate; 

33     The Respondent says that Member Funston:

 

·       a. 

Reasonably considered whether the Respondent is likely to appear; 

·       b. 

Reasonably concluded that the Respondent is not a danger to the public; 

·       c. 

Reasonably found that the Respondent's aunt was an acceptable bondsperson. 

ANALYSIS

Danger to the Public

34     The rationale for the Decision on this issue is transparent and intelligible. Member Funston says that "Today I'm satisfied that your aunt is a suitable bonds person and that there is more extensive treatment adequately addressing the issue of danger to the public."

35     This conclusion is based upon Member Funston's findings that

 

·       a. 

"[I]t is more likely than not that if your abuse, your substance abuse issues were properly addressed then it would lessen any concerns that you would pose a present and future danger to others. I am persuaded that the addiction issue is a significant contributing factor to your criminality and that of course involved the issue of danger to others"; 

·       b. 

"Your aunt is coming forward as well to offer a significant financial guarantee to ensure that you comply with immigration requirements and she intends to maintain daily contact with you in order to monitor and ensure that it is all working out for you, I'm satisfied that this is a change in your circumstances." 

36     So the new information to justify a departure from previous orders is the "more extensive treatment" that is proposed and that will, combined with the aunt's supervision, adequately address the issue of danger to the public.

37     The question for the Court is whether this finding is reasonable within the range posited in paragraph 47 of Dunsmuir.

38     Previous detention reviews have emphasized the Respondents "long history of willingness to use violence against others and an inability to control his behaviour". (Laut). Previous reviews have also considered the contribution of the Respondent's addictions and mental health to his criminal record and submissions that he will now take rehabilitation more seriously because he has had time to reflect. (Laut). Member Laut concluded that:

 

·       It is likely true that his addictions and mental health issues have contributed, but there is no evidence that he can control them. He has been released under supervision in the past, including just prior to his most recent conviction which involved using drugs and violence. At the time he committed that offence the criminal justice system had been trying to reform him for more than a decade. He had already received a warning from CBSA in 2007 which had no effect. I find his long term behaviour more persuasive than his words and find that he continues to pose a danger. 

39     Member McCabe adopted the findings of Member Laut and found further that the Respondent had not "internalized" the treatment processes and therapies he had tried, although he encouraged him "to continue along this path". Member McCabe concluded that:

 

·       ...because of your lack of any meaningful progress along your recovery, you are someone that requires some form of strict supervision to ensure that you can comply with terms and conditions including your removal rebooked .... including your eventual removal from Canada towards Somalia and also to offset the very significant danger to the public that you pose. 

40     The previous assessments speak of someone who poses a very significant danger to the public and whose actions over the years speak louder than his words that he has changed.

41     No one denies that the Respondent's criminal activities are connected to his addictions and his health, but previous members have questioned his willingness or ability (as a very dangerous man) to change and commit himself to reform.

42     My review of the record suggests that this element is not reasonably considered by Member Funston. She believes that the more extensive treatment regime that is proposed will address the public danger element because she concludes that the Respondent's criminality is a function of his addictions and mental health issues. It may be that, at some time in the future, after the Respondent successfully goes through rehabilitation, that the danger will be lessened or obviated. At present, however, the evidence suggests that the Respondent is a very dangerous man who has not internalized past therapies and whose actions over time are more persuasive than his words.

43     I am not saying that a treatment plan along the lines proposed could not provide what Member McCabe meant by "some form of strict supervision". But Member McCabe also adopted the reasons of his colleagues at previous detention reviews, and these reasons included an assessment of the Respondent's likelihood of responding to rehabilitation given his extreme violence and actions over the years. This has to be taken into account when assessing the danger the Respondent would pose to the public if he is released into a residential rehabilitation program. Member Funston's failure to weigh and balance this factor renders her Decision unreasonable.

Flight Risk

44     Member Funston's findings on flight risk are that it is not an immediate concern because no danger decision is in sight and, even if the danger decision goes against the Respondent, there is also the time it will take to acquire travel documents:

 

·       The prospect of your removal in my view is likely sometime down the road yet and so it is a factor that warrants a serious consideration when there is in my view a liable (sic) alternative being proposed. 

45     The question for the Court is whether this finding is reasonable within the range posited in paragraph 47 of Dunsmuir.

46     My view is that Member Funston does not adequately address flight risk and this renders the Decision unreasonable.

47     I can see that the length of time in detention is a factor to be looked at when considering alternatives to detention. However, this is not in itself sufficient.

48     Each previous member has found the Respondent to be a serious flight risk. For example, Member Laut goes into considerable detail about some of the factors at play in this case at pages 86-87 of the CTR.

49     Member Funston just does not pick up on and address these factors at all. In fact, she comes to no clear conclusions that I can see on this issue and my reading of the record does not disclose to me why she thought that matters had changed since, for example, Member Laut's analysis and decision. Also, there are relevant factors under Regulation 245 that are not mentioned or considered.

50     Counsel agree there is no question for certification and the Court concurs.

JUDGMENT

 

·       THIS COURT'S JUDGMENT is that: 

 

·       1. 

The application is granted. The Decision of Member Funston is quashed and set aside and the matter is referred back for reconsideration; 

·       2. 

There is no question for certification. 

RUSSELL J.