Ma v. Canada (Minister of Citizenship and Immigration)
Between
Ma, Yan Bin, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 135
2013 FC 131
Docket IMM-5178-12
Federal Court
Montréal, Quebec
Noël J.
Heard: January 22, 2013.
Judgment: February 7, 2013.
Docket IMM-5178-12
Federal Court
Montréal, Quebec
Noël J.
Heard: January 22, 2013.
Judgment: February 7, 2013.
(33 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 NOEL J.:-- This is an application by Yan Bin
Ma, challenging a decision by a Visa Officer dated April 10, 2012, dismissing
his application for a permanent resident visa for Canada in the Economic
Immigration Class on the ground that his health condition might reasonably be
expected to cause excessive demand on health or social services.
I. Facts
2 The
Applicant is a 49 year-old Chinese citizen, married, father of two children
aged 18 and 25. He applied for landing in Canada as an investor and satisfied
the Visa Officer that he has assets worth 3,81 million dollars. His application
was received on January 30, 2008 at the Consulate General of Canada in Hong
Kong.
3 On
September 12, 2008, the Applicant and his family were required to undertake a
medical examination. On August 28, 2009, the Visa Officer received a copy of a
Medical Notification dated August 26, 2009 indicating that the Applicant has a
medical condition (Cerebrovascular Disease - Late Effects). In November 2008,
he suffered a stroke that resulted in walking difficulties and that affected
his speech. In the report, the medical officer concluded that he has a
"health condition that might reasonably be expected to require services,
the costs of which would likely exceed the average Canadian per capita costs
over 5 years and would add to existing waiting lists and delay or deny the
provision of these services to those in Canada who need and are entitled to
them." The medical officer added that as a result of his condition, the
Applicant will need respite care, speech and language, occupational and
vocational training which will incur costs of $6500. The medical officer
concluded that the Applicant is inadmissible on the basis of section 38 of the Immigration and Refugee Protection Act, SC
2001, c 27 ["IRPA"].
4 The
Applicant was sent a fairness letter dated September 8, 2009 advising him of
the medical officer's assessment. He was invited to submit additional
information relating to his health condition, which he did. In response to the
letter, on October 21, 2009, the Applicant sent additional documentation
consisting of a notarized declaration dated October 12, 2009 and a Diagnosis
Examination Report issued by the Linyi City People's Hospital dated October 17,
2009. Such report was sent to the Respondent's medical officer for assessment,
who indicated that the new material had no impact on his initial assessment of
the Applicant's health condition.
5 The
notarized declaration reads as follows:
· "In light of my current health condition, I hereof make the
solemn statement that if I pass the immigration application and get the
immigration visa, I would bear all the medical costs and other expenses related
to the stroke in my future life in Canada and will not burden the Canadian
government."
6 On
May 12, 2010, a second procedural fairness letter was sent to the Applicant,
addressing the deficiencies of the previous procedural fairness letter,
inviting the Applicant to submit additional evidence with regard to his medical
condition, the social services needed in Canada, an individualized plan to
offset the excessive demand on social services and a signed Declaration of
Ability and Intent.
7 On
July 7, 2010, the Applicant sent to the Visa Officer a proof of assets in his
name and his dependant wife's name, a signed Declaration of Ability and Intent,
a written statement dated July 7, 2010 jointly signed by them, in which he
explains that his wife will assist him in rehabilitation, that he is responding
well to the treatments as he is making constant efforts and exercises to
improve his health condition. He also adds that he is willing and has the
ability to pay all the expenses arising from professional services. He also
submitted a Diagnosis Certificate issued by a physician from the Linyi City
People's Hospital on June 25, 2010. The Diagnosis Certificate was sent to the
medical officer who concluded that it did not change the assessment of medical
inadmissibility.
II. Decision under review
8 The
decision by the Officer consists of the refusal letter dated April 10, 2012 as
well as his CAIPS notes.
9 In
the refusal letter, the Visa Officer explained that the Applicant is
inadmissible because he has a medical condition, Cerebrovascular Disease - Late
Effects: Status post-cerebrovascular accident, and therefore needs respite care
and outpatient day programs in the nature of physiotherapy, speech and
language, occupational and vocational training, the current estimated annual
cost of which, in Canada, is $6500, the "excessive demand cost
threshold" for him being of $6141. The social services costs required for
the Applicant therefore exceed the threshold by $359 per year.
10 The
Visa Officer recognized that the Applicant has assets controlled by him or his
wife amounting to 3,81 million dollars and that he would have the financial
ability to pay for the costs of the social services. However, he refused the
Applicant's plan by concluding that the Applicant has not demonstrated that he
has a "reasonable and workable plan to offset the excessive demand"
on Canadian social services nor "the actual intention to implement such a
plan mitigating these costs."
III. Relevant statutory
provisions
11 The
relevant statutory provisions read as follows:
· Immigration and Refugee Protection Act, SC
2001, c 27
· Health Grounds
· 38. (1) A foreign national is inadmissible on
health grounds if their health condition
· [...]
· (c) might reasonably
be expected to cause excessive demand on health or social services
· [...]
· Immigration and Refugee Protection Regulations, SOR/2002-227
· Definitions
(1) The definitions in
this subsection apply in the Act and in these Regulations.
[...]
"excessive demand" means
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
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.
[...]
Assessment of inadmissibility on health grounds
· 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.
* * *
· Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27
· Motifs sanitaires
· 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.
· [...]
· Règlement sur l'immigration et la protection des réfugiés, DORS/2002-227
· Définitions
(1) Les définitions qui
suivent s'appliquent à la Loi et au présent règlement.
[...]
"fardeau excessif" Se dit :
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;
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.
[...]
Évaluation pour motifs sanitaires
· 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.
IV. Applicant's submissions
12 The
Applicant generally submits that the Visa Officer's decision is unreasonable as
he has established that he is in a financial position to mitigate the costs of
the social services needed whether they amount to $6,500 or only $359 a year.
The Applicant bases his argument on the fact that in Hilewitz
v Canada (Minister of Citizenship and Immigration); De Jong v Canada (Minister
of Citizenship and Immigration), 2005 SCC 57, [2005] 2
SCR 706 [Hilewitz], the Supreme
Court of Canada established that "excessive demand" is
"inherently evaluative and comparative" and that therefore, the
financial ability of the Applicant to cover the excessive costs needs to be
taken into account. As the Visa Officer recognized that the Applicant has
established having assets worth 3,81 million dollars, it is unreasonable to
find that he has not submitted a detailed plan of action to defray the
excessive costs of social services while in Canada.
13 Indeed,
the Applicant submits that contrary to the Visa Officer's conclusion, he has
demonstrated that he has "taken action" to develop a cost mitigation
plan by submitting a notarized declaration confirming his intention to allocate
his assets to his recovery as well as a list of assets which establish his
financial ability to do so. Therefore, his plan is lengthy and detailed and he
relies on Velasquez Perez v Canada (Minister of
Citizenship and Immigration), 2011 FC 1336 at para 33,
215 ACWS (3d) 185 [Velasquez Perez] to argue that his plan should be considered sufficient.
14 Second,
the Applicant is of the view that the fact that the Applicant's wife will
assist him has not been given proper consideration by the Visa Officer.
15 Third,
the Applicant argues that the Visa Officer's finding that he did not contact
Canadian physicians in order to understand the "medical" services
that he will be needing in Canada and that he did not provide a list of the
services required while in Canada is erroneous as he explained that he
contacted a physician from Vancouver.
16 Finally,
the Applicant submits that the Visa Officer made an error in his decision as he
did not make a distinction between social services and health services, which
is important as some social services are not covered by the state.
V. Respondent's submissions
17 The
Respondent generally submits that a mere undertaking by the Applicant that he
will defray the excessive demand on social services as he has enough funds
available to him is insufficient. Indeed, a plan to mitigate the excessive
costs of social services needed by an Applicant with a health condition must be
complete, developed and certain and must not be speculative in order to satisfy
the government that likely "excessive demand" will be avoided. The
plan provided by the Applicant was rightly found insufficient for the following
reasons.
18 First,
the Applicant did not submit concrete evidence to support his intention to
arrange and pay for social services and he did not demonstrate that he has
researched the types of services needed, the availability of such services and
the costs of such services or that he has made arrangements with service
providers in Canada.
19 Moreover,
the Applicant adds that it has been recognized by this Court that personal
undertakings not to use public social services are not enforceable in Canada
and that a mere statement is therefore insufficient.
20 Finally,
even if his own resources would allow him to offset the excessive demand, the
Applicant has not established that the private sector does provide such services.
21 With
regard to the Applicant's assertion that his wife will assist him and that this
will reduce the demand on social services, the Applicant has not explained in
details to what extent the help provided by his wife would reduce or eliminate
the role, function and contributions of the trained and specialized
professionals.
VI. Issue
22 Does
the Visa Officer's decision, through the assessment of the medical officer,
constitute a reasonable finding that the Applicant is inadmissible pursuant to
aparagraph 38(1)a(c) of the
aIRPAa?
VII. Standard of review
23 The
Visa Officer's factual findings should be reviewed under the standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]).
VIII. Analysis
24 The
decision rendered by the Visa Officer is reasonable and therefore, the
intervention of this Court is not warranted.
25 The
Applicant's request for permanent residence was refused on the basis that the
Applicant was not able to satisfy the Visa Officer that he had a concrete plan
to offset the excessive costs of social services required by his health
condition and that he did not demonstrate having the intention to do so.
Considering the evidence submitted to the Visa Officer which formed the basis
of his decision, such conclusion falls within "a range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
[see Dunsmuir, above]. Indeed,
the documents submitted by the Applicant were rightly found to be insufficient
to demonstrate that there is less than a reasonable probability that the public
system will have to incur excessive demand (Hilewitz v
Canada (Minister Citizenship and Immigration); De Jong v Canada (Minister of
Citizenship and Immigration) 2005 SCC 57 at para 46, [2005]
2 SCR 706 [Hilewitz]).
26 First,
it has been recognized that a letter of intent that confirms one's intention
not to burden the public system, when that individual has the financial
capacity to pay for all services publicly accessible to all is insufficient as
such document is not enforceable in Canada (see Deol v
Canada (Minister of Citizenship and Immigration), 2002
FCA 271 at para 46, 215 DLR (4th) 675; Choi v Canada
(Minister of Citizenship and Immigration) (1995), 29
Imm LR (2d) 85 at para 33, 98 FTR 308). Therefore, a mere personal undertaking
to waive all rights to social services cannot be considered to be sufficiently
reliable so that the application should be granted.
27 The
Applicant's Personal Plan and other documents submitted were not found to be
satisfactory by the Visa Officer as they did not demonstrate a clear intention
not to burden the public system with the excessive costs of social services.
Indeed, there is no indication that he has made arrangements with professionals
who work in the private sector and who could provide the services that he
needs. In his Personal Plan, the Applicant indicated that he contacted a
physician in Vancouver for professional advices but he did not provide detailed
information.
28 Moreover,
the argument by the Respondent that the Applicant has not demonstrated to which
extent the help provided by his wife will reduce the work required from trained
professionals is accepted by this Court. Indeed, the Applicant states in his
Personal Plan that his wife will provide assistance to him but this does not
establish clearly that it will reduce the Applicant's demand for social
services provided by trained professionals.
29 Contrary
to what is alleged by the Applicant, the issue is not about whether or not the
Visa Officer disregarded the Applicant's financial situation but about whether
or not he submitted a plan that demonstrates that there is less than a
reasonable probability that the public system will incur the excessive costs of
social services required by him. As stated by the Supreme Court of Canada in Hilewitz, above, the financial situation of
an applicant is a relevant factor to be examined when determining the
probabilities that an Applicant's presence would place excessive demands on our
social services. However, unlike the Applicant's argument, this case does not
stand for the proposition that financial capacity is the most important factor
to be considered. Therefore, the Officer's concern is not restricted to an
assessment of the Applicant's financial capacity to incur costs of $359 for
social services. The issue at play is whether the Applicant has demonstrated
that he has the intention to allocate his resources to pay for those services
with a precise, serious and comprehensive multi-service health recovery plan.
30 The
Applicant relies on Velasquez Perez, above, a decision where the Federal Court decided that the Visa
Officer's conclusion was unreasonable as he had ignored the Applicant's
financial ability to pay for social services and that the decision was not
based on all the available information. In the case at bar, the Visa Officer
gave proper consideration to the Applicant's established ability to defray the
social services that are required but however concluded that his application
did not establish clearly that he would not burden the excessive demand on
social services.
31 Finally,
it is important to underline that it is the Applicant who bears the onus of
demonstrating that he is not inadmissible, once a negative medical assessment
has been completed (Zhang v Canada (Minister of
Citizenship and Immigration), 2012 FC 1093 at para 20,
2012 CarswellNat 3526). In the present case, the Applicant was given two
fairness letters which allowed him to make clear additional submissions and to
submit additional documents. Therefore, the Applicant was asked repeatedly by
the Officer to submit convincing evidence demonstrating a clear intention not
to burden the public system but no additional, satisfactory evidence was
provided.
32 In
conclusion, the Visa Officer properly assessed the Applicant's health condition
to conclude that there is a reasonable probability that the public system will
incur the excessive costs of social services required by him.
33 No
questions for certification were proposed by the parties and none will be
certified.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is
certified.
NOEL J.
