Date: 20031204
Docket: IMM-4802-02
Citation: 2003 FC 1411
Between:
Tariq MASOOD
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision dated August 14, 2002 of visa officer Niall Cronin (the "visa officer") of the Canadian High Commission in Islamabad, Pakistan. The visa officer denied the applicant's application for permanent residence.
[2] The visa officer rejected the applicant's application for permanent residence because the nature, severity or probable duration of his dependent daughter Fakhia Tariq's condition might reasonably be expected to cause excessive demands on health or social services in Canada. Therefore, the visa officer concluded that the applicant's admission into Canada would be contrary to paragraph 38(1)(c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). In his August 14, 2002 letter, the visa officer cites the medical officer's remarks describing the applicant's daughter's condition. The medical assessment included the following comments:
This applicant born on December 6, 1992 has moderate mental retardation. She was delayed in developmental milestones. A recent psychological assessment demonstrated a mental age of 3 years and nine months and an average IQ of 36. Tariq is actually enrolled in a special school and had regular speech therapy over the last 3 years. Her speech is unclear, she can recite the alphabet and numbers up to 10 but can not write simple words or do calculations. She is independent for eating, dressing, toileting and grooming. The assessing psychologist opines that she requires remedial coaching and speech therapy.
Canadian social philosophy has a commitment to equality, full participation and maximum community integration of all individuals in a state of dependence associated with mental retardation. This philosophy promotes community living with an extensive community-based social support system with the intent to maximise the individuals potential for independent living. While it is recognised that Tariq's family is very supportive and caring, it is likely that Tariq and her family would want to avail themselves of the services necessary to enhance the maximum personal development of Tariq.
If admitted to Canada, Tariq would be eligible for, and would likely require a variety of educational and other social services in particular: special education until the age of 21 and speech therapy. Those services will also include access to a spectrum of supervised settings, parent/family relief programs and respite care for caregivers. These services and benefits are expensive and the likely demands they will put on Canadian social services are significantly greater than for the average Canadian. These expected requirements to enable Tariq's full integration into the Canadian community would place an excessive demand on Canadian social services in the form of cost. . . .
[3] The relevant provision of the Act reads as follows:
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 demands on health or social services.
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.
[4] The relevant provisions of the Immigration and Refugee Protection Regulations, SOR/DORS/2002-227, read as follows:
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.
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.
34. Before concluding whether a foreign national's health condition might reasonably be expected to cause excessive demand, an officer who is assessing the foreign national's health condition shall consider,
(a) any reports made by a health practitioner or medical laboratory with respect to the foreign national; and,
(b) any condition identified by the medical examination.
34. Pour décider si l'état de santé de l'étranger risque d'entraîner un fardeau excessif, l'agent tient compte de ce qui suit :
a) tout rapport établi par un spécialiste de la santé ou par un laboratoire médical concernant l'étranger;
b) toute maladie détectée lors de la visite médicale.
[5] The applicant submits that Fakhia's admission to Canada would not cause excessive demands on social services in Canada and that the visa officer erred in relying upon the medical officer's allegedly invalid report and in failing to consider the totality of the evidence. The respondent, on the other hand, argues that the applicant has failed to demonstrate that the intervention of the Court is justified in this case.
[6] First, the applicant submits that the visa officer based his decision on erroneous findings of fact that were made in a perverse or capricious manner or without regard to the totality of the evidence. Specifically, the applicant submits that the evidence that Fakhia has only a mild to moderate intellectual deficit and that she shows continuing improvement was excluded from the medical officer's report. As a general rule, a visa officer is bound by the medical officer's recommendations (see Gingiovenanu v. Minister of Employment and Immigration, [1995] F.C.J. No. 1436 (T.D.) (QL)). However, where the medical officer's report includes a patently unreasonable error of fact or was generated in a manner contrary to principles of natural justice, then the visa officer's reliance on that report constitutes an error in law (Fei v. Canada (M.C.I.), [1998] 1 F.C. 274 (T.D.)). In this case, I am not convinced that the medical officer's opinion included a patently unreasonable error of fact or was generated in a manner contrary to principles of natural justice. It is clear from Dr. Theriault's affidavit that following the initial medical examination by Dr. Roohina Sattar, he requested a further evaluation of Fakhia's IQ level. Both the medical report and the medical notification are based on all of the evidence submitted by the applicant. A review of the file leads me to conclude that the medical report is valid and thorough and that therefore, the visa officer did not err in relying on it to conclude that Fakhia comes within the inadmissible class of persons.
[7] Second, the applicant argues that the visa officer failed to consider the supportive family environment and the family's extensive financial means to provide for Fakhia's needs. According to the applicant, where the issue concerns an excessive demand on social services, the visa officer must consider the applicant's social and financial contributions. In my opinion, the visa officer did not err in failing to consider the family's financial resources because this consideration would effectively create an undertaking on the part of the applicant that he will pay for any health or social services that Fakhia may require after being admitted to Canada as a permanent resident. In Canada, such services are available to all as of right and this right cannot be waived by the applicant (see Deol v. Canada (M.C.I.), [2003] 1 F.C. 301 (C.A.); Minister of Citizenship and Immigration v. Hilewitz, 2003 FCA 420; Pigg v. Minister of Citizenship and Immigration, 2003 FCA 421, and Dirk De Jong v. Minister of Citizenship and Immigration, 2003 FCA 422).
[8] Finally, the applicant submits that the visa officer erred in his failure to assess the actual costs or the availability of the specific services available in the community where he intends to reside. The visa officer based his decision on the medical officers' opinion that Fakhia would cause or might reasonably cause excessive demands on Canadian health or social services in general and not the availability of those services in Quebec. In this case, the medical officer evaluated the supply of the services that Fakhia would reasonably be expected to require in Canada rather than within the specific community in the Province of Quebec. It is important to note that during his interview, the applicant stated his intention to settle in Toronto and he now claims to intend to settle in Quebec. Although it is true that the visa officer must consider the medical report and the applicant's particular circumstances, I do not think that this extends to the actual supply or availability of services in the area where the applicant intends to settle, as permanent residents are free to move throughout Canada. Therefore, it would be incoherent to require that the visa officer consider the availability of social services in a specific community in which the applicant will not necessarily reside permanently.
[9] For the reasons outlined above, I am of the opinion that the visa officer committed no patently unreasonable error in its disposition of this case. The application for judicial review is therefore dismissed.
JUDGE
OTTAWA, ONTARIO
December 4, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4802-02
STYLE OF CAUSE: Tariq MASOOD v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 13, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: December 4, 2003
APPEARANCES:
Me Asher Neudorfer FOR THE APPLICANT
Me Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sarna Neudorfer FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario