Digests

Alibey v. Canada (Minister of Citizenship and Immigration)

IMM-2649-02

2004 FC 305, Russell J.

2/3/04

37 pp.

Judicial review of visa officer's dismissal of application for permanent residence--Applicant's wife quadriplegic-- Condition not expected to improve--Medical officer who prepared Medical Notification described health impairments of wife, expressed opinion admission to Canada would place excessive demand on Canadian health and social services-- On review of wife's file, second medical officer concurred with assessment--Applicant's principal argument that Immigration Act (Act), s. 19(1)(a)(ii) not applied correctly because medical officer did not address specifics of applicant's situation, did not turn her mind to whether, given applicant's actual condition and family situation, excessive demands might reasonably be expected--Applicant relied upon Badwal v. Canada (Minister of Employment and Immigration) (1989), 64 D.L.R. (4th) 561 (F.C.A.) and Lau v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 116 (F.C.T.D.)--In Hilewitz v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 696 (F.C.A.), Evans J.A. stated "the availability of parental resources to pay for social services is not a factor that a medical officer must consider in assessing the likelihood that a person's admission to Canada might reasonably be expected to cause excessive demands on social services, even though they may be available on a full or partial cost recovery basis, or may be purchased or provided privately . . . Court should only imply additional factors in order to ensure the efficacy of the statutory scheme"--Applicant arguing, unlike Hilewitz, no real social services wife will need, wife not under mandatory requirement to go to school--Dicta of Evans J.A. in Hilewitz cannot be read in way making any such distinction meaningful--Hilewitz interpretation of Act, s. 19(1)(a)(ii) that Parliament did not intend to oblige medical officers to undertake broad-ranging, difficult and inherently speculative inquiries when applying this section--Applicant arguing wife just doesn't need services resulting in expense to public-- However, applicant's own evidence establishes wife needs close, constant attention of family, others--Consequently, case remains within ambit of principles laid down in Hilewitz and medical officer not obliged to factor into her excessive demands assessment non-medical issues such as family support and ability and willingness to pay--Duty of Medical Officer under s. 19(1)(a)(ii) to focus on nature, severity or probable duration of wife's personal medical condition and any implied "additional factors in order to ensure the efficacy of the statutory scheme"--While Lau (particular circumstan-ces principle) continues to apply, must be read in light of Hilewitz and narrower focus medical officer called upon to take--Exercise of formulating excessive demands assessment requires medical officer to decide whether disease, disorder, disability or other health impairment "would cause or might reasonably be expected to cause excessive demands on health or social services", thus requiring medical officer, within terms of Badwal, to provide "a judgment of probability based upon an appreciation of an applicant's present condition"--In Hilewitz, Federal Court of Appeal appears to approve Badwal decision--Applying correctness standard of review, no reviewable error committed by either medical officer or by visa officer--Applicant has not raised sufficient justification vitiating medical assessment or decision of visa officer-- Sufficient evidentiary basis for conclusion wife would cause or might reasonably be expected to cause excessive demands on health or social services and medical officer addressed right question, conducted adequate analysis, did not ignore relevant evidence--In fact, even took into account wife's family situation and made reasonable assumptions, extrapola-tions about medical services she would need--Conclusion required "level of care is demanding at physical and financial levels" supports assessment wife "would place an excessive demand on health and social services"--Applicant's main reason why conclusion incorrect that most of wife's anticipated physical, financial demands being met by family, and sufficiently well-off that wife could never pass any means test required to access various public services referred to by medical officer--Although applicant disputes wife's eligibility for many of services referred to, Hilewitz teaches "if the medical opinion is founded on evidence, the findings of fact on which the opinion is based, and the medical officer's application of the statutory provision to the facts, are entitled to considerable deference"--Eligibility moves inquiry back towards ability and willingness to pay which, Hilewitz says Parliament did not intend medical officers to consider--When medical officer's assessment reviewed against dicta in Hilewitz, impossible to conclude incorrect in conclusions concerning excessive demands--Applicant's final issue medical officer breached duty of fairness because applicant never given adequate notice of case to be met to counter Medical Notification and because specific sources of information relied upon not disclosed to applicant--Review of correspondence between parties and submissions actually made by applicant suggesting applicant had sufficient information and knowledge of process to participate in meaningful way--Applicant knew case to be met--However, as to specific cost and eligibility issues, medical officer's affidavit demonstrated she not only reviewed materials provided by applicant but also, on issue of costs, accessed and relied upon further information--Underlying purpose of medical officer's assessment to decide whether wife would impose excessive demand on health and social services-- Applicant aware cost considerations would be at issue because given opportunity to respond to negative opinion and did respond by providing package of materials designed to show financial burden would not be great because of family support--Not having precise knowledge of medical officer's actual inquiries did not prevent meaningful participation on this central issue--In fact, meaningful participation occurred and duty of fairness not breached--Application dismissed--I mmigration Act, R.S.C., 1985, c. I-2, s.19(1)(a)(ii).