Barlagne v. Canada (Citizenship and Immigration)

Barlagne v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2010-05-18
Neutral citation
2010 FC 547
File numbers
IMM-2486-09
Decision Content
Federal Court
Cour fédérale
Date: 20100518
Docket: IMM-2486-09
Citation: 2010 FC 547
Ottawa, Ontario, May 18, 2010
PRESENT: The Honourable Madam Justice Johanne Gauthier
BETWEEN:
DAVID PHILIPPE BARLAGNE
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Barlagne is asking the Court to set aside the decision by the visa officer refusing his application for permanent residence on the basis that his daughter, Rachel, who has hypotonic cerebral palsy with cerebellar dysfunction, is inadmissible to Canada on health grounds because her condition might reasonably be expected to cause excessive demand on social services. The fact that young Rachel Barlagne is inadmissible means that the applicant and his family (his wife Sophie and their two daughters, Rachel and Lara) are inadmissible.
[2] Cases like this are always difficult to deal with, particularly when they involve a young girl who is intelligent and endearing, if not exceptional, according to those who know her. However, unlike the application for exemption under subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), judicial review is subject to specific rules that apply to all cases, even those where strong sympathy for the applicant and his family would favour a different outcome. After thoroughly reviewing the record, the Court cannot allow Mr. Barlagne’s application for the following reasons.
Background
[3] The applicant has a Master’s in computer science (software engineering). Prior to moving to Montréal and beginning in January 2003, he was the manager and the person in charge of software development for a company called Esprit Technologie s.a.r.l. He was also the majority shareholder (45% of outstanding shares / controlling interest).
[4] After discussions with an investment officer at the Canadian Embassy and, inter alia, an exploratory trip to Quebec, the company Esprit Technologie Inc. (ETI) was created in Quebec, and Mr. Barlagne was appointed its Executive Vice-president. The aim of the company was to provide implementation services and to design software adapted to a clientele of libraries and publishing houses in Canada and throughout the entire Francophonie.
[5] With the support of the Canadian Embassy and Investissement Québec, the applicant subsequently obtained a work permit[1] (July 23, 2005, to July 31, 2008) and visitors visas for his family members. They then moved to Quebec.
[6] Mrs. Barlagne, who has only a visitor’s visa, has not worked since her arrival.[2] Lara was immediately enrolled in school, and her young sister Rachel, who first went to an integrated day care centre, has been enrolled in École Victor-Doré, a specialized public school for disabled children, since September 2007.
[7] On June 14, 2007, Mr. Barlagne submitted an application for permanent residence, and he has not left Quebec since.
[8] On February 20, 2008, mandatory medical forms were sent to the applicant, and on March 20, 2008, Rachel’s initial medical report was completed and signed by Dr. Charles Chocron.
[9] On May 20 and May 23, 2008, requests for additional information were sent. On June 30, 2008, in response to these requests, École Victor-Doré sent a letter setting out the services that Rachel Barlagne’s physical condition requires. That letter stated that, for the 2008-2009 school year, Rachel was going to attend a special education class of nine students and that she would be receiving the services of a physiotherapist, an occupational therapist, a supply teacher in communication as well as in technical assistance to facilitate her communication.
[10] After a reminder letter dated August 11, 2008, Mr. Barlagne completed his file. On August 13, 2008, Immigration Canada’s medical officer, Dr. Hélène Quévillon, made a diagnosis of general developmental delay, a [translation] “medical condition that might reasonably be expected to cause excessive demand on social services.”
[11] In a letter dated September 2, 2008 (the fairness or “second chance letter”), the visa officer advised the applicant of the diagnosis in the following words and also informed him that his application for permanent residence could be refused under subsection 38(1) of the Act:
[translation]
Narrative: This applicant, who will soon turn six, presents a general developmental delay associated with hypotonic cerebral palsy with cerebellar dysfunction. She presents an ataxia but is able to move on her hands and knees. Her balance is precarious. She requires assistance to stand. She presents a significant speech delay. The latest psychological report does not show any intellectual impairment. She will be in a class of nine students (ratio 1/8-10) in a specialized school for physically disabled children. The class has an attendant for approximately 8 hours a week. She is followed in physiotherapy and occupational therapy. She also has the support of a supply teacher in communication. This applicant requires specialized education services. These services are expensive. Based on a review of the results of the medical assessments and all the reports that I received concerning this applicant’s health condition, I find that she presents a medical condition that might reasonably cause an excessive demand on social services. In particular, this condition will likely cause a need for services that will exceed the average Canadian per capita costs over a five-year period. Consequently, this applicant is inadmissible under section 38(1)(c) of the Immigration and Refugee Protection Act. Social services required and associated costs: Primary school: In accordance with the standards and definitions of the Ministère de l’Éducation, des Loisirs et des Sports, school boards are required, under the Basic school regulation, to provide special services to disabled children. The additional allowance for these services is approximately $7,045 for each year of primary school.
[12] The officer directed the applicant to provide additional information or documents by November 1, 2008, as follows:
[translation]
Before I make my final decision, you may submit additional information or documents relating to the above illness, medical condition, diagnosis or medical opinion. You may also submit relevant information addressing the issue of excessive demand if it applies to your case.
[13] On October 17, 2008, counsel for the applicant filed an access to information request in order to obtain all the files in Canada and at the Consulate General of Canada in Detroit as well as the medical records related to the applicant’s application for permanent residence. A little over 100 documents were received on November 28, 2008. In the meantime, on November 3, 2008, the visa officer received a request from counsel for more time to submit documents. An extension of 45 days was granted, i.e., until December 19, 2008. On December 17, 2008, counsel sent a letter and 51 attachments[3] to the visa officer, and on January 12, 2009, another letter containing corrections to the letter of December 17, 2008 (collectively “the Comments”).
[14] As indicated in the Table of Attachments (Annex A), the applicant submitted information on various topics such as[4] the representations made to Mr. Barlagne by the investment officer at the Canadian Embassy, resumés including Mrs. Sophie Barlagne’s, her volunteer activities, Lara’s academic transcripts, numerous documents about Rachel’s condition, her development at school and in therapy (diagnosis and prognosis), the care she received in the past (including music therapy and riding therapy), jurisprudence and agreements between France and Quebec.[5]
[15] In addition, Mr. Barlagne submitted a detailed plan for the 2009-2010 year in his Comments, as required by Operational Bulletin 063 (the Bulletin). In that plan, the applicant indicated that Rachel would continue to attend École Victor-Doré, a public institution that, as I said, offers special education and rehabilitation services. However, the applicant stated that, although he intended to continue to send his daughter to that school, the family would use specialists in the private sector to provide the rehabilitation services that Rachel requires instead of the services offered by the rehabilitation centre affiliated with École Victor-Doré, i.e., speech therapy, physiotherapy and occupational therapy (support services). It also appears that young Rachel receives assistance four times a week from Marie-Hélène Gilbert, a specialized teacher, to help her acquire more independence in various life activities.
[16] It should be noted, in particular, that three types of financial documents were provided: a letter from ETI’s accountant[6] confirming the incorporation, activities, head office, number of employees (2), the company’s share ownership (tab 1), a simplified statement of financial position for the French company, Esprit Technologie s.a.r.l., for the 2005 fiscal year (tab 45) and certified copies of bank statements in euros from the Caisse d’épargne Provence-Alpes-Corse/Guadeloupe for Mrs. Barlagne and her two children dated 2008 (tab 37). At tabs 32 and 33, the applicant included the budgetary rules for the 2008-2009 school year of the Ministère de l’éducation du loisir et du sport (MELS), as well as the allowances for teaching resources prepared and issued by Mr. Serge Dupéré. Last, tab 38 contains the Bulletin dated September 24, 2008, which deals with the assessment of excessive demand on social services by Citizenship and Immigration Canada.
[17] On January 15, 2008, the visa officer reviewed the documents sent by counsel for the applicant, listed them in his own words and commented on them briefly in his CAIPS notes. On January 21, 2008, certain documents were transferred to the medical officer who sent her comments on February 11 and advised the visa officer that, in her view, the inadmissibility assessment should not be changed. Dr. Quévillon noted that Rachel Barlagne still required special education services, for which she assessed an additional allowance of $5,259 $.
[18] However, she requested two other documents that apparently were not sent to her. On March 4, based on a review of the two additional documents, the medical officer advised the visa officer that they did not change her opinion.
[19] On March 11, 2009, the visa officer sent a short letter (1 page) refusing the applicant’s visa application under subsections 11(1), 38(1) and 42(a) of the Act. On May 15, 2009, Mr. Barlagne filed an application for leave and judicial review in Federal Court.
[20] The parties filed a number of affidavits in this matter. Although the applicant and the respondent submitted contradictory evidence regarding, on the one hand, the failure of the Canadian Embassy and Investissement Québec to inform Mr. Barlagne that Rachel’s health condition could preclude admissibility and, on the other hand, Mr. Barlagne’s failure to declare his daughter’s health condition in his applications for a work permit, it is not helpful to discuss this here. The representations or possible omission by the official at the Canadian Embassy are not relevant to assessing the legality of the impugned decision. As we will see, the visa officer had no discretion to take such a factor into account, a factor that could be relevant on an application for exemption based on humanitarian and compassionate considerations under section 25 of the Act.
[21] As for the “unclean hands” argument based on the failure to declare Rachel’s health condition in the applicant’s application for a work visa and in his application to change his conditions of stay (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras. 38 to 41; Thanabalasingham v. Canada (Minister of Citizenship and Immigration)), 2006 FCA 14, 263 D.L.R. (4th) 51 at paras. 9 and 17), the Court does not intend to exercise its discretion to refuse to consider the merits of the case. In fact, the Court of Appeal in Thanabalasingham set out guidelines regarding the exercise of this power, and the Court must assess certain factors (see, in particular, paras. 9 and 10) to strike a balance between the need to prevent the abuse of the judicial process and the protection of the applicant’s rights. In this case, I am satisfied that the Court must exercise its discretion to hear the application on its merits even if the Court assumes, without deciding, that there was a failure to declare.
Issues
[22] At the outset, it is appropriate to deal with a preliminary issue raised by the respondent in his supplementary memorandum, i.e., that the applicant’s record contains fresh evidence, such as tab 52 and the two statements dated October and November 2009 attached as Exhibits E and F to the applicant’s supplementary affidavit.[7]
[23] It is settled law that, on a judicial review, the Court must assess the validity of the decision on the basis of the evidence that was before the initial decision-maker. In this case, since the fresh evidence was not relevant to procedural fairness arguments, those documents and the related paragraphs in Mr. Barlagne’s affidavit will not be considered: Ali v. Canada (Minister of Citizenship and Immigration), 2008 FC 106, 2008 F.C.J. No. 122 (QL) at para. 26; Lemiecha (Litigation Guardian of) v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49, 24 Imm. L.R. (2d) 95 at paras. 3, 4; Abbott Laboratories Ltd. v. Canada (Attorney General), 2008 FCA 354, [2009] 3 F.C.R. 547 at paras. 37, 38.
[24] Although the applicant raised a large number of issues in his initial memorandum, which repeated his Comments in detail, and in his supplementary memorandum, they can be consolidated as follows:
1. Did the visa officer fail to observe a principle of natural justice, procedural and administrative fairness, that he was required to observe?
2. Did the visa officer and the medical officer disregard arguments and evidence submitted in response to the fairness letter and was their decision unreasonable?
[25] The applicant also submits that the visa officer did not consider his argument that subsection 38(1) of the Act and its application in this case is unconstitutional because it is contrary to section 15 of the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
Relevant statutory provisions
[26] The relevant statutory provisions read as follows:
Immigration and Refugee Protection Act, S.C. 2001, c. 27
11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
(2) The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act.
11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la présente loi.
(2) Ils ne peuvent être délivrés à l’étranger dont le répondant ne se conforme pas aux exigences applicables au parrainage.
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.
(2) Paragraph (1)(c) does not apply in the case of a foreign national who
(a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations;
(b) has applied for a permanent resident visa as a Convention refugee or a person in similar circumstances;
(c) is a protected person; or
(d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (a) to (c).
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.
(2) L’état de santé qui risquerait d’entraîner un fardeau excessif pour les services sociaux ou de santé n’emporte toutefois pas interdiction de territoire pour l’étranger:
a) dont il a été statué qu’il fait partie de la catégorie « regroupement familial » en tant qu’époux, conjoint de fait ou enfant d’un répondant dont il a été statué qu’il a la qualité réglementaire;
b) qui a demandé un visa de résident permanent comme réfugié ou personne en situation semblable;
c) qui est une personne protégée;
d) qui est l’époux, le conjoint de fait, l’enfant ou un autre membre de la famille — visé par règlement — de l’étranger visé aux alinéas a) à c).
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.
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.
Immigration and Refugee Protection Regulations, SOR/2002-227
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 by these Regulations, 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. . . .
“social services” means any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services,
(a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and
(b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies.
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 par le présent règlement 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.
« services sociaux » Les services sociaux — tels que les services à domicile, les services d’hébergement et services en résidence spécialisés, les services d’éducation spécialisés, les services de réadaptation sociale et professionnelle, les services de soutien personnel, ainsi que la fourniture des appareils liés à ces services:
a) qui, d’une part, sont destinés à aider la personne sur les plans physique, émotif, social, psychologique ou professionnel;
b) dont, d’autre part, la majeure partie sont financés par l’État directement ou par l’intermédiaire d’organismes qu’il finance, notamment au moyen d’un soutien financier direct ou indirect fourni aux particuliers.
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.
Education Act, R.S.Q. c. I-13.3
1. Every person is entitled to the preschool education services and elementary and secondary school instructional services provided for by this Act and by the basic school regulation made by the Government under section 447, from the first day of the school calendar in the school year in which he attains the age of admission to the last day of the school calendar in the school year in which he attains 18 years of age, or 21 years of age in the case of a handicapped person within the meaning of the Act to secure handicapped persons in the exercise of their rights with a view to achieving social, school and workplace integration (chapter E-20.1).
Every person is also entitled to other educational services, student services and special educational services provided for by this Act and the basic school regulation referred to in the first paragraph and to the educational services prescribed by the basic vocational training regulation established by the Government under section 448, within the scope of the programs offered by the school board.
The age of admission to preschool education is 5 years on or before the date prescribed by the basic school regulation; the age of admission to elementary school education is 6 years on or before the same date.
1. Toute personne a droit au service de l'éducation préscolaire et aux services d'enseignement primaire et secondaire prévus par la présente loi et le régime pédagogique établi par le gouvernement en vertu de l'article 447, à compter du premier jour du calendrier scolaire de l'année scolaire où elle a atteint l'âge d'admissibilité jusqu'au dernier jour du calendrier scolaire de l'année scolaire où elle atteint l'âge de 18 ans, ou 21 ans dans le cas d'une personne handicapée au sens de la Loi assurant l'exercice des droits des personnes handicapées en vue de leur intégration scolaire, professionnelle et sociale (chapitre E-20.1).
Elle a aussi droit, dans le cadre des programmes offerts par la commission scolaire, aux autres services éducatifs, complémentaires et particuliers, prévus par la présente loi et le régime pédagogique visé au premier alinéa ainsi qu'aux services éducatifs prévus par le régime pédagogique applicable à la formation professionnelle établi par le gouvernement en vertu de l'article 448.
L'âge d'admissibilité à l'éducation préscolaire est fixé à 5 ans à la date déterminée dans le régime pédagogique; l'âge d'admissibilité à l'enseignement primaire est fixé à 6 ans à la même date.
2. Every person no longer subject to compulsory school attendance is entitled to the educational services prescribed by the basic regulations established by the Government under section 448, within the scope of the programs offered by the school board pursuant to this Act.
2. Toute personne qui n'est plus assujettie à l'obligation de fréquentation scolaire a droit aux services éducatifs prévus par les régimes pédagogiques établis par le gouvernement en vertu de l'article 448, dans le cadre des programmes offerts par la commission scolaire en application de la présente loi.
3. The educational services provided for by this Act and prescribed by the basic school regulation established by the Government under section 447 shall be provided free to every resident of Quebec entitled thereto under section 1.
Literacy services and the other learning services prescribed by the basic school regulation for adult education shall be provided free to residents of Quebec contemplated in section 2, subject to the conditions prescribed by the said regulation.
3. Tout résident du Quebec visé à l'article 1 a droit à la gratuité des services éducatifs prévus par la présente loi et par le régime pédagogique établi par le gouvernement en vertu de l'article 447.
Tout résident du Quebec visé à l'article 2 a droit à la gratuité des services d'alphabétisation et à la gratuité des autres services de formation prévus par le régime pédagogique applicable aux services éducatifs pour les adultes, aux conditions déterminées dans ce régime.
Basic school regulation for preschool, elementary and secondary education, 2000 G.O.Q. 2, 2593
5. Student services provided under section 4 must include the following:
(1) services designed to promote student participation in school life;
(2) services designed to educate students about their rights and responsibilities;
(3) sports, cultural and social activities;
(4) support services for the use of the documentary resources of the school library;
(5) academic and career counselling and information;
(6) psychological services;
(7) psychoeducational services;
(8) special education services;
(9) remedial education services;
(10) speech therapy services;
(11) health and social services;
(12) services in spiritual care and guidance and community involvement.
5. Doivent faire partie des services complémentaires visés à l'article 4 des services:
1° de promotion de la participation de l'élève à la vie éducative;
2° d'éducation aux droits et aux responsabilités;
3° d'animation, sur les plans sportif, culturel et social;
4° de soutien à l'utilisation des ressources documentaires de la bibliothèque scolaire;
5° d'information et d'orientation scolaires et professionnelles;
6° de psychologie;
7° de psychoéducation;
8° d'éducation spécialisée;
9° d'orthopédagogie;
10° d'orthophonie;
11° de santé et de services sociaux;
12° d'animation spirituelle et d'engagement communautaire
Analysis
[27] The parties did not make any written representations as to the appropriate standard of review, and at the hearing they confirmed that there was no dispute on this point.
[28] In accordance with the principles developed by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), the Court is satisfied that questions of law and breach of procedural fairness are reviewable against the standard of correctness: Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 at para. 71 (Hilewitz); Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392 at paras. 52-55.
[29] The application of statutory provisions to the facts of a case is a question of mixed fact and law, and the appropriate standard is reasonableness: Rashid v. Canada (Minister of Citizenship and Immigration), 2010 FC 157, [2010] F.C.J. No. 183 (QL) at paras. 12-15; Sapru v. Canada (Minister of Citizenship and Immigration), 2010 FC 240, [2010] F.C.J. No. 270 (QL) at paras. 13-15.
[30] Before examining the issues, it is appropriate to clearly identify why it was thought that Rachel would cause an excessive demand, since this will lead to a better understanding of how the errors raised by the applicant are relevant.
[31] Under subsection 38(1) of the Act, the visa officer must declare a person inadmissible if that person’s health condition might reasonably be expected (reasonable probability)[8] to cause excessive demand on social services.[9] This term is defined in the Immigration and Refugee Protection Regulations, SOR/2002-227. It is clear that excessive means that the anticipated costs of health and social services would likely exceed average Canadian per capita costs over a period of five years. Social services include special education services, for which the majority of the funding is provided directly or indirectly by the governments (through publicly-funded agencies).
[32] In Quebec, unlike the situation in other provinces such as Ontario, special education services are provided at no cost, regardless of the parents’ ability or willingness to pay, until the child reaches the age of 21.
[33] That being said, in Hilewitz[10], the Supreme Court of Canada stated that the medical officer or the visa officer must carry out an individualized assessment of the impairment and the associated costs.
[34] It should be pointed out that in Hilewitz, the two families involved were expecting to move to Ontario and that the parents had clearly said they intended to send their child to a private school, which would substantially reduce the costs of social services required from the state. Accordingly, there was only a remote possibility that this family would use the public system if it experienced short- or mid-term financial difficulties.
[35] In this case, as I said, Mr. Barlagne filed a plan that specifically stated that young Rachel would be sent to École Victor-Doré—a public institution— and that he would pay for all the rehabilitation services that had previously been provided at no cost by the rehabilitation centre affiliated with the school. The applicant’s ability to pay was therefore only relevant with respect to the cost of support services.
[36] The applicant himself had provided with his Comments documentation indicating the allowances that the MELS pays to the school boards and schools. It appears that the amount per primary school student[11] consists of an allowance for teaching, i.e., for the cost of the teaching staff, and an allowance for other expenses (including support services).
[37] At tab 33 of the documents provided by the applicant, it also appears that the allowance for teaching resources by individual represents an average allowance per student and is only a rough guide because, at that point in time, the number of students for the current academic year had not been finalized. It is clear that, since the Act requires a prospective assessment, i.e., over a period of five years, the visa officer and the medical officer cannot obtain exact figures for each individual whose file they are dealing with. The statutory definition therefore necessarily involves using reasonable estimates.
[38] The Bulletin clearly explains how the calculation is done and the procedure to follow in light of the most recent jurisprudence at the time it was adopted. The document clearly indicates how the average per capita costs referred to in the Act are established. The threshold figure is the Canadian Institute for Health Information (CIHI) aggregate, which represents the average per capita health expenditure; a supplementary amount is added to that figure to account for the missing expenditures for certain social services. In September 2008, it appears that the amount that had been used since January 2003 was $4,057 ($3839 + $ 218), while it was set at $4,806 ($4,548 established by the CIHI plus $258) in September 2008. That amount must then be multiplied by 5 to establish the threshold determined by the Act.
[39] In this case, it appears from the CAIPS notes and the documentation in the record that the medical officer used the figures suggested by the applicant to establish the average cost of the services for which the state would continue to be responsible under the proposed plan, i.e., the additional allowance for the teaching staff in a class of 1 to 10 students[12] for a child disabled by slight motor or organic disability or by a language disability (level 1 disability). That is, $9,023 minus the average cost of a regular student at the same level, $3,764, for an additional allowance of $5,259 per year. This means than even considering that Rachel is otherwise generally in good health (she has had only a little bronchitis and illnesses of children her age), the cost of social services alone, without considering possible increases in costs in future years is above the threshold set by the Act. In the plan and documentation that the applicant provided, there is nothing to indicate that Rachel will be able to attend a regular school in the next five years, even if she were to make enormous physical progress and her needs in terms of adaptive equipment, fittings, (orthotics) and support services diminish.
Procedural fairness
[40] That being said, was there a breach of procedural fairness? The applicant submits in his supplementary memorandum that it was not until he read the respondent’s affidavit and memorandum that he became aware of a number of documents concerning the assessment of Rachel’s health condition, for example, Dr. Chocron’s report, which the medical officer relied on to form her opinion. He specifically refers to Exhibits B to J and N of the affidavit of Ms. Révah, which were not sent to him in response to his access to information request. In his view, this breach prevented him for providing an adequate response to the fairness letter.
[41] The applicant also contends in his initial memorandum that the medical officer and the visa officer did not document in writing, as the Bulletin requires, all the steps of their analysis or all their notes, for example, Dr. Quévillon’s calculation of the amount included in her medical notification of August 18, 2008, reproduced in the fairness letter, or the calculation that was done to arrive at the new assessment in 2009. Mr. Barlagne believes that this is a breach of the duty of procedural fairness, which includes providing detailed and complete reasons for the process that was followed.
[42] The respondent argues that the CAIPS notes are sufficiently detailed and provide all the necessary information. He also states that documents B to D and F to H, which deal with Rachel’s health condition, did not need to be disclosed because the procedural fairness letter contained a complete description of the medical officer’s medical notification. Moreover, through his access to information request, the applicant obtained the MELS documentation establishing the costs related to the diagnosis and prognosis described in the fairness letter. With respect to documents I, J and E, they were sent to counsel for the applicant.
[43] We note first that the manager of access to information requests explained that these documents were not sent to counsel for Mr. Barlagne because, in her view[13], the application was directed to Mr. Barlagne’s file while the documents in question were in Rachel Barlagne’s personal file. The applicant disputes this, saying that the access to information section should have known that it had to include Rachel’s file, which also bore the same number that he had referred to. It is not necessary to determine or discuss this issue in more detail because there are other remedies available under the Access to Information Act, R.S.C. 1985, c. A-1, to deal with such issues.
[44] What must be determined is whether the decision-maker breached its duty of procedural fairness in this application for permanent residence.
[45] The applicant relies on the decisions in Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62, 42 Imm. L.R. (2d) 17 (F.C.) (Wong) and Jang v. Canada (Minister of Citizenship and Immigration), 2001 FCA 312, 278 N.R. 172 (Jang).
[46] In my view, the Jang decision does not support the applicant’s argument. In that case, the Court merely confirmed that a visa officer must give an applicant a second chance by sending a fairness letter, which was done in this case. In addition, it is quite clear from paragraphs 13 to 14, which are reproduced here, that a letter setting out the medical opinion received and describing the diagnosis, prognosis and social services was sufficient to satisfy the requirement to act fairly.
[13] It is well established that a duty of fairness attaches to the process by which a visa officer considers and decides an application for an immigrant visa. Writing for a unanimous panel of this Court in Muliadi v. Canada (M.E.I) [1986] 2 F.C. 205 (F.C.A.) at p. 215 Stone J.A. stated the principle as follows:
. . . I think it was the officer's duty before disposing of the application to inform the appellant of the negative assessment and to give him a fair opportunity of correcting or contradicting it before making the decision required by the statute.
[14] In my view the duty of fairness in immigration cases does not require the visa officer to divulge to a prospective immigrant the complete details of the medical officers' method of evaluation or the various facets of the specific decision-making processes adopted by ministerial officials. Rather, the duty of fairness requires that a visa officer give an appellant an adequate opportunity to respond to any negative medical assessment, provided always that the medical notification form prepared by the medical officer must clearly enunciate the reasons for the negative assessment.
[47] The Wong decision may be distinguished because the fairness letter in that case did not contain sufficient information, and the applicant had asked the visa officer twice for the missing information, to no avail.
[48] In addition, Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2002] 2 F.C. 413 (Khan), the most recent Court of Appeal decision in this regard, is interesting because it comments on the Wong decision in a case where the appellant, who was relying on that case, argued that his right to procedural fairness had been denied because he had not been given an adequate opportunity to respond to the visa officer’s concerns about excessive demand. Although the issue of excessive demand will be discussed further on, this case is relevant even with respect to the allegation that there was missing information or documentation that the medical officer had based his opinion on.
[49] First, after discussing Wong and dismissing the applicant’s argument, the Federal Court of Appeal referred to the response to the fairness letter to verify whether he had been denied his right to comment (see paras. 19 to 25). Second, based on the factors laid out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 21 to 28 (Baker), the Court analysed the content of a visa officer’s duty of procedural fairness in circumstances similar to the case before us. In addition, the Federal Court of Appeal noted the following at paragraph 29:
[29] I agree that, where an applicant is clearly advised of the medical diagnosis and prognosis, and of the services likely to be required, he or she effectively knows the grounds for the potential refusal and has the knowledge necessary to pursue the matter further. In these circumstances, the Minis