Date: 20030212
Docket: IMM-1575-02
Neutral citation: 2003 FCT 152
Toronto, Ontario, Wednesday, the 12th day of February, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
NASIMBANU GILANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision dated September 13, 2001, wherein Nasimbaru Gilani (the "Applicant") was advised that she would not be issued a Minister's Permit allowing her to come to Canada. The decision, which was made by Program Manager Nathalie Smoylnec (the "Program Manager"), was first communicated to the Applicant by H. Michaud (the "visa officer") the visa officer on or about September 28, 2001.
Background
[2] The Applicant, Nasimbanu Gilani, is a female citizen of Kenya. She originally applied for permanent residence in Canada on February 25, 1998. The Applicant is a breast cancer survivor. On May 12, 1999 she received a "fairness letter" advising her that he metastatic breast cancer rendered her inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2. She was invited to "respond to the description of your medical condition with new medical information of your own."
[3] The Applicant requested to be considered for a Minister's Permit on May 28, 1999. The
visa officer referred the Applicant's request to the Program Manager. On September 12, 2001, the Program Manager, the visa officer and the medical officer discussed the humanitarian and compassionate ("H & C") grounds related to this case. Following this discussion, the Program Manager decided that the H & C grounds were insufficient to warrant the issuance of a Minister's Permit. According to her affidavit, the Program Manager made this decision after considering the Applicant's need to enter Canada, the nature and severity of her inadmissibility, the treatment likely required by the Applicant and the lack of pressing reasons for the Applicant and her family to leave Kenya.
[4] By letter dated September 13, 2001 (the "refusal letter"), the visa officer informed the Applicant that both her application for a permanent residence and her request for a Minister's Permit were denied. The portion of the refusal letter related to the Minister's Permit reads as follows:
Possible humanitarian and compassionate factors which would warrant issuance of a Minister's Permit to facilitate your admission to Canada have been considered. After careful review of all relevant factors in your case, it has been determined that there are insufficient grounds to warrant special consideration. The cost of hospitalisation and treatment in your case will be high, and is liable to displace Canadians waiting for hospitalisation and consultation with specialists.
Applicant's Submissions
[5] The Applicant submitted that the visa officer erred in law by failing to follow the mandatory policy Guidelines with respect to the assessment of whether a Minister's Permit was warranted.
[6] The Applicant also submitted that the visa officer relied on inaccurate information with respect to the issue of excessive demand as a Minister's Permit issued for medical inadmissibility does not qualify the Applicant for provincial health care coverage in Ontario. Consequently, her admission to Canada would not result in any costs to the Canadian people. The Applicant was denied procedural fairness by not being given the opportunity to address the issue of costs and possible displacement of Canadians from health services in the context of a Minister's Permit. In addition, there is no explanation for why the province's input was not sought with respect to whether a Minister's Permit would issue, even though all three visa officers in this case thought it was necessary.
[7] In the Applicant's submission, the fact that the visa officer's decision and the Program Manager's decision were made on the same day constitutes a fettering of discretion. The visa officer also fettered her discretion by considering only the potential for excessive demand on the Canadian health care system when reversing her previous positive decision to issue a Minister's Permit. Finally, the Program Manager fettered her discretion by relying on the visa officer's recommendation. She has to do more than just agree with officer's findings.
Respondent's Submissions
[8] The Respondent submitted that the failure to follow the Guidelines is not a reviewable error (Vidal v. Canada (Minister of Citizenship and Immigration), [1991] F.C.J. No. 63 (T.D.) (QL); Ramotaur v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 370 (T.D.)). In addition, the evidence indicates that the Program Manager turned her mind to the factors that the Applicant alleges were ignored in deciding whether a Minister's Permit should be issued.
[9] With respect to the Applicant's submission regarding the reliance on inaccurate information about the Applicant's eligibility for provincial health insurance, the Respondent noted that the e-mail correspondence on this issue was between the visa officer and the medical officer and not the medical officer and the Program Manager. As a result, that correspondence relates to the decision on the application for permanent residence and not the Minister's Permit. Although the Applicant would not be eligible for provincial health insurance if admitted on a Minister's Permit, she would be eligible for provincial health insurance if she were landed pursuant to s. 38 of the Immigration Act.
[10] The Respondent also submitted that the Applicant did have the opportunity to make submissions to the medical officer regarding her private insurance and her intention to access medical treatment in the United States in her response to the fairness letter. Procedural fairness did not require that the Applicant be given another opportunity to make the same submissions.
[11] In the Respondent's view, the Applicant's submission presumes that the visa officer was leaning toward issuing a Minister's Permit, which was not the case. The visa officer who suggested consideration of a Minister's Permit was not the visa officer who issued the refusal letter. In addition, the Program Manager conducted an independent assessment of the Applicant's request for a Minister's Permit and did not rely on the determination of the visa officer. As a result, the Program Manager did not fetter her discretion by relying on the visa officer's findings.
Relevant Statutory Provisions
[12] The Applicant was found to be inadmissible under s. 19(1)(a)(ii) of the Immigration Act:
|
19. (1) No person shall be granted admission who is a member of any of the following classes: (a) persons, who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer, . . .
(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services; |
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_ :
a) celles qui souffrent d'une maladie ou d'une invalidité dont la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, dont l'avis est confirmé par au moins un autre médecin agréé, conclut _:
. . .
(ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé; |
[13] The Minister may issue a Minister's Permit under s. 37(1)(a) of the Immigration Act:
|
37. (1) The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is (a) in the case of a person seeking to come into Canada, a member of an inadmissible class; or (b) in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2). |
37. (1) Le ministre peut délivrer un permis autorisant _:
a) à entrer au Canada, les personnes faisant partie d'une catégorie non admissible; b) à y demeurer, les personnes se trouvant au Canada qui font l'objet ou sont susceptibles de faire l'objet du rapport prévu au paragraphe 27(2). |
Analysis
[14] For the reasons that follows, I am of the view that this application for judicial review should be dismissed.
Issue #1: Did the Program Manager err in her decision not to issue the Minister's Permit?
(a) The Standard of Review
[15] The appropriate standard of review of the decision of a Program Manager not to award a Minister's Permit is that of reasonableness simpliciter (Wynter v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1107 at para. 20 (T.D.) (QL)). This standard was articulated by L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration):
These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court--Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
Iacobucci J. defined an unreasonable decision in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at 776, as a decision that "in the main, is not supported by any reasons that can stand up to a somewhat probing examination."
(b) Failure to Follow the Guidelines
[16] The Guidelines contain a list of questions which the Program Manager "must address" as part of her risk assessment. The Applicant submitted that the visa officer restricted her analysis to the issue of excessive demand on the Canadian health care system and did not address the other questions set out in the Guidelines.
[17] In Cheng v. Canada (Secretary of State), [1994] F.C.J. No. 1318 (T.D.)(QL), Cullen J. held, at paragraph 7, that while the Guidelines were not legislative in nature, "they ought to be followed by an Immigration Officer in making a decision so that some consistency is achieved within the department". However, Cullen J. held that the failure of an immigration officer to follow the policy expressed in these Guidelines was not an error worthy of referring the matter back for redetermination (see also Vidal, supra). Cullen J. allowed the application for judicial review in Cheng, supra for other reasons.
[18] In Ramoutar, supra, Rothstein J., as he then was, elaborated at page 375 on the status of the policy contained in the Immigration Manuals stating that "merely because officials at the Department of Immigration have set forth a policy does not confer upon that policy the status of law."
[19] As a result, the failure of the Program Manager to follow the Guidelines, in and of itself, would not be reviewable error.
[20] Furthermore, a review of the evidence shows that the Program Manager did, in fact, follow the Guidelines. The relevant portion of the Guidelines states that the immigration officer must consider the severity of the Applicant's anticipated need for health or social services in relation to the demand for these services by/to Canadian residents; the cost of treatment or care; whether provincial public health insurers will provide insurance coverage; whether arrangements for treatment/care and cost coverage were in place; and whether the person is likely to become productive or self-supporting.
[21] Review of the documents contained in the Certified Tribunal Record indicates that the Program Manager did consider many of these factors. In particular, it is apparent that the Program Manager considered the severity of the Applicant's anticipated need for health services in relation to the demand for these services by Canadian residents and the cost of her anticipated treatment. In addition, the Program Manager had evidence before her on the Applicant's private medical insurance, her sizable financial assets, her offer of employment in Canada and the moral and emotional support that she would receive from her family in Canada. There is no indication that the Program Manager failed to consider this evidence in reaching her decision to not issue a Minister's Permit. As a result, there was no reviewable error made by the Program Manager.
(c) Reliance upon Inaccurate Information
[22] The second issue to be addressed is whether the Program Manager erred in not considering the inability of the Applicant to access provincial health insurance.
[23] The high cost of hospitalisation and treatment was one of the reasons for the Program Manager's refusal to issue the Minister's Permit. However, if the Applicant were granted a Minister's Permit, she would not be eligible for provincial health insurance in Ontario ("OHIP"). As a result, the high cost of her treatment was not something that would place an excessive demand on the Canadian health care system; it would be the Applicant, and not OHIP, who would pay for that treatment. Furthermore, the evidence revealed that the Applicant had private medical insurance to cover her treatment expenses and had significant financial assets (she was prepared to invest approximately $2 million Canadian in her sister's business) which could pay for anything not covered by insurance. Her admission on a Minister's Permit, therefore, would not actually cost the province anything in terms of her medical treatment.
[24] Although the Program Manager was in favour of obtaining the province's input on the admission of the Applicant on a Minister's Permit, there is no indication that the input was actually obtained. If the Program Manager had contacted the province, she would have discovered that the Applicant would not qualify for OHIP if admitted on a Minister's Permit. In my view, the Applicant's eligibility for provincial health insurance is something that the Program Manager should have investigated and referred to specifically in her decision given her concern regarding the high cost of the Applicant's treatment. As a result, her conclusion regarding the cost of the Applicant's medical treatment and its relation to the issuance of a Minister's Permit was unreasonable and based on inaccurate assumptions.
[25] However, in my view, this error is not sufficient to allow this application for judicial review. The high cost of treatment, although a major factor in the Program Manager's decision, was only one factor considered by her in refusing to issue a Minister's Permit. That decision was also based on the potential displacement of Canadians from waiting lists and the lack of a compelling need to enter Canada. While the medical evidence indicates that her breast cancer has stabilized, it also indicates that she will require care from a cancer specialist and will probably require treatment in the future. Although, she is willing and able to pay the costs of any medical treatment she does require, it is likely that providing service to her would displace Canadians waiting for medical services.
[26] With respect to the issue of the displacement of Canadians on waiting lists, there is no mention in the Certified Tribunal Records of the Applicant's intention to seek treatment in the United States. If the Applicant did intend to seek medical treatment in the United States, this information should have been submitted. The decision of the Program Manager, based on the remaining evidence, is supported by reasons that can stand up to a somewhat probing examination
(d) Fettering of her Discretion
[27] The final issue is whether the Program Manager fettered her discretion. Stated another way, the question is whether the Program Manager, as the Minister's delegate in this decision-making process, actually made the decision or allowed it to be made by the visa officer. The evidence, although somewhat confusing, leads me to the conclusion that the Program Manager made the decision in question with input from other parties involved in the process. She did not fetter her discretion.
[28] According to the Applicant, the visa officer and Program Manager had agreed on a positive recommendation for a Minister's Permit, but reversed this decision after an e-mail from the medical officer stating that the Applicant would likely be inadmissible due to excessive demands. In the Applicant's submission, this constitutes a fettering of discretion.
[29] However, there is nothing in the Certified Tribunal Record to indicate that the Program Manager had previously agreed that a Minister's Permit should be issued. Counsel for the Applicant points to an e-mail sent by the Program Manager to the visa officer on August 23, 2001, where the Program Manager stated "I agree that we should obtain the provinces input on whether we may issue a MP." In my view, this ambiguous and somewhat cryptic statement is not the equivalent of a positive decision to issue a Minister's Permit. As a result, the Program Manager could not have erred by reversing her previous positive decision because there is no evidence of such a decision.
[30] Finally, as stated above, there is evidence that the Program Manager considered other factors in addition to the potential for excessive demand in reaching her decision on the Minister's Permit. As a result, unlike the decision of the visa officer, her decision was not based solely on the issue of excessive demand.
Conclusion
[31] The Applicant proposed the following question for certification:
When a Minister's delegate makes a decision to refuse a Minister's Permit, should she be permitted to rely on evidence submitted in another process without allowing the Applicant to comment on such evidence?
Since this question was not determinative of the issues before me and since this case is very fact specific, I decline to certify this question.
[32] This application for judicial review will be dismissed and no question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Judith A Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-1575-02
STYLE OF CAUSE: NASIMBANU GILANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, FEBRUARY 4, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: WEDNESDAY, FEBRUARY 12, 2003
APPEARANCES BY: Ms. Elizabeth Jaszi
For the Applicant
Ms. Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Ms. Mary Lam
Barrister & Solicitor
206 Bloor Street West
Suite #3
Toronto, Ontario
M5S 1T8
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030212
Docket: IMM-1575-02
BETWEEN:
NASIMBANU GILANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER