Visalaw International lawyer Sergio R. Karas was a guest in the CTS Television show "On the line" with Christine Williams. Here is the clip of the show:
CTS Television: Online Video Player
Wednesday, March 31, 2010
CANADA: MAJOR REFUGEE REFORMS ANNOUNCED
TORIES TARGET FALSE REFUGEES
Immigration bill to hasten decisions, deportations
Norma Greenaway and David Akin, Canwest News Services
Vowing not to cave to the "enemies of reform," Immigration Minister Jason Kenney proposed $540-million worth of new measures yesterday to overhaul the system for dealing with refugee claims from foreigners who arrive on Canadian soil.
Mr. Kenney said the changes, once implemented, will cut the time it takes for a refugee claimant to get a hearing to two months from the current 19 and reduce to about two years from the average 4½ years the time it takes to evict a rejected applicant.
A total of $1.6-million of the new money has been earmarked for clearing the backlog of 60,000 asylum seekers.
"Our generosity is too often abused by false refugee claimants," Mr. Kenney told a news conference. "The system is full of opportunities for appeal, and we are streamlining that process."
The shorter timelines would be achieved by allowing trained public servants to make the first call on a refugee claim and limiting avenues of appeal currently open to those whose claims are rejected.
Mr. Kenney said the new limits on appeals are offset by the government's decision to create a new refugee appeal division, which would be charged with reviewing the first-level decision within four months and allowing new evidence to be submitted. Government appointees would staff the division.
One measure that already has refugee advocates, as well as some opposition politicians on high alert, would allow the immigration minister to designate a list of "safe" countries of origin.
Refugee claimants from those "safe" countries would not have the right to appeal to the new division. Their only recourse would be the Federal Court of Canada.
Mr. Kenney billed the safe country designation as a necessary tool to counter any spikes in refugee claims from democratic countries with a robust human rights record.
As it stands now, Mr. Kenney said, the government has to resort to imposing visa requirements when claims surge from individual countries, as it did last year for visitors from Mexico and the Czech Republic, a tactic that, he said, can undermine diplomatic and commercial relations.
Mr. Kenney said the list of safe countries would be drawn up after receiving advice from an independent panel and the United Nations Commissioner for Refugees.
New Democrat MP Olivia Chow embraced elements of the reform package that would speed hearing claims and deportations of failed claimants, but denounced the safe country idea as unfair.
"We want fair and fast," said Ms. Chow, the party's immigration critic.
Bloc Quebecois MP Thierry St-Cyr accused Mr. Kenney of sacrificing justice by allowing refugees to be judged based on their country of origin and creating two categories for people seeking asylum.
Janet Dench of the Refugee Council of Canada agreed.
"Refugee determination should be done on the individual facts of the case, not the country of origin," Ms. Dench said in an interview from Montreal.
Gloria Nafziger, refugee coordinator for Amnesty International, said the government was opening a political minefield with the safe country proposal.
"It's highly problematic," Ms. Nafziger said. "We are a human rights organization and we have never tried to rank countries by the depth of their human rights abuses."
Liberal MP Maurizio Bevilacqua, the party's immigration critic, described the reform package as "a good start" and said he looks forward to more detailed study when it gets to committee.
Mr. Bevilacqua said Liberals want more information on how the safe countries will be selected, and assurances the money earmarked for such things as hiring more officers for the Canadian Border Service Agency to track down and oust failed refugee claimants from Canada will actually be used for that purpose.
The $540-million funding for the reforms--which will be spread over five years -- won't be tapped until the legislation becomes law, something that is not expected to happen until next year at the earliest.
Mr. Kenney said the savings will be substantial under the new process. It now costs about $50,000 in health and social service costs for each failed refugee claimant, a sum that should fall to about $29,000 under the new and speedier system, Mr. Kenney said.
Other elements of the package:
-Rejected claimants would have severely restricted access to the options of winning a reprieve on compassionate and humanitarian grounds, or on grounds they would be subjected to severe persecution and possibly death upon return to their native country.
-A four-year pilot project to encourage voluntary departure by rejected claimants that, among other things, would provide each participant with a plane ticket back to their country of origin, and provide $2,000 to a service provider in that country to facilitate the failed claimant's reintegration into that society.
-A public servant will help a refugee claimant gather all relevant information for an initial hearing before the refugee board within eight days of the claim being made. The current system gives a claimant 28 days to fill out a long form.
Immigration bill to hasten decisions, deportations
Norma Greenaway and David Akin, Canwest News Services
Vowing not to cave to the "enemies of reform," Immigration Minister Jason Kenney proposed $540-million worth of new measures yesterday to overhaul the system for dealing with refugee claims from foreigners who arrive on Canadian soil.
Mr. Kenney said the changes, once implemented, will cut the time it takes for a refugee claimant to get a hearing to two months from the current 19 and reduce to about two years from the average 4½ years the time it takes to evict a rejected applicant.
A total of $1.6-million of the new money has been earmarked for clearing the backlog of 60,000 asylum seekers.
"Our generosity is too often abused by false refugee claimants," Mr. Kenney told a news conference. "The system is full of opportunities for appeal, and we are streamlining that process."
The shorter timelines would be achieved by allowing trained public servants to make the first call on a refugee claim and limiting avenues of appeal currently open to those whose claims are rejected.
Mr. Kenney said the new limits on appeals are offset by the government's decision to create a new refugee appeal division, which would be charged with reviewing the first-level decision within four months and allowing new evidence to be submitted. Government appointees would staff the division.
One measure that already has refugee advocates, as well as some opposition politicians on high alert, would allow the immigration minister to designate a list of "safe" countries of origin.
Refugee claimants from those "safe" countries would not have the right to appeal to the new division. Their only recourse would be the Federal Court of Canada.
Mr. Kenney billed the safe country designation as a necessary tool to counter any spikes in refugee claims from democratic countries with a robust human rights record.
As it stands now, Mr. Kenney said, the government has to resort to imposing visa requirements when claims surge from individual countries, as it did last year for visitors from Mexico and the Czech Republic, a tactic that, he said, can undermine diplomatic and commercial relations.
Mr. Kenney said the list of safe countries would be drawn up after receiving advice from an independent panel and the United Nations Commissioner for Refugees.
New Democrat MP Olivia Chow embraced elements of the reform package that would speed hearing claims and deportations of failed claimants, but denounced the safe country idea as unfair.
"We want fair and fast," said Ms. Chow, the party's immigration critic.
Bloc Quebecois MP Thierry St-Cyr accused Mr. Kenney of sacrificing justice by allowing refugees to be judged based on their country of origin and creating two categories for people seeking asylum.
Janet Dench of the Refugee Council of Canada agreed.
"Refugee determination should be done on the individual facts of the case, not the country of origin," Ms. Dench said in an interview from Montreal.
Gloria Nafziger, refugee coordinator for Amnesty International, said the government was opening a political minefield with the safe country proposal.
"It's highly problematic," Ms. Nafziger said. "We are a human rights organization and we have never tried to rank countries by the depth of their human rights abuses."
Liberal MP Maurizio Bevilacqua, the party's immigration critic, described the reform package as "a good start" and said he looks forward to more detailed study when it gets to committee.
Mr. Bevilacqua said Liberals want more information on how the safe countries will be selected, and assurances the money earmarked for such things as hiring more officers for the Canadian Border Service Agency to track down and oust failed refugee claimants from Canada will actually be used for that purpose.
The $540-million funding for the reforms--which will be spread over five years -- won't be tapped until the legislation becomes law, something that is not expected to happen until next year at the earliest.
Mr. Kenney said the savings will be substantial under the new process. It now costs about $50,000 in health and social service costs for each failed refugee claimant, a sum that should fall to about $29,000 under the new and speedier system, Mr. Kenney said.
Other elements of the package:
-Rejected claimants would have severely restricted access to the options of winning a reprieve on compassionate and humanitarian grounds, or on grounds they would be subjected to severe persecution and possibly death upon return to their native country.
-A four-year pilot project to encourage voluntary departure by rejected claimants that, among other things, would provide each participant with a plane ticket back to their country of origin, and provide $2,000 to a service provider in that country to facilitate the failed claimant's reintegration into that society.
-A public servant will help a refugee claimant gather all relevant information for an initial hearing before the refugee board within eight days of the claim being made. The current system gives a claimant 28 days to fill out a long form.
Thursday, March 25, 2010
CANADA: QUEBEC LAW TARGETS MUSLIM VEIL
The government of Quebec has proposed legislation that will mandate the unveiling of Muslim women who require government services. This is the latest chapter in the ongoing controversy about "reasonable accommodation". The province of Quebec has been in the front lines of the clash between cultures and there is now considerable litigation as to where the lines between accommodation and traditional values should be drawn. More to come, no doubt.
Unveil, Quebec says
Graeme Hamilton, National Post
Quebec will refuse all government services, including education and non-emergency health care, to fully veiled Muslim women under legislation tabled yesterday in the National Assembly.
Jean Charest, the Liberal Premier, said the bill establishing guidelines for the accommodation of religious minorities is aimed at "drawing a line" to demonstrate that gender equality is a paramount Quebec value.
"If you are someone employed by the state and you deliver a service, you will deliver it with your face uncovered," he told reporters in Quebec City. "If you are a citizen who receives services, you will receive them with your face uncovered."
The bill applies not only to government departments and Crown corporations but also to hospitals, schools, universities and daycares that receive funding from the province.
The proposed guidelines in Bill 94 follow an uproar this month over the expulsion of a niqab-wearing woman from French courses after she insisted that male students in her class not see her face. Quebec's Immigration Department tracked her to a second college where she was studying French and had her expelled again because she would not remove her niqab, a veil that leaves open a slit for the eyes.
"If you want to integrate into Quebec society, here are our values," Immigration Minister Yolande James said at the time. "We want to see your face."
Quebec, which for more than three years has been grappling with the issue of accommodating religious differences, is the first province to take such a stance against the niqab and burka.
In Ontario, women wearing a full veil can make special arrangements to receive government services without exposing their faces to male bureaucrats.
Canada's chief electoral officer has ruled that under current law, veiled women can cast ballots. In France, on the other hand, President Nicolas Sarkozy yesterday pledged to introduce legislation banning outright the full Muslim veil, which he called "contrary to the dignity of women."
Salam Elmenyawi, head of the Muslim Council of Montreal, said it makes no sense for Quebec legislators to be worrying about a practice that remains marginal.
Of the more than 200,000 Muslims in the province, he estimates that just two dozen wear a full veil. Mr. Elmenyawi called it "very troubling and serious" that the government has tailored legislation that "points a finger" at the Muslim community.
"If we are talking about integration, then this is actually much worse, because it will prevent them from integrating or changing their ideas," he said. "We should leave society to self-adapt, let them either explain themselves to their fellow citizens or adapt and change their ways." He predicted that if the bill becomes law, it will be challenged as an infringement of the freedom of religion guaranteed under the Charter of Rights and Freedoms.
Mr. Charest said government lawyers believe that the bill respects the Charter. It reflects his government's commitment to "open secularism," he said, noting that other religious symbols such as the Christian crucifix, Jewish skullcap and Muslim head-scarf can continue to be worn by those providing and receiving government services. The niqab and burka are considered unacceptable in part because they interfere with security, identification and communication.
The opposition Parti Quebecois wanted the government to go further in establishing that Quebec is a secular state, prohibiting government employees from wearing any visible religious symbols.
Ms. James said the legislation sends a message to recent immigrants. "Quebec opens its doors to new arrivals as they are, but they must equally agree to adopt the values of Quebec society," she said.
Philippe Archambault, an aide to Justice Minister Kathleen Weil, confirmed that the law will apply to the full array
of government services, from students attending college to patients seeking a checkup. A humanitarian exception would be made for someone requiring emergency medical care, he said.
Daniel Weinstock, a professor of philosophy at Universite de Montreal, said the bill does a good job of grouping existing rules that limit the granting of accommodations to religious minorities. For example, it makes clear that gender equality and the state's religious neutrality must be respected.
"There's a perception out there in Quebec that the granting of accommodations is excessive and anarchic, that there are really no principles involved, and it's just whoever's whim happens to be holding sway," he said. "I think that is factually incorrect."
Mr. Weinstock said Quebec is addressing head-on issues that are being ignored elsewhere in Canada. "This is a very good thing," he said. "Whatever happens as a result of the debates in the National Assembly over this bill, and whatever the final form of this legislation is, we are having a very interesting societal debate here in Quebec that has to do with issues that are not specific to Quebec."
Unveil, Quebec says
Graeme Hamilton, National Post
Quebec will refuse all government services, including education and non-emergency health care, to fully veiled Muslim women under legislation tabled yesterday in the National Assembly.
Jean Charest, the Liberal Premier, said the bill establishing guidelines for the accommodation of religious minorities is aimed at "drawing a line" to demonstrate that gender equality is a paramount Quebec value.
"If you are someone employed by the state and you deliver a service, you will deliver it with your face uncovered," he told reporters in Quebec City. "If you are a citizen who receives services, you will receive them with your face uncovered."
The bill applies not only to government departments and Crown corporations but also to hospitals, schools, universities and daycares that receive funding from the province.
The proposed guidelines in Bill 94 follow an uproar this month over the expulsion of a niqab-wearing woman from French courses after she insisted that male students in her class not see her face. Quebec's Immigration Department tracked her to a second college where she was studying French and had her expelled again because she would not remove her niqab, a veil that leaves open a slit for the eyes.
"If you want to integrate into Quebec society, here are our values," Immigration Minister Yolande James said at the time. "We want to see your face."
Quebec, which for more than three years has been grappling with the issue of accommodating religious differences, is the first province to take such a stance against the niqab and burka.
In Ontario, women wearing a full veil can make special arrangements to receive government services without exposing their faces to male bureaucrats.
Canada's chief electoral officer has ruled that under current law, veiled women can cast ballots. In France, on the other hand, President Nicolas Sarkozy yesterday pledged to introduce legislation banning outright the full Muslim veil, which he called "contrary to the dignity of women."
Salam Elmenyawi, head of the Muslim Council of Montreal, said it makes no sense for Quebec legislators to be worrying about a practice that remains marginal.
Of the more than 200,000 Muslims in the province, he estimates that just two dozen wear a full veil. Mr. Elmenyawi called it "very troubling and serious" that the government has tailored legislation that "points a finger" at the Muslim community.
"If we are talking about integration, then this is actually much worse, because it will prevent them from integrating or changing their ideas," he said. "We should leave society to self-adapt, let them either explain themselves to their fellow citizens or adapt and change their ways." He predicted that if the bill becomes law, it will be challenged as an infringement of the freedom of religion guaranteed under the Charter of Rights and Freedoms.
Mr. Charest said government lawyers believe that the bill respects the Charter. It reflects his government's commitment to "open secularism," he said, noting that other religious symbols such as the Christian crucifix, Jewish skullcap and Muslim head-scarf can continue to be worn by those providing and receiving government services. The niqab and burka are considered unacceptable in part because they interfere with security, identification and communication.
The opposition Parti Quebecois wanted the government to go further in establishing that Quebec is a secular state, prohibiting government employees from wearing any visible religious symbols.
Ms. James said the legislation sends a message to recent immigrants. "Quebec opens its doors to new arrivals as they are, but they must equally agree to adopt the values of Quebec society," she said.
Philippe Archambault, an aide to Justice Minister Kathleen Weil, confirmed that the law will apply to the full array
of government services, from students attending college to patients seeking a checkup. A humanitarian exception would be made for someone requiring emergency medical care, he said.
Daniel Weinstock, a professor of philosophy at Universite de Montreal, said the bill does a good job of grouping existing rules that limit the granting of accommodations to religious minorities. For example, it makes clear that gender equality and the state's religious neutrality must be respected.
"There's a perception out there in Quebec that the granting of accommodations is excessive and anarchic, that there are really no principles involved, and it's just whoever's whim happens to be holding sway," he said. "I think that is factually incorrect."
Mr. Weinstock said Quebec is addressing head-on issues that are being ignored elsewhere in Canada. "This is a very good thing," he said. "Whatever happens as a result of the debates in the National Assembly over this bill, and whatever the final form of this legislation is, we are having a very interesting societal debate here in Quebec that has to do with issues that are not specific to Quebec."
Friday, March 12, 2010
CANADA: CONCERN OVER CHILD MARRIAGES RISING
This article appeared in the Toronto Sun. What the article does not mention, however, is that under the Immigration and Refugee Protection Act, relationships that can be considered "contrary to public policy" can be deemed ineligible for sponsorship. This includes polygamous and relationships prohibited by law, such as marrying a brother or sister. Interestingly enough, there appears to be no clear policy concerning child brides, a matter of international concern that should be addressed by immigration legislation given its potential for abuse and lack of consent.
Muslim child brides on rise
By TOM GODFREY,
Toronto Sun
Last Updated: March 11, 2010 10:46pm
Federal immigration officials say there’s little they can do to stop “child brides” from being sponsored into Canada by much older husbands who wed them in arranged marriages abroad.
Top immigration officials in Canada and Pakistan say all they can do is reject the sponsorships of husbands trying to bring their child-brides to Canada. The men have to reapply when the bride turns 16. The marriages are permitted under Sharia Law.
Muslim men, who are Canadian citizens or permanent residents return to their homeland to wed a “child bride” in an arranged marriage in which a dowry is given to the girl’s parents. Officials said some of the brides can be 14 years old or younger and are “forced” to marry. The practice occurs in a host of countries including: Afghanistan, Iran, Pakistan and Lebanon.
Not valid in Canada
Canadian visa officer Steve Bulmer said in classified documents he refused to allow one Pakistani man to sponsor his 15-year-old bride in August 2009.
“I can find no section (of law) that states the marriage is ‘invalid’ or ‘void,” Bulmer wrote in e-mails obtained by lawyer Richard Kurland under Access of Information. “I am afraid the age does not invalidate the marriage even if it is illegal to marry.”
Abdul Hameed, of the Canadian embassy in Islamabad, said child marriages are not valid in Canada.
“A child marriage is punishable but it does not render the marriage invalid,” Hameed said. “We are refusing such application on grounds the marriage will not be valid as per Canadian laws.”
William Hawke, of immigration’s Permanent Resident Unit, said the young brides won’t be allowed in Canada.
“Sponsorship applications submitted for a spouse under 16 will be refused,” he said.
Muslim child brides on rise
By TOM GODFREY,
Toronto Sun
Last Updated: March 11, 2010 10:46pm
Federal immigration officials say there’s little they can do to stop “child brides” from being sponsored into Canada by much older husbands who wed them in arranged marriages abroad.
Top immigration officials in Canada and Pakistan say all they can do is reject the sponsorships of husbands trying to bring their child-brides to Canada. The men have to reapply when the bride turns 16. The marriages are permitted under Sharia Law.
Muslim men, who are Canadian citizens or permanent residents return to their homeland to wed a “child bride” in an arranged marriage in which a dowry is given to the girl’s parents. Officials said some of the brides can be 14 years old or younger and are “forced” to marry. The practice occurs in a host of countries including: Afghanistan, Iran, Pakistan and Lebanon.
Not valid in Canada
Canadian visa officer Steve Bulmer said in classified documents he refused to allow one Pakistani man to sponsor his 15-year-old bride in August 2009.
“I can find no section (of law) that states the marriage is ‘invalid’ or ‘void,” Bulmer wrote in e-mails obtained by lawyer Richard Kurland under Access of Information. “I am afraid the age does not invalidate the marriage even if it is illegal to marry.”
Abdul Hameed, of the Canadian embassy in Islamabad, said child marriages are not valid in Canada.
“A child marriage is punishable but it does not render the marriage invalid,” Hameed said. “We are refusing such application on grounds the marriage will not be valid as per Canadian laws.”
William Hawke, of immigration’s Permanent Resident Unit, said the young brides won’t be allowed in Canada.
“Sponsorship applications submitted for a spouse under 16 will be refused,” he said.
Monday, March 8, 2010
CANADA: REFUGEE REFORM POLITICALLY DIFFICULT
This story appeared in today's Globe and Mail newspaper as a result of last week's Budget. While everyone agrees that the refugee determination system is broken beyond repair, reform is proving difficult, as the minority Tory government appears unwilling to tackle this politically charged problem. Readers are left to wonder if any government would ever be willing to take on this thorny problem, since there has been talk of reform for at least 20 years, but nothing has ever been accomplished, and previous band-aid solutions have in fact made the system worse.
Tories' commitment to refugee reforms questioned - The Globe and Mail
March 8, 2010
Tories' commitment to refugee reforms questioned
By CAMPBELL CLARK
From Monday's Globe and Mail
The Conservatives have mustered the courage to promise a potentially controversial reform to Canada's refugee system. The Liberals have signalled a willingness to support it. Now the question is whether the government will spend the money to close the deal.For almost a year, Immigration Minister Jason Kenney has been arguing that change is needed so asylum-seekers will get faster decisions, and false claimants will be discouraged from trying to stay in Canada for years. Wednesday's Throne Speech promised those reforms will go ahead.But on Thursday, the federal budget provided no funding for the changes, and Liberals who had offered to work with the government on the issue, now say they don't believe the Tories are serious."The system is broken. Everybody agrees," Liberal immigration critic Maurizio Bevilacqua said. "The challenge we're facing with the Conservatives is they've made the announcement they want to have reform, but they obviously have not given the reform the resources it requires to bring it to fruition."He said it will cost hundreds of millions of dollars to clear out backlogs and revamp the system, and the government can't go ahead without it."I'm willing to work with the minister, and I have for months and months," Mr. Bevilacqua said. "But I have to feel there is a sincerity as well as the money available to get the job done."Critics of the refugee-determination system are legion, although there's wide disagreement on how it should be fixed. It has made governments reluctant to make changes, because any reform will spark criticism.But Canada has angered countries like Mexico and the Czech Republic by slapping visitor-visa requirements on their nationals, in order to stem a flow of refugee claimants, many of whom are rejected.Mr. Kenney has yet to release details of his proposed reforms, but some elements have emerged.The Conservatives are expected to try to speed the initial decision on asylum-seekers by having it done by a public servant, rather than a quasi-judicial panel of the Immigration and Refugee Board. That, it is hoped, will help streamline acceptance on the most obviously justified claims and refusal of the flimsiest. Those decisions could be appealed to a panel similar to the existing Immigration and Refugee Board.The question of which public servants would make that initial decision is key. Refugee advocates argue that if it is handed to Immigration Department or Border Services officers they could be swayed by government direction, rather than the facts of the case, while officials working within the scope of the IRB might have more independence.The government is considering another idea, creating a list of countries considered safe, like most European nations, and creating a process that would speed decisions on claims from such countries, because most are rejected. Mr. Kenney has floated such suggestions since his earliest days in the Immigration portfolio.
Tories' commitment to refugee reforms questioned - The Globe and Mail
March 8, 2010
Tories' commitment to refugee reforms questioned
By CAMPBELL CLARK
From Monday's Globe and Mail
The Conservatives have mustered the courage to promise a potentially controversial reform to Canada's refugee system. The Liberals have signalled a willingness to support it. Now the question is whether the government will spend the money to close the deal.For almost a year, Immigration Minister Jason Kenney has been arguing that change is needed so asylum-seekers will get faster decisions, and false claimants will be discouraged from trying to stay in Canada for years. Wednesday's Throne Speech promised those reforms will go ahead.But on Thursday, the federal budget provided no funding for the changes, and Liberals who had offered to work with the government on the issue, now say they don't believe the Tories are serious."The system is broken. Everybody agrees," Liberal immigration critic Maurizio Bevilacqua said. "The challenge we're facing with the Conservatives is they've made the announcement they want to have reform, but they obviously have not given the reform the resources it requires to bring it to fruition."He said it will cost hundreds of millions of dollars to clear out backlogs and revamp the system, and the government can't go ahead without it."I'm willing to work with the minister, and I have for months and months," Mr. Bevilacqua said. "But I have to feel there is a sincerity as well as the money available to get the job done."Critics of the refugee-determination system are legion, although there's wide disagreement on how it should be fixed. It has made governments reluctant to make changes, because any reform will spark criticism.But Canada has angered countries like Mexico and the Czech Republic by slapping visitor-visa requirements on their nationals, in order to stem a flow of refugee claimants, many of whom are rejected.Mr. Kenney has yet to release details of his proposed reforms, but some elements have emerged.The Conservatives are expected to try to speed the initial decision on asylum-seekers by having it done by a public servant, rather than a quasi-judicial panel of the Immigration and Refugee Board. That, it is hoped, will help streamline acceptance on the most obviously justified claims and refusal of the flimsiest. Those decisions could be appealed to a panel similar to the existing Immigration and Refugee Board.The question of which public servants would make that initial decision is key. Refugee advocates argue that if it is handed to Immigration Department or Border Services officers they could be swayed by government direction, rather than the facts of the case, while officials working within the scope of the IRB might have more independence.The government is considering another idea, creating a list of countries considered safe, like most European nations, and creating a process that would speed decisions on claims from such countries, because most are rejected. Mr. Kenney has floated such suggestions since his earliest days in the Immigration portfolio.
Saturday, March 6, 2010
CANADA: ARE THE IRISH MIGRATING OR NOT?
Very interesting article from the Irish times: many people are under the mistaken impression that they can obtain residency in very short periods of time. Immigration takes time and professional planning! Beware of those who promise "fast immigration to Canada"; "no visa-no fee"; "guaranteed results", or suspicious "job and immigration packages". Speak only to qualified professionals, immigration lawyers specialized in Canadian immigration law, and preferably to Certified Specialists in the subject.
Going nowhere: following the emigration trail - The Irish Times - Sat, Mar 06, 2010
Going nowhere: following the emigration trail - The Irish Times - Sat, Mar 06, 2010
Friday, March 5, 2010
CANADA: COURTS STRUGGLE WITH MEDICAL "EXCESSIVE DEMAND" ISSUES
This is a just released, very interesting case, summarizing the state of the law with respect to the issue of "Excessive demand on medical services". This is part of the ongoing saga where courts continue to struggle to define what constitutes "excessive demand" on the health care system. In this case, the court refused to review the application by an HIV positive Skilled Worker whose medication now costs US $ 10,000 a year, but could potentially cost more in the future if his response to current medication diminishes. As I noted in my interview with Canwest News Service ( see article posted last week), the court correctly notes that a promise to pay for medical costs conflicts with the availability of medical coverage in Canada's provincial health plans, to which all residents are entitled, and once the applicant becomes a resident, there is nothing to prevent him or her from seeking coverage by the public plan, thus making its promise to pay meaningless and unenforceable. Therefore the Federal Court (Trial Division) dismissed the applicant's judicial review but agreed to certify a question to be decided shortly by the Federal Court of Appeal, as follows:
"When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of "excessive demand" as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant's ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence? "
Rashid v. Canada (Minister of Citizenship and Immigration)
BetweenAl-Karim Ebrahim Rashid, Applicant,
and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 183
2010 FC 157Docket IMM-4737-08 Federal CourtToronto, OntarioMosley J.Heard: January 26, 2010.Judgment: February 16, 2010.
(36 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MOSLEY J.:-- This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision made on September 18, 2008 at the High Commission of Canada in Nairobi, Kenya, by visa officer C. Glover who found the applicant to be medically inadmissible to Canada. For the reasons that follow, the application will be dismissed.
Background
2 Mr. Al-Karim Ebrahim Rashid, the applicant, applied for a permanent resident visa under the Federal Skilled Worker Program at the High Commission in Nairobi, Kenya, on January 13, 2004.
3 The applicant is HIV positive and asymptomatic, meaning the virus is present but does not manifest any visible symptoms. He contracted HIV in 1996 from contaminated blood in Tanzania.
4 The High Commission found that while the applicant had met the requirements of the Federal Skilled Worker Program, he was inadmissible pursuant to subsection 38(1) of the IRPA. A medical officer determined that the costs of the treatment required for the applicant's condition would likely exceed the amount spent on the average Canadian and would delay or deny provision of those services to those in Canada who might need them.
5 In reply to the medical officer's findings, the applicant submitted additional documents on March 21, 2007 and on May 1, 2008. These documents consisted of statements of the applicant's financial resources, a letter of support and financial documents from the applicant's sister who agreed to support him for his first five years in Canada, letters from two Canadian doctors who also agreed to contribute to his support and a medical report from the Aga Khan Hospital in Nairobi.
6 In September 2008, medical officer Dr. Kerry Kennedy reviewed the additional documents and concluded that the information provided by the applicant did not alter the opinion that the applicant's admission to Canada might reasonably be expected to cause excessive demand on health services.
7 Acknowledging that some HIV-infected applicants will not cross the threshold for excessive demand and thereby qualify for admittance into Canada, Dr. Kennedy found that Mr. Rashid was on a regimen of medication that cost about USD 10,000.00 per year. There is no dispute between the parties that this amount is well in excess of the health cost threshold.
8 Dr. Kennedy also found that should Mr. Rashid's positive response to the medication diminish, he would likely be placed on newer anti-viral medications which are, generally, as expensive or more expensive that the drugs that he is presently taking.
Decision Under Review
9 On September 18, 2008, the visa officer found that the applicant was medically inadmissible to Canada and rejected his visa application. The visa officer's letter, dated September 18, 2009, constitutes his reasons for decision together with Computer Assisted Immigration Processing System notes, dated September 16-17, 2008.
Issues
10 The sole issue is whether the visa officer's decision, through the assessment of the medical officer, constitutes a reasonable finding that the applicant is inadmissible pursuant to paragraph 38(1) (c) of the IRPA.
Analysis
11 Several decisions of this Court have held that Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, has not changed the law in respect of factual findings subject to the limitation in paragraph 18.1(4)(d) of the Federal Courts Act: De Medeiros v. Canada (Minister of Citizenship and Immigration), 2008 FC 386, [2008] F.C.J. No. 509; Obeid v. Canada (Minister of Citizenship and Immigration), 2008 FC 503, [2008] F.C.J. No. 633; Naumets v. Canada (Minister of Citizenship and Immigration), 2008 FC 522, [2008] F.C.J. No. 655.
12 It has also been held that a tribunal's decision concerning questions of fact is reviewable upon the standard of reasonableness: Sukhu v. Canada (Minister of Citizenship and Immigration), 2008 FC 427, [2008] F.C.J. No. 515, see also Navarro v. Canada (Minister of Citizenship and Immigration), 2008 FC 358, [2008] F.C.J. No. 463, at paras. 11-15.
13 The visa officer's factually intensive analysis and application of discretion are central to the officer's role as a trier of fact. As such, these findings are to be given significant deference by the reviewing Court. The visa officer's factual findings should stand unless the reasoning process was flawed and the resulting decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir, supra, at para. 47.
14 In Gao v. Canada (Minister of Employment and Immigration), (1993), 61 F.T.R. 65, [1993] F.C.J. No. 114, at pp. 317-318, Justice Dubé had discussed the standard of review of a finding of fact made by a medical officer in the following terms:
Most of the case law relating to medical inadmissibility decisions by visa or Immigration Officers has issued from appellate bodies. The general principles arising from these cases are of course relevant to a judicial review application seeking to quash an Immigration Officer's decision.
The governing principle arising from this body of jurisprudence is that reviewing or appellate courts are not competent to make findings of fact related to the medical diagnosis, but are competent to review the evidence to determine whether the medical officers' opinion is reasonable in the circumstances of the case. Canada (M.E.I.) v. Jiwanpuri (1990), 109 N.R. 293 (F.C.A.). The reasonableness of a medical opinion is to be assessed not only as of the time it was given, but also as of the time it was relied upon by the Immigration Officer, since it is that decision which is being reviewed or appealed, Jiwanpuri. The grounds of unreasonableness include incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence, or failure to consider the factors stipulated in section 22 of the Regulations. [some citations removed].
15 In Barnash v. Canada (Minister of Citizenship and Immigration), 2009 FC 842, [2009] F.C.J. No. 990, at para. 20, Justice Mandamin referred to Gao in holding that given the specialized nature of the medical officer's opinion, reasonableness is the appropriate standard of review for the factual component of the decision. I agree with that conclusion.
16 No deference is due if the Court determines that an administrative decision-maker has failed to adhere to the principles of procedural fairness: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at para. 100. Such matters continue to fall within the supervising function of the Court on judicial review: Dunsmuir, supra, at paras. 129 and 151.
17 In a case such as this one, there might be more than one reasonable outcome. However, as long as the process adopted by the visa officer and its outcome fits comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, para. 59.
18 Mr. Rashid relies on the Supreme Court of Canada's decision in Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] S.C.J. No. 58 (Hilewitz) to argue that, as in the case of social services, a person in the applicant's position can pay for his own medical health services: in this case, the cost of out-patient prescription anti-viral drugs.
19 Noting that Justice Campbell found a distinction between social and health services, in Lee v. Canada (Minister of Citizenship and Immigration), 2006 FC 1461, [2006] F.C.J. No. 1841, the respondent submits that the Hilewitz principles cannot be read as automatically extending to the health services context as the applicant suggests: Lee, at para. 6.
20 Justice Harrington recently held in Companioni v. Canada (Minister of Citizenship and Immigration), 2009 FC 1315, [2009] F.C.J. No. 1688, at paragraph 10, that Hilewitz was equally applicable to any consideration as to whether the cost of out-patient drugs would constitute an excessive demand on health services. He considered that the Minister's reliance, in that case, on the decision of the Federal Court of Appeal in Deol v. Canada (Minister of Citizenship and Immigration), 2002 FCA 271, [2003] 1 F.C. 301 as supporting a general principle that ability to pay for health services should never be considered, was misplaced.
21 Justice Harrington found, however, that there was a fundamental distinction between social services, the cost of which the province was entitled to recover, as a matter of law, from those who can afford to pay and the supply of out-patient drugs. In Ontario, by virtue of the provincial Trillium Drug Program, most of the cost of the drugs in question would be paid by the province. The visa officer had properly considered that factor but had failed, in conducting the personalized assessment required by Hilewitz, to determine whether the applicant had a viable plan to cover the costs, such as a personal insurance plan or an employer-based group policy. For that reason, the application was granted and the matter was sent back for reconsideration: Companioni, above, at para. 27.
22 In the case of Mr. Rashid, I am not satisfied that the applicant has met the burden of demonstrating that the visa officer, through the medical officer's assessment, made an erroneous finding: Vazirizadeh v. Canada (Minister of Citizenship and Immigration), 2009 FC 807, [2009] F.C.J. No. 919, at para. 26.
23 The facts of this matter are distinguishable from those in Companioni, in my view. In that case, one of the two applicants had a personal insurance policy that covered prescription drug costs and the second was covered by an employer-based group policy, either or both of which might have continued to apply if the applicants relocated to Canada. In the present matter, the applicant is relying on the personal commitments of his sister and two others. It is trite law that they can't be held to those commitments: Companioni, at para. 30. As stated by Justice Evans for the Federal Court of Appeal in Deol, above, at paragraph 46:
46 ... As has been held in several previous cases, it is not possible to enforce a personal undertaking to pay for health services that may be required after a person has been admitted to Canada as a permanent resident, if the services are available without payment. The Minister has no power to admit a person as a permanent resident on the condition that the person either does not make a claim on the health insurance plans in the provinces, or promises to reimburse the costs of any services required. See, for example, Choi v. Canada (Minister of Citizenship and Immigration), (1995), 98 F.T.R. 308 at para. 30; Cabaldon v. Canada (Minister of Citizenship and Immigration), (1998), 140 F.T.R. 296 at para. 8; Poon, supra, at paras. 18-19. [My Emphasis]
24 Mr. Rashid would be eligible for coverage under the provincial Trillium Drug Program if he was to become resident in Ontario, as intended, once a valid Ontario Health Card is issued to him and upon demonstrating high prescription drug costs in relation to his net household income.
25 The visa officer did not ignore the new financial support documents submitted by the applicant in March 2007 and May 2008, nor did the medical officer make any unreasonable error of fact when he found that the new documents did not change the notification of medical inadmissibility previously signed by his colleague. The medical officer's opinion, adopted by the visa officer, that the estimated cost of Mr. Rashid's medication would be well in excess of the health cost threshold and that it would constitute an excessive demand was a personalized assessment based on the evidence.
26 Even if I were to find that the visa officer did err in assessing the applicant's financial ability to pay for his own prescription drugs, this is not a case in which it would be appropriate to send the matter back to a different visa officer for reconsideration. The plan that was put forward by the applicant was based upon personal commitments to pay for the required health services. Given the non-enforceability of those commitments and the expected eligibility of the applicant under Ontario's Trillium Drug Program, I do not see how a different visa officer could reach any other conclusion than excessive demand in this case.
27 I conclude that the visa officer's determination that the applicant does not meet the requirements for immigration to Canada, pursuant to paragraph 38(1)(c) of the IRPA, was reasonable and within the range of possible and acceptable outcomes: Dunsmuir, supra, at para. 47.
28 As I find the overall result in this case to be reasonable, and given the specialized nature of the medical officer's opinion in this case, it is not open to this reviewing court to substitute its own view of a preferable outcome: Dunsmuir, supra, at para. 47; Barnash, supra, at para. 20; Khosa, supra, at para. 59. Accordingly, this application will be dismissed.
29 The parties were given an opportunity to propose questions for certification. As set out in paragraph 74(d) of the IRPA and Rule 18(1) of the Federal Courts Immigration and Refugee Protection Rules/ SOR 93-22, as amended, there can be no appeal of this decision if the Court does not certify a question.
30 The applicant submits that the question certified by Justice Harrington in Companioni, above, should also be certified in this application for judicial review. That question is as follows:
Is the ability and willingness of applicants to defray the cost of their out-patient prescription drug medication (in keeping with the provincial/territorial regulations regulating the government payment of prescription drugs) a relevant consideration in assessing whether the demands presented by an applicant's health condition constitute an excessive demand?
31 The respondent submits the following question for certification:
When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of "excessive demand" as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant's ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence?
32 In Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368, the threshold for certification was articulated by the Federal Court of Appeal as: "is there a serious question of general importance which would be dispositive of an appeal" (paragraph 11).
33 In Kunkel v. Canada (Minister of Citizenship and Immigration), 2009 FCA 347, [2009] F.C.J. No. 170, at para. 8, citing its 2006 decision in Boni v. Canada (Minister of Citizenship and Immigration), 2006 FCA 68, [2006] F.C.J. No. 275, at para.10, the Federal Court of Appeal determined that a certified question must lend itself to a generic approach leading to an answer of general application. That is, the question must transcend the particular context in which it arose.
34 In Boni, supra, the Federal Court of Appeal stated that "it would not be appropriate for the Court to answer the certified question because the answer would not do anything for the outcome of the case (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, (1994) 176 N.R. 4)."
35 I am of the view, in light of the particular facts in this case, that the certification of a question on the applicant's ability and willingness to defray the cost of his anti-viral medication would not meet the test articulated in Kunkel and Boni and would not be dispositive of an appeal. Such a question would not lend itself to a generic approach leading to an answer of general application.
36 In contrast, the respondent's proposed question lends itself to a generic approach leading to an answer of general application as it is not focused on the ability and willingness of the applicant to defray the cost of his current drug regimen. The question addresses the duty of the visa officer to assess the applicant's ability to pay for the prescription drugs privately when those same drugs are covered by a government program. The answer would be dispositive of an appeal and transcends the particular context in which it arose.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed. The following question is certified:
When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of "excessive demand" as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant's ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence?
MOSLEY J.
"When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of "excessive demand" as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant's ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence? "
Rashid v. Canada (Minister of Citizenship and Immigration)
BetweenAl-Karim Ebrahim Rashid, Applicant,
and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 183
2010 FC 157Docket IMM-4737-08 Federal CourtToronto, OntarioMosley J.Heard: January 26, 2010.Judgment: February 16, 2010.
(36 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MOSLEY J.:-- This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision made on September 18, 2008 at the High Commission of Canada in Nairobi, Kenya, by visa officer C. Glover who found the applicant to be medically inadmissible to Canada. For the reasons that follow, the application will be dismissed.
Background
2 Mr. Al-Karim Ebrahim Rashid, the applicant, applied for a permanent resident visa under the Federal Skilled Worker Program at the High Commission in Nairobi, Kenya, on January 13, 2004.
3 The applicant is HIV positive and asymptomatic, meaning the virus is present but does not manifest any visible symptoms. He contracted HIV in 1996 from contaminated blood in Tanzania.
4 The High Commission found that while the applicant had met the requirements of the Federal Skilled Worker Program, he was inadmissible pursuant to subsection 38(1) of the IRPA. A medical officer determined that the costs of the treatment required for the applicant's condition would likely exceed the amount spent on the average Canadian and would delay or deny provision of those services to those in Canada who might need them.
5 In reply to the medical officer's findings, the applicant submitted additional documents on March 21, 2007 and on May 1, 2008. These documents consisted of statements of the applicant's financial resources, a letter of support and financial documents from the applicant's sister who agreed to support him for his first five years in Canada, letters from two Canadian doctors who also agreed to contribute to his support and a medical report from the Aga Khan Hospital in Nairobi.
6 In September 2008, medical officer Dr. Kerry Kennedy reviewed the additional documents and concluded that the information provided by the applicant did not alter the opinion that the applicant's admission to Canada might reasonably be expected to cause excessive demand on health services.
7 Acknowledging that some HIV-infected applicants will not cross the threshold for excessive demand and thereby qualify for admittance into Canada, Dr. Kennedy found that Mr. Rashid was on a regimen of medication that cost about USD 10,000.00 per year. There is no dispute between the parties that this amount is well in excess of the health cost threshold.
8 Dr. Kennedy also found that should Mr. Rashid's positive response to the medication diminish, he would likely be placed on newer anti-viral medications which are, generally, as expensive or more expensive that the drugs that he is presently taking.
Decision Under Review
9 On September 18, 2008, the visa officer found that the applicant was medically inadmissible to Canada and rejected his visa application. The visa officer's letter, dated September 18, 2009, constitutes his reasons for decision together with Computer Assisted Immigration Processing System notes, dated September 16-17, 2008.
Issues
10 The sole issue is whether the visa officer's decision, through the assessment of the medical officer, constitutes a reasonable finding that the applicant is inadmissible pursuant to paragraph 38(1) (c) of the IRPA.
Analysis
11 Several decisions of this Court have held that Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, has not changed the law in respect of factual findings subject to the limitation in paragraph 18.1(4)(d) of the Federal Courts Act: De Medeiros v. Canada (Minister of Citizenship and Immigration), 2008 FC 386, [2008] F.C.J. No. 509; Obeid v. Canada (Minister of Citizenship and Immigration), 2008 FC 503, [2008] F.C.J. No. 633; Naumets v. Canada (Minister of Citizenship and Immigration), 2008 FC 522, [2008] F.C.J. No. 655.
12 It has also been held that a tribunal's decision concerning questions of fact is reviewable upon the standard of reasonableness: Sukhu v. Canada (Minister of Citizenship and Immigration), 2008 FC 427, [2008] F.C.J. No. 515, see also Navarro v. Canada (Minister of Citizenship and Immigration), 2008 FC 358, [2008] F.C.J. No. 463, at paras. 11-15.
13 The visa officer's factually intensive analysis and application of discretion are central to the officer's role as a trier of fact. As such, these findings are to be given significant deference by the reviewing Court. The visa officer's factual findings should stand unless the reasoning process was flawed and the resulting decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir, supra, at para. 47.
14 In Gao v. Canada (Minister of Employment and Immigration), (1993), 61 F.T.R. 65, [1993] F.C.J. No. 114, at pp. 317-318, Justice Dubé had discussed the standard of review of a finding of fact made by a medical officer in the following terms:
Most of the case law relating to medical inadmissibility decisions by visa or Immigration Officers has issued from appellate bodies. The general principles arising from these cases are of course relevant to a judicial review application seeking to quash an Immigration Officer's decision.
The governing principle arising from this body of jurisprudence is that reviewing or appellate courts are not competent to make findings of fact related to the medical diagnosis, but are competent to review the evidence to determine whether the medical officers' opinion is reasonable in the circumstances of the case. Canada (M.E.I.) v. Jiwanpuri (1990), 109 N.R. 293 (F.C.A.). The reasonableness of a medical opinion is to be assessed not only as of the time it was given, but also as of the time it was relied upon by the Immigration Officer, since it is that decision which is being reviewed or appealed, Jiwanpuri. The grounds of unreasonableness include incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence, or failure to consider the factors stipulated in section 22 of the Regulations. [some citations removed].
15 In Barnash v. Canada (Minister of Citizenship and Immigration), 2009 FC 842, [2009] F.C.J. No. 990, at para. 20, Justice Mandamin referred to Gao in holding that given the specialized nature of the medical officer's opinion, reasonableness is the appropriate standard of review for the factual component of the decision. I agree with that conclusion.
16 No deference is due if the Court determines that an administrative decision-maker has failed to adhere to the principles of procedural fairness: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at para. 100. Such matters continue to fall within the supervising function of the Court on judicial review: Dunsmuir, supra, at paras. 129 and 151.
17 In a case such as this one, there might be more than one reasonable outcome. However, as long as the process adopted by the visa officer and its outcome fits comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, para. 59.
18 Mr. Rashid relies on the Supreme Court of Canada's decision in Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] S.C.J. No. 58 (Hilewitz) to argue that, as in the case of social services, a person in the applicant's position can pay for his own medical health services: in this case, the cost of out-patient prescription anti-viral drugs.
19 Noting that Justice Campbell found a distinction between social and health services, in Lee v. Canada (Minister of Citizenship and Immigration), 2006 FC 1461, [2006] F.C.J. No. 1841, the respondent submits that the Hilewitz principles cannot be read as automatically extending to the health services context as the applicant suggests: Lee, at para. 6.
20 Justice Harrington recently held in Companioni v. Canada (Minister of Citizenship and Immigration), 2009 FC 1315, [2009] F.C.J. No. 1688, at paragraph 10, that Hilewitz was equally applicable to any consideration as to whether the cost of out-patient drugs would constitute an excessive demand on health services. He considered that the Minister's reliance, in that case, on the decision of the Federal Court of Appeal in Deol v. Canada (Minister of Citizenship and Immigration), 2002 FCA 271, [2003] 1 F.C. 301 as supporting a general principle that ability to pay for health services should never be considered, was misplaced.
21 Justice Harrington found, however, that there was a fundamental distinction between social services, the cost of which the province was entitled to recover, as a matter of law, from those who can afford to pay and the supply of out-patient drugs. In Ontario, by virtue of the provincial Trillium Drug Program, most of the cost of the drugs in question would be paid by the province. The visa officer had properly considered that factor but had failed, in conducting the personalized assessment required by Hilewitz, to determine whether the applicant had a viable plan to cover the costs, such as a personal insurance plan or an employer-based group policy. For that reason, the application was granted and the matter was sent back for reconsideration: Companioni, above, at para. 27.
22 In the case of Mr. Rashid, I am not satisfied that the applicant has met the burden of demonstrating that the visa officer, through the medical officer's assessment, made an erroneous finding: Vazirizadeh v. Canada (Minister of Citizenship and Immigration), 2009 FC 807, [2009] F.C.J. No. 919, at para. 26.
23 The facts of this matter are distinguishable from those in Companioni, in my view. In that case, one of the two applicants had a personal insurance policy that covered prescription drug costs and the second was covered by an employer-based group policy, either or both of which might have continued to apply if the applicants relocated to Canada. In the present matter, the applicant is relying on the personal commitments of his sister and two others. It is trite law that they can't be held to those commitments: Companioni, at para. 30. As stated by Justice Evans for the Federal Court of Appeal in Deol, above, at paragraph 46:
46 ... As has been held in several previous cases, it is not possible to enforce a personal undertaking to pay for health services that may be required after a person has been admitted to Canada as a permanent resident, if the services are available without payment. The Minister has no power to admit a person as a permanent resident on the condition that the person either does not make a claim on the health insurance plans in the provinces, or promises to reimburse the costs of any services required. See, for example, Choi v. Canada (Minister of Citizenship and Immigration), (1995), 98 F.T.R. 308 at para. 30; Cabaldon v. Canada (Minister of Citizenship and Immigration), (1998), 140 F.T.R. 296 at para. 8; Poon, supra, at paras. 18-19. [My Emphasis]
24 Mr. Rashid would be eligible for coverage under the provincial Trillium Drug Program if he was to become resident in Ontario, as intended, once a valid Ontario Health Card is issued to him and upon demonstrating high prescription drug costs in relation to his net household income.
25 The visa officer did not ignore the new financial support documents submitted by the applicant in March 2007 and May 2008, nor did the medical officer make any unreasonable error of fact when he found that the new documents did not change the notification of medical inadmissibility previously signed by his colleague. The medical officer's opinion, adopted by the visa officer, that the estimated cost of Mr. Rashid's medication would be well in excess of the health cost threshold and that it would constitute an excessive demand was a personalized assessment based on the evidence.
26 Even if I were to find that the visa officer did err in assessing the applicant's financial ability to pay for his own prescription drugs, this is not a case in which it would be appropriate to send the matter back to a different visa officer for reconsideration. The plan that was put forward by the applicant was based upon personal commitments to pay for the required health services. Given the non-enforceability of those commitments and the expected eligibility of the applicant under Ontario's Trillium Drug Program, I do not see how a different visa officer could reach any other conclusion than excessive demand in this case.
27 I conclude that the visa officer's determination that the applicant does not meet the requirements for immigration to Canada, pursuant to paragraph 38(1)(c) of the IRPA, was reasonable and within the range of possible and acceptable outcomes: Dunsmuir, supra, at para. 47.
28 As I find the overall result in this case to be reasonable, and given the specialized nature of the medical officer's opinion in this case, it is not open to this reviewing court to substitute its own view of a preferable outcome: Dunsmuir, supra, at para. 47; Barnash, supra, at para. 20; Khosa, supra, at para. 59. Accordingly, this application will be dismissed.
29 The parties were given an opportunity to propose questions for certification. As set out in paragraph 74(d) of the IRPA and Rule 18(1) of the Federal Courts Immigration and Refugee Protection Rules/ SOR 93-22, as amended, there can be no appeal of this decision if the Court does not certify a question.
30 The applicant submits that the question certified by Justice Harrington in Companioni, above, should also be certified in this application for judicial review. That question is as follows:
Is the ability and willingness of applicants to defray the cost of their out-patient prescription drug medication (in keeping with the provincial/territorial regulations regulating the government payment of prescription drugs) a relevant consideration in assessing whether the demands presented by an applicant's health condition constitute an excessive demand?
31 The respondent submits the following question for certification:
When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of "excessive demand" as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant's ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence?
32 In Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368, the threshold for certification was articulated by the Federal Court of Appeal as: "is there a serious question of general importance which would be dispositive of an appeal" (paragraph 11).
33 In Kunkel v. Canada (Minister of Citizenship and Immigration), 2009 FCA 347, [2009] F.C.J. No. 170, at para. 8, citing its 2006 decision in Boni v. Canada (Minister of Citizenship and Immigration), 2006 FCA 68, [2006] F.C.J. No. 275, at para.10, the Federal Court of Appeal determined that a certified question must lend itself to a generic approach leading to an answer of general application. That is, the question must transcend the particular context in which it arose.
34 In Boni, supra, the Federal Court of Appeal stated that "it would not be appropriate for the Court to answer the certified question because the answer would not do anything for the outcome of the case (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, (1994) 176 N.R. 4)."
35 I am of the view, in light of the particular facts in this case, that the certification of a question on the applicant's ability and willingness to defray the cost of his anti-viral medication would not meet the test articulated in Kunkel and Boni and would not be dispositive of an appeal. Such a question would not lend itself to a generic approach leading to an answer of general application.
36 In contrast, the respondent's proposed question lends itself to a generic approach leading to an answer of general application as it is not focused on the ability and willingness of the applicant to defray the cost of his current drug regimen. The question addresses the duty of the visa officer to assess the applicant's ability to pay for the prescription drugs privately when those same drugs are covered by a government program. The answer would be dispositive of an appeal and transcends the particular context in which it arose.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed. The following question is certified:
When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of "excessive demand" as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant's ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence?
MOSLEY J.
Thursday, March 4, 2010
CANADA: OLYMPICS AND REFUGEES
The Wall Street Journal published the article below. The story is a familiar one: Canada hosts an international event, and a spike in "refugee" claims follow. If the event would have been the Summer Olympics instead of the Winter ones, the number of "claims" could have easily been in the thousands. Countries participating in the Winter games are typically not refugee-producing.Yesterday, the government released its Throne Speech, and promised reforms to the maligned refugee determination system. I think we will get more details in the Budget today.
Olympics Bring Asylum-Seekers to Canada - WSJ.com
Olympics Draw Refugees
By PHRED DVORAK
The Vancouver Olympics has had one curious byproduct: refugees. Canada has received seven requests for asylum from foreign Olympics spectators so far—including two from Japan, one from Russia and four from Hungary. If past trends are any indication, that number could increase.The flurry of asylum applicants underscores Canada's reputation as an easy place to ask for refuge: Nearly anyone can do it, as long as they have entered the country and haven't been identified as an international security risk.That ease has prompted a surge in asylum applications in recent years, from a list of countries that include Mexico, Hungary and the Czech Republic. Canada received nearly 34,000 requests for asylum in the past year, according to the Immigration and Refugee Board. Some 61,000 such applications were pending as of the end of December, the highest ever under the current system.Asylum seekers generally apply under the standard definition of a refugee as laid out by the United Nations, meaning they fear persecution at home based on factors such as race, religion, politics or membership in a persecuted group, often gays or lesbians.Those who can't prove they are truly in danger of persecution are sent home—as some 60% of applicants have been in recent years. But applicants are allowed to stay in Canada, with full benefits, until they get a hearing, which could take years.Immigration Minister Jason Kenney said on a Canadian politics television show Tuesday: "It is a pretty obvious signal to people that they can come make a claim, get welfare benefits, get a work permit, stay here sometimes for years, and try to get permanent residency.''Canada has tried to stem the rush by making it harder for citizens of top refugee producers to get in. In July, Citizenship and Immigration Canada started requiring visas for travelers from Mexico, which ranked No. 1 last year with 9,296 asylum requests. (It has a 9% acceptance rate.) Mexico slapped visa requirements on Canadian diplomats and officials in return.The same month, Canada reimposed a visa requirement on then-No. 2-ranked Czech Republic, noting that nearly 3,000 refugee claims had been filed by Czech nationals in the roughly two years during which visas hadn't been required.International sporting events have been magnets for refugee claims. Canada received 1,390 refugee claims associated with the 1999 Pan American Games in Winnipeg, and 1,592 from the 2001 Francophone Games in Ottawa and Gatineau, Quebec, said Johanne Nadeau, a spokeswoman for Citizenship and Immigration Canada.
Olympics Bring Asylum-Seekers to Canada - WSJ.com
Olympics Draw Refugees
By PHRED DVORAK
The Vancouver Olympics has had one curious byproduct: refugees. Canada has received seven requests for asylum from foreign Olympics spectators so far—including two from Japan, one from Russia and four from Hungary. If past trends are any indication, that number could increase.The flurry of asylum applicants underscores Canada's reputation as an easy place to ask for refuge: Nearly anyone can do it, as long as they have entered the country and haven't been identified as an international security risk.That ease has prompted a surge in asylum applications in recent years, from a list of countries that include Mexico, Hungary and the Czech Republic. Canada received nearly 34,000 requests for asylum in the past year, according to the Immigration and Refugee Board. Some 61,000 such applications were pending as of the end of December, the highest ever under the current system.Asylum seekers generally apply under the standard definition of a refugee as laid out by the United Nations, meaning they fear persecution at home based on factors such as race, religion, politics or membership in a persecuted group, often gays or lesbians.Those who can't prove they are truly in danger of persecution are sent home—as some 60% of applicants have been in recent years. But applicants are allowed to stay in Canada, with full benefits, until they get a hearing, which could take years.Immigration Minister Jason Kenney said on a Canadian politics television show Tuesday: "It is a pretty obvious signal to people that they can come make a claim, get welfare benefits, get a work permit, stay here sometimes for years, and try to get permanent residency.''Canada has tried to stem the rush by making it harder for citizens of top refugee producers to get in. In July, Citizenship and Immigration Canada started requiring visas for travelers from Mexico, which ranked No. 1 last year with 9,296 asylum requests. (It has a 9% acceptance rate.) Mexico slapped visa requirements on Canadian diplomats and officials in return.The same month, Canada reimposed a visa requirement on then-No. 2-ranked Czech Republic, noting that nearly 3,000 refugee claims had been filed by Czech nationals in the roughly two years during which visas hadn't been required.International sporting events have been magnets for refugee claims. Canada received 1,390 refugee claims associated with the 1999 Pan American Games in Winnipeg, and 1,592 from the 2001 Francophone Games in Ottawa and Gatineau, Quebec, said Johanne Nadeau, a spokeswoman for Citizenship and Immigration Canada.
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