Date: 19980417
Docket: IMM-4361-96
Between :
HING TO LAU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of Visa Officer D. Vaughan made on September 26, 1996, in which he refused the applicant's application for permanent residence because his daughter, Lau Wai Kwan, comes within the inadmissible class of persons described in subparagraph 19(1)(a)(ii) of the Immigration Act (the Act).
[2] The applicant's application for permanent residence in the investor category, with his wife and four children as dependants, was received by the Commission for Canada in Hong Kong on May 2, 1995.
[3] The applicant received a "fairness letter" dated January 12, 1996, providing him with the opportunity to respond within thirty days to a medical assessment of his daughter, Wai Kwan Lau, dated October 31, 1995 by Dr. Giovinazzo, failing which his application would automatically be refused. The medical assessment included the following comments:
| This applicant has mental retardation of moderate degree with a full scale IQ of 40. She will need special education for the duration of her schooling followed by special vocational instruction and most likely a sheltered workshop type of environment. |
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| It is not expected that she will ever be capable of self-support or independent living but will continue to require some degree of supervision and assistance. |
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| This would be expected to cause excessive demand on social services and she is therefore inadmissible under Section 19(1)(a)(ii) of the Immigration Act. |
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[4] The applicant's counsel responded to the "fairness letter" on February 12, 1996, challenging the medical assessment and seeking more information. The applicant's counsel's submissions of February 12, 1996 were forwarded by the visa officer to the appropriate medical section on May 8, 1996, after proper authorization was received from the applicant.
[5] After considering the submissions, and consulting with the medical officer (Dr. Giovinazzo), Dr. Hutchings revised the medical notification, but did not change his opinion with respect to the medical inadmissibility of the applicant's daughter. The revised medical assessment, dated September 23, 1996, included the following comments:
| This applicant has mental retardation of moderate degree with a full scale IQ of 40. Although independent in basic activities of daily living her overall assessment indicates a need for ongoing care and supervision. Should she become a landed resident she would be eligible to receive a variety of publically [sic] funded services such as continued special education, vocational training, supported employment and supported living. |
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| These are expensive modalities and as such she is expected to cause excessive demand on these social services. She is therefore inadmissable [sic] under Section 19(1)(a)(ii) of the Immigration Act. |
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[6] Given that the applicant had received notification of the initial medical assessment of his daughter's condition and that he had responded to this initial assessment, the visa officer rendered a decision on the application following receipt of the revised medical notification on September 26, 1996. The visa officer then wrote to the applicant advising him that the information he had provided in response to his daughter's medical assessment had not changed the medical officers' opinion with respect to his daughter's medical condition. The medical assessment dated September 23, 1996 was attached to the refusal letter. The visa officer therefore advised the applicant that his daughter Wai Kwan Lau comes within the inadmissible class of persons described in subparagraph 19(1)(a)(ii) of the Act, in that she is suffering from a 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, her admission would cause or might reasonably be expected to cause excessive demands on health or social services in Canada. As a result, he explained that it was thus impossible for him to issue immigrant visas to the applicant or his dependants, following paragraph 9(1)(a) of the Act.
[7] Pursuant to subparagraph 19(1)(a)(ii) of the Act, medical officers are charged with the duty to form an opinion as to whether an individual's medical condition would "cause or might reasonably be expected to cause excessive demands on health or social services", should they be granted admission to Canada.
[8] The applicant's main contention is that the medical officers failed to consider all of his daughter's personal circumstances prior to declaring her to be medically inadmissible. More particularly, Dr. Gordon Hutchings, as well as the visa officer, rejected family support as a consideration in determining whether or not his daughter was medically inadmissible.
[9] Both Dr. Hutchings and the visa officer provided affidavits in support of the respondent's position, and they were both cross-examined on their affidavits. In cross-examination, each of them expressed the view that there was no certainty that family support could be continued into the future, given future contingencies. Dr. Hutchings responded as follows:
| 217. Q. Okay. And just going back to something you said, that Dr. Chung See Yuen, first of all, would not be able to forecast whether this young lady would be living with her family in the future. |
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| 218. Q. Right, that's what you said? |
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| 219. Q. Now, did you have any reason to believe otherwise? I mean, earlier I remember you said that whether she's ever accessed social services was a factor, in your own Medical Notification. |
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| 220. Q. Now, do you have any reason to not believe Dr. Chung See Yuen's conclusion, that she - - - |
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| A. Do I have any hard evidence to counter that opinion? No. |
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| 221. Q. No. Did you have any concerns about that opinion? |
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| A. I had the concern that I don't think it's really possible for us to be absolutely correct and say what's going to happen to this young person in a few years from now. Will she want to continue living with her family? What if her parents are... going down The Queensway. |
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| A. You know, for anyone to actually forecast that I think is beyond our real capabilities. |
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The visa officer responded along the same vein:
| 143. Q. But earlier you stated for the record that you were looking at this applicant "for lifetime"; not the fact that, you know, she's a dependant today and would land with mom and dad as a dependant, but the fact that she would enter into adulthood in Canada. |
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| Wouldn't you take into consideration factors about her family support and what the daughter's plans or what the family's plans were with respect to this daughter who is mentally disadvantaged? |
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| A. You would have to consider - - you know, we have no guaranties. They may have plans for now, but we don't know what may happen. There are no guaranties with this. So even if I was assured of things for the present, we don't know about the future. |
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[10] In my view, the medical officers failed to respect the requirement for an individualized assessment in evaluating medical inadmissibility. The jurisprudence has clearly established that a finding of medical inadmissibility cannot be premised solely on the medical condition under review; rather, the individual applicant's personal circumstances must be carefully reviewed. Mr. Justice Cullen expressed this requirement concisely in Poste v. Canada (M.C.I.) (December 22, 1997), IMM-4601-96, at pages 20 and 21:
| The medical officers have a duty to assess the circumstances of each individual that comes before them in their uniqueness. The medical officers now have the statutory duty to give an opinion as to demands that would likely be placed on social services. It is insufficient for a medical officer to give an opinion on such demands in general; the opinion must be founded firmly on the individual's personal circumstances and all the circumstances of the case. These would include the degree of family support and commitment to the individual, and the particular resources of the community. While a particular individual may cause excessive demands in one situation, in a different setting, the same individual may cause minimal or no demands at all. Medical officers must address themselves to the particular circumstances of the individual. Otherwise, cogent evidence is ignored, and opinions regarding demands on social services become unfounded and cannot be upheld by this Court. (Emphasis added.) |
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[11] It can be noted from this passage that Justice Cullen placed a great deal of emphasis on the impact of family support on the demands an individual's medical condition might place on Canadian health and social services.
[12] Justice Heald imposed a stringent standard in reviewing the opinion of medical officers, as well as the decision of visa officers, in the recent case of Fei v. Canada (M.E.I.) (June 30, 1997), IMM-741-96. He nevertheless found that, irrespective of the standard to be applied, the medical officers had erred with respect to the applicant's daughter's need for constant supervision, since the family's capacity to provide supervision at home was never raised as an issue with the family. He quoted from Justice Rothstein in Litt v. Canada (M.C.I.) (1995), 93 F.T.R. 305 (T.D.), at page 307:
| [...] Without deciding whether the possibility of failure of family support was properly a subject matter for the medical officer, as opposed to the visa officer, there does not appear to have been sufficient evidence to lead the medical officer to speculate that it might fail. I do not question that the decision-making process should properly include the issue of family support and that it would be open to the appropriate decision-maker, for valid reasons, to discount or reject commitments of support by family members. [...] |
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[13] In the case at bar, neither Dr. Hutchings nor the visa officer appear to have accepted family support as a factor in determining whether the applicant's daughter's medical condition would place excessive demands on health or social services. Contrary to respondent's counsel's submission, I do not read the above answers given by Dr. Hutchings and by the visa officer in their cross-examinations as meaning that the daughter's needs for various professional social services remain excessive, even with the support of her family. If indeed that is what the medical and visa officers had in mind, they could and should have said so clearly.
[14] In the circumstances, it is my opinion that the lack of due consideration of "family support" constitutes a blatant failure to consider all of the evidence with respect to the personal circumstances in the applicant's file, and this warrants the intervention of this Court.
[15] The application for judicial review is therefore allowed, the decision of Visa Officer D. Vaughan, dated September 26, 1996, is set aside, and the matter is returned to a different visa officer for rehearing and redetermination on a basis not inconsistent with these Reasons for Order.
[16] I agree with counsel for the parties that the case raises no question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
April 17, 1998
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