Poste v. Canada (Minister of Citizenship and Immigration), docket IMM-4601-96

Date: 19971222

Docket: IMM-4601-96

BETWEEN:

     JOHN RUSSELL POSTE

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

[1]      This is an application for judicial review of the decision of the visa officer in Australia, George Sutherland [hereinafter, the "visa officer"], dated July 18, 1996, refusing the applicant's application for permanent status [hereinafter, "AFL"] in Canada. The grounds of the refusal are that, because the applicant's son is alleged to fall within the class of inadmissible persons as described in subparagraph 19(1)(a)(ii) of the Immigration Act, the applicant's family can be expected to cause excessive demands on social services in Canada.

[2]      The applicant requests that the visa officer's decision be quashed, as well as a mandamus directing the visa officer to grant a positive determination in the applicant's case. The applicant also requests a declaratory order that no further evidence, particularly medical evidence, be required of the applicant and his family, and another declaratory order that the applicant's and his family's AFLs be processed to completion within 60 days of this Order.

THE FACTS

[3]      The applicant was born a Canadian citizen. He became an Australian citizen in June, 1973. Due to the laws governing citizenship at that time, the applicant automatically lost his Canadian citizenship upon becoming an Australian citizen.

[4]      The applicant is married to an Australian citizen. There are four children of that marriage. The eldest child, Matthew, was born on July 18, 1978. Matthew has a mental disability.

[5]      Matthew is eligible for a disability pension from the Australian government even if he resides outside of Australia. The amount of this pension is reduced by any amount of income that Matthew may receive. The current rate of support from this pension for a person aged 18-20 and living at home is $247.10 (Australian) per fortnight. For a person aged 21 and over, the rate is $348.00 (Australian) per fortnight. These rates include a pharmaceutical allowance of $5.40 (Australian) per fortnight, which would not be included in the payment should Matthew live permanently outside of Australia.

[6]      In 1994, the applicant and his wife decided to move to Canada in order to support the applicant's 75-year-old mother, who is permanently disabled from severe arthritis of both hips. In September of 1994, the applicant's employer, AMF Worldwide Bowling Centre Operations, offered the applicant a permanent position as General Manager of its branch based in London, Ontario. The applicant would receive a base salary of $59,000.00 with the possibility of a further $17,850.00 in incentives per year. Validation of the offer of employment by the Canada Employment Centre in London, Ontario, was received by Immigration Canada on September 1, 1995.

[7]      The applicant's wife is a registered nurse who intends to find gainful employment in Canada. As a result of her medical expertise, she is able to tend to Matthew's special needs.

[8]      The applicant submitted an AFL for himself and his family in October of 1994. The applicant and his family then submitted the requisite medical examinations to the designated medical practitioner in Australia, Dr. Swan.

[9]      Immigration Canada subsequently advised the applicant that additional medical information was required to assist in finalizing Matthew Poste's medical report. Dr. Jennifer Rickard, Educational/Development Psychologist and Consultant, conducted a "General Ability Assessment" of Matthew on November 23, 1995. Dr. Rickard submitted two reports in all in respect of this assessment. The applicant also provided information and supporting documentation with respect to Matthew's hospitalization history, his medication, his education, his achievements, his ability to function independently, his disability pension and other areas of concern.

[10]      The applicant then made arrangements to obtain a speech therapist's report and a neurological physiotherapist's report, which specifically had been requested by Immigration Canada, in order to finalize Matthew's assessment.

[11]      The gist of these additional reports requested by Immigration is that Matthew's language abilities "are reasonably well-developed and range from the 8 to 12 year-old level" (to be contrasted with the 5 to 7 1/2 year-old range found in Dr. Rickard's report, relied upon by the medical officers) and "he appears to have a number of competencies related to daily living," and "would likely be able to live in a placement in the community with supervision." These reports were obtained and submitted to Immigration on January 11 and 26, 1996.

[12]      By notification dated January 10, 1996 -- before the latter two reports were received by Immigration -- the visa officer was advised by Immigration officials that Matthew's medical report would be finalized on the basis of the psychologist's report, and that the speech therapist's and neurological physiotherapist's would not be required.

[13]      By letter dated March 7, 1996, the applicant was advised by the visa officer that because Matthew's admission into Canada will place excessive demands on social services, the applicant's AFL would likely be refused. This conclusion was based on a Medical Notification in which the medical officer of the Singapore Immigration office, Dr. Grondin, had given a medical opinion that Matthew was mildly mentally retarded, that he would be eligible for and likely require numerous expensive and scarce social services, and, as a result, that Matthew did not fulfil the medical requirements for admission to Canada. This medical opinion had been concurred in by medical officer Dr. Giovinazzo on February 12, 1996.

[14]      The applicant was given time to tender additional information regarding Matthew before a final decision would be rendered by the visa officer.

[15]      The applicant subsequently obtained and submitted to Immigration Canada numerous expert reports and school reports that contradicted the conclusions regarding Matthew's independent living skills found in the initial psychologist's report relied upon by Immigration Canada.

[16]      On July 18, 1996, the visa officer reviewed the medical opinion in Dr. Grondin's Medical Notification and concluded that Matthew was inadmissible to Canada pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act, and, therefore, the entire family was held inadmissible in Canada.

[17]      By letter dated July 18, 1996, the visa officer advised the applicant of the refusal of his AFL.

[18]      But for the medical inadmissibility of Matthew, the applicant's AFL meets Canadian Immigration selection criteria.

THE ISSUES

[19]      In light of the case law on medical inadmissibility that already exists, the two issues in this case are 1) whether the medical officer's opinion was reasonable in the circumstances of this case; and 2) whether or not the visa officer was obliged to assess the reasonableness of the Medical Notification, and if he was so obliged, was his assessment open to him on the basis of the evidence before him.

DISCUSSION

The law

[20]      The applicant's son was determined to be medically inadmissible pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act which reads:

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;

     ...

The above provision appears to require that only the medical officers make a determination about an immigration applicant's health status and whether that would cause or is reasonably expected to cause excessive demands on

health or social services.

[21]      In Ahir v. The Minister of Employment and Immigration, [1984] 1 F.C. 1098; 2 D.L.R. (4th) 163; 49 N.R. 185 (F.C.A.) [hereinafter, "Ahir"] the Court of Appeal determined that an adjudicator, when conducting an inquiry in order to determine if a person is a member of an inadmissible class, is required to consider the reasonableness of the expectation by the medical officers that the person will cause excessive demands on health or social services.

[22]      In Ismaili v. The Minister of Citizenship and Immigration (1995), 29 Imm.L.R. (2d) 1 at 16-17 (Fed.T.D.) [hereinafter, "Ismaili"] I stated:

Although the decision in Ahir, supra, refers only to an adjudicator or the Appeal Board, it is only logical that the same power would be extended to a visa officer...

The Court of Appeal has clarified this power of inquiry and directed that a visa officer must also decide whether there is a linkage between the evidence of the medical condition and the issue of whether applicant might reasonably be expected to cause excessive demands on health or social services.

     ...

The visa officer - wholly apart from the decision of the medical officers - is obliged to consider whether the applicant's medical condition would place excessive demands on health or social services. The visa officer, without second-guessing the medical, diagnostic opinion, must consider all of the available evidence.

[23]      Both Ahir and Ismaili support the principle that an adjudicator or a visa officer has a responsibility to consider the reasonableness of the assessment by medical doctors. But, in each of those cases there were circumstances which ought to have caused the immigration officer to question the reasonableness of the doctors' opinion, not on medical grounds but upon an apparent defect in the record. In Ahir, the Court of Appeal set aside a decision of the Immigration Appeal Board which had reversed the determination of an adjudicator who allowed an alien to continue as a visitor in Canada. The Court of Appeal found the Immigration Appeal Board's determination to be reasonable. That case has little relevance here. In Ismaili, I set aside the visa officer's negative decision where it was said to be based on medical grounds but the medical report made no reference to health and social services. In that case, I referred the matter back to the visa officer for assessment of the implications of the child's health circumstances on health and social services.

[24]      In Gao v. Minister of Employment and Immigration (1993), 18 Imm. L.R. (2d) 306 at page 318, Mr. Justice Dubé summarized the jurisprudence concerning judicial review of a decision of an immigration officer based on medical grounds, as follows (footnotes are here omitted):

The governing principle arising from this body of jurisprudence is that reviewing or appellate courts are not competent to make findings of fact relating 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. 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. 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 s. 22 of the Regulations.

     [my emphasis]

[25]      In Jaferi v. Minister of Citizenship and Immigration (Doc. No. IMM-4039-93, 24 October 1995) (Fed.T.D.), Madam Justice Simpson adopted the approach to the standard of review governing a visa officer's decision in respect of medical inadmissibility as set out in Ismaili:

... there is a duty [for the visa officer] to act fairly and to make sure that the medical officer's conclusion is reasonable.

[26]      More recently, in Ajanee v. Minister of Citizenship and Immigration and S.S.E.A. (1996), 110 F.T.R. 172, 33 Imm.L.R. (2d) 165, Mr. Justice MacKay concluded:

The reasonableness of the opinion of the medical officers may be an issue for the visa officer. Where on the evidence before him or her a question arises whether the opinion is reasonable the visa officer may elect to seek further medical advice. Where no serious question arises on the record before him or her, the visa officer may act on the basis of the opinion as it is presented to him or her.

[27]      In an even more recent decision of Mr. Justice Nadon in Ludwig v. Minister of Citizenship and Immigration (1996), 111 F.T.R. 271, 33 Imm.L.R. (2d) 213, it was held that:

It is clear from the foregoing jurisprudence that the reasonableness of the medical opinion may be an issue for the visa officer where on the evidence the opinion is or may be unreasonable.

Nadon, J. concluded that there was no reason for the visa officer to question the reasonableness of the opinion on the record before him, and, therefore, the visa officer's decision was reasonable. The issue, therefore, was whether there was anything before the visa officer that would cause the visa officer to question the reasonableness of the medical opinion based on the record before him.

[28]      Did the visa officer have reason to question the reasonableness of the medical opinion concerning Matthew, based on the record before him?

The evidence

[29]      Dr. Grondin's medical opinion was based primarily on medical reports from Dr. Swan and Dr. Betheras, the report from the psychologist, Dr. Rickard, noted above, and some correspondence from the applicant and his wife. Dr. Swan's report indicated that Matthew suffered from or had been told he had a mental disorder, joint trouble, Scheurman's disease which was treatable with physiotherapy, eye trouble, epilepsy, and had undergone several operations. In the section entitled "Prognosis," Dr. Swan noted:

Young person with mental disability. He finds it difficult to express himself but seems to have good understanding of situations and he has a very supportive family.

[30]      Dr. Betheras, a pediatrician, related Matthew's medical history from birth. Concerning Matthew's present condition, Dr. Betheras indicated that Matthew participates in various sports, is able to travel to school by train by himself, has shown no change in neurological signs over the years, and had little in the way of acute illnesses. The prognosis was that Matthew would continue to require anticonvulsant medication and that his carbamazin levels should be reviewed periodically to ensure they are within the therapeutic range. Matthew would continue to require special educational techniques to improve his level of performance, particularly in the field of basic living skills.

[31]      Dr. Giovinazzo, the physician who eventually concurred in Dr. Grondin's report, reviewed the reports referred to by Dr. Grondin. These reports included Dr. Rickard's initial psychological report. This initial, one-page report noted that Matthew was functioning well below his age peers. However, Dr. Rickard also had concluded that,

... Matthew is able to learn at a literal level and that with the use of repetition, rehearsal and structure he can be further educated. Also, Matthew has developed skills and strategies to assist him to be able to meet some of his independence needs.

[32]      On the basis of the above report, Dr. Giovinazzo concluded that there was insufficient information for an assessment, and requested additional information on December 28, 1995. Specifically, Dr. Giovinazzo noted:

... Like you, I suspect the correct diagnosis is mental retardation.

... It is extremely important to get an UP-TO-DATE assessment from a psychologist (or appropriate specialist) TO INCLUDE A FORMAL DETERMINATION OF IQ. As suggested in your furtherance of 6Nov95, I believe you feel the same way as us, i.e., this applicant probably is significantly mentally retarded ... I think you have to ask the specialist bluntly/bluntly if this client is mentally retarded/challenged and what his IQ testing indicates (i.e. if he has mild, moderate, severe, or profound mental retardation). Once you get this information back, you would be able to write up this assessment without difficulty.

     [emphasis in the original]

[33]      Dr. Grondin received the second psychological report from Dr. Rickard on January 23, 1996. However, this report was in respect of the assessment of Matthew that had been conducted on November 23, 1995. It was not a new assessment, as had been requested by Dr. Giovinazzo. Under the section entitled, "Assessment Comments and Summary," Dr. Rickard notes:

Matthew's overall score on the WAIS-R at this time indicates that his general ability/cognitive skills are within the Mildly Intellectually Disabled Range.

This would suggest that Matthew's rate of learning will be extremely slow and that his understanding of himself and his environment will be at a very literal and simple level. However, Matthew can and will continue to learn, especially if he is given guidance and support and encouragement and if there is an opportunity in the educational or work environment for him to use rehearsal and repetition to become proficient at tasks.

     [my emphasis]

[34]      The detailed scores in the psychologist's report on which Immigration Canada relied indicate that Matthew's communication skills and daily living skills approximate those of a 5 to 7 1/2 year-old.

[35]      However, the speech pathologist's report requested and submitted to Immigration, but not relied upon by Immigration Canada, indicates that Matthew's age equivalent scores were significantly higher, that being approximately those of a 8 to 12 year-old. This score was, in the speech pathologist's opinion, sufficient for many independent living activities.

[36]      The prognosis of the neurological physiotherapist's report, also requested but apparently not relied upon by Immigration Canada, reads:

There is no reason to believe that Matthew will lose his present level of gross motor skills in the foreseeable future. Matthew does not require specialised intervention e.g., physiotherapy, in order to maintain his independence and skill level.

I recommend that Matthew continue his present level of participation in sporting and recreational activities through community based programs.

[37]      On January 8, 1996, before receiving the speech therapist's, the neurologist's, and Dr. Rickard's second psychological report, Dr. Grondin assessed Matthew as an "M7," meaning that Matthew suffers from a mental impairment such that the nature, severity and permanent duration of which lead to the conclusion that Matthew's admission to Canada will place a excessive demands on health or social services. An "M7" assessment indicates the highest level of medical inadmissibility. Matthew was, therefore, inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act.

[38]      Dr. Grondin indicated that she had reviewed all the new documentation received, and concluded that it did not contain any elements sufficient to change the initial M7 medical assessment.

[39]      Dr. Grondin sent her assessment to Dr. Giovinazzo for review, as required by statute.

[40]      Dr. Giovinazzo concurred in Dr. Grondin's M7 conclusion in notes dated February 6, 1996. However, Dr. Giovinazzo also recommended some changes in Dr. Grondin's assessment of three of the five criteria concerning medical inadmissibility, because "[T]his will make it much easier to defend this M7."

The evidence before the visa officer

[41]      The Medical Notification submitted to the visa officer contains a very brief medical history, and the conclusion that,

[s]hould [Matthew] become a permanent resident, he will be eligible for and likely require a variety of social, educational and vocational services and benefits, many of which are expensive and in short supply. His admission will place an excessive demands [sic] on social services. ... therefore inadmissible ...

Besides this Medical Notification and the usual AFL documents in respect of Matthew, the visa officer also had several letters from the applicant outlawing Matthew's circumstances (including, for example, his Australian pension that is payable for life even if Matthew is not resident in Australia, Matthew's various abilities demonstrating independence, his good health, and his extensive family support).

[42]      According to the visa officer's affidavit, he had the following documents regarding Matthew Poste before him: the applicant's AFL; the visa officer's notes regarding his interview of the applicant and his wife on September 27, 1995, stating that the AFL met the assessment norms; Dr. Rickard's initial, one-page, General Ability Assessment; numerous letters from the applicant regarding Matthew; a memo from Dr. Grondin, dated November 30, 1995 simply noting that Matthew was an "inadmissible case" and that the medical file had been forwarded to Ottawa for advice; a request from Dr. Grondin for an up-to-date psychologist's report, as well as any available speech therapist's and neurologist's reports; and letters confirming Matthew's enrollment in an "Independent Living Skills Program" in 1996. The visa officer also had the second psychological report by Dr. Rickard, the neurological physiotherapist's report, and the speech therapist's report that were forwarded to Dr. Grondin by Dr. Swan.

[43]      The visa officer also had before him the communication from Dr. Grondin, apparently dated February 2, 1996, indicating that Matthew was a proposed "M7" case, and that the additional information received from the applicant did not change this assessment, There was also a communication from Dr. Grondin's office, dated February 6, 1997, that confirmation had been received from Ottawa regarding the M7 assessment of Matthew, with some minor changes in profile and narrative; a letter from the speech pathologist vigorously disputing the conclusions of the psychologist's report regarding communication and daily living skills; further correspondence from Dr. Grondin noting that the new medical information did not change the profile or admissibility of the case; a letter from the applicant, dated June 7, 1996, advising that new information had been sent to Dr. Grondin via Dr. Swan. This new information included a letter from an Australian Pensions Officer concerning Matthew's disability pension, an interim report from Matthew's school regarding his degree of independence, and an occupational therapist's report concluding that work in a supported environment as most appropriate for Matthew. Although this material is included in the visa officer's affidavit, it is unclear as to whether these documents were actually before the visa officer.

[44]      The applicant also submitted to the visa officer a report from a Canadian expert, Dr. Finegan, regarding the social services that Matthew might require in Canada. Dr. Finegan, a psychologist, had the benefit of reviewing the nine previous expert reports regarding Matthew in the preparation of her analysis, as well specific knowledge concerning the availability of social services in London, Ontario.

[45]      In her report dated May 22, 1996, Dr. Finegan commented on the likely demands that Matthew would place on social services specifically in London, Ontario, where he would reside with his family. Dr. Finegan had contacted Mr. Murray Hamilton, executive director of a community living programme in London for the relevant information. The gist of the information in this portion of the report is that, although waiting lists for services are generally long, it is difficult to determine what waiting lists apply in a given individual's situation. Further, the current trend for individuals such as Matthew is to stay with their parents rather than move into residential settings. Families are being asked to do more. Mr. Hamilton indicated that once Matthew arrived in London, he could be seen and assessed immediately by the supportive employment programme to determine both his readiness for work and his leisure activities, and the programmes that would best suit him. Mr. Hamilton also stressed that Matthew's arrival from an English speaking country with a similar culture would be advantageous to Matthew's integration in London.

[46]      Dr. Finegan concluded that:

... he [Matthew] has relative strengths in social awareness and judgment. One of the most potent predictors of adjustment among people with intellectual disabilities is not IQ score, but social skills. Therefore, it can be predicted that Matthew will make fewer demands on the service delivery system than would his IQ-matched counterparts who have relatively poorer social skills. Matthew no longer is under the care of physiotherapist, occupational therapists or speech pathologists, and at this stage of his life, it is not likely that these services would be reinstated.

... Matthew will place only those demands on educational, vocational and leisure services as would any well-adjusted individual with intellectual handicap to a mild degree, and he will require no extraordinary services. Given that Matthew will receive a pension from the Australian government, he will place fewer, if any, demands on the FBA ["Family Benefits Allowance"] system than would his Canadian counterparts.

         [my emphasis]

[47]      The final document before the visa officer was a communication from Dr. Grondin, dated July 15, 1996, to the effect that, upon reviewing all of the documents and any new information, the case was still inadmissible.

[48]      Three days later, the visa officer sent the applicant a letter advising:

... The additional medical information you have provided has been reviewed by our medical officer and I regret to advise that this has not changed our decision regarding your son Matthew's medical condition. I must therefore refuse your application ...

The letter also re-iterated the diagnosis received from Dr. Grondin and concurred in by Dr. Giovinazzo, as set out in the Medical Notification. This diagnosis, which is set out to support the conclusion of inadmissibility, reads as follows:

"MENTAL RETARDATION, MILD"

This 17 year old applicant has mental retardation associated with a history of deleterious post-natal events, of delayed milestones and of microcephaly. His communication skills and his daily living skills approximate those of a 5 to 7 and half years old; he can take care of himself and of his personal needs as expected from an equivalent 7-8 years old child. He has received early childhood developmental program services and special educational services. Although his potential has likely been optimized by early intervention programs, it is unlikely that he will develop sufficient vocational skills to become autonomous and financially independent. While capable of simple tasks in a controlled environment, he remains dependent upon those around him for support and supervision. Should he become a permanent resident, he will be eligible for and likely require a variety of social, educational and vocational services and benefits, many of which are expensive and in short supply. His admission will place an excessive demands on social services. He is therefore inadmissible under Section 19(1)(a)(ii) of the Immigration Act. He also has Seizure disorder"

     [errors in the original]

[49]      In the visa officer's letter of refusal to the applicant, he concluded, with respect to the above Medical Notification,

This information leads me to conclude that your family can be expected to cause excessive demands on social services in Canada. For this reason, I must refuse your application for permanent residence.

ANALYSIS

[50]      It is clear from the visa officer's conclusion that he acted on the basis of the opinion of the medical officers. Did the visa officer act on the basis of the opinion of the medical officers in circumstances where no question of the reasonableness of that opinion arose? Was the medical officer's opinion reasonable in the circumstances of the case, considering all the available evidence?

The Medical Notification

[51]      The narrative in the Medical Notification speaks to Matthew's likely need for a wide variety of social, educational, and vocational services and benefits, which services are expensive and scarce, and therefore, this constitutes excessive demands on social services.

[52]      I note that the medical officer, Dr. Grondin, had information from the Government of Ontario, Ministry of Community and Social Services, regarding the province-wide cost for services for adult disabled individuals. These costs ranged from, in the instance of a Life Skills Day Programme, $42/day for a lower needs person to $99/day for a higher needs adult, to $69/day to $345/day (depending on needs) for a full-time residential group home setting, to about $7,636/year for a supported work programme. There is a province-wide waiting list of about 1,800 for these types of programmes, and a waiting list of about 262 for employment training and supported employment programmes. Dr. Grondin also had information that special education classes would be available for Matthew in the regular school system until he reached the age of 21. No information relating specifically to London is contained in these reports.

[53]      The medical officers had a variety of opinions before them as to Matthew's needs, ranging from Dr. Finegan's opinion that Matthew would require no extraordinary services and given Matthew's Australian pension, he would place fewer, if any, demands on the FBA system than would his Canadian counterparts; to Dr. Rickard's opinion that Matthew would continue to learn if he were given guidance and support and encouragement and if there were an opportunity in the educational or work environment for him to use rehearsal and repetition to become proficient at tasks.

[54]      Did the medical officers enquire as to what kind of social services would actually be required in Matthew's case, and what costs would be associated with these services? There is no evidence before me that the medical officers made any such enquiries as they would relate specifically to Matthew's circumstances. I fail to see how the medical officers could come to the conclusion of "excessive demands on social services," given the evidence before them regarding likelihood of recourse to social services, the particular social services likely required should such recourse be necessary, the expense of such services given the off-set from Matthew's Australian disability pension, and the quality of family support available to Matthew. There is an absence of evidence to support the conclusion of excessive demand. There is no evidence to show that the medical officers put their minds to the question of excessive demand as it relates specifically to Matthew. To the contrary, the evidence seems to show that the medical officers only considered the demands placed on social services by the mentally disabled in general.

[55]      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.

[56]      As was held by Mr. Justice McKeown in Sabater v. Canada (Minister of Citizenship and Immigration) (1996), 31 Imm.L.R. (2d) 59 at page 64:

This is not to say that a person suffering from mild mental retardation could not be found to cause excessive demands on social services, as there are many factors that must be considered when making such a determination. In my view, however, it would be reasonable for there to be a higher onus of proof on the medical officer to demonstrate excessive demands in a situation of mild retardation. That is, if it is found that a person suffers from mild mental retardation, it must clearly be set out why they have been found to cause excessive demands on social services.

     [my emphasis]

[57]      It is not the role of this Court to substitute its opinion for that of expert medical opinion. However, it is the role of this Court to ensure that statutory requirements are met. The statutory requirement is for an individual assessment. I find, on the basis of the above, that this requirement was not met regarding an assessment of excessive demands vis-a-vis the particular individual concerned. The medical officers' opinion cannot be said to be a valid opinion under subparagraph 19(1)(a)(ii). This is an error in law warranting judicial intervention.

The visa officer's decision

[58]      This Court has jurisdiction to review the reasonableness of a visa officer's decision in respect of medical opinions. In my opinion, there was sufficient evidence before the visa officer for him to doubt the reasonableness of the medical officers' opinion regarding the quality and quantity of social services required vis-a-vis the issue of "excessive" demands. Furthermore, as I have concluded that the medical officers ignored cogent evidence and came to an unfounded conclusion in their opinion, the visa officer erred in law in applying such an invalid opinion.

[59]      The visa officer's decision further includes the following statement: "it is unlikely that he [Matthew] will develop sufficient vocational skills to become autonomous and financially independent." However, Matthew was applying under the category of a dependent in the applicant's AFL. There is no requirement under the Immigration Act for a dependant to establish self-sufficiency.

CONCLUSION

[60]      The applicant was requested to provide three expert reports to Immigration regarding Matthew. It seems that a decision was made as to the medical inadmissibility of Matthew on the basis of only of the reports submitted, which happened to be the least favourable report. There is an indication that Immigration officials may have refused to consider the two other reports requested of the applicant -- which reports were more favourable to Matthew.

[61]      When a government body such as Immigration requests information of an individual, it is duty-bound to consider that information when received. This is especially so in the case where the information requested is in the form of expert opinion, which is time-consuming as well as costly to acquire. If a decision is rendered that runs contrary to the information requested, the decision maker must at least make reference to the contrary information, and account for its rejection. To be put bluntly, if Immigration requests certain medical reports, receives two positive medical reports and one negative report, and a medical assessment is rendered apparently solely on the negative medical report, reasons must be given as to why the positive reports are absent from the analysis. Even if the decision makers had considered the requested information, and had placed it in the context of all the circumstances of the case, there is nothing on the face of the record communicated to the applicant to indicate that consideration of the favourable material was seriously made. There is no appearance of justice. The decision makers thus failed the applicant in these basic duties of procedural fairness and natural justice in this case.

[62]      In a diagnosed case of mild mental retardation, the medical officers bear a heavy onus to explain why the dependant child is likely to place excessive demands on services. The conclusion that an individual is in the "M7" category of medical inadmissibility -- the highest category of medical inadmissibility -- is a very serious conclusion that requires support in the evidence. At the very least, the contrary evidence should be mentioned by the medical officers before it is discarded.

[63]      In my opinion, it would be a "win-win-win" situation if the applicant and his family were allowed to immigrate to Canada. The first "win" would be that Canada would be gaining two new professional, resourceful people: the applicant and his wife. The second "win" would be that, although the applicant's son, Matthew, has a mild mental disability, he would be accompanying his family as, by all accounts, a well-adjusted individual considering his circumstances, with an incredibly supportive family demonstrably capable of helping with his special needs. He would also be bringing with him an Australian disability pension as additional, extra-family support. The evidence of excessive demands on social services likely to be cause by this individual simply is not apparent from the record. The third "win" would be in furtherance of Canada's policy of family re-unification. The applicant, a former Canadian citizen, has an elderly mother in Canada who needs his help.

[64]      The visa officer must not simply accept a medical officer's determination of medical inadmissibility as the basis for rejecting an applicant's AFL. To do so effectively gives medical officers "carte blanch" authority to decide who can immigrate to Canada. The final decision must rest with the visa officer, who has a duty to assess all the circumstances of the case.

[65]      As set out above, there are errors in law in both the medical officers' decision and in the visa officer's decision. These errors are serious enough to warrant setting aside the visa officer's decision, and an Order that the matter be sent back to a different visa officer for re-determination in accordance with these reasons. The re-determination should be based on all the circumstances of this case, and should specifically take into account a) whether the test of likelihood of excessive demands on expensive and social services limited in supply is met; and b) the visa officer's equitable jurisdiction to grant relief on humanitarian or compassionate grounds in light of the policy of family re-unification as set out in subsection 3(c) of the Immigration Act. No further medical evidence required of the applicant and his family, as they have already gone through enough trouble and expense as it is. The re-determination should be based on the record that was before the original visa officer.

[66]      I would hope that the re-determination be carried out as expeditiously as possible, given the length of time that this matter has already taken to reach this point.

[67]      Accordingly, this application for judicial review is allowed.

OTTAWA, ONTARIO      B. Cullen

    

December 22, 1997.      J.F.C.C.