Date: 20011019
Docket: A-270-00
Neutral citation: FCA 2001 312
CORAM: LINDEN J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
YOUNG DOO JANG
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario on October 10, 2001.
Judgment delivered at Ottawa, Ontario, on October 19, 2001.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: LINDEN J.A.
NOËL J.A.
Date: 20011019
Docket: A-270-00
Neutral citation: 2001 FCA 312
CORAM: LINDEN J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
YOUNG DOO JANG
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
MALONE J.A.
[1] This is an appeal from an order of Gibson J., dismissing the appellant's judicial review application which had challenged a decision of a visa officer employed at the Canadian Embassy in Manila, Philippines. By that decision, the visa officer had refused the appellant's application for an immigrant visa, on the ground of the medical inadmissibility of the appellant's wife. In dismissing the appellant's judicial review application Gibson J. held that Mr. Jang was not denied procedural fairness by the Minister's officials who failed to make public or disclose to the appellant any updates or modifications to the 1992 Medical Officer's Handbook (the "1992 Handbook"). Gibson J. also ruled that the doctrine of reasonable or legitimate expectation was not applicable on the facts of this case as a result of the continued distribution of the 1992 Handbook without the proviso that it might be incomplete or out of date.
[2] No reasons were issued but the following questions were certified for our consideration:
The Minister of Citizenship and Immigration having published the 1992 Medical Officers' Handbook and having continued to distribute it on request at all times relevant to the decision that is the subject of this application for judicial review:(a) does the Minister breach the duty of fairness owed by her to the applicant by relying to the detriment of the applicant on material that modifies the content of the Handbook in assessing the medical condition of a dependant of the applicant without publishing or disclosing that material to the applicant where no specific request for any such material is made by or on behalf of the applicant; and(b) does the publication and continued distribution of the Handbook by or on behalf of the Minister give rise to a legitimate or reasonable expectation on the part of the applicant that he can rely on the Handbook as a guideline without making a specific request for any material that might modify it in a manner relevant to the applicant's application for landing?
[3] In my opinion both questions should be answered in the negative.
[4] The appellant Jang is a citizen of South Korea who in 1998 wished to gain permanent resident status for himself and two dependants, his wife and son. Prior to completing his visa application he consulted with a Montreal lawyer about his wife's medical status as she had undergone a kidney transplant in 1989.
[5] The lawyer contacted Health Services in Ottawa and spoke to a doctor who advised that the 1992 Handbook was used as a guide in cases such as that of the appellant's wife. The lawyer also advised the appellant that he had consulted the 1992 Handbook which addressed the issue of kidney transplant patients. According to this Handbook, transplant patients with abnormal kidney function should be declared inadmissible. However, those patients whose serum creatine was less than a specified level, one year after being transplanted, might be considered to have normal renal function and might be assessed as admissible under category M-3.
[6] In completing their application forms both the appellant and his wife denied ever having had a serious disease or disorder; a misrepresentation later blamed on their private immigration advisers in South Korea.
[7] Interviews of Mr. Jang and his family were waived and medical examinations were completed. The appellant's wife was examined by two doctors in Seoul who concluded that at the time the application form was submitted, Mrs Jang required continuing and costly drug treatment to ensure that her body did not reject the transplanted kidney; a condition that continued some eleven years after the transplant operation. This information was forwarded to a Canadian Medical Officer in the Canadian Embassy in Manila. That officer found that the appellant's wife's condition and ongoing therapy were likely to place an excessive demand on Canadian health care services. Another Medical Officer in Ottawa seconded this conclusion.
[8] The appellant received a letter dated March 29, 1999 from the Canadian Embassy, Visa Section, in Manila explaining that his wife's medical condition could preclude admission to Canada pursuant to subparagraph 19(1)(a)(ii) and inviting a response by Mr. Jang with new medical information to be provided by him within sixty days. A copy of the medical officer's diagnosis known as a medical notification form and an explanation of the medical assessment were also provided to Mr. Jang.
[9] Mr. Jang did not have his wife reassessed by another medical officer. Instead, he re-sent the first medical report along with a photocopy of a page from the 1992 Handbook. He noted in his response to the visa officer that his wife's condition fell within the attached parameters of admissibility.
[10] The same two Medical Officers, Dr. Hindle and Dr. Saint-Germain reviewed the appellant's response and decided that their original conclusion should not be disturbed, that is, that Mrs. Jang should be considered as category M-5 or inadmissible. Their decision was not based on the 1992 Handbook but on subsequent unofficial updates to the 1992 Handbook which noted the high cost of drug therapy for transplant patients, specifically with respect to the drug cyclosporine, an element of Mrs. Jang's ongoing drug therapy.
[11] The visa officer denied the appellant permanent residence status on the basis of subparagraph 19(1)(a)(ii) of the Immigration Act. That provision reads as follows:
|
19. (1) No person shall be granted admission who is a member of any of the following classes:
|
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
|
|
(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,
|
a) celles qui souffrent d'une maladie ou d'une invalidité dont la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, dont l'avis est confirmé par au moins un autre médecin agréé, conclut :
|
|
(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;
|
(ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé;
|
[12] An application to be admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a visa officer, which is required to be made on the basis of specific statutory criteria. Where that statutory discretion has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, courts should not interfere ([1982] 2 S.C.R. 2">Maple Lodge Farms Limited v. Government of Canada et al [1982] 2 S.C.R. 2 at pages 7-8; To v. Canada, [1996] F.C.J. No. 696 (F.C.A.).
[13] It is well established that a duty of fairness attaches to the process by which a visa officer considers and decides an application for an immigrant visa. Writing for a unanimous panel of this Court in Muliadi v. Canada (M.E.I) [1986] 2 F.C. 205 (F.C.A.) at p. 215 Stone J.A. stated the principle as follows:. . . I think it was the officer's duty before disposing of the application to inform the appellant of the negative assessment and to give him a fair opportunity of correcting or contradicting it before making the decision required by the statute.
[14] In my view the duty of fairness in immigration cases does not require the visa officer to divulge to a prospective immigrant the complete details of the medical officers' method of evaluation or the various facets of the specific decision-making processes adopted by ministerial officials. Rather, the duty of fairness requires that a visa officer give an appellant an adequate opportunity to respond to any negative medical assessment, provided always that the medical notification form prepared by the medical officer must clearly enunciate the reasons for the negative assessment.
[15] It follows, that on the facts of this appeal, that the action of the visa officer, in providing Mr. Jang with a copy of his wife's medical notification form that identified future medical costs, the diagnosis, the prognosis, the health and social services required to deal with her condition and the negative assessment together with an invitation to respond, is sufficient to meet the requirements of the duty of fairness.
[16] In the case of Ma v. Canada (M.C.I.) (1998) 140 F.T.R. 311 (F.C.T.D) Wetston J. had occasion to examine the extent to which the duty of fairness should be manifested in the consultation process between the prospective immigrant and the Canadian medical officers, leading up to the issue or refusal of a visa on medical grounds. In that case the medical officers relied on their medical expertise as well as current evidence about costs of the services needed by the prospective immigrant, but did not provide the information on costs to the applicant during the consultation process. It was argued that the doctors, by failing to provide him with the details of the current evidence on which they relied, had breached the duty of fairness. In dismissing the appellant's argument in Ma Wetston J. correctly described the duty of procedural fairness as follows:
The duty of fairness is flexible, and must be applied within the context of an individual case. In this context, the object of the duty is to provide the applicant with a meaningful opportunity to bring to the attention of the Medical Officers the facts relating to an person's medical condition, and the issue of excessive demand....
[17] Certain other recent decisions in the Trial Division of this Court have ruled that where an applicant has requested information on the criteria to be applied to his application in order to prepare a full submission, and such information is not forthcoming, the duty of fairness may have been breached: see Wong v. MCI (1998), IMM-3366-96 and Maschio v. MCI (1997), IMM-3354-96. However, those cases can be distinguished from the facts before me, as Mr. Jang made no such request but instead chose to rely on the 1992 Handbook.
[18] Mr. Jang also argued that the Minister's failure to update the 1992 Handbook led to a legitimate expectation that the guidelines therein would be followed. He submitted that had he been aware of the updated criteria, that he would never have applied for permanent residency. He stated that the legitimate expectation that the 1992 Handbook would be applied affords him procedural protection whereby his application should be reassessed in accordance with the original 1992 guidelines.
[19] This argument is also without merit. A condition precedent to the application of the doctrine, in any of its applications, is that any expectation that arise must be reasonable or legitimate. The appellant claims that he acted with reasonable diligence in determining the criteria on which his application would be decided. However, as his affidavit makes clear, the basis for his reliance on the 1992 Handbook was as follows:
Appellant's counsel advised the Appellant that he had contacted Health Services in Ottawa and spoken to a doctor who advised that the Medical Officer's Handbook, 1992, was used as a guide in cases such as that of the Appellant's wife. [emphasis added]
[20] This oral inquiry, in my opinion, is not enough to give rise to a legitimate expectation, especially where the 1992 Handbook itself was not interpreted by one of the medical officers, but merely by Mr. Jang's counsel.
[21] Furthermore, any reliance on the 1992 Handbook had to be eroded by the medical assessment which classified the appellant in the M-5 category. Yet, the submission made by the appellant in response to this assessment merely reiterated the prior position.
[22] The appeal should be dismissed and both certified questions should be answered in the negative. No costs were sought and none should be awarded.
"B. Malone"
J.A.
I agree
A.M. Linden
J.A.
I agree
Marc Noël
J.A.
Email this Content