Date: 19980115
Docket: IMM-3675-96
BETWEEN:
ANTONIO QUINDIPAN CABALDON JR.
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
WETSTON J.
[1] The applicant, Antonio Cabaldon Jr., seeks review of the decision of a Visa Officer, dated August 21, 1996, denying him and his family admission to Canada as permanent residents, under s. 6(1) of the Immigration Regulations. The application was denied on the basis that the applicants' dependent child, Marian Aira Cabaldon ("the child"), suffered from a medical condition -- "severe hearing impairment with delay in speech development" -- which, in the opinion of two Medical Officers, would cause, or might reasonably be expected to cause, excessive demands on social services in Canada. As such, she fell into an ineligible class under s. 19(1)(a) of the Immigration Act.
[2] At issue is whether the opinions of the Medical Officers concerning whether the child falls into an ineligible class were based upon insufficient evidence on the record, or were the product of a failure to observe procedural fairness.
[3] The applicant submits that the Visa Officer erred in law by exclusively relying upon the medical opinions, and not the commitment of the applicants' relatives to support them, in determining eligibility under the Act. It is also submitted that the Medical Officers erred in determining that the child's condition would likely cause excessive demands on the social services of Canada, without considering evidence concerning excessive demands for special education in Canada, and without consideration of the willingness of relatives to support the applicants. It is also argued that the medical officers erred in regarding the child as an independent applicant, rather than as a dependent applicant.
[4] The respondent submits that the financial wealth of an applicant, or an applicant's family, is not relevant in determining whether an applicant's medical condition is likely to cause excessive demand on social services, as rights to social services cannot be waived. The respondent also argues that the medical opinions relied upon by the Visa Officer were not unreasonable, as the Medical Officers relied upon all relevant materials in forming them.
[5] Under s. 19(1)(a) of the Act and s. 22 of the Regulations, it is the responsibility of two Medical Officers to form a medical opinion as to whether the child's medical condition would cause, or might reasonably be expected to cause, excessive demand on health or social services in Canada. The role of the Visa Officer, in this respect, is only to determine whether any obvious error was made in the formulation of the medical opinions, based upon the record before the Medical Officers (e.g. that they failed to consider all the medical reports available to them: Lee v. M.E.I. (1986), 4 F.T.R. 86). In the absence of finding such an error, the Visa Officer will be bound by the medical opinions provided: Gingiovenanu v. Canada (M.E.I.) (1995), 31 Imm. L.R. (2d) 55 (F.C.T.D.); Ajanee v. Canada (M.E.I.) (1996), 110 F.T.R. 172.
[6] The expert opinions of the Medical Officers, with respect to the diagnosis and prognosis, are not open to review by this Court. However, the Medical Officers' opinions concerning the issue of whether a person's medical condition will create excessive demands on the provision of health and social services in Canada is open to review: Ahir v. M.E.I. (1983), 49 N.R. 185 (F.C.A.); Hiramen v. M.E.I. (1986), 65 N.R. 67 (F.C.A.). The grounds for review include: incoherence or inconsistency, absence of supporting evidence, or failure to consider the factors stipulated in s. 22 of the Regulations: Gao v. Canada (M.E.I.) (1993), 18 Imm. L.R. (2d) 306 (F.C.T.D.) at 318.
[7] The applicant's argument that the Visa Officer erred in law by exclusively relying upon the opinions provided by the Medical Officers cannot succeed. If the Visa Officer is satisfied that the Medical Officers' opinions are rationally based upon a sufficient record before them, he or she is bound to accept them.
[8] Moreover, neither the Medical Officers, nor the Visa Officer, erred in failing to consider evidence that family members resident in Canada had promised support to the applicant's family. For purposes of forming a medical opinion considering the medical admissibility of the child, it does not matter if the applicant provides letters of support from relatives already resident in Canada. As a permanent resident, the child would have a right to the social services she requires, a right that cannot be waived through financial support promised by relatives: Choi v. M.C.I. (1995), 29 Imm. L.R. (2d) 85 at 93-94 (F.C.T.D.) & Hussain v. M.C.I. (1996), 35 Imm. L.R. (2d) 86 at 91 (F.C.T.D.).
[9] There is also no evidence that the Medical Officers misconstrued that the child was a dependent applicant, rather than an independent one. Nonetheless, an applicant's potential for economic and personal physical self-sufficiency may sometimes be a relevant factor in determining whether the applicant is medically inadmissible: Wong v. M.C.I. (1996), 34 Imm. L.R. (2d) 18 (F.C.T.D.); Brar v. M.C.I. (T-2832-91, 20 December 1996, F.C.T.D.). It is only inappropriate for a Medical Officer to rely exclusively on the issue of self-sufficiency, in determination of whether a person's condition is likely to cause excessive demands on health or social services: Chu v. M.E.I. (1995), 106 F.T.R. 143.
[10] In making their preliminary determination that this child's condition would be likely to cause excessive demand on social services, the Medical Officers relied upon a preliminary examination and report by a local general practitioner, an evaluation prepared by an ear-eye-nose-and-throat specialist, an audiogram medical report, and a psychiatric evaluation. These reports indicated that the child's hearing impairment had delayed her development such that she was approximately three years behind in her schooling, and that she would require future specialised education.
[11] The respondent concedes that the amount of specialised schooling that the child may actually require may be limited only to a few years (in effect, to allow her to "catch-up" to children of her own age, and to adapt to her hearing impairment). The child's success in school thus far, evidenced in grade reports which were not before the Medical Officers, indicates that she has some intellectual capability. These grade reports may contradict the analysis provided to the Medical Officers that the child has "below average to borderline intellectual potentials" and that she requires education for a "physically and intellectually handicapped child" (emphasis added).
[12] The grade reports appear to contradict the initial medical report, prepared by a general practitioner, which indicated that the child was a "deaf mute" who only "goes to school once in a while". However, there is no indication that, if the Medical Officers relied on this factual error on the record, their decision was materially affected by it.
[13] However, an estimation of the actual amount of specialised education that would be required by this child was missing from the record before the Medical Officers. Also not provided was any documentation concerning the availability of, or current access to, such specialised education in Canada. Under s. 22(e)(i) of the Regulations, the Medical Officers must consider whether the supply of social services that the child may require in Canada is limited to such an extent that the use of such services by the person might reasonably be expected to prevent or delay provision of those services to Canadian citizens or permanent residents.
[14] While it is for the Medical Officers to determine whether a particular applicant's condition is likely to cause an excessive demand on social services, they must have some evidence before them to suggest whether the demand created by any particular medical condition is excessive. For the Medical Officers to form an opinion in the absence of such supporting evidence is an error of law: Gao v. M.E.I. (1993), 18 Imm. L.R. (2d) 306 at 318 (F.C.T.D.).
[15] As the Medical Officers erred in their application of the test set out in paragraph 19(1)(a)(ii) of the Act, the decision of the Visa Officer to exclude the applicants due to the child's medical condition shall be set aside. Accordingly, the application for judicial review is allowed. The decision of the Visa Officer dated August 21, 1996, shall be returned to a different officer for rehearing and reconsideration in accordance with these reasons.
[16] The parties agreed only to ask for a question to be certified if my decision required an interpretation of the meaning of the term "excessive demand" in s. 22 of the Regulations which differed from existing interpretations found in other decisions of this Court. As my decision did not turn directly on such an interpretation, no question shall be certified.
Howard I. Wetston
Judge
Ottawa, Ontario
January 15, 1998
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