Law v. Canada (Minister of Citizenship and Immigration), docket IMM-2395-96

Date: 19980123

Docket: IMM-2395-96

BETWEEN:

     YIP GING LAW

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

THE ASSOCIATE CHIEF JUSTICE:

[1]      This is an application for judicial review for an Order in the nature of certiorari quashing the decision of immigration officer C. Athoe [hereinafter, the "immigration officer"] of the Canadian Consulate General in Buffalo, New York, dated June 10, 1996, in which the applicant's application for permanent residence [hereinafter, the "AFL"] was rejected.

[2]      The applicant seeks to have his AFL re-opened and referred to a different visa officer for re-determination; a determination of whether or not it would be lawful to grant a visa for permanent status to the applicant and his dependants; and requests that the respondent not remove the applicant and his dependants from Canada pending the final determination of this application for judicial review.

THE FACTS

[3]      On July 28, 1994, the applicant submitted his AFL to the Canadian Consulate in Buffalo. The applicant listed his spouse and three daughters, Alison, Elizabeth and Diana as his four dependants. The applicant and his wife are stateless and his three daughters are all British Dependant Territories citizens. In box #27 of his AFL, the applicant noted that neither he nor any of his dependants have ever had any serious disease or physical or mental disorder.

[4]      According to the immigration officer's affidavit, the applicant and his wife are currently living in Canada with visitor's permits valid until September, 1996.

[5]      On November 2, 1994, the immigration officer interviewed the applicant over the telephone and inquired as to why the applicant had been refused an immigrant visa in 1989. The applicant informed the immigration officer that his 1989 application had been rejected due to the medical inadmissibility of a fourth - his eldest - daughter. In early 1990, this daughter had been determined to be an "M7" case, that is, a case of the highest degree of medical inadmissibility. At the time of the telephone interview, this daughter was attending school in Canada. This daughter was not listed in the applicant's current AFL as a dependant.

[6]      The immigration officer conducted a personal interview with the applicant and his wife on January 9, 1995. The immigration officer discussed with the applicant the issue of the fourth daughter, whose name is Kwai Wing Alice Law [hereinafter, "Alice"]. Alice was born on July 3, 1974. The applicant advised that Alice was currently attending a school for impaired children in Canada because she was "slow." He further advised that he had continuously financially supported Alice, and that she had always been a student. On this basis, the immigration officer concluded that Alice was a dependant, and added in Alice's name on the applicant's AFL. After the conclusion of the interview, the immigration officer decided to await the results of a new medical assessment of Alice before continuing to process the applicant's AFL.

[7]      On May 10, 1995, the immigration office in Buffalo sent the applicant a letter advising that the AFL was still under consideration. However, if the requested medical examination results were not received within the next three months, it would be assumed that the applicant was no longer interested in pursuing the AFL, and his file would be "closed."

[8]      On June 20, 1995, the immigration officer sent a letter to the applicant's then solicitor, advising, amongst other concerns, that "[n]o decision in this case will be made until the above dependant [Alice] has completed the requirements."

[9]      The immigration officer deposes that although she heard no further reply from the applicant, she noted that the computer system showed that Alice had been directed by Health Programs to undergo further medical tests in September of 1995. Counsel to the applicant has tendered into evidence a letter, dated July 25, 1995, which he wrote to the immigration officer in response to her June 20 letter, in which he confirmed that Alice had undergone a medical examination with a designated medical practitioner.

[10]      On April 30, 1996, the immigration officer received confirmation from the Health Programs office that, although additional medical information from the applicant had been requested, there was no reply to date.

[11]      By letter dated June 10, 1996, the immigration officer advised the applicant that his AFL had been refused because he had not complied with the requirement to complete the medical examination of his dependant daughter, Alice.

DISCUSSION

The statutory requirements

[12]      Persons wishing to immigrate to Canada can be granted landed immigrant status if they are not members of any inadmissible class, and if they otherwise meet the requirements of the Immigration Act and the Regulations. The onus is on the immigrant to establish admissibility and statutory compliance.

[13]      Subsection 9(3) of the Immigration Act provides:

                                 [emphasis added]

[14]      In the course of examining the prospective immigrant, a designated medical officer must form an opinion, pursuant to paragraph 19(1)(a) of the Immigration Act, as to whether, as a result of the immigrant's health and medical condition, the admission of the immigrant into Canada would cause, or might reasonably be expected to cause, excessive demands on Canadian health and social services due to the nature, severity and probable duration of any identified medical or health condition.

Analysis

[15]      The immigration officer requested such a medical opinion in respect of the applicant's dependant daughter, Alice. The applicant was warned, in writing, that his file would be "closed" if this request were not complied with within three months. One month later, the applicant's solicitor was advised that no decision in the applicant's case would be made until the information regarding Alice was submitted. A month after that, the applicant's solicitor advised the immigration officer that Alice had undergone a medical assessment, identifying the examining physician. The immigration officer's decision to reject the applicant's AFL came over one year after the initial, written request for the medical information. The reason for rejection was that the applicant, by not supplying the requested information, had not complied with subsection 9(3) of the Immigration Act, and was thus a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act. The applicant was then advised that he could re-apply in the future by submitting a new AFL, and paying the processing fees once more.

[16]      The respondent submits that the applicant was not denied procedural fairness because the applicant had ample and repeated notice that his application would be rejected should he fail to produce the requested medical documentation, and that the applicant alone must accept responsibility for the consequences of his own failure to act in a diligent manner.

[17]      The evidence seems to indicate otherwise. In the May 10, 1995 letter, the immigration officer advised the applicant that his file would be "closed" if the requested information was not provided. I am not sure of what exactly is meant by "closing" a file. I believe that this term can imply rejection. However, in the context of processing an AFL, precise terms should be used in order to avoid the possibility of confusion and misunderstanding. Confusion is further created in this case through the immigration officer's letter to the applicant's counsel, dated June 20, 1995, which states that "[n]o decision in this case will be made until the above dependent has completed the requirements." Rather than suggesting rejection if a dead-line is not met, this letter seems to imply the opposite. This letter seems to imply that the processing of the AFL will continue until the requested information is received. A reading of the language of the letter, in its plain and ordinary grammatical form, cannot indicate otherwise.

[18]      Submissions from both counsel to the applicant and counsel to the respondent are as sparse as they are weak. No case law directly on point has been cited.

CONCLUSION

[19]      It is certainly natural for the applicant to assume, under the circumstances, when his dependant daughter is called in for, and attends, a medical examination, that he has no personal requirements beyond that, even if the requirements of the Immigration Act are otherwise. I see little in the official correspondence that could have warned him of the consequences that ultimately ensued. In this case, the requirements of procedural fairness have not been met.

[20]      Nevertheless, no matter who is at fault in this particular case, the applicant's dependant daughter cannot become exempt from medical admissibility requirements as stipulated in the Immigration Act. Therefore, the decision under attack is set aside and the applicant's AFL may be re-opened for processing by a different immigration officer. I further direct that all the necessary medical information be provided to the immigration officer, including that from any further medical examinations that may have to be arranged, within six months of this decision. This should give the applicant ample time to complete the application in respect of Alice, and the visa officer will have a complete file upon which he or she can make a decision.

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

                         "James A. Jerome"

                         A.C.J.

OTTAWA, ONTARIO

January 23, 1998