Ten v. Canada (Minister of Citizenship and Immigration), docket IMM-1606-97

Date: 19980626

Docket: IMM-1606-97

BETWEEN:

                                           LUISA TEN,

Applicant,

                                                - and -

    THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

                                REASONS FOR ORDER

TREMBLAY-LAMER J.:

[1] This is an application for judicial review of a decision of an immigration officer denying the Applicant's application for permanent residence under the Live-in Caregiver Program on account of the medical inadmissibility of her three dependant daughters.

[2] On January 15, 1993, the Applicant filed her application for permanent residence. Included in the application were her three minor children: Diamaris Luisela, Deyana Desiree and Chris Selengi. All three children currently live with the Applicant's sister in the Dominican Republic.

[3] The three daughters were determined by a medical officer to be medically inadmissible to Canada pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act,^[1] in that they would cause an excessive demand on social services in Canada.

[4] The medical profile of all three girls described by the medical officers was very similar. They determined that they all suffered from a mild form of mental retardation. They all required special supervision, special education and in the future, supervised vocational training.

[5] Although an opinion on medical admissibility is reserved for medical officers, their opinions are subject to being reasonable. One of the grounds of unreasonableness is the failure to consider cogent evidence.^[2]

[6] In the case at bar, the medical officers' conclusions were unreasonable. Their findings did not take into account the second report of Dr. Ramos which indicated significant improvements in the children's abilities in one year. He concluded that no special schooling, supervision or special care was needed. The only specialized service needed was some educational support which, in my opinion, cannot constitute evidence of excessive demand.

[7]         For these reasons, the application for judicial review is granted. The decision of the Board is set aside and the matter is referred back for rehearing by a differently constituted panel.

[8]         Neither counsel recommended certification of a question in this matter. Therefore, no question will be certified.

JUDGE

OTTAWA, ONTARIO

June 26, 1998.

FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                      IMM-1606-97

STYLE OF CAUSE:                   LUISA TEN v. MCI

PLACE OF HEARING:OTTAWA AND TORONTO VIA TELECONFERENCE

DATE OF HEARING:                 JUNE 25, 1998

REASONS FOR ORDER OF MADAME JUSTICE TREMBLAY-LAMER DATED:      JUNE 26, 1998

APPEARANCES:

Mr. Lorne Waldman                                                               FOR THE APPLICANT

Mr. David TyndaleFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Mr. Lorne Waldman                                                               FOR THE APPLICANT Jackman, Waldman and Associates

Toronto, Ontario

Mr. George Thomson                                                            FOR THE RESPONDENT Deputy Attorney General of Canada