Date: 19980729
Docket: IMM-4035-97
BETWEEN:
CHEUNG KAI SHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] The primary issue in this case is the quality of the medical opinion which forms the evidentiary base upon which the visa officer made a decision against the applicant under s. 19(1)(a)(ii) of the Immigration Act which reads as follow:
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19 (1) No person shall be granted admission who is a member of any of the following classes: |
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(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, |
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(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services. |
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[2] The impugned opinion appears in the "Medical Notification" dated April 8, 1997, and reads as follows:
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This 3 year & 3 month old child is noted to have significant development delay. She has not yet begun to speak and is not toilet trained. Development age is said to be equivalent to a 19 month old child and she has been assessed as having moderate grande mental retardation. She is also noted to have spastic cerebral palsy affecting her legs, with hyper-reflexia and tight tendons. Her walking is slow, unsteady and requires assistance. This dependant child will need special education for the duration of her schooling. She will need extensive physiotherapy and may require various tendon releasing operative procedures on her legs. She will likely need speech therapy. These are expensive modalities, often in short supply for other Canadians. She is therefore expected to cause excessive demand on health and social services and is inadmissable under Section 19(1)(a)(ii) of the Immigration Act. [Emphasis added]. |
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[3] Respecting the quality of the opinion expressed in italics in the notification, in Fei v. Canada (The Minister of Citizenship and Immigration) 1997, 39 IMM. L. R. 2d 266, Heald J. at 280 found that an opinion in the exact same terms was deficient. In that case Heald J. decided that, on the evidence before him, the opinion was based on only the cost and not the supply of required services. In this case I have come to a similar conclusion.
[4] In this case, I find that the opinion that "these are expensive modalities, often in short supply for other Canadians" is a cursory statement which precisely focuses on cost and imprecisely and marginally refers to the supply of required services. As such, it is a deficient evidentiary base for the decision reached by the visa officer because there is no individual focus on the medical problems found and the individual supply of health or social services available to treat these problems, and no analysis as to whether such treatment would cause or might reasonably be expected to cause excessive demands on those health or social services. In my opinion, these are required findings before a decision under s. 19(1)(a)(ii) can be properly supported.
[5] Thus, I find that the visa officer had insufficient evidence upon which to base the decision against the applicant and, therefore, find a reviewable error in law under s. 18.1(4)(c) of the Federal Court Act. Accordingly, the decision is set aside and the matter is referred to another visa officer for redetermination on the direction that the medical condition of the child concerned be considered as of the date of the redetermination.
"Douglas R. Campbell"
Judge
Toronto, Ontario
July 29, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4035-97
| STYLE OF CAUSE: CHEUNG KAI SHAN |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 29, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: CAMPBELL, J.
DATED: JULY 29, 1998
APPEARANCES:
Mr. Arthur W. Weinreb
For the Applicant
Mr. David Tyndale
For the Respondent
| SOLICITORS OF RECORD: Arthur W. Weinreb |
Barrister & Solicitor
44 Woodrow Avenue
Toronto, Ontario
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980729
Docket: IMM-4035-97
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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