Date: 19980930
Docket: IMM-3669-97
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of a consul at the Canadian Consulate General in Hong Kong (the "Visa Officer") dated the 5th of August, 1997, whereby the Visa Officer rejected the applicant"s application on behalf of himself and his immediate family members for landing in Canada as permanent residents.
[2] The Visa Officer"s decision letter reads in part as follows:
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I have now completed the assessment of your immigration application. I regret to inform you that your dependant [one of the applicant"s two daughters known as Josephine] comes within the inadmissible class of persons described in paragraph 19(1)(a)(ii) of the Immigration Act, 1976 , in that your dependant is suffering from a 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 your dependant"s admission would cause or might reasonably be expected to cause excessive demands on health or social services in Canada. |
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I have also examined your application to see if there might be other factors that would warrant approval of your application but could find none. |
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This application is, therefore, refused. |
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[3] A copy of the "medical notification" setting forth the opinion of a medical officer concurred in by another medical officer accompanied the decision letter. The narrative to that medical notification reads as follows:
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This 21 year old dependant applicant is functionally impaired due to mild mental retardation. She requires a sheltered, supervised environment, which is likely to be needed indefinitely. On gaining landed immigrant status, she will be eligible for and require a variety of social services significantly greater than the usual requirements of the average adult. These requirements will create an excessive demand on Canadian social services and accordingly, she is inadmissible under Section 19(1)(a)(ii) of the Immigration Act. |
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[4] The applicant"s application for landing for himself, his wife and his two children has a long history. The application was filed on the 24th of September 1990. It was first rejected, on the same grounds as the current refusal, on the 25th of April, 1994. That rejection was set aside by consent order of this Court on the 9th of November, 1994 and the application was referred back for reconsideration. The application was again refused on the 30th of October, 1995, once again on the same grounds. Also once again, the second refusal was set aside by consent order of this Court on the 31st of October, 1996 and the matter was again referred back for reconsideration, on very specific terms which were also the subject of a consent on behalf of the respondent. Thus, the decision here under review represents the third rejection of the applicant"s application, all on the same grounds.
[5] On the 2nd of January, 1997, following the second reference back, the applicant and his family members underwent new medicals at the respondent"s expense.
[6] Under cover of a letter dated the 26th of January, 1997, the applicant submitted to the Visa Officer additional material pledging the support of his sister and brother, one a permanent resident of Canada and the other a citizen of Canada, in the care and maintenance of Josephine if such support should become required, a positive report of Josephine"s performance in a sheltered workshop and a submission prepared by a consultant to the applicant attesting to the support of Josephine by the applicant and his wife and by members of the applicant"s family.
[7] In response to a request on behalf of the respondent, an updated psychological report was prepared on Josephine, once again at the respondent"s expense. It is dated the 10th of March, 1997. The summary and conclusions to that report read as follows:
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1. Josephine was assessed on the WAIS-R (Cantonese version) to be cognitively functioning within the Mild Grade Mental Deficiency range with a Full Scale I.Q. of 60. |
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2. Her social maturity, as assessed on the VSMS, yielded a social age equivalent of 15 years. |
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3. It appears that Josephine has made some substantial improvements in both her social and cognitive functioning, probably due to the new exposures available in her supported employment in the gift shop. |
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4. Josephine, if proven successful in her supported employment, may have the potential for open employment in future, in manual jobs requiring no complex skills. |
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5. She now requires only minimal supervision in her daily living and she is financially productive. Her family pledges full financial support for her and no residential service is required. Josephine"s grandparent, aunt and uncle have settled in Canada and there will be a good family network for mutual support. Josephine"s father, experienced in the rehabilitation field, will be knowledgeable and resourceful in working out Josephine"s settlement plan. |
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[8] In her affidavit on behalf of the respondent, the medical officer who wrote and signed the medical notification referred to above indicates that she reviewed the medical information flowing from the medical examination"s conducted on the 2nd of January, 1997, requested the psychological assessment completed in March of 1997 and had before her the report of that assessment. The medical officer also attests that she considered relevant guidelines and the "Summary of Assessment Table III contained in the Medical Officer"s Handbook". It is worthy of note that the medical officer makes no mention of having been aware of or having considered the documentation submitted on the 26th of January, 1997.
[9] Counsel for the applicant argued before me that the visa officer erred in a number of respects in reaching his decision, foremost among which was in failing to ensure a sufficient linkage between Josephine"s condition of mild mental retardation and the conclusion that such a condition, on all of the facts of this matter, would or might reasonably be expected to cause excessive demand on Canadian social services. I am satisfied that the outcome in this matter should turn on that ground alone.
[10] In Fei v. Canada (Minister of Citizenship and Immigration),1 Mr. Justice Heald reviewed at some length the respective roles of medical officers and visa officers in decisions such as that here under review. He wrote at page 91:
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In my view, when a valid medical opinion is formed under s. 19(1)(a)(ii), that opinion is binding on the visa officer. However, where an opinion involves a patently unreasonable error of fact, is inconsistent or incoherent, or was generated in a fashion contrary to the principles of natural justice, an error of jurisdiction is involved. It cannot be said to be a valid opinion under s. 19(1)(a)(ii). If the visa officer applies such an invalid opinion, then the visa officer has erred in law, and his or her decision may be reviewed in this court on that basis. |
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[11] On the issue of an opinion of a medical officer that admission to Canada "... would cause or might reasonably be expected to cause excessive demands on health or social services", Justice Heald wrote at page 93:
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While this decision is one of a discretionary nature, I am of the view that the medical officers have erred in applying the statutory test. It is an error to state through the medical narrative that the reasons for exclusion were extensive social and educational support services, the need for constant supervision, and the expense and supply of these services, while in actual fact the medical officers conceded that information highly relevant to determination of these factors was not before them. It is also apparent that they did not take effective measures to obtain this information. |
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Here, the medical officers took "effective measures" to ensure that they had an up to date psychological assessment before them. That psychological assessment would appear to indicate substantial progress on Josephine"s part over an earlier assessment. The medical officers had available to them current indications of the level of family support available to Josephine. They would appear to have ignored this latter information though it is supportive of a portion of the summary and conclusions from the psychological report quoted earlier in these reasons.
[12] In Lau v. Canada (Minister of Citizenship and Immigration)2 Mr. Justice Pinard wrote:
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The applicant"s main contention is that the medical officers failed to consider all of his daughter"s personal circumstances prior to declaring her to be medically inadmissible. More particularly, Dr. Gordon Hutchings, as well as the visa officer, rejected family support as a consideration in determining whether or not his daughter was medically inadmissible. |
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Justice Pinard quoted with approval from the reasons of Justice Cullen in Poste v. Canada (M.C.I.)3 where Justice Cullen commented on the duty of medical officers to assess the circumstances of each individual that comes before them "... in their uniqueness". Justice Pinard further referred to the reasons of Justice Heald in Fei cited above. He concluded:
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In the circumstances, it is my opinion that the lack of due consideration of "family support" constitutes a blatant failure to consider all of the evidence with respect to the personal circumstances in the applicant"s file, and this warrants the intervention of this Court.4 |
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[13] I reach the same conclusion here. The affidavit of the medical officer who prepared the medical notification here at issue indicates the material to which the medical officer had reference. That material does not include relevant and current "family support" information. Further, the affidavit of the medical officer does not indicate that she took into consideration what would appear to be "progress" on Josephine"s part demonstrated by successive psychological assessments conducted during the course of this long saga. The affidavit of the second medical officer who concurred in the medical notification contains no indication that he considered a broader range of material then did the medical officer who prepared the notification. The decision letter of the visa officer and the visa officer"s affidavit provide no basis to conclude that, in light of the first quotation from the reasons of Justice Heald in Fei above, he met the burden on him in his review of the medical notification.
[14] To paraphrase from the first quotation from the reasons of Justice Heald, the visa officer here applied an invalid medical opinion. In doing so, he erred in law. The medical opinion was invalid because it was not based on a consideration of all of the evidence with respect to the personal circumstances of the applicant and his family. It was thus generated in a fashion contrary to the principles of natural justice. Put another way, the linkage between Josephine"s condition and excessive demand on Canadian social services was not satisfactorily established in the medical notification and the visa officer thus erred in law in relying on the tainted medical notification.
[15] Only one other ground for review of the Visa Officer"s decision raised by counsel for the applicant warrants particular comment. That ground is that, it is submitted, the record before me demonstrates bias against the applicant and his family on the part of the visa officer and medical officers. I conclude that the record does not support that submission.
[16] For the foregoing reasons, this application for judicial review will be allowed.
[17] Following preparation of the foregoing reasons in draft form, by agreement with counsel for the parties, the draft reasons were distributed to counsel for consideration of three issues as follows: first, certification of a question, second, an appropriate form of order taking into account the long history of this matter, and third, costs. The questions were the subject of a teleconference, followed by written submissions from the parties and then by a further teleconference. The following reflects my conclusions on these issues.
[18] Counsel for the Respondent recommended certification of a question "...along the following lines":
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Where a prospective immigrant is refused admission to Canada on medical grounds |
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pursuant to s.19(1)(a)(ii) of the Act because of a medical condition which cannot be managed or treated solely with the assistance of "family support," do medical and/or visa officer"s err in law by not explicitly mentioning their consideration of any such evidence of "family support"? |
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For a question to be certified, it must not only be a serious question of general importance, it must also be a question the answer to which is determinative on an appeal. Here, family support is not the sole basis on which this application has been determined. As indicated earlier in these reasons, evidence filed on behalf of the Respondent does not indicate that the medical officers involved took into consideration what would appear to be "progress" on Josephine"s part demonstrated by successive psychological assessments conducted during the course of what I have described as "this long saga". Thus, a response to the question proposed on behalf of the Respondent would not be fully determinative on an appeal of this matter. In the result, the proposed question will not be certified. Indeed, no question will be certified.
[19] There was substantial agreement as to the form of an order designed to ensure that the next reconsideration of this matter proceeds reasonably expeditiously without the involvement of officers in the Respondent"s Ministry who have previously been involved. The substantial agreement is reflected in my Order issued in conjunction with these reasons.
[20] Counsel for the Applicant requested costs of the application throughout on a solicitor and client basis based largely on the long history of this matter. Counsel for the Respondent submitted that no costs should be awarded. My Order provides that the Applicant is entitled to costs throughout on the ordinary basis, that is to say, on the basis of costs of a contested application for judicial review.
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Judge
Ottawa, Ontario
September 30, 1998
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1 (1997), 131 F.T.R. 81
2 April 17, 1998 [1998] F.C.J. No. 485 (QL), (T.D.)
3 (1997), 140 F.T.R. 126 (F.C.T.D.)
4 Lau, supra, para 14.
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