Date: 20030514
Docket: IMM-4251-01
Citation: 2003 FCT 595
BETWEEN:
CHING HO POON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] By this application for judicial review the applicant seeks an order in the nature of mandamus and declaratory relief, as well as solicitor and client costs, in relation to the failure of the respondent Minister's officers to determine his application for permanent residence, as a member of the investor group. That failure followed the referral back for reconsideration of the application for a visa, by order of the Court dated December 1, 2000, which set aside the visa officer's original refusal of the application.
[2] That refusal was based on the determination that the applicant's dependant son, Tat Chi, 17 years of age when the application was considered, was inadmissible to Canada pursuant to then s-s. 19(1) which precluded admission inter alia of:
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19.(1)(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,
. . .
(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;
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19.(1)a) celles qui souffrent d'une maladie ou d'une invalidité dont la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, dont l'avis est confirmé par au moins un autre médecin agréé, conclut:
. . .
(ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé;
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Background
[3] The applicant applied for a visa to come to Canada on March 21, 1997. His son, Tat Chi was assessed by a psychologist as having borderline mild/moderate grade learning disability. Based on that assessment, a Medical Notification dated March 1999 by the respondent's medical officers concluded that the son would need special vocational training, a sheltered workshop and other social services for the mentally retarded, "expensive modalities" which would be expected to cause excessive demands on social services. The Notification was sent to the applicant with an opportunity to comment or to provide further information.
[4] The applicant's application was processed subject to further medical information about his son to be provided by the applicant. That was provided on June 29, 1998, but no decision was made until April 7, 1999. Then the application was refused by a visa officer in Hong Kong on the basis of the medical examiners' conclusion, in light of the information provided in June 1998, that the son, Tat Chi, would be expected to cause excessive demand on social services. That decision was set aside and the matter was remitted for reconsideration by a different visa officer by the decision of Mr. Justice Pelletier on December 1, 2000 (see Ching Ho Poon v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 1993, 10 Imm.L.R. (3d) 75 (F.C.T.D.).
[5] In March 2001, the visa officer concerned referred the case to a medical officer. The latter's assessment, concurred in by a medical officer in Ottawa, resulted in a Medical Notification, dated November 15, 2001, which was then sent to the applicant with an opportunity to comment within 60 days. Counsel for the applicant responded by letters dated January 10 and January 15, 2002, objecting to the assessment in the Medical Notification, requesting explanation of the meaning of terms and statements used in the Notification, and referring to jurisprudence concerning the application of s-s. 19(1)(a)(ii) of the Immigration Act. The assessment referred to Canadian social philosophy with a commitment to equality, to various services from which Tat Chi would benefit or which he could access if he were admitted as a permanent resident; services which are limited in supply and quite expensive. It concluded that these requirements, to enable the son's full integration into the Canadian community would place an excessive demand on Canadian social services in the form of cost and displacement of Canadians from available services.
[6] The January 2002 letters from the applicant's counsel were not answered, and no decision on the applicant's application had been made, when this application for mandamus, filed on September 6, 2001, came on for hearing in Toronto on December 6, 2002. After hearing counsel, I adjourned proceedings in anticipation that a decision would be given by January 31, 2003, a date more than a year after the applicant's submissions were made in relation to the Medical Notification on which comment had been invited.
[7] No decision having been made by the visa officer by mid-February 2003, on the request of the applicant, this proceeding resumed and counsel were heard further, with particular reference to supplementary affidavits relating to developments by correspondence and considerations perceived relevant to the current situation concerning the applicant's application.
[8] By his affidavit, sworn March 17, 2003, Dr. Brian Dobie, a medical officer at the Canadian Embassy in Beijing, with responsibility for advising visa officers at Hong Kong, sets out circumstances relating to Tat Chi, the dependant son, in consideration of the applicant's application. I note that the response of January 15, 2002 by counsel on behalf of the applicant to the Medical Notification dated November 15, 2001, was provided to Dr. Dobie only in January 2003, a year after the letter was received. Dr. Dobie comments that the response of counsel:
. . . consisted of legal arguments and that no new medical information was proffered concerning Tat Chi's condition. The letter did not persuade me that the immigration medical assessment was incorrect.
[9] With respect, that comment appears to ignore the fact that the Medical Notification of November 15, 2001 is essentially in the same terms as the earlier assessment of March 1999 that was the basis for the visa officer's decision of April 7, 1999, the decision which was later set aside by Mr. Justice Pelletier's order of December 1, 2000, because it was made without evidence of the demand for social services required by Tat Chi for which it was concluded demand would be excessive. I note that, in addition, the Notification of November 15, 2001, also appears inadequate in that it identifies some social services from which Tat Chi "would benefit, or services which he would be able to access" as a permanent resident. As I read it, the Notification speaks of possibilities not probabilities, and it does not assess Tat Chi's unique needs (see: Lau v. Canada (Minister of Citizenship and Immigration) [1998] 146 F.T.R. 116 per Pinard J.; Poste v. Canada (Minister of Citizenship and Immigration), (1997) 140 F.T.R. 126, 42 Imm. L.R. (2d) 84, per Cullen J.; Redding v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1309, [2002] 1 F.C. 496, per Lemieux J.).
[10] Moreover, the references to social services are general, without reference to the area of intended residence of the applicant, in the Toronto area (see Lau and Poste, supra) and the conclusion of excessive demand is unrelated to the probable availability of social services at public expense (see Rabang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1934 (T.D.) Per Sharlow J.). There is no question of the applicant's ability, willingness and undertaking, with his family, to ensure that Tat Chi would not be a burden on public services. The last may not be a factor of significance if there would be entitlement to publicly supplied services, but there is no evidence of any social services that would be required by Tat Chi to which he would be entitled at public expense, without reimbursement of costs by his family. Private resources to acquire necessary social services, or to reimburse those provided at public expense, would appear to be a relevant factor in this case.
[11] I appreciate the difficulty which medical officers may face in assessing the admissibility of prospective immigrants under s-s. 19(1)(a)(ii), perhaps particularly with reference to any demand they may have, if admitted, upon social services. Nevertheless, that assessment must be made in accord with the law, under the Immigration and Refugee Protection Act and Regulations and in accord with the evolving jurisprudence interpreting and applying the Act and Regulations. Counsel for the respondent Minister must ensure so far as that is possible that the legal boundaries established by the courts in relation to the responsibilities of medical and visa officers under the Act and Regulations are met.
[12] I turn to the relief sought. There can be no doubt of the public duty of the respondent and his officers to deal with applications for permanent resident status within a reasonable time, including the application here made by the applicant. Six years after the application was first made, and nearly two and a half years after the first, defective, decision was set aside, no proper decision has been made. No acceptable explanation has been given for the latter delay. Administrative changes within the Minister's department, the changing of officers from time to time, and the introduction of new legislation and regulations, are insufficient explanation for the delay in performance of the duty that has been continuing since the application was first made. In my opinion, the applicant is entitled to an order of mandamus, requiring that a decision be made.
[13] Realistically such an order in this case, should be made with consideration for the apparent necessity, by evidence of Dr. Dobie, for a new medical examination of Tat Chi, for a current assessment of his situation, including assessment of any social services he may need, and to which he would be entitled at public expense, if he is admitted to Canada. That assessment, it is said by Dr. Dobie, could be made on an expedited basis within a month of receipt of any medical, including psychiatric or psychological, report deemed necessary by the respondent for Tat Chi.
[14] It is said that the latest medical report of Tat Chi was dated 1997, and psychological reports of that year and 1998 were on file. At that time he was still a minor. Now he is an adult, 22 years of age, with some skills said to have been acquired in the interim. If a further medical examination is deemed necessary, since no proper action was taken over 5 or 6 years on the basis of earlier medical reports, in my opinion the cost of such examination and report should be borne by the respondent.
[15] While it is the assessment of Tat Chi that remains outstanding before a final determination of the applicant's application for a visa can be made, so much time has elapsed because of the delay it is said that the medical examinations of the applicant and each of his family members other than Tat Chi are now required to be renewed. So far as this is necessary, because of the delay I order that the respondent bear the costs of any disbursements for new medical assessments, including any for Tat Chi.
[16] The applicant also seeks relief in the nature of declarations, first, that since December 2001 the medical authorities have shown no willingness to render a valid medical opinion under the statute, and second, that the Court has not been provided with evidence that there are any publicly funded social services in the place of his intended destination which Tat Chi, if admitted to Canada, would likely require, and thus there is no evidence of excessive demand for social services. While the proposed declarations may aptly describe some of the circumstances in this case, I decline to order the declaratory relief requested. In my opinion declaratory relief, a matter of discretion, is best left for statements directly related to the rights of a party.
[17] Here the right of the applicant is to a timely decision made under the law and in accord with the legal principles established by jurisprudence. That right is secured by the order of mandamus, now issued, leaving the respondent, and medical and visa officers acting on his behalf, to act in accord with the law. I trust counsel for the Minister to provide necessary advice about the law, including jurisprudence, relating to the manner in which the assessment of the applicant's application is to be made, including the medical circumstances and resulting health and social services required by Tat Chi if he were admitted to Canada.
Costs
[18] As earlier indicated the costs of any further medical or psychological examination of Tat Chi, and of medical examinations deemed necessary for the applicant and other members of his family, as these are incurred by the applicant shall be recoverable as disbursements, necessitated by the respondent's delay.
[19] The applicant further seeks solicitor and client costs. I am not persuaded that those should be awarded for all of counsel's fees since the decision of Mr. Justice Pelletier in December 2000. However, the case is unusual and I find that the applicant shall recover costs on a party and party basis generally, and costs on a solicitor and client basis for solicitor's fees for attendance at two half day hearings, when the application for mandamus was considered by this Court. In my opinion, the two hearings were necessary only because of the continuing delay of the respondent's officers in dealing with the applicant's application. Had proper decisions been made within a reasonable time, no hearings would have been necessary. Without any satisfactory explanation, delay continued to December 2002, and thereafter, until the day of the resumed hearing, and it continues to this day.
Conclusion
[20] An order goes in the nature of mandamus directing the respondent to assess and determine the applicant's application for permanent residence, including the assessment of his dependant son, Tat Chi, now an adult, in accordance with the law. That decision is to be rendered on or before July 15, 2003, a date some 60 days hence, a reasonable time in light of the time deemed necessary by Dr. Dobie.
[21] Costs are awarded to the applicant as set out in the previous paragraph.
[22] No question was proposed for certification and none is certified for consideration by the Court of Appeal.
"W. Andrew MacKay"
J.F.C.C.
Ottawa, Ontario
May 14, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4251-01
STYLE OF CAUSE: CHING HO POON
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, March 20, 2003
REASONS FOR ORDER OF MacKAY J.
DATED: Wednesday, May 14, 2003
APPEARANCES:
Cecil L. Rotenberg, Q.C.
FOR APPLICANT
Marianne Zoric
FOR RESPONDENT
SOLICITORS OF RECORD:
Cecil L. Rotenberg, Q.C.
255 Duncan Mill Road
Suite 808
Toronto, Ontario
M3B 3H9
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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