Date: 20010201
Docket: IMM-2202-99
Citation: 2001 FCT 2
BETWEEN:
OSCAR ERNESTO PRADA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
Introduction
[1] The applicant seeks judicial review of the March 16, 1999 decision of a visa officer at the Canadian Embassy in Bogota, Columbia, denying his application for permanent residence, because one of his dependant sons did not meet the medical admission requirements.
Facts
[2] The applicant is a citizen of Columbia, who holds a degree in Civil Engineering and has been employed in that capacity since 1985.
[3] In May, 1998, he applied for permanent residence in Canada and included his wife and their two sons as dependants.
[4] The applicant's file was processed without an interview, although medicals were issued and completed. On October 30, 1998 he was informed by letter that his application for permanent residence in Canada had been refused because his son had "mild mental retardation...[and] can be expected to cause excessive demands on health or social services in Canada and that your dependant is thereby inadmissible to Canada. ...".
[5] The applicant was invited to submit any further information about his son's medical condition that might affect the visa officer's final decision. The applicant's son underwent a variety of tests and the applicant submitted those reports on December 16, 1998.
[6] In a letter dated March 16, 1999 the applicant was advised his application was refused, because "...your son is suffering from "Mild Mental Retardation". ...If admitted to Canada he would be eligible for and will likely require special education and vocational training. These requirements will create excessive demand on Canadian social services, rendering him inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act. ..."
Legislative Framework
[7] Subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") provides as follows:
| 19. (1) No person shall be granted admission who is a member of any of the following classes:
(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;
|
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
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;
|
Issues
| [8] In his application for judicial review, the applicant raises two issues, specifically that: 1) the medical officers, without an evidentiary foundation, drew the conclusion his son would require vocational training and that this would cause excessive demands on government services; and |
| 2) the medical officers failed to take into account his son's age and already acquired education and abilities when concluding that his admission would place an excessive demand on educational services. |
Discussion
[9] The first issue arises out of the applicant's submission that the medical officer concluded his son would require vocational training without an evidentiary basis for doing so. Both medical officers concurred on the following rating of the applicant's son; their rating, drawn from the criteria set out in the Immigration Manual, was unaltered by the supplemental medical reports:
| H1 - No risk to public health due to communicable disease, or to public safety. |
| D5 - Requires, or probably will require regular social supervision or will probably require special education, but may become self-supporting. |
T3 - Condition is expected to continue. Treatment is generally effective.
S1 - No surveillance required.
| E3 - Employable and productive under permanently restricted conditions. |
| M5 - Has a condition which is likely to cause demands on health and social services to such an extent that the applicant is at present inadmissible under section 19(1)(a)(ii), but for which the expected response to treatment is such that future admission could be considered. |
[10] Notwithstanding the inconsistency the applicant alleges between theT3 and M5 ratings, in that the T3 rating suggests a chronic condition that will require ongoing support, and M5 suggests the possibility of improvement sufficient to allow future admission, the applicant first submits there is no evidentiary basis for drawing the inference that his son will require vocational training, and that this will place an excessive demand of Canadian social services.
[11] In Deol v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 1072, (F.C.A.), MacGuigan, Linden, and Robertson JJ. caution against stereotyping in this context and notes the Board:
| ... It may not question their medical diagnosis (M.E.I. v. Jiwanpuri, A-333-89, May 17, 1990), but when requested, it should enquire into the reasonableness of their conclusion as to the probable demands on government services (Ahir v. M.E.I. (1983), 49 N.R. 185, Mohammed v. M.E.I. (1986), 68 N.R. 20. |
| In the case at bar it seems clear to us that the Board did not enquire into the reasonableness of the medical officers' conclusion, but rather assumed from the sole fact of agreement as to the existence of mental retardation that the conclusion was reasonable.... |
It should be obvious from Jiwanpuri that the mere invocation of mental retardation leads to no particular conclusion. Mental retardation is a condition covering a wide range of possibilities from total inability to function independently to near normality. The concept cannot be used as a stereotype,.. It is not the fact alone of mental retardation that is relevant, but the degree, and the probable consequences of that degree of retardation for excessive demands on government services. It was that assessment that the Board failed to make in the case at bar.
[12] In Chun v. (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1551, Teitelbaum J. summarizes Sabater v. Canada (Minister of Citizenship & Immigration), [1995] F.C.J. No. 1375, stating:
...the Court held that in cases of mild mental retardation it was reasonable to impose a higher onus of proof on medical officers to demonstrate excessive demands on social services.
[13] Specifically, Teitlebaum J. relies on the following words of McKeown J. in Sabater, supra:
... In my view, however, it would be reasonable for there to be a higher onus of proof on the medical officer to demonstrate excessive demand in a situation of a mild retardation. That is, if it is found that a person suffers from mild retardation, it must clearly be set out why they have been found to cause excessive demands on social services. As it is not clear what the degree of mental retardation is in this case, it is not clear what level of proof is required to find excessive demand on social services.
[14] In the case under review, the child's mental retardation is described consistently as "mild", and I can see no evidence on the record that sets out why the medical officers decided he would create "excessive demands" on social services.
[15] While the term "excessive" is not statutorily defined, its use in this context has been the subject of considerable judicial attention. In Ng v. Canada (1986), 1 Imm. L.R. (2d) 307 at 313, the Court states:
... "Excessive" must indicate something out of the ordinary; a superabundant demand or demand of any extreme degree. If hospitals or health services are overtaxed, anyone having resort to them may cause a further stretching or straining of resources. That is not consistent with saying that their demands will be excessive. The test in the Act to which a medical officer must turn his mind is not whether or not in his opinion an applicant will place a demand on health services or social services or whether those services or any of them are overtaxed or overstretched, but whether in his opinion the applicant's admission to Canada would cause or might reasonably be expected to cause excessive demands on health or social services. ... The medical officer must turn his attention to the applicant before him, and to his or her demands or likely demands given the particular diagnosis the medical officer has arrived at.
[16] The Tribunal Record at pages 36 to 39 includes a medical report from Dr. Sylvain Bertrand to Dr. Jacques Saint-Germain stating: "Additional info received. It confirms the diagnosis of mild mental retardation and the need for special schooling...". I see no reference, however, to vocational school specifically, or to factors the officers considered in concluding the demand created would be "excessive".
[17] Indeed, there is no evidence on the record to show the medical officers had any basis on which to conclude that the child will create excessive demand on Canadian social services pursuant to subparagraph 19(1)(a)(ii) of the Act. In fact, the medical opinion prepared by Dr. Bertrand and Dr. St.-Germain, included in the Tribunal Record at page 33 and dated January 20, 1999, is speculative, stating: "If admitted to Canada he would be eligible for and will likely require special education and vocational training. These requirements will create excessive demand on Canadian social services, rendering him inadmissible under section 19(1)(a)(ii) of the Immigration Act.".
[18] As Gibson J. states in Sooknanan v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 266:
Mental retardation is a condition covering a wide range of possibilities from total inability to function independently to near normality. The concept cannot be used as a stereotype, because it is far from a univocal [sic] [unequivocal] notion. It is not the fact alone of mental retardation that is relevant, but the degree, and probably consequences of that degree of retardation for excessive demands on the government services.
[19] From my perspective then, the question becomes the one posed in Poste v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1805, where Cullen J. asks:
| Did the medical officers enquire as to what kind of social services would actually be required in Matthew's case, and what costs would be associated with those services? There is no evidence before me that the medical officers made any such enquiries as they would relate specifically to Matthew's circumstances. I fail to see how the medical officers could come to the conclusion of "excessive demands on social services,"... There is an absence of evidence to support the conclusion of excessive demand... |
In a diagnosed case of mild mental retardation, the medical officers bear a heavy onus to explain why the dependant child is likely to place excessive demands on services...
[20] I am of the view that here, as in Deol, supra, the visa officer "did not enquire into the reasonableness of the medical officers' conclusion, but rather assumed from the sole fact of ... the existence of mental retardation that the conclusion was reasonable...".
[21] Finally, I refer to the comments of Wetston J. in Cabaldon v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 26, noting:
...the Medical Officers' opinions concerning the issue of whether a person's medical condition will create excessive demands on the provision of health and social services in Canada is open to review: Ahir v. M.E.I. (1983), 49 N.R. 185 (F.C.A.); Hiramen v. M.E.I. (1986), 65 N.R. 67 (F.C.A.). The grounds for review include: incoherence or inconsistency, absence of supporting evidence, or failure to consider the factors stipulated in s. 22 of the Regulations: Goa v. Canada (M.E.I.) (1993), 18 Imm. L.R. (2d) 306 (F.C.T.D.) at 318.
[22] In conclusion, finding the applicant's dependant child would cause excessive demand on Canada's social services was made in the absence of supporting evidence.
[23] For these reasons, and without the need to address the remaining issue before this Court, the application for judicial review is allowed, the visa officer's March 16, 1999 decision is set aside and the matter is remitted back for reconsideration by a different visa officer.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
February 1, 2001
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