Poon v. Canada (Minister of Citizenship and Immigration), docket IMM-2007-99

Date: 20001201

Docket: IMM-2007-99

Ottawa, Ontario, this 1^st day of December 2000

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

     CHING HO POON

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]      This is an application for judicial review of a decision of a visa officer refusing to grant a visa to the applicant and his family on the ground that the admission of the applicant's son Tat Chi, who is moderately retarded, "would cause or might reasonably be expected to cause excessive demands on health or social services"¹.

[2]      The applicant Poon Ching Ho is a man of substance. He has sufficient means that, but for the difficulties with the admission of his son, he is qualified to be landed in Canada as an investor. The evidence shows that he and his wife are devoted to Tat Chi and that they have never left him in the care of others in his seventeen years.² Their evidence is that they will essentially underwrite the cost of all services required by their son, including private schools. The respondent is not unsympathetic but points out that such an undertaking is unenforceable.

[3]      The applicant applied for a visa on March 21, 1997. Over time, he provided the visa officer with medical and psychological information of various sorts including a psychological assessment of Tat Chi, dated April 30, 1997 by Wong Chee Wing, a psychologist affiliated with the Centre for Psychological Resources Development in Hong Kong. That assessment concluded as follows:

CONCLUSION:

Tat Chi is a 17 year old boy with Borderline Mild / Moderate grade learning disability. Tat Chi has successfully completed his Grade 9 education in a special school and is now actively seeking vocational training opportunities. He still does not have any work experience.

Tat Chi can communicate adequately in simple daily matters. He has also developed good living skills in self-care and personal hygiene. He is totally independent in most aspects of activities of daily living such as feeding, dressing, cleaning and toileting.

Psychometric assessment using the WAIS-R (Cantonese version) showed that Tat Chi was functioning at the Borderline Mild / Moderate Grade Learning Disabilities category with an estimated Full Scale IQ ranging between 45 and 55. On the Vineland Adaptive Behaviour Scale, Tat Chi obtained an estimated Social Age of 7.4 years. The results suggest that he is functioning adequately in simple self-help skills. He has no discernible behavioural problems that would raise any concern. At this stage, he may still require supervision before he could become more independent and self-supporting. In the long-term, Tat Chi would require sheltered employment and continuous training and supervision in self-surviving skills such as travelling on his own by public transport, purchasing his daily necessities, and house-minding.

His family is willing and supportive, and would undertake to look after Tat Chi after their immigration to Canada.

[4]      As a result of reviewing the psychological report and other medical information submitted by the applicant, Dr. Gordon Hutchings, a medical officer employed by the respondent, prepared a Medical Notification dated July 15, 1997 in which he expressed the following views:

     DIAGNOSIS/DIAGNOSTIQUE

     317 MENTAL RETARDATION - MILD

NARRATIVE/COMMENTAIRE

This dependent 17 year old applicant has borderline mild/moderate grade mental retardation and a social age of about 7 years. He has completed schooling at a facility for the intellectually impaired but his abilities are quite limited. He can do some counting but is unable to do simple addition or subtraction. He can make some simple Chinese characters under supervision. Although independent in basic activities of daily living he would need a high degree of care and supervision.

He would need special vocational training and a sheltered workshop. Other social services for the mentally retarded such as respite care and supportive living would be available should he become a landed resident. These are very expensive modalities and as such he would be expected to cause excessive demands on social services and is therefore inadmissible under Section 19(1)(a)(ii) of the Immigration Act.

     Also has:-

     1) Epilepsy

     2) Asthma

    

[5]      Dr. Ted Axler, another physican employed by the respondent concurred with this opinion.³ This Medical Notification was forwarded to the applicant under cover of a letter dated August 14, 1997. This letter and attachment are referred to by the respondent as their "fairness procedure" as it is intended to let applicants know that an adverse determination will be made and allow them to make representations before it is. The letter recited that two physicians had concluded that his son's condition would or might reasonably be expected to place excessive demands upon the social or health systems. The applicant was referred to the Medical Notification for particulars. He was advised that he had sixty days within which "to provide any further information which you deem relevant." In the absence of circumstances warranting special consideration, the applicant was advised that his application would be refused in 60 days.

[6]      The applicant retained counsel and requested an extension within which to provide further information. That request was granted. Through his counsel, the applicant asked that his application be processed, subject to being refused on the basis of Tat Chi's condition, before he provided additional medical information. The respondent agreed to this as well and the processing of the visa application proceeded to the interview of the applicant and his wife on January 12, 1998. They say they were asked no questions as to the care required by Tat Chi. The applicant was advised that he met the usual criteria for admission, leaving only the issue of Tat Chi's demands upon the health and social service systems. On February 19, 1998, counsel requested another extension to allow filing of further medical information, a request which was also granted.

[7]      In June 1998, Tat Chi was allowed into Canada for the purposes of being assessed by Ford and Associates, psychologists, who produced an undated 13 page single spaced report containing 25 discrete recommendations as to Tat Chi's various needs. This was forwarded to the visa officer by counsel on June 29, 1998 together with a letter taking issue with the Medical Notification with regard to its failure to take into account the ameliorative effects, so far as cost is concerned, of the parental support available to Tat Chi; months passed and as no decision was forthcoming, inquiries were made by counsel as a result of which Dr. Giovinazzo, the Director, Immigration Health Service began to make his own inquiries of the Hong Kong office. Drs. Hutchings and Axler had since left and the inquiries were responded to by Dr. Kennedy.

[8]      Ultimately, in March 1999, Dr. Giovinazzo and Dr. Kennedy reviewed the medical information and they both agreed that the determination of excessive demand should remain unchanged. In particular, Dr. Giovinazzo noted that in Ontario, Tat Chi would be entitled to special education until he was 21 years old. The applicant was notified of the refusal of his application on April 7, 1999. This application followed.

[9]      The applicant raised two substantive issues as well as a procedural issue. The procedural issue arose from the fact that no affidavit was filed by the respondent so that the applicant's counsel was deprived of the opportunity to cross-examine the visa officer as to the factors behind the determination of excessive demands on the social or health systems. The same issue was raised in a case heard following this one and is dealt with in that case, Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1450. In it, I decided that the respondent cannot be compelled to provide an affidavit but that the CAIPS notes are not evidence against the applicant unless the truth of the contents is established by affidavit.

[10]      The substantive issues are that the applicant ought to have been given a chance to respond to the finding by Dr. Giovinazzo that Tat Chi would be entitled to special education until he was 21 years old, a new finding which arose late in the process. In addition, the applicant argues that it is an error of law to fail to take into account the family support which would be available to Tat Chi when considering demands he is likely to make on the health and social welfare systems.

[11]      With respect to the first item, the applicant's argument appears to be that if Dr. Giovinazzo was going to base his assessment of excessive demand upon the question of special education, the applicant ought to have been given the chance to comment on it, as this was a different ground than the grounds relied upon in the earlier assessment. The difficulty with that position is that the question of special education was raised by Dr. Ford's report, which was provided to the respondent by the applicant's counsel. In the circumstances, it is not obvious that the applicant was disadvantaged by not being given a further advantage to comment.

[12]      The obligation to confront an applicant with adverse conclusions applies when the conclusions arise from material not known to the applicant. Where the issue arises out of material provided by the applicant, there is no obligation to provide an opportunity for explanation since the provider of the material is taken to know of the contents of the material. Wang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1274, (1999), 173 F.T.R. 266.

[13]      The second issue is the fact that the respondent appears not to have taken family circumstances into account in disposing of the claim. In other words, the demand upon the social and health services made by this family, and in particular by Tat Chi, would be reduced by the fact that this family has the means and the will to absorb many of the costs which would otherwise be borne by the public purse. The applicant argues that this ought to have been taken into account by the respondent's medical officers.

[14]      The intent behind the legislation is obvious. As Rothstein J. said in Thangarajan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 167 (F.C.A.), (1999), 176 D.L.R. (4th) 125. "Health and social services are not unlimited and not costless". There is no particular policy reason for increasing the pressure on scarce resources by admitting to Canada those who will consume an excessive amount of those resources. But some degree of demand for these services can be expected from every immigrant, so the question is not whether some demand will be expected but whether the demand which might be expected is excessive.

[15]      The Immigration Regulations, 1978 provide some guidance as to what is meant by excessive demand:

22. For the purpose of determining whether any person is or is likely to be a danger to public health or to public safety or whether the admission of any person would cause or might reasonably be expected to cause excessive demands on health or social services, the following factors shall be considered by a medical officer in relation to the nature, severity or probable duration of any disease, disorder, disability or other health impairment from which the person is suffering, namely, (a) any reports made by a medical practitioner with respect to the person; (b) the degree to which the disease, disorder, disability or other impairment may be communicated to other persons; (c) whether medical surveillance is required for reasons of public health; (d) whether sudden incapacity or unpredictable or unusual behaviour may create a danger to public safety; (e) whether the supply of health or social services that the person may require in Canada is limited to such an extent that (i) the use of such services by the person might reasonably be expected to prevent or delay provision of those services to Canadian citizens or permanent residents, or (ii) the use of such services may not be available or accessible to the person; (f) whether medical care or hospitalization is required; (g) whether potential employability or productivity is affected; and (h) whether prompt and effective medical treatment can be provided. SOR/78-316, s. 2.

22. Afin de pouvoir déterminer si une personne constitue ou est susceptible de constituer un danger pour la santé ou la sécurité publiques ou si l'admission d'une personne entraînerait ou pourrait entraîner un fardeau excessif pour les services sociaux ou de santé, un médecin doit tenir compte des facteurs suivants, en fonction de la nature, de la gravité ou de la durée probable de la maladie, du trouble, de l'invalidité ou de toute autre incapacité pour raison de santé dont souffre la personne en question, à savoir : a) tout rapport ayant trait à la personne en question rédigé par un médecin; b) la mesure dans laquelle la maladie, le trouble, l'invalidité ou toute autre incapacité pour raison de santé est contagieux; c) si la surveillance médicale est exigée pour des raisons de santé publique; d) si l'incapacité soudaine ou imprévisible ou un comportement inhabituel peut constituer un danger pour la sécurité publique; e) si la prestation de services sociaux ou de santé dont cette personne peut avoir besoin au Canada est limitée au point (i) qu'il y a tout lieu de croire que l'utilisation de ces services par cette personne pourrait empêcher ou retarder la prestation des services en question aux citoyens canadiens ou aux résidents permanents, ou (ii) qu'il est possible qu'on ne puisse offrir ces services ou que ceux-ci ne soient pas accessibles à la personne visée; f) si des soins médicaux ou l'hospitalisation s'impose; g) si l'employabilité ou la productivité éventuelle de l'intéressé est compromise; et h) si un traitement médical prompt et efficace peut être fourni. DORS/78-316, art. 2.

[16]      In Ma v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 27, (1998), 140 F.T.R. 311, Wetston J. considered the extent to which the Court is to look behind the medical opinions as to excessive demand:

[para6] The expert opinions of the Medical Officers, with respect to the diagnosis and prognosis, are not open to review by this Court. However, 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: Gao v. Canada (M.E.I.) (1993), 18 Imm. L.R. (2d) 306 (F.C.T.D.) at 318.

[para7] Under s. 22(a)(i) of the Regulations, the Medical Officers must consider whether "the supply of health or social services that the person may require in Canada is limited to such an extent that the use of such services by the person might reasonably be expected to prevent or delay provision of those services to Canadian citizens or permanent residents": Fong v. Canada (M.C.I.) (1997), 126 F.T.R. 235. The Medical Officers will err if they fail to consider whether the demand created by any particular medical condition is excessive without relying upon some evidence concerning the supply of that particular health or social service in Canada.

[para8] However, the Court will not enter into a detailed review of whether extensive data was relied upon by the Medical Officers in making their determination: Yogeswaran v. M.E.I. (F.C.T.D., IMM-1505-96, 17 April 1997). It is sufficient that the Medical Officers had some evidence before them in which to form their opinion.

[17]      In Choi v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1068, (1995), 98 F.T.R. 308, Teitelbaum J. canvassed the authorities on the question of excessive demand and, in the course of doing so, addressed the issue of the ability to pay for services:

[para30] It is of no importance that the applicant can be considered a wealthy person and, if his daughter will require special care, he can well afford the cost of same. I agree with the submission of the respondent that as a term or condition of admission, the respondent cannot impose a term or condition that the applicant and his family would agree to waive all rights to social services in Canada for his dependent daughter Pui Shi Choi (see sec. 23.1 of the Immigration Regulations).

[18]      To summarize:

1)      excessive demand includes, but is not limited to, the case where the health or social services by the candidate might reasonably be expected to prevent or delay provision of those services to Canadian citizens or permanent residents.

2)      it is an error for the medical experts to conclude as to excessive demand without considering the supply of the service in question in Canada; Ma v. Canada, supra.

3)      the Court is unable to look behind the medical diagnosis; Ma v. Canada, supra.

4)      the ability of a person to pay for medical and social services for a family member is irrelevant as is it is unenforceable against that person or the family member; Choi v. Canada, supra.

[19]      In this case, the applicant's argument that the family's ability to pay has not been considered, cannot succeed because that factor has been found to be irrelevant in Choi, supra. Apart from the effect of authority, I would have come to the same conclusion. Access to health and social services in Canada is a matter of right for citizens and permanent residents. Once Tat Chi became a permanent resident, he would be entitled to claim access to such publicly-funded services as he required and any agreement to the contrary would be unenforceable against him.

[20]      Campbell J. considered whether a medical opinion can be invalidated by a failure to consider the question of supply of services in Shan v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1103 (QL) at paras. 3-5:

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.

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.

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.

[21]      When one considers the medical reports in this course, they appear to conclude that demand will be excessive purely on the basis of the cost of the services required. This is not one of the factors which the medical consultants are required to consider pursuant to section 22 of the Immigration Regulations, 1978. Cost alone cannot be the determining factor. If it were, one would expect the statute and the regulations to refer to excessive cost instead of excessive demand. On the other hand, cost is not irrelevant. High cost services are often high demand services. One has only to think of the public debate about private MRI clinics to appreciate that some high cost services are also high demand services. As pointed out in Ma v. Canada, supra, some consideration must be given to the question of the supply of services in order to conclude that demand would be excessive. I am unable to find any consideration of supply in the record. The Medical Notification attached to the visa officer's decision simply states:

[Tat Chi] would need special vocational training and a sheltered workshop. Other social services for the mentally retarded such as respite care and supportive living would be available should he become a landed resident. These are very expensive modalities and as such he would be expected to cause excessive demands on social services and is therefore inadmissible under Section 19(1)(a)(ii) of the Immigration Act.

[22]      As such, I conclude that the medical reports were insufficient in this regard.

[23]      Does this shortcoming amount to grounds for rejecting the visa officer's decision? In Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274, (1997), 131 F.T.R. 81, Justice Heald conducted a rather extensive review of the law on the jurisdiction of visa officers to review medical opinions. At para. 41, he concludes:

In my view, when a valid medical opinion is formed under subparagraph 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 subparagraph 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. It should also be noted that there is at present no impediment to an affected individual seeking judicial review of the medical opinion itself. [Emphasis added].

[24]      In the present case, the medical opinion that the social services required are "very expensive modalities" is similarly made upon a deficient evidentiary base and fails to consider the question of supply. On the strength of Ma, Fei and Shan, I find that the visa officer based her decision on invalid medical opinion and thereby made an error of law that warrants intervention by this Court.

[25]      Consequently, the decision of the visa officer is set aside and the matter is remitted to another visa officer to be redetermined on the basis of a valid medical opinion.

ORDER

The decision of Vice-Consul, Mary Coulter, dated April 7, 1999 is hereby set aside and the mater is remitted to another visa officer for reconsideration.

"J.D. Denis Pelletier"

Judge

__________________

¹      s. 19(1)(a )(ii) of the Immigration Act, R.S.C. 1985 c. I-2. The french version reads "... leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé;"

²      He is now 19 years old; the affidavit was sworn two years ago.

³      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 ...                  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_:          italics added.