Fong v. Canada (Citizenship and Immigration), docket IMM-158-96

     IMM-158-96

B E T W E E N:

     MAN TZE FONG, MAN LEE CHACK WAH,

     MAN YIN FUNG IVAN, MAN YEUK NGA HANNAH

     and MAN YIN CHIU SAMUEL

     Applicants

     - and -

     MINISTER OF CITIZENSHIP & IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of the "first stage" of an application for judicial review of a decision of a visa officer at Hong Kong wherein the visa officer denied immigrant visas to Man Tze Fong (the "principal applicant") and his dependants, being his wife, two sons and a daughter. The decision letter is dated the 19th of December, 1995 and reads in part as follows:

I have now completed the assessment of your immigration application. I regret to inform you that your dependent, Samuel Man Yin Chiu, comes within the inadmissible class of persons described in paragraph 19(1)(a)(ii) of the Immigration Act, 1976, in that he is suffering from a disease, disorder, disability or other health impairment as a result of the nature, severity on probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer his admission would cause or might reasonably be expected to cause excessive demands on health or social services in Canada.

     The decision letter further advises the principal applicant that "humanitarian and compassionate factors" were considered but it was concluded that those factors do not warrant special consideration with respect to the applicants' application.

     This was the second rejection of the applicants' application for immigrant visas. An earlier rejection was referred back for reconsideration, with consent on behalf of the respondent, by order of this Court.

     I have earlier referred to the fact that these reasons relate to the "first stage" of this judicial review. In addition to the relief typically sought on applications for judicial review in immigration matters, the applicants seek declaratory constitutional relief in this matter. By order dated the 26th day of September, 1996, made on application on behalf of the respondent, this Court ordered that the request for usual relief be heard first, and that was the subject giving rise to these reasons, and then, only if the applicants are unsuccessful in obtaining such relief, following filing of additional evidence and legal submissions in accordance with a schedule to be fixed by the Court, the request for declaratory constitutional relief should proceed. Thus, if the applicants do not succeed before me, following submission of further material, a "second stage" hearing will take place to consider the request for declaratory constitutional relief.

     The narrative portion of the Medical Notification giving rise to the decision under review reads as follows:

This 30 year old applicant [Samuel] had mild mental retardation with a full scale I.Q. of 53 and a social maturity of 10 years. Until the age of 13, he received limited special education to the primary school level but he could benefit from continuing specialized social and vocational training. He is employable in a structured, sheltered workshop environment (where he has performed simple repetitive tasks). However, he is highly unlikely to ever acquire the necessary skills and abilities to become economically self-supporting or capable of work in the open Canadian labour market.

While he is generally able to take care of most of his own personal needs, he nevertheless requires special care and continuous supervision. Should he become a permanent resident, he will be eligible for a variety of social, educational and vocational services, which are often in short supply and high demand in Canada.

He therefore, might reasonably be expected to cause excessive demands on social services and is inadmissible under Section 19(1) (a) (ii) of the Immigration Act.

Also has: Epilepsy (currently controlled by medication)

The Medical Notification is dated the 14th of September, 1995 and is signed by a Dr. Axler. Under date of the 27th of September, 1995. Dr. Axler's opinion was concurred in by Dr. A.D. Bernstein.

     The medical profile on which the Medical Notification is based indicates that Samuel is no risk to public safety and no risk to public health due to communicable disease; that Samuel requires or probably will require special home care and/or supervision indefinitely; that no treatment exists or is available for Samuel's medical condition; that no surveillance is required for Samuel; that Samuel is unemployable and unproductive in [an] open Canadian labour market; and, finally, based upon the foregoing factors, Samuel has a condition which would preclude admission for landing in Canada under subparagraph 19(1)(a)(ii) of the Immigration Act.¹

     Dr. Bernstein filed an affidavit in this matter on behalf of the respondent. He was cross-examined on his affidavit. In the course of that cross-examination, he acknowledged that Samuel might, under appropriate circumstances, be capable of working in the open Canadian labour market performing in unskilled and repetitive tasks.

     In the applicants' Memorandum of Fact and Law, counsel for the applicants identifies the following issues on this application for judicial review:

a. The medical officers erred in law in applying the wrong statutory test in forming their opinion that Samuel Man was inadmissible under section 19(1)(a)(ii) upon which the visa officer must rely.

b. The medical officers' opinion is unreasonable and constitutes an error of law.

c. The medical officers' opinion is based on stereotyping as to anticipated use of social services for a person with a disability and as such the medical officers' application for [sic] section 19(1)(a) of the Act contravenes section 15 of the Charter of Rights and Freedoms, 1982.

In accordance with the earlier order of this Court dividing these proceedings into two stages, only the first two issues were argued before me.

     Section 22 of the Immigration Regulations² requires medical officers, in considering applications such as those of the applicants herein, to consider the following factors, amongst others:

....

(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;

....

(g) whether potential employability or productivity is affected;

....

The evidence before the Court establishes that the primary health or social service that Samuel might require if he were admitted to Canada is sheltered workshop employment. Although, as indicated earlier, Dr. Bernstein acknowledged on cross-examination on his affidavit that Samuel, in limited circumstances, might well be capable of working in the open Canadian labour market, Samuel had, for thirteen years preceding the date of the decision now under review, worked on a full time basis in a sheltered workshop in Hong Kong where he was engaged in the assembly of toys which involved repetitive and simple tasks. Based upon this work history, I conclude that it was reasonably open to the medical officers considering this matter to conclude that, if at all possible, Samuel, with the support of his parents, would turn to an equivalent sheltered workshop environment here in Canada if one were available to him, as opposed to work in the open Canadian labour market which, given his lack of ability in the English or French language, would be less available to him here than in the open Hong Kong labour market which he evidently did not turn to.

     The only evidence that I find in the material filed that goes to the question of "excessive demand" does not appear to directly confront the issues raised in paragraph 22(e) of the Regulations. In paragraph 24 of his affidavit filed in this matter, Dr. Bernstein states in part:

Ontario alone spends approximately $846 million dollars annually to provide services to 50,000 persons with mental disabilities resident in this province; these figures reflect the number of persons who actually received such social services and not the greater number of those who have been diagnosed as requiring such social services. While those who are "developmentally disabled" (within the meaning of the Developmental Services Act, 1974) have the right to access the services, they are not thereby entitled to "guaranteed" delivery of those services, since limitations on resources has meant access to social services has been dependent on both the severity of the disability and the availability of the service.

The applicants propose to settle in Ontario if visas are granted to them. Material exhibited to Dr. Bernstein's affidavit goes to the costs associated with sheltered workshop services for persons such as Samuel. However, none of this material addresses the question of whether the social services that Samuel is most likely to rely on if he comes to Canada, that is, sheltered workshop facilities in Ontario, are limited to such an extent that those services might not be available or accessible to him, or if made available to him might reasonably be expected to result in Canadian citizens or other permanent residents in Canada being prevented from, or delayed in, accessing equivalent services. That is the issue that section 22 of the Regulations directs medical officers to consider in determining "excessive demand". Having failed to direct their attention in any meaningful way to this issue, at least on the basis of the evidence before the Court, I conclude that the medical officers, in their Medical Notification, erred in law in concluding that Samuel " ... might reasonably be expected to cause excessive demands on social services and is inadmissible under Section 19(1)(a)(ii) of the Immigration Act."³

     In the result, I conclude that the respondent erred in law in concluding that the applicants cannot be granted admission to Canada by reason that their admission would cause or might reasonably be expected to cause excessive demands on health or social services in Canada. This application for judicial review will be allowed and the decision under review will be referred back to the respondent, once more, for reconsideration and redetermination in a manner not inconsistent with these reasons.

     In light of the conclusion that I have reached and the Order that I am prepared to issue, it will be unnecessary to proceed with the "second stage" of this application. This Court's Order of the 26th of September, 1996 provides that the second stage will only follow if, on the first stage, the applicants are unsuccessful.

     In accordance with an agreement reached at the close of the hearing of this matter, draft reasons substantially in the form of these reasons were distributed through the Registry to counsel and time was allowed for written submissions on the issue of certification of a question. Counsel for the Respondent submitted the following question for certification:

In light of the August 17, 1995 decision of this Honourable Court in Ismaili v. Canada (M.C.I.) (29 Imm. L.R. (2d) 1; specifically at pages 12-14; no appeal sought), which decision determined that section 22 of the Immigration Regulations were ultra vires the Immigration Act insofar as they related to excessive demand on health or social services and further directed that opinions rendered by medical officers respecting excessive demand on health or social services must be made without reference to section 22 of the Regulations, did medical officers Dr. Axler and Dr. Bernstein herein legitimately form their joint opinion on excessive demand on social services in September of 1995, without reference to Regulation 22 (e)?

    

         Counsel for the Applicant, in her written submissions. argued against certification of the foregoing question. She submitted, first, that although Ismaili was cited before the Court, the citation was on a different issue and the vires of paragraph 22(e) of the Regulations was not argued before the Court. Second, counsel submitted that the Ismaili decision is not binding on me. Finally, counsel argued that it is inappropriate for the Respondent to seek to raise invalidity as an issue on this judicial review, the Respondent not having pleaded it in this matter.

     I regret that the decision in Ismaili, as regards the vires of paragraph 22(e) of the Regulations, was not pleaded or raised in argument before me. That being said, it is inappropriate for me, at this stage, to comment on whether it would have affected my decision in this matter. I am in agreement with the position of counsel for the Applicants that, the issue neither having been pleaded or argued, it would be quite inappropriate to certify the question proposed where the effect of the certification would be to purport to grant the Respondent the opportunity to raise a new ground on appeal. That is not to say that the question proposed is not one that would be determinative on an appeal of this matter and of general importance. I am inclined to the view that it is. However, those were properly considerations to be taken into account on the issue whether or not a question should have been certified in Ismaili, or, alternatively, whether or not the question should have been pleaded and argued in this matter.

     Counsel for the Applicant, in her submissions on certification, suggested that it might be "...more appropriate to certify a question as to whether the Medical Officers erred in failing to assess Samuel's individual circumstances to determine what services he would be most likely to use in light of the availability or accessibility of such services, or if made available, in light of the question of whether his use would delay or prevent the provision of such services to Canadian citizens or permanent residents." Counsel then went on in her submissions to make the point that, but for the issue of vires posed in the Ismaili decision, the answer to the question is well settled in the jurisprudence of this Court. She goes on to point out that, nonetheless, the issue reflected in her proposed question "...continues to be a contentious issue."

     I am satisfied that the question proposed by counsel for the Applicants poses an issue that is well settled in jurisprudence of this Court cited earlier in these reasons. In effect, to certify the question proposed would be to achieve indirectly the result sought by counsel for the Respondent in the question that she has proposed and that I have determined I should not certify. In the result, I am no more inclined to certify the question proposed by counsel for the Applicants.

     No question will be certified.

                         __________________________

     Judge

Ottawa, Ontario

February 19 , 1997

__________________

¹      The relevant portion of subsection 19(1) of the Immigration Act reads 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;
             ....

²      SOR/78-172.

³      For similar conclusions based on similar reasoning, See Jiwanpuri v. Canada (Minister of Employment and Immigration) (1990), 10 Imm.L.R. (2d) 241 (F.C.A.); Deol v. Canada (Minister of Employment and Immigration)(1992), 18 Imm.L.R. (2d) 1 (F.C.A.); and Litt v. Canada (Minister of Citizenship and Immigration)(1995), 26 Imm.L.R. (2d) 153 (F.C.T.D.)