Canada (Minister of Citizenship and Immigration) v. Khan, 2001 FCA 345

Date: 20011114

Docket: A-457-00

Neutral citation: 2001 FCA 345

CORAM:        LINDEN J.A.

EVANS J.A.                             

MALONE J.A.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Appellant

and

SHAHID HASAN KHAN

Respondent

Heard at Toronto, Ontario, on October 30, 2001.

Judgment delivered at Ottawa, Ontario, on November 14, 2001.

REASONS FOR JUDGMENT BY:                                                                                       EVANS J.A.

CONCURRED IN BY:                                                                                                         LINDEN J.A.

                                                                                                                                              MALONE J.A.

Date: 20011114

Docket: A-457-00

Neutral citation: 2001 FCA 345

CORAM:        LINDEN J.A.

EVANS J.A.                             

MALONE J.A.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Appellant

and

SHAHID HASAN KHAN

Respondent

REASONS FOR JUDGMENT

EVANS J.A.

A.        INTRODUCTION

[1]                 Shahid Hasan Khan, a citizen of Pakistan residing in the United Arab Emirates, applied for a visa as an independent immigrant to enable himself, his wife and two children to become permanent residents of Canada. The application was refused because one of the children, Abdullah, was found to be medically inadmissible.

[2]                 Medical officers with Immigration and Health Services concluded that, although Abdullah was suffering from only a relatively mild form of Down's Syndrome, he would require a variety of social services and was inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2, because he was likely to place excessive demands on Canadian social services. As a family member accompanying an inadmissible dependant, Mr. Khan was himself inadmissible under subsection 19(2) and his visa application was therefore refused.

[3]                 The Motions Judge allowed the application for judicial review and set aside the decision of the visa officer, on the ground that it was made in breach of the duty of fairness. Specifically, she held that Mr. Khan had been denied a reasonable opportunity to make representations before the visa officer refused to issue a visa to him, because the letter advising him that the officer proposed to refuse the visa neither specifically invited him to submit additional material on the issue of excessive demands, nor explained in sufficient detail the basis of the concern on this issue.

[4]                 The Judge certified questions on the procedural fairness of the decision-making process and the Minister appealed.

B.        FACTUAL BACKGROUND

[5]                 The medical officers based their opinion on four reports on Abdullah that the Khans had obtained. Two had been obtained when he was approximately eighteen months old and are of little relevance to the issues in dispute in this appeal. Both diagnosed Abdullah as having Down's Syndrome; one also noted that he had had a heart problem, which had cleared up of its own accord.

[6]                 In one of the two reports germane to this appeal, Dr. Hamden, a psychologist, stated that he had measured Abdullah's intelligence as being in the 70 range, and assessed him to be mildly mentally retarded as a result of Down's Syndrome, with a moderate to good potential for learning. He predicted that, as an adult, Abdullah was likely to be able to earn a living and to function adequately in most independent living situations.

[7]                 As for Abdullah's more immediate future, Dr. Hamden stated that he would need, and flourish in, a specialized vocational instruction facility and would require speech therapy, but would not need institutional care, nor more than minimal supervision. Dr. Hamden also commented very favourably on the support that Abdullah was receiving from his parents, concluding that this should enable him to function at the highest level of his "special range of intellectual development."

[8]                 In the other report, a paediatrician noted Abdullah's delayed language development, but concluded by saying:

Abdullah is a two and a quarter year old boy with uncomplicated Down's Syndrome. In his developmental assessment he performed extremely well and I would say he is above average compared with most of my Down's Syndrome patients.

[9]                 Finally, I should note that the applicant subsequently obtained another medical opinion for the purpose of this litigation. It was very supportive of the Khans' position and highly critical of the medical officers' conclusions. However, since this report was not before the visa officer when she made her decision, it is irrelevant to the issues raised in this appeal.

[10]            This case turns largely on a letter dated May 3, 1999 that the visa officer sent to Mr. Khan, care of his lawyer in Toronto. It was the standard form letter sent in medical inadmissibility cases, and is generally known as the "fairness letter" because it provides an opportunity for visa applicants to submit additional material in support of their application and to respond to the concerns of the visa officer before a final decision on the visa application is made.

[11]            The medical notification form is another significant document. It had been prepared for the visa officer handling the Khans' application by medical officers with Immigration Health Services. The form summarised the medical and psychological assessments of Abdullah submitted by Mr. Khan. It was not shown to the Khans, although its content was paraphrased in the fairness letter. Counsel for Mr. Khan has taken issue with the adequacy of both the medical notification form's summary of the reports from the psychologist and paediatrician, and the fairness letter's summary of the information in the medical notification form.

[12]            Under the heading, "Developmental Delay", the medical notification form states:

This three year old boy demonstrated delay primarily in language development and had a history of a ventricular septal defect which closed spontaneously. Psychometric studies were reported by a registered psychologist, (from January 1999), and indicated a favourable prognosis with the potential for education and a productive life. However, he identified a "moderate" requirement in a special instructional facility, "minimal" supervision, occupational therapy and, notably, speech therapy. The requirements for special education, speech training, social skills development and a prolonged support structure will likely place excessive demands on Canadian social services.

This document also summarised the medical diagnosis and prognosis, as well as the level of services that Abdullah was likely to need, in numbers and letters in accordance with the "Medical Profile - Summary of Assessment" chart contained in the Medical Officers' Handbook.

[13]            The fairness letter faithfully reproduced the narrative part of the medical notification form quoted above, including the last sentence, but omitted the medical profile. The letter went on to say that a visa could be refused because Abdullah's medical condition was likely to place excessive demands on Canadian social services, but that, before the visa officer made her decision, Mr. Khan could "respond to the description of your dependant's medical condition with new information of your own" within sixty days from the date of the letter.

[14]            Mr. Khan's lawyer responded in a letter sent well within the stipulated time. He told the visa officer that he had no new medical information, but made submissions directed to the issue of excessive demands. The visa officer sent a copy of this letter to the medical officers, but it did not cause them to change their opinion. Accordingly, confirming her proposed decision, the visa officer refused to issue visas to the Khans because Abdullah was medically inadmissible.

C.        THE DECISION OF THE TRIAL DIVISION

[15]            The Motions Judge regarded the facts of the case before her as sufficiently similar to those in Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62 that she quoted at length from the reasons, without adding much analysis of her own. She allowed the application for judicial review and quashed the visa officer's refusal, "in light of both Wong, supra, and the evidence before me."

[16]            The Motions Judge certified two questions.

Question 1:      Should an applicant be given an opportunity to not only provide additional medical evidence but also respond to the conclusion that an applicant will place excessive demands on Canadian social services?

Question 2:        To what extent must the material on which the conclusion with regard to excessive demands has been based be disclosed to the applicant?

C.        ISSUES AND ANALYSIS

[17]            Because the questions certified by the Motions Judge are expressed in rather general terms, for the purpose of the analysis I shall reformulate them in a way that more accurately reflects the issues as they developed in the course of argument.                                               

Issue 1:           Did the terms of the fairness letter deny Mr. Khan a reasonable opportunity to submit material on the conclusion that, if he were admitted, Abdullah's medical condition was likely to place excessive demands on Canadian social services?

[18]            It was common ground between the parties that the duty of fairness requires that visa applicants be given a reasonable opportunity to respond to visa officers' concerns before their application is denied. They disagreed, however, on whether that duty had been discharged in this case. Counsel for the Minister contended that it had, while counsel for Mr. Khan submitted that it had not.

[19]            Relying on the reasons in Wong, supra, counsel for the respondent submitted that Mr. Khan had been denied the right to procedural fairness because he had not been given an adequate opportunity to respond to the visa officer's concerns about excessive demands. It was reasonable, he said, for a person to infer from the statement in the fairness letter that further information could be submitted on the medical diagnosis and prognosis, that no such submissions could be made on the question of excessive demands.

[20]            In my opinion, this argument is untenable for two reasons. First, in his reply to the fairness letter, Mr. Khan's counsel, an experienced immigration lawyer, in fact responded to the statement in the fairness letter that a visa could be refused because Abdullah's admission to Canada was likely to impose excessive demands on social services. Thus, the lawyer noted the

mildness of the form of Down's Syndrome affecting Abdullah, the positive prognosis given by the doctor and the psychologist who had examined him and the limited specialized services that they said that he was likely to need, and the very beneficial support and stimulation that the family had been able to provide. He also enclosed a copy of a decision by the Appeal Division of the Immigration and Refugee Board, which, he suggested, was analogous to this case and favourable to his client.

[21]            The letter sent on Mr. Khan's behalf thus addressed the question of excessive demands. It therefore cannot be said that, because the fairness letter only expressly invited the submission of additional medical information, Mr. Khan was effectively denied an opportunity to respond on the excessive demands concern.

[22]            Second, the duty of fairness does not require that visa applicants be expressly invited to make further submissions on both the medical and the excessive demands issues. The burden of establishing eligibility for a visa is on the applicant. In this context, a failure specifically to invite submissions on an issue is not to be equated with a refusal to accept them. After all, the letter clearly indicates that the visa officer has not yet made a decision on medical inadmissibility. While it would no doubt be advisable for the Minister to amend the standard form of the fairness letter so as to make it quite clear to visa applicants that they may submit material on both issues, the law does not hold the Minister to a standard of procedural perfection.

[23]            There is ample authority for the proposition that the omission from the fairness letter of an express invitation to submit further material on the excessive demands opinion does not deny to visa applicants their right to a reasonable opportunity to respond to concerns on this issue, even though the letter does explicitly invite applicants to provide additional evidence on the medical conclusions: Hussain v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 865 at para. 21 (F.C.T.D.); Yogswaran v. Canada (Minister of Citizenship and Immigration)(1997), 129 F.T.R. 151 at paras. 4-6; Ma v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311 at paras. 15-17; Koudriachov v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 138 at para. 34.

[24]            Nor is Wong, supra, necessarily to the contrary on this point. It is true that Reed J. stated (supra, at para. 25) that the fairness letter, which was essentially the same as that sent in our case, "should have provided for the submission of information concerning the excessive demand aspect of the opinion". However, she may not have meant by this that the omission constituted a breach of the duty of fairness. She certainly does not say so.

[25]            In contrast, Reed J. starts the next paragraph (supra, at para. 26) with the words, "Most significant", and concludes it by finding that a breach of the duty of fairness occurred when officials failed to respond to counsel's request for details about the underlying basis for the conclusion that, because of the medical condition of the child in question, her admission was likely to impose excessive demands on social services. It may be inferred from this that in the previous paragraph Reed J. meant only that, as a matter of good administration, the terms of the letter should have invited submissions on excessive demand, not that they breached the legal duty of fairness.

Issue 2:        In the circumstances of this case, was the respondent denied the right to procedural fairness because the fairness letter did not disclose the bases of the medical officers'opinion of the social services that Abdullah would be likely to require if admitted to Canada, and of their conclusion that he would thereby impose excessive demands on social services?

[26]            Counsel for the Minister submitted that, as a general rule, when a visa applicant is informed of the medical diagnosis and prognosis, and of the services consequently likely to be required, the duty of fairness does not oblige the officer to set out further detail about why the person will require those services, or the basis of the conclusion that the resulting demands would be excessive.

[27]            As authority for this proposition, counsel relied on the recent decision of this Court in Jang v. Canada (Minister of Citizenship and Immigration), 2001 FCA 312, where Malone J.A. held (supra, at para. 15) that the duty of fairness had been satisfied, because the applicant was given the medical notification form which identified the "the future medical costs, the diagnosis, the prognosis, the health and social services required to deal with [his wife's] condition and the negative assessment together with an invitation to respond." Fairness did not require the visa officer to go further than this and "to divulge the complete details of the medical officers' method of evaluation": supra, at para. 14.

[28]            Counsel for the Minister conceded that in exceptional circumstances fairness may require the disclosure of additional detail, such as, for example, when more information is specifically requested (as in Wong, supra, for instance), where the applicant is not clearly informed of both the diagnosis and prognosis of the medical condition, or where new information or internal policies are not disclosed in the fairness letter (see, for example, Maschio v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 210).

[29]            I agree that, where an applicant is clearly advised of the medical diagnosis and prognosis, and of the services likely to be required, he or she effectively knows the grounds for the potential refusal and has the knowledge necessary to pursue the matter further. In these circumstances, the Minister is not normally obliged to disclose in the fairness letter the detail supporting the conclusion that a visa could be refused because admission of the person concerned is likely to cause excessive demands on medical or social services.

[30]            Again, it is important to remember that the duty of fairness prescribes minimum standards of procedural decency, and that the content of the duty varies according to context: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-28. Several factors tend to reduce the content of the duty of fairness owed to visa applicants, some of which were considered in Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 at paras. 35-36 (C.A.), a case where a visa had been refused on a very different ground, namely, suspected membership in a criminal organization.

[31]            The factors tending to limit the content of the duty in the case at bar include: the absence of a legal right to a visa; the imposition on the applicant of the burden of establishing eligibility for a visa; the less serious impact on the individual that the refusal of a visa typically has, compared with the removal of a benefit, such as continuing residence in Canada; and the fact that the issue in dispute in this case (namely, the nature of the services that Abdullah is likely to require in Canada and whether they would constitute an excessive demand) is not one that the applicant is particularly well placed to address.

[32]            Finally, when setting the content of the duty of fairness appropriate for the determination of visa applications, the Court must guard against imposing a level of procedural formality that, given the volume of applications that visa officers are required to process, would unduly encumber efficient administration. The public interest in containing administrative costs and in not hindering expeditious decision-making must be weighed against the benefits of participation in the process by the person directly affected.

[33]            The principal argument on the issue of disclosure advanced by counsel for Mr. Khan was that the facts of this case make it exceptional. He submitted that the fairness letter did not contain a sufficiently accurate or complete summary of the medical reports, or even of the medical notification form, to enable Mr. Khan to understand why the officers had concluded that Abdullah's condition was likely to require the kinds of social services that would cause excessive demands. Without adequate information, he submitted, Mr. Khan could not make a meaningful response to the medical officers' concerns.

[34]            I am unable to accept this argument. First, an immigration lawyer as experienced as Mr. Khan's would surely have known that he could have asked for more information about the basis on which the officers had identified the services likely to be required by Abdullah and had concluded that his requirements would constitute an excessive demand. The same is also true of counsel's complaint that Mr. Khan was not given the alphabetic and numeric medical profile contained in the medical notification form. Mr. Khan's lawyer must have been very familiar with this manner of summarising an assessment and presumably would have asked for it if he had thought it helpful.

[35]            Second, I do not agree that the information given to Mr. Khan was so inaccurate or incomplete as to trigger a duty on the visa officer to provide, without request, the detail underlying the conclusions. The omission from the fairness letter of the non-narrative summary contained in the medical notification was not fatal, since it added little of a substantive nature to the narrative. Further, the fairness letter faithfully reproduced the narrative section of the medical notification, which, in turn, fairly summarised the medical and psychological assessments of Abdullah. Finally, the possible hiatus between the reports and the conclusion, found in both the medical notification form and the fairness letter, that Abdullah would need "a long term support structure" is not sufficient to require the provision of additional information in order to satisfy the duty of fairness.

[36]            In short, the omission of further detail from the fairness letter did not prevent Mr. Khan from understanding the reason for the rejection of his visa application or from making further inquiries. Consequently, he was not denied the reasonable opportunity to respond to the visa officer's concerns about the admissibility of Abdullah to which the duty of fairness entitled him.

[37]            For these reasons, I would allow the appeal, set aside the decision of the Motions Judge quashing the visa officer's refusal to issue a visa to the respondent, and answer the certified questions as follows:

Question 1:     Should an applicant be given an opportunity to not only provide additional medical evidence but also respond to the conclusion that an applicant will place excessive demands on Canadian social services?

Answer:            Yes.

Question 2:       To what extent must the material on which the conclusion with regard to excessive demands has been based be disclosed to the applicant?

Answer:            If a visa applicant is informed of the medical diagnosis, prognosis, and the services likely to be required, and is advised that, in view of the medical

condition, admission would impose excessive demands on medical or social services, fairness does not normally require further disclosure, at least where additional information is not requested.

                 "John M. Evans"                  

                                                                                                              J.A.                          

"I agree

A.M. Linden J.A."

"I agree

B. Malone J.A."